名義受託者의 不動産 任意 處分時 讓渡所得稅의 納稅義務者

Although Korean Supreme Court rulings repeatedly showed that capital gains must be returned to a title truster so that a title truster becomes liable to capital gain tax when a title trustee arbitrarily disposes the properties under title trust, the specific standards have been never mentioned. This judicial decision 2012Du10710 has suggested the specific standards to see if capital gain is returned to a title truster. In other words, a title truster must be seen as a main agent of transferring who is in the position to effectively dominate, control, and dispose capital gains like when a title trustee voluntarily transfers the full amount to a title truster the moment he/she receives payment of transfer asset, handling the delegated affairs practically, and it cannot be said that capital gains are returned even if after a considerable period of time a title truster just has the equivalent of payment of transfer asset restored through lawsuits against a title trustee unless there are special circumstances. Most of the cases of a title trustee's arbitrarily disposing the properties under title trust lead to legal proceedings and during this process title trustees often give part of capital gains to title trusters, so this judicial decision is meaningful in that it is possible to impose capital gain tax duty upon a title trustee under the charge of embezzlement in most cases, and that the principle of substantial taxation was observed. In the precedents, the standards to judge real restoration of capital gains to a title truster were as follows : whether or not the payment of transfer asset was immediately returned, whether or not it was the full amount of payment that has been restored, whether or not a title trustee voluntarily gave the payment of transfer asset to a title truster, and so on. Although these standards are technically appropriate, if there is any detailed mandate agreement between a title truster and a title trustee I think this agreement should be the first yardstick to see if contents of agreement are carried out, and then judgement on whether capital gains are restored must be made. In the case of this judicial decision 2012Du10710, the title trustee did not give the payment of transfer asset to the title trusters right away, the payment was made after reaching mediated agreements during the legal proceedings taken by the title trusters, and part but not all of it was paid, so the conclusion of this judicial decision is also valid that the above mentioned capital gains were not returned to the title trusters.