[증여세등부과처분취소][공1990.5.1.(871),903]
In determining the taxable amount of gift taxes upon the gift of real estate created with a right to collateral security, etc., whether such secured amount is considered.
In the case of donation of secured real estate, where a donee did not take over a secured obligation, the donee will lose ownership of the secured real estate if the collateral right to the secured real estate is exercised because the donor failed to perform his/her obligation, and thus, the confirmed acquisition of the secured property depends on whether the principal debtor fulfills his/her obligation and whether the secured property is exercised. Therefore, in accordance with Article 10(1) of the Inheritance Tax Act and Article 7 subparag. 1 of the Enforcement Decree of the same Act, in cases where the exercise of the collateral right is certain due to the donor's default, and it is obvious that the exercise of the right to indemnity against the donor is not effective due to the donor's insolvent, the gift tax amount should be determined by taking this into account. However, there is no evidence to prove that the mortgagee's exercise of the right to indemnity against the donated real estate on which the right to collateral security is established is not certain, and if the third party merely registers a provisional seizure by executing the provisional seizure on the said real estate, it cannot be said that the creditor is certain to enforce compulsory execution.
Article 10(1) of the Inheritance Tax Act, Article 7 of the Enforcement Decree of the same Act
Supreme Court Decision 78Nu34 Decided May 29, 1979 (Gong1979, 12014) 87Nu991 Decided April 25, 1989 (Gong1989, 823)
Red Circuits
Head of Yeongdeungpo-do Tax Office
Daegu High Court Decision 89Gu627 delivered on September 20, 1989
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
According to Article 10 (1) of the Inheritance Tax Act which applies mutatis mutandis to gift tax pursuant to Article 34-5 of the same Act, the value of conditional rights shall be appraised as prescribed by the Presidential Decree. According to Article 7 (1) of the Enforcement Decree of the same Act, conditional rights shall be the value of donated property taking into account the facts constituting the contents of conditions based on the value of the original rights, the certainty of conditions, and all other circumstances into account.
However, in case where a donee does not take over a secured obligation in respect of a donation of secured real estate, if a secured right is extinguished due to the neglect of the secured obligation by the donor, the donee will lose ownership of the secured real estate if a security right to the secured real estate is exercised due to the failure of the donor to perform his/her obligation, and thus, the conclusive acquisition of the secured real estate depends on the ownership of the donated property. Therefore, in accordance with the provisions of the above Act, the exercise of a security right by the donor is certain due to his/her nonperformance of obligation in accordance with the provisions of the above Act, and it is obvious that the exercise of a right by the donee against the donor is not effective due to the insolvency of the donor, the taxable amount of gift tax shall be determined by taking this into account (see Supreme Court Decision 78Nu334 delivered on May 29, 197; Supreme Court Decision 87Nu991 delivered on April 25,
The court below held that, although the right to collateral security was established with respect to the gift property of this case as the right to collateral security, the mortgagee of the right to collateral security has no evidence to find it certain to enforce the right to collateral security, and that merely a foreign exchange bank registered provisional seizure with regard to the execution of provisional seizure on the real property of this case cannot be said to be certain to enforce the creditor's compulsory execution. Thus, in determining the taxable amount of gift taxes, the court below's above measures are just and it is not possible to consider the amount of the collateral security obligation or the amount of the claim for provisional seizure in accordance with the above law. In light of the records, the court below's above measures are not erroneous and incomplete, and there
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Yong-dong (Presiding Justice)