Suwon District Court 2009Guhap1684 (2010.30)

It is difficult to regard real estate as actual acquisitor and transferor.

In full view of the fact that it appears that the Plaintiff was not present in the place of preparing a sales contract, and that there is no evidence to acknowledge that the purchase price was paid by a third party and that the Plaintiff or the Plaintiff’s spouse was paid or paid the purchase price, it is difficult to readily conclude that the Plaintiff is

2010Nu24892 Revocation of disposition of imposing capital gains tax

Maximum XX

Head of Sungnam Tax Office

Suwon District Court Decision 2009Guhap11684 Decided June 30, 2010

June 2, 2011

July 28, 2011

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 50,904,400 against the Plaintiff on January 12, 2009 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. As of July 25, 2001, "A" and "the plaintiff and one other" sell 200,000,000,000 won for each of the above land and buildings and 56.2 square meters for each of the above land and buildings (hereinafter "each of the above land and buildings") in Sungnam-si, Sungnam-si, the seller pays 00-0,000,000 won for the sales contract of 20,000,000 won for the date of the contract, and 50,000,000 won for the intermediate payment on August 10, 2001, and 130,000,000 won for the remainder of September 10, 201, each seller fully cooperates with the third party at the time of the sales contract of this case (hereinafter "A") regardless of the amount of money sold to the third party.

C. As of December 27, 2001 between EA and JB, “The instant real estate was sold in KRW 240,000,000,000 on the date of the contract, and the contract was concluded to pay each of the remainder of KRW 216,00,000 on January 28, 2002 (hereinafter “the instant contract for the second sale”). At that time, JB paid all the down payment and remainder under the instant contract for the second sale.

D. Meanwhile, in the course of investigating the omission of capital gains tax on the instant real estate against LAA, the director of the Central Regional Tax Office of China: (a) acquired the instant real estate from LAA from LA in accordance with the instant sales contract; and (b) on February 28, 2002, sold the instant real estate to JB in 240,000,000 according to the instant sales contract; and (c) notified the Defendant thereof.

E. Accordingly, the Defendant determined that the Plaintiff’s acquisition of the instant real estate in KRW 200,00,000 and then failed to report the transfer income tax despite having transferred the instant real estate in KRW 240,000,000 to JB. On January 12, 2009, the Defendant imposed the Plaintiff KRW 50,904,000 for the transfer income tax for the instant real estate in KRW 40,000, which is the transfer margin of the instant real estate under the sales contract to the Plaintiff on January 12, 209 (hereinafter “the instant disposition”).

F. The Plaintiff filed an objection with the Commissioner of the National Tax Service on February 25, 2009, but the Deputy Commissioner of the National Tax Service dismissed the objection on April 9, 2009, and the Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on May 20, 2009, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request for examination on July 23, 2009, and the Plaintiff filed the instant lawsuit on October 20, 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, Eul evidence Nos. 1, 2, Eul evidence Nos. 5, 6 and 8, respectively, 1, 2, Eul evidence No. 9, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

In accordance with the First Sale Contract for the Real Estate Agent KimD, the Plaintiff’s husband, purchased the instant real estate in accordance with the First Sale Contract for the broker of Kim DD, and prepared the First Sale Contract for the instant real estate in his name. The actual acquisitor and transferor of the instant real estate are not the Plaintiff, but the Plaintiff lent the title to IncheonCC at the time of the First Sale Contract for the instant real estate. Therefore, the Defendant’s disposition that deemed the actual acquisitor and transferor of the instant real estate as the Plaintiff was unlawful.

(2) The defendant's assertion

The Plaintiff, under its name, acquired and transferred the real ownership of the instant real estate, such as preparing a contract on the First Sale Contract, and paying the purchase price.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) From October 16, 2008 to November 19, 2008, the Central and Regional Tax Office conducted an investigation of capital gains tax on the instant real estate with respect to Egressing and selling the instant real estate (referred to the right to sell the relevant housing site of Egress) with respect to Egressing and signing around November 2008 as follows.

(2) On April 15, 2009 and July 5, 2009, a written confirmation submitted by the Plaintiff to the National Tax Service upon filing a request for examination of the instant disposition, stating that “The purchaser was aware of the Plaintiff at the time when the instant first sales contract was concluded,” and that “the actual purchaser of the instant first sales contract was aware of the fact that the Plaintiff was a sunCC.”

(3) In addition, the Court of First Instance and this Court testified to the following contents:

(4) E (Buyer’s wife) who was the party leading to the instant secondary sales contract, testified at the court of first instance as follows.

(5) On March 31, 2011, the Defendant attempted to make up for an complementary investigation. On January 201, 201, FF, the birth of the Defendant, responded to the Defendant’s investigation that “F, the birth of which was the same, has deteriorated in the process of recovery after the liver surgery, making it impossible for the Defendant to make a telephone call. In 2-3 years prior to the mid-gu regional tax office, there was a call from the mid-gu regional tax office, and CC frequently visited the office of KimD with the words, who had been residing in the vicinity of the OOD office operated by Kim DD, and that there was no knowledge of EAD and there was no knowledge about the transfer of real estate.”

(6) Meanwhile, on April 2, 2001, KimD operated a real estate brokerage office with the trade name of "OO brokerage" in the area of Sungnam-si, Sungnam-si, XX 00-00, and closed on December 31, 2005, and again, on February 3, 2006, operated a mutual real estate brokerage office of " XX consulting" from 000 OOdong-dong, Manam-si, and since the plaintiff married with Kim Do-dong in 1986, there is no special occupation until now.

[Reasons for Recognition] The above evidence, Gap evidence Nos. 8-2, 3, and 9-1, 2, 3, Eul evidence Nos. 12, Eul evidence Nos. 3, 4, Eul evidence Nos. 10 and 11, the first instance court's KimD, Eul evidence No. 1, E's testimony, E's testimony of witnesses of the trial, the whole purport of the arguments, and the whole purport of the arguments.

D. Determination

(1) In an administrative litigation on taxation, the tax office has the burden of proof with respect to the facts that meet the taxation requirements, such as the tax cause and tax base amount (Supreme Court Decision 80Nu521 Decided May 26, 1981). Therefore, in this case, it is examined whether the Plaintiff purchased the instant real estate in this case and then transferred the instant real estate to the B who acquired it in fact.

(2) In light of the following circumstances revealed by the above facts, the title holder of the instant sales contract is the Plaintiff, i.e., the Plaintiff’s husband, at the time of the preparation of the first sales contract, KimD arranged the said sales contract, and the Plaintiff failed to present a sales contract under the name of the Plaintiff, which can objectively support his/her claim, and financial data related to the sales price, there is doubt that the Plaintiff is not the actual acquisitor or transferor of the instant real estate.

(3) However, on the other hand, it is difficult to conclude that the Plaintiff’s statement was based on the above facts and evidence, i.e., the Plaintiff did not directly attend the sales contract and the second sales contract, ii) it appears that women were not present at the time of the first sales contract, and i.e., the Plaintiff’s statement was indicated as the title holder of the first sales contract (CC), and ii) it appears that the Plaintiff’s statement was not consistent with the first sales contract, i.e., the Plaintiff’s statement that it was difficult for the Plaintiff to directly conclude the sales contract, i., the transfer of the pertinent real estate at the time of the first sales contract, i.e., the Plaintiff’s statement and the first sales contract to the effect that it was difficult for the Plaintiff to directly conclude the sale contract, i.e., the Plaintiff’s statement and the second sales contract, i., e., the Plaintiff’s statement and the second sales contract, i., e., the Plaintiff’s statement were not written.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.