[증여세부과처분취소][공1983.8.1.(709),1104]
Whether the change of real estate purchaser's name on the register of land secured for the recompense of development outlay constitutes a trust under Article 32-2 of the Inheritance Tax Act (negative)
The trust property stipulated in Article 32-2 of the Inheritance Tax Act refers to the property for which a trust is established pursuant to Articles 1(2) and 2 of the Trust Act, and where the name of the purchaser is changed from the original successful bidder on the register of land secured for recompense for development outlay, it cannot be deemed as a real profit to the plaintiff. Thus, it cannot be deemed as a trust stipulated in the Trust Act.
Article 32-2 of the Inheritance Tax Act, Article 1(2) and Article 2 of the Trust Act
Supreme Court Decision 78Nu396 Decided January 16, 1979
[Judgment of the court below]
Head of the tax office;
Seoul High Court Decision 82Gu332 delivered on February 7, 1983
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The grounds of appeal are examined.
Article 32-2 of the Inheritance Tax Act, which was in force at the time when the taxation requirements of this case were established, refers to the property for which the trust was established pursuant to Articles 1(2) and 2 of the Trust Act (see Supreme Court Decision 78Nu396, Jan. 16, 1979). According to the facts duly established by the court below, the land secured for development outlay of this case was awarded by Nonparty 1 through public bidding on December 28, 1973 by borrowing the name of Nonparty 2 from his own, and was awarded by the public bidding on August 28, 1980 in order to divide the land of several lots awarded by the same person including this case, and make a change in the name on the land secured for development outlay of development outlay, the land secured for development outlay of this case, which was a part of the above non-party 2, in order to let the plaintiff build a building above, so it cannot be viewed as a trust under the Trust Act. The court below's decision is justified in the misapprehension of the legal principle of Article 32 of the above Act.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Gangnam-young (Presiding Justice)