Even if there is an illegal defect in the attachment disposition against a nominal person, it shall not be deemed to be apparent in appearance.

Even if a title truster is a real estate title truster, in light of the fact that the real estate was transferred for a long time under the name of the Plaintiff, and that the transfer income tax return under the name of the Plaintiff was received, it can be revealed after investigating the facts, and thus, even if there is an illegal defect in the seizure disposition taken against a person who is not the actual taxpayer,

2012Guhap2786 Nullification of attachment disposition

ThisAAA

Head of Changwon Tax Office

May 28, 2013

June 25, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On March 8, 2012, the Defendant confirmed that the attachment disposition (receiving number No. 15204) against the real estate listed in attached Table 2, which the Plaintiff rendered on March 8, 2012, is invalid.

1. Details of the disposition;

The following facts may be found in full view of the respective descriptions and arguments of Gap evidence 1-2, Eul evidence 2-1 to 4, Gap evidence 4-1 to 31, Eul evidence 6-1, and Eul evidence 1, and Eul evidence 1.

A. With respect to the real estate listed in the separate sheet No. 1, the ownership transfer registration was made in the name of the plaintiff on January 13, 2004, and on September 7, 2011, with respect to the real estate listed in the separate sheet No. 1 through No. 18 (hereinafter referred to as the "real estate No. 1 in this case") in the name of the plaintiff, BB Construction Co., Ltd. (the name was changed to BB Construction Co., Ltd.; hereinafter referred to as "B Construction") in the name of the plaintiff, and with respect to the real estate listed in the separate sheet No. 19 through No. 31 among the real estate listed in the separate sheet No. 1 (hereinafter referred to as "the second real estate in this case", and hereinafter referred to as "each real estate in this case").

B. On August 24, 201, the Plaintiff submitted to the Defendant on November 25, 201 a tax base return under the Plaintiff’s name, stating that the Plaintiff sold the instant real estate in KRW 000, and that on the same day, the instant real estate was sold in KRW 000,000, and that the relevant transfer income amount was KRW 00 for the instant real estate in the name of KRW 1, and KRW 000 for the instant real estate in the name of KRW 2.

C. On January 13, 2012, the Defendant issued a notice of tax payment of capital gains tax of KRW 000 in total in accordance with the above tax base to the Plaintiff, but did not pay it. On March 8, 2012, the Defendant issued a seizure disposition on real estate listed in the separate sheet No. 2, which was owned by the Plaintiff (hereinafter “instant seizure disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) When the Plaintiff’s fraudulent KimD sold each of the instant real estate to BB construction and thisCC, it arbitrarily prepared a real estate sales contract and a transfer income tax return using the Plaintiff’s name, and submitted it to the Defendant, and the Plaintiff did not sell each of the instant real estate to BB construction and thisCC. Therefore, insofar as the delinquency in capital gains tax, which forms the basis for the instant attachment disposition, is based on the invalid sales contract, and as long as the delinquency in capital gains tax, which is the preceding

2) Even if the above sales contract is valid, the attachment disposition of this case is null and void for the following reasons.

A) Since KimD, the Plaintiff’s fraudulent act, purchased each of the instant real estate, concluded a title trust agreement with the Plaintiff, and completed the registration of ownership transfer in the name of the Plaintiff on each of the instant real estate, the actual owner of each of the instant real estate is KimD

B) After selling each of the instant real estate to BB Construction and thisCC, KimD arbitrarily prepared a real estate sales contract and a transfer income tax report under the name of the Plaintiff and submitted it to the Defendant.

C) Therefore, according to the substance over form principle, KimD, who is not the Plaintiff, should be liable to pay capital gains tax on each real estate of this case. On the contrary, the attachment disposition of this case on the premise that the Plaintiff is liable to pay capital gains tax on each real estate of this case is significant and apparent.

B. Judgment on the Plaintiff’s first argument

1) With respect to whether the sales contract for the Plaintiff’s sale of each of the instant real estate to BB Construction and thisCC (hereinafter “instant sales contract”) is null and void, as seen in the health, and the rear and rear, it is not sufficient to recognize that the Plaintiff has sold each of the instant real estate to BB Construction and thisCC, or that the said real estate sales contract and the transfer income tax return were voluntarily prepared by a third party without the intention of the Plaintiff, and there is no other evidence to acknowledge otherwise. Accordingly, the remainder of the Plaintiff’s assertion on the premise that the instant sales contract is null and void is without merit.

2) Even if the instant sales contract is null and void, it is difficult to deem the instant attachment disposition null and void for the following reasons.

A) In order to ensure that a taxation disposition is null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient to say that the defect is in violation of important laws and regulations, objectively apparent, and the defect is significant and apparent, it is necessary to examine from a teleological perspective the purpose, amount, function, etc. of the relevant taxation disposition, which serves as the basis for the relevant taxation disposition, as well as from the specificity of the previous physical matter itself (see, e.g., Supreme Court Decisions 90Nu10862, Nov. 27, 1990; 97Nu16329, May 28, 1999). This legal doctrine applies to a person who does not have any legal relation or factual relations with the object of taxation, and if there is any objective reason to believe that it is subject to taxation, it cannot be seen that the defect is grave and obvious, or that it is apparent whether it is subject to taxation, and if it can be examined accurately, it cannot be seen that it is unlawful.

B) On August 24, 2011, the Plaintiff prepared a real estate sales contract with the content of selling each of the instant real estate to BB Construction and thisCC, and the fact that the Plaintiff’s tax base return under the Plaintiff’s name was submitted to the Defendant is as seen earlier, it is reasonable to deem that the Defendant had factual relations that could mislead the Plaintiff as a taxpayer of each of the instant real estate. Therefore, even if the Plaintiff did not sell each of the instant real estate as alleged by the Plaintiff, it can only be found after an accurate investigation into the factual relations. Thus, even if the instant seizure disposition was made to the Plaintiff who did not conclude the instant sales contract, it cannot be deemed that the defect is apparent even if there is an unlawful defect in the attachment disposition, and thus,

C. Judgment on the second argument by the Plaintiff

1) We examine whether a taxpayer of capital gains tax on each of the instant real estate is the Plaintiff.

A) Relevant legal principles

In the case of title trust of real estate with a third party, if the title truster transfers the real estate to the title truster and the income accrued from such transfer belongs to the title truster, and under the principle of substantial taxation prescribed in Article 14(1) of the Framework Act on National Taxes, the person liable to pay the relevant capital gains tax does not belong to the title truster who is the subject of the transfer (see Supreme Court Decision 96Nu6387, Oct. 10, 197). However, the title truster, who is the subject of the transfer, is merely liable to pay the income, and the person who actually received the income was separate (see, e.g., Supreme Court Decision 84Nu505, Dec. 11, 1984).

B) The fact that the registration of ownership transfer was made in the name of the Plaintiff with respect to each of the instant real estate on September 7, 201, and that the registration of ownership transfer was made in the name of BB Construction and thisCC on September 7, 2011, and that the Plaintiff entered into a real estate sale agreement with BB Construction and thisCC on August 24, 201, on which the Plaintiff sold each of the instant real estate to this case

C) First, according to the purport of the whole statements and arguments as to whether KimD has title trust with the Plaintiff, as to whether each of the instant real estate was title trust, and the facts that KimD purchased each of the instant real estate in around 1995 and registered ownership transfer in the name of TPP. On January 13, 2004, under the title trust agreement with the Plaintiff, at the registry office of this court, purchased each of the instant real estate in the name of the Plaintiff and subsequently violated Article 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, which was convicted by the Seoul Central District Court on October 29, 2004 (the same court 2004No627), and appealed and appealed (the Supreme Court 2004No2929) and dismissed the appeal (the Supreme Court 2005Do1828), and KimD, which became final and conclusive, are reasonable to deem that each of the instant real estate was registered under the name of the Plaintiff and each of the instant real estate under the title trust agreement against the Plaintiff’s and each of this case.

D) Next, there is no evidence to acknowledge that capital gains from the sale of each of the instant real estate belong to KimD, the title truster, and there is no evidence to acknowledge it.

E) Therefore, the facts acknowledged earlier, and each of the above evidence presented by the Plaintiff alone are merely nominally attributable to the Plaintiff to the sales income of each of the instant real estate, and it is insufficient to find that the person who received such income was a separate person, and there is no other evidence to find this otherwise, and therefore, the Plaintiff’s assertion based on the premise that each of the instant real estate was not the Plaintiff, is not the Plaintiff, is without merit.

2) Even if the Plaintiff’s transfer income from the sale of each real estate does not belong to the Plaintiff, as alleged by the Plaintiff, and the Plaintiff does not fall under the taxpayer of transfer income tax on each real estate of this case, each real estate of this case was transferred for about seven years under the Plaintiff’s name, and the Plaintiff’s transfer income tax return was received by the Defendant at the time of transfer, and at least, objective and external facts appear to exist that the Defendant could mislead the Plaintiff as the taxpayer of each real estate of this case. Therefore, even if the transfer income earner of each real estate of this case was KimD, this can only be identified after the accurate investigation of the facts, and even if the seizure disposition of this case was made to the Plaintiff who is not the actual taxpayer of KimD, it is difficult to view that the seizure disposition of this case is invalid as a matter of course, considering the following reasons. Therefore, this part of the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.