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

A. On April 14, 2003, with respect to each real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case"), the ownership transfer registration for each gift was made from Kim○, the father of the Plaintiff, on December 18, 2003, with respect to each real estate of this case listed in the separate sheet (hereinafter referred to as the "real estate of this case"). On January 6, 2005, the Defendant calculated the sum of the value of the property donated to the Plaintiff at KRW 1,150,115,000 and notified the Plaintiff of KRW 303,280,890 of the gift tax of this year 203.

B. On February 22, 2006, the National Tax Tribunal requested the National Tax Tribunal for a trial against the above decision. On February 22, 2006, the National Tax Tribunal considered the cream equipment on the ground of the instant real estate as owned by Kim○○, and corrected the tax base and tax amount by deducting them from the value of donated property. The obligation secured by the instant real estate is the burden of onerous donation, and determined that the amount of the secured obligation should be deducted from the value of donated property,

C. On March 14, 2006, the Defendant revised the gift tax amount of KRW 193,205,00 (=the amount of the gift tax assessed of KRW 370,205,00) - the amount of the debt of KRW 177,00,000 (the amount of the debt of KRW 97,00,000 + the amount of the debt of KRW 50,000 + the amount of the apartment debt of KRW 30,30,000 + the amount of the debt of KRW 50,000 + the amount of the debt of KRW 30,30,000) with the amount of the gift tax assessed of KRW 30,329,798 (the next revised disposition of KRW 203).

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) In order to obtain a loan from a financial right under the Plaintiff’s name, the Plaintiff prepared a gift contract under the Plaintiff’s name with respect to the instant real estate, and completed the registration of ownership transfer on the ground of donation under the Plaintiff’s name, and in fact, the instant real estate was not donated to the Plaintiff. Since the ○○○○○, a creditor of Kim○○, as a creditor of the Plaintiff, made a provisional disposition order citing the claim against the Plaintiff, such as cancellation of ownership transfer due to cancellation of fraudulent act, the Plaintiff’s claim against the Plaintiff as a preserved right, the ○○ branch of the Gwangju District Court rendered a provisional disposition citing it, the

According to Article 60, Article 61, Enforcement Decree of the Inheritance Tax and Gift Tax Act, the value of donated property shall be calculated on the basis of the average value of the appraisal value assessed by two or more appraisal agencies. The Defendant’s calculation of the value of the instant real estate based on the appraisal value by one appraisal agency is unlawful and premised on it in violation of the above mandatory law and is also unlawful.

Article 28(1) of the Civil Act provides that “The value of the donated asset to the instant real estate and the said apartment shall be KRW 241,560,000, or KRW 370,205,00, or KRW 290,000, or KRW 110,000, or KRW 30,000, or KRW 430,000, or KRW 30,000, or KRW 30,000, or KRW 430,000, or the value of the donated asset to the said apartment, which is the premise of the provisional disposition as to the instant real estate, is against the law.”

B. Relevant statutes

Inheritance Tax and Gift Tax Act

Article 47 (Taxable Amount of Gift Tax)

(1) The taxable amount of gift taxes shall be the amount obtained by subtracting the amount taken over by the donee from the total amount of the donated property under the provisions of this Act as of the date of donation [excluding the value of the donated property under the provisions of Articles 40 (1) 2, 41-5 and 42 (4) (hereinafter referred to as the " donated property")], which is secured with the relevant donated property (including debts, such as debts, etc. which are related to the relevant donated property as prescribed by the Presidential Decree), < Amended by Act No. 6803, Dec. 18, 2002>

(3) In the application of the provisions of paragraph (1), with respect to an onerous donation between spouse, or between lineal ascendants and descendants (including the cases presumed to be a donation under Article 44), even if the donee takes over the obligation of the donor, the donee concerned shall be presumed not to have taken over the obligation of the donee: Provided, That this shall not apply where the amount of the obligation concerned is objectively recognized as prescribed by the Presidential Decree,

Article 60 (General Rules, etc. of Appraisal)

(1) The value of property on which an inheritance tax or gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as the "date of appraisal"). In such cases, the value (excluding cases falling under the provisions of Article 63 (2)) appraised by the method of appraisal stipulated in Article 63 (1) 1 (a)

(2) The market price under paragraph (1) shall be the price which is considered to be normal in the case of free trade between many and unspecified persons, and shall include the expropriation and public auction price, appraisal price, and others which are recognized as the market price under Presidential Decree

Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177, Dec. 30, 2003)

Article 49 (General Principles, etc. of Appraisal)

(1) For the purpose of Article 60 (2) of the Act, the term "those recognized as the market price as prescribed by Presidential Decree, such as the expropriation or public sale price, the appraised price, etc." means, in cases of sale, appraisal, expropriation or public auction (referring to an auction under the Civil Procedure Act; hereafter the same shall apply in this paragraph) or public auction within six months (three months in the case of donated property) before or after the base date of appraisal, it means the amount verified pursuant

1. If the fact of sale and purchase of the relevant property exists, the transaction price: Provided, That this shall not include cases where the transaction price is deemed objectively unfair from the person with a special relationship as provided in Article 26 (4);

2. In case where there exist the appraisal prices assessed by the reliable appraisal institutions prescribed by the Ordinance of the Ministry of Finance and Economy (hereinafter referred to as the “appraisal institutions”) with respect to the relevant property (excluding the properties prescribed in Article 63 (1) 1 of the Act), the average value of such appraisal prices;

(c) Fact of recognition;

(1) On April 14, 2003, 2003, Kim○-○ prepared a donation contract with the Plaintiff’s seal affixed by the Plaintiff as the donor and the Plaintiff as the donee with respect to the instant real property, and made a registration of ownership transfer for the instant real property under the Plaintiff’s name with the seal affixed by the Plaintiff’s name.

B. On June 9, 2003, on the part of the Plaintiff’s real estate, Kim○, Inc. (hereinafter “the Plaintiff”) sought a loan from the Plaintiff’s ○○○○○ Cooperative Federation as collateral, and on the date of the loan, the Plaintiff visited the above ○○dong Branch and signed and sealed the loan-related documents with the owner of the instant real estate and the collateral security. The instant real estate was registered to establish a mortgage on the ground of a contract signed on June 9, 2003 with the mortgagee, the National Federation of Fisheries Cooperatives, the debtor, the maximum debt amount of the instant real estate amount of KRW 400,000.

Meanwhile, at the above ○○○ Dong Branch, the said application for loan was made by requesting an appraisal of the value of the real estate of this case and the machinery and equipment on the ground thereof to the ○○ appraisal corporation, and the said value was calculated on June 9, 2003 based on the appraisal value. On January 6, 2005, the Defendant set up a mortgage on the real estate of this case on June 1, 2003. At the time when the gift tax was decided on January 6, 2005, the value of the real estate of this case 1 through 4 real estate and fish farms 129,915,000 won, and the value of the building 5 from among the real estate of this case was 193,790,000 won, and the value of the apartment of this case was 46,50,000 won

[Reasons for Recognition] Unsatisfy, Gap 1, 2, Eul 1, 4, Eul 5-1 and 2, Eul 5-2, testimony of Kim ○-○ and the purport of the whole pleadings in the first instance court

D. Determination

(1) Whether the pertinent real property was donated

In light of the above facts, the plaintiff delivered his seal to Kim ○, barring any special circumstances, and caused Kim ○ to prepare a gift contract, and thus the above donation is deemed to have been effective. Thus, even if the original act of donation with respect to the real estate of this case was performed without the plaintiff's consent as alleged by the plaintiff, it shall be deemed that the donation with respect to the real estate of this case was ratified by the plaintiff attending the above ○○○ Cooperative Branch and providing the real estate as a security to the owner of this case. Thus, the donation with respect to the real estate of this case shall be deemed to have been effective only on the sole ground that the provisional disposition decision with respect to the real estate of this case was made. Accordingly, this part of the plaintiff's assertion is without merit.

Whether the valuation of the value of the instant real property is appropriate

In full view of the relevant provisions, such as Article 60(1) and (2) of the Inheritance Tax and Gift Tax Act, Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the market value as of the date of commencing the inheritance or the date of donation, which is the value of the property on which the inheritance tax or gift tax is levied, shall not be limited to the value which is generally recognized as having been freely traded between many and unspecified persons and which is recognized as the market value as prescribed by Presidential Decree, such as the date of commencing the inheritance or the date of donation. Thus, each subparagraph of Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act by delegation of the above provision, is merely an example of representative cases which can be seen as the market value of inherited property. On the other hand, the market value means an objective exchange value formed by a normal transaction, but this means the value assessed in an objective and reasonable manner, and thus, it can be seen as the market value (see Supreme Court Decision 200Du5098, Aug. 21, 200

On the other hand, in this case, the value calculated by the Defendant with respect to the instant real estate shall be the value appraised and assessed by a financial institution to use the loan from a financial institution to determine the maximum amount of debt with respect to the instant real estate, which is close to the donation date of the instant real estate and is evaluated in an objective and reasonable manner as to the said real estate at the time of donation. Thus, the value assessed by the said appraisal institution is recognized as the market price of the instant real estate, and it cannot be deemed unlawful against the provisions of Article 60 (2) of the Inheritance Tax and Gift Tax Act and Article 49 (1) 2 of the Enforcement Decree of the same Act. Accordingly, the Plaintiff’

Abstract Whether there is net donated property

According to Article 47 of the Inheritance Tax and Gift Tax Act, the taxable value of the gift tax shall be determined by taking such circumstances into consideration only where it is evident that the exercise of security right by the donee is certain due to the default of the donor, who is the primary debtor, and that the exercise of the right to indemnity against the donor against the donor cannot be invalidated due to the insolvency of the donor, even in cases where the donee takes over the donor’s obligation with respect to an onerous donation between his spouse, or between lineal ascendants or descendants, even in cases where the donee takes over the donor’s obligation with respect to an onerous donation between his/her spouse and his/her lineal ascendants or descendants, or the donee does not take over the secured obligation (see Supreme Court Decision 2002Du5184, Oct. 10, 2003).

On the other hand, the defendant calculated the taxable value of gift tax, which is the net donated property after deducting the amount of 177,00,000,000 won from the total amount of 370,205,000 won of the value of donated property of the real estate of this case and the apartment of this case, and in this process, the above apartment debt amount of 30,00,000 won was already deducted from the above apartment debt amount of 193,205,00 won. Thus, the plaintiff's assertion of the above apartment debt deduction claim is without merit. In addition, since the secured debt against 0,000 won against ○○○ Cooperative is not a donor's obligation, but a debt secured by the above donated property as of the donation date, it cannot be deemed as a debt secured by the above donated property as of the donation date. Therefore, since the above provisional disposition decision of the above provisional disposition on the real estate of this case against ○○○○○, the above debt amount is not subject to deduction, the gift gift tax amount is still 1930,500,00 won.

3. Conclusion

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

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*: Gwangju District Court 2006Guhap2046 ( October 26, 2006)

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

A. On April 14, 2003, with respect to each real estate listed in the separate sheet (hereinafter referred to as the “instant real estate”), the Plaintiff, the father of the Plaintiff, was the Plaintiff, and on December 18, 2003, the registration of ownership transfer was completed on the ground of each gift with respect to ○○ apartment No. ○○○dong, ○○dong, ○○dong, ○○dong, ○○ apartment No. ○○○○, ○○○dong, respectively.

B. On January 6, 2005, the Defendant calculated a total of KRW 1,150,115,000, the value of the property donated to the Plaintiff for the instant real estate and the mechanical facilities for the instant apartment and the instant apartment, and notified the Plaintiff of KRW 303,280,890 of the gift tax for the year 2003. The Plaintiff appealed with the National Tax Tribunal on March 10, 2005. On February 22, 2006, the National Tax Tribunal decided that the tax base and tax amount should be deducted from the value of the donated property and the amount of tax should be corrected by deducting the amount of the property donated to the Plaintiff from the value of the donated property. After investigating the details of the debt secured by the instant real estate, the amount of the secured debt should be deducted from the value of the donated property and the amount of tax should be corrected.

C. According to the above decision of the National Tax Tribunal, the defendant corrected the value of donated property to KRW 193,205,00 on March 14, 2006 and imposed by correcting the gift tax year 2003 to KRW 30,329,798 (hereinafter referred to as the "disposition in this case").

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Kim○○, without the Plaintiff’s permission, prepared a gift contract under the Plaintiff’s name on the instant real estate, and completed the registration of ownership transfer on the said real estate under the Plaintiff’s name on the ground of donation, and did not actually donated the instant real estate to the Plaintiff. Thus, the instant disposition based on the premise that Kim○, a gift of the instant real estate was made

(2) According to Articles 60 and 61 of the Inheritance Tax and Gift Tax Act, and Article 49 of the Enforcement Decree of the same Act, the value of donated property shall be calculated on the basis of the average value of the appraised value by two or more appraisal institutions. The Defendant calculated the value of the instant real estate based on the appraisal value by one appraisal institution. This is unlawful and premised upon it in violation of each of the above provisions.

(b) Related statutes;

Inheritance Tax and Gift Tax Act

Article 60 (General Rules, etc. of Appraisal)

(1) The value of property on which an inheritance tax or a gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as the "date of appraisal"). In such cases, the value appraised by the method of appraisal stipulated in Article 63 (1) 1 (a) and (b) (excluding cases falling under the provisions of Article 6

(2) The market price under the provisions of subparagraph 1 above shall be the price which is considered to be normal in the case of free trade between many and unspecified persons and shall include the expropriation, public auction price, appraisal price, and others which are recognized as the market price under the conditions

Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177, Dec. 30, 2003)

Article 49 (General Principles, etc. of Appraisal)

(1) For the purpose of Article 60 (2) of the Act, the term “those recognized as the market price under the conditions as prescribed by the Presidential Decree, such as the expropriation or public sale price, the appraised price, etc.” means, in case of sale, appraisal, expropriation or public auction (referring to an auction under the Civil Procedure Act; hereafter in this paragraph, the same shall apply) or public auction during a period of not more than 6 months before and after the standard date of appraisal, it means the

1. If the fact of sale and purchase of the relevant property exists, the transaction value: Provided, That this shall not include cases where the transaction value is deemed objectively unfair, such as transactions with persons with a special relationship as referred to in Article 26 (4);

2. In case where there exist the appraisal values appraised by the reliable appraisal institutions prescribed by the Ordinance of the Ministry of Finance and Economy (hereinafter referred to as the “appraisal institutions”) with respect to the relevant property (excluding the properties prescribed in Article 63 (1) 1 of the Act), the average value of such appraisal values;

(c) Fact of recognition;

(1) On April 14, 2003, Kim○-○ prepared a donation contract with the Plaintiff as the donee on the instant real estate, and completed the registration of ownership transfer in the name of the Plaintiff on the said real estate.

(2) The ○○○○ obtained a loan from the ○○ branch of the ○○ Cooperative Federation as security, and on the date of the loan, the Plaintiff visited the said ○○ branch as the owner of the instant real estate and the security offerer, and signed and sealed the relevant loan documents.

(3) On the other hand, the above ○○ Branch requested ○○ Appraisal Corporation to conduct an appraisal on the value of the instant real estate and the mechanical devices on the ground thereof, and calculated the value thereof on June 9, 2003, based on the appraisal value. On January 6, 2005, the Defendant established a party right to the instant real estate on the basis of the appraisal value. At the time of the decision of gift tax on January 6, 2005, the Defendant calculated the value of donated property on the instant real estate based on the said appraisal value as to the said real

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, testimony of witness Kim Jong-○, the purport of whole pleadings

D. Determination

(1) Whether the gift of the instant real property was established

In light of the above, even if the original act of donation on the real estate of this case by Kim○-○ was performed without the plaintiff's consent of acceptance of a gift, as alleged by the plaintiff, the plaintiff was present at the above ○○○○○○ branch of the above ○○○ Cooperative and confirmed the act of donation by expressing an intention of acceptance of a gift by offering the above real estate as security. Therefore, the plaintiff's donation on the real estate of this case is valid. Accordingly, this part of the plaintiff

(2) Whether calculating the value of the instant real estate is appropriate

In full view of the relevant provisions such as Article 60(1) and (2) of the Inheritance Tax and Gift Tax Act, Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, since the market price is not limited to that recognized as the market price under the conditions as prescribed by the Presidential Decree, such as the expropriation, public sale price, and appraisal price, etc., according to the language and text of Article 60(2) of the Inheritance Tax and Gift Tax Act, each subparagraph of Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act delegated by the above provision is merely an example of representative cases that can be seen as the market price of inherited property. On the other hand, in principle, the market price includes an objective exchange value formed through normal transactions, which is evaluated in an objective and reasonable manner, the appraisal value of the trusted real estate can be deemed as the market price (see Supreme Court Decision 2000Du5098, Aug. 21, 201). In this case, since the Plaintiff’s appraisal institution’s appraisal value of the real estate cannot be recognized as the market price of the above real estate.

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.