National High Court Decision 2007Gu5135 (Law No. 86.30)

The legitimacy of the assertion that the transfer margin belongs to the title truster after the title trust was transferred.

Since real estate was transferred after a title trust in the form of sale to a corporation, it is argued that the transfer margin belongs to the title truster, not a corporation, but because most of the transfer proceeds belongs to the corporation, it is reasonable to view that it is not a title trust but a real sale.

The contents of the decision shall be the same as attached.

Article 14 (Real Taxation under Framework Act on National Taxes)

1. The plaintiff's claim is dismissed.

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

Each disposition of imposition of corporate tax of KRW 723,102,660 for the year 2004 against the Plaintiff on September 5, 2007 and corporate tax of KRW 330,194,010 for the year 2005 shall be revoked.

1. Details of the disposition;

A. On June 26, 2003, the Plaintiff transferred LO real estate among Non-Party 1, 2, 3 real estate (hereinafter referred to as "non-party 1, 2, and 3 real estate"; hereinafter referred to as "each real estate of this case") on July 13, 2004 to Non-Party ○○ Housing Co., Ltd. on the purchase price of 7.67,55 million won. On June 28, 2005, the Plaintiff transferred the two real estate to the AAAAAAAAAAA Examination Institute on the purchase price of 2.25 billion won, and some of the three real estate was transferred to Non-party 1, 2006 on January 5, 2006 to Non-party 2, 300,000 won, and the remainder to Non-party 2,000,000 won on May 22, 2006.

B. As a result of the tax investigation with respect to the Plaintiff, the director of the regional tax office of BB finds that the transfer value on each of the instant real estate by the Plaintiff is KRW 10.4885 billion and the transfer margin is KRW 7.377 billion and the transfer margin is KRW 670 million and the Plaintiff reported corporate tax with the transfer margin as KRW 6.7 million. The director of the regional tax office of BB found that the Plaintiff reported corporate tax as a result of the tax investigation with respect to the Plaintiff, and recognized the addition of KRW 3.891 million and the acquisition value on each of the instant real estate used by the Defendant as the acquisition value on each of the instant real estate, and notified the Defendant thereof by deeming the final omission to be the transfer margin on each of the instant real estate as the transfer margin.

C. On September 5, 2007, the Defendant imposed corporate tax of KRW 723,102,660, and KRW 330,194,010 on the Plaintiff on September 5, 2007, on the ground that the Plaintiff’s transfer margin of KRW 1,834,50,000 on the first real estate that was transferred to the Plaintiff in 2004, and for the second real estate that was transferred in 2005, the transfer margin of KRW 99,00,000 on the second real estate that was transferred in 205, respectively (hereinafter “instant disposition”).

D. The plaintiff appealed and filed an appeal on November 27, 2007, but the Tax Tribunal dismissed the plaintiff's appeal on June 30, 2008.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 6, 7, 8 (including branch numbers, hereinafter the same shall apply), Eul evidence Nos. 1 through 6, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) No. 10 of the instant real estate title trust to the Plaintiff, but the part of the transfer margin was personally used by the Plaintiff, including ○○ Housing, etc., and the remainder was used by the Plaintiff for the Plaintiff, and both the transfer margin was reverted to ○○. As such, the instant disposition based on the premise that the transfer margin from the transfer of each of the instant real estate belonged to the Plaintiff is unlawful as it violates the principle of substantial taxation.

(2) The Defendant recognized the amount of KRW 1.3 billion out of the purchase price of each of the instant real estate as the additional payment for the purchase price under a special agreement, and disposed of the instant case. The amount of KRW 3.89 billion that the Plaintiff paid to ○○○○○, namely, the purchase price additionally paid to ○○○○, not only KRW 3.89 billion, but also KRW 810 million, and KRW 32.5 billion, which was used as a church donation, and KRW 5.5 billion, which was the sum of KRW 1.3 billion in the purchase price of each of the instant real estate, and KRW 1.45 million in the transfer margin recognized by the Defendant, must be calculated again after deducting KRW 1.34.5 million from the transfer margin recognized by the Defendant.

(b) Related statutes;

Article 14 (Real Taxation under Framework Act on National Taxes)

(c) Fact of recognition;

(1) From February 1, 1982, 1982, Egypt ○○ was operating ○ Alley, and was closed on June 30, 2003 due to business depression. On August 5, 1992, Egypt ○○ was established by the Plaintiff Company, and it was operated until now as the Plaintiff’s actual owner.

(2) On June 1, 1998, ○○○○○ Company, a creditor of the instant real estate, sold each of the instant real estate to the Plaintiff in order to prevent any defect in the creditor’s Daegu○○○ Company’s auctioning the instant real estate because it was impossible to repay its composition debt according to a certain schedule.

(3) 배○호는 2003. 6. 2. 원고와 제1부동산 및 대구 ◇◇군 ◇◇면 ◇동 산 ○○-5 임야 33,445㎡를 매매대금 15억원에, 제2부동산(대구 달서구 ○○동 ○○○-5 대 689.3㎡중 ○○ 명의의 1/2지분 제외) 및 제3부동산을 매매대금 13억 1,000만원에 각 매도하기로 하는 매매계약을 체결하면서 다음과 같은 내용의 특약을 하였고, 2003. 6. 26. 소유권이전등기를 경료하여 주었으며, 원고는 위 각 부동산을 담보로 주식회사 ○○은행으로부터 29억원을 대출받아 위 매매대금을 지급하였다.

On the other hand, on June 26, 2003, the Plaintiff on June 2, 2003, 2003, the above D 277-5, large 689,000 square meters in the name of ○○○.

The transfer registration of ownership was made on the ground of sale.

1. Of the purchase price of the land under this Agreement, the first real estate portion of KRW 1.477 billion is KRW 530,000,000 per square year or below, compared to the price of the neighboring land sold to ○○○ Housing by auction on May 14, 2003. Since the difference between the market price of the neighboring land and the market price of the neighboring land is at least 70,000,000 won per square year, it is assumed that the temporary transfer price for the repayment of liabilities of Daegu○○○○○○○○

2. The financial support shall be provided so that the purchaser may repay his personal liabilities, etc. with respect to the difference (within the maximum of 700,000 won per square meter) between the current market price and the current market price when the difference occurs after transferring the land by the subsequent purchaser;

(4) On March 19, 2004, the Plaintiff entered into a sales contract with ○○ Housing Co., Ltd. and 1008 m2,126 m2,126 m2,126 m2,208 m2,350,0540, and with the sales price of 6.32,4960,000 m2,500,000 won in total, and completed the registration of ownership transfer on July 13, 2004.

(5) On May 16, 2005, the Plaintiff entered into a sales contract with AAAA Testing Research Institute, a foundation, to sell the second real estate at the purchase price of 2.25 billion won (excluding value-added tax), and completed the registration of ownership transfer on June 28, 2005.

(6) On January 5, 2006, the Plaintiff sold to ○○○○○○-dong, Daegu ○○○-3 large 350.3 square meters among the third real estate to KRW 190 million. On May 22, 2006, the Plaintiff sold to ○○○○○-dong, Daegu ○○-6 large 586.3 square meters among the third real estate, and 329.28 square meters of the above ground to ○○○-dong, Daegu ○○-dong, ○○-6 large 586.3 square meters among the third real estate.

(7) Of 10.485 million won in total of the purchase price of each of the instant real estate, the Plaintiff used 6.3 billion won in the corporate account book deposit (3.77 billion won in the corporate account book), repayment of non-performing debts (1.7 billion won in the repayment of non-performing loans), repayment of non-performing loans (81 billion won in the corporate operating funds), and the remaining 3.89 billion won in the remainder of 3.891 million won in the corporate operating funds (8 billion won in the form of ship and special agreement agreed upon at the time of the acquisition of each of the instant real estate, ○○ used ○ for the redemption of his own corporate debt (2.5 billion won in the acquisition of each of the instant real estate), payment of capital gains tax (826 million won in the capital gains tax), personal bond (738 billion won in the corporate bond) and redemption (69 billion won in the guaranteed debt (69 billion won in the corporate operating funds).

[Reasons for Recognition] The aforementioned evidence, Gap evidence Nos. 4, 5, Eul evidence Nos. 7 to 11, part of witness No. 1, and the purport of the whole pleadings

D. Determination

(1) The witness witness testimony No. 1, which corresponds to the Plaintiff’s assertion that he held the title trust of each of the instant real estate held in title with the Plaintiff is difficult to believe, and there is no other evidence to acknowledge it. Rather, the following circumstances revealed by the above fact of recognition, namely, where a sales contract was prepared to sell each of the instant real estate between the Plaintiff and the Plaintiff that he was the actual owner, the sales price of the first real estate, which is KRW 1.47 billion, is the temporary transfer price for the repayment of liabilities of Daegu ○○○○, and where the Plaintiff subsequently transferred the said real estate, and the difference arises due to the transfer of the said real estate, the agreement was made to support the Plaintiff with the repayment of personal liabilities as well as KRW 2.78 billion,000,000,000,000 for each of the instant real estate, and then the Plaintiff paid KRW 2.788,5,000,000 for each of the instant real estate to ○○○○○, a stock company, etc., and most of the instant real estate was 3.

(2) Of the purchase price of each real estate in this case, it is difficult to believe that the testimony of the witness jury ○, which combines the Plaintiff’s assertion that he used KRW 810 million as a half of the receipts and disbursements against the Plaintiff among the purchase price of each real estate in this case, and used KRW 324.5 million as a church donation, etc., and there is no other evidence to acknowledge it. In addition, even if the Plaintiff’s assertion is true, the Defendant recognized that the Plaintiff paid the purchase price of the real estate in this case, which is deemed to be the amount that the Plaintiff paid out of the purchase price of each real estate in accordance with the special agreement, as the amount that the Plaintiff paid as the personal debt repayment fund of KRW 3.91 million out of the purchase price of each real estate in this case, the Defendant recognized that the Plaintiff paid the purchase price of the real estate in addition to KRW 1,890,000,000,0000,000,000,000,000.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.