[증여세부과처분취소청구사건][하집1986(1),589]
Requirements for establishment of deemed donation under Article 32-2 (1) of the Inheritance Tax Act
In order to establish a deemed donation as falling under Article 32-2 (1) of the Inheritance Tax Act, it is required that the right should first be a property requiring registration, recording, change of title, etc., and furthermore, registration, etc. in the name of a person other than the actual owner is made by agreement with the actual owner and the nominal owner.
Article 32-2 of the Inheritance Tax Act
Plaintiff 1 and one other
the director of the tax office
The Defendant’s disposition of imposition of KRW 21,406,00, which was made against Plaintiff 1 on September 17, 1984, of KRW 27,593,500, which was made against Plaintiff 1 on September 1984, and KRW 3,892,00, which was made against Plaintiff 2, and KRW 27,593,50,50, which was made against Plaintiff 2, shall be revoked.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
(1) On July 9, 1982, Nonparty 1, at the Korean Commercial Bank (Name omitted), had deposited KRW 50,000,000 in the name of Plaintiff 1, who was his own child, at the same bank on September 8, 1982, with KRW 60,000,00 in the name of Plaintiff 2, who was his wife. At that time, Nonparty 1, the president of the district tax office having jurisdiction over the plaintiffs' domicile at that time, at that time, investigated the above facts according to the taxation data discovered and notified by the head of the Seoul Regional Tax Office on June 1984, considering that Nonparty 1 was to have donated each of the above amounts to the plaintiffs on September 17, 1984, and did not have any dispute over the imposition of the tax amount and the amount of the tax amount of the tax amount of the order defense as stated in the separate sheet as well as the amount of the tax amount to be assessed against the plaintiffs on September 17, 1984.
The defendant 1's litigation performer is deemed to have donated each amount of money to the plaintiffs in wartime or to have been donated pursuant to Article 32-2 (1) of the Inheritance Tax Act. Thus, the plaintiff 1's litigation representative argues that this disposition is lawful. The plaintiff 1's litigation representative is not only the plaintiff 1 has received a donation of each amount of exhibition from the above non-party 1, but also the case does not fall under the provision on the constructive donation of the above Inheritance Tax Act. Thus, the above disposition
(2) Regarding the fact that Nonparty 1 donated money to the Plaintiffs on account of the above fact that the above amount was deposited in the name of the Plaintiffs, there is insufficient evidence to acknowledge the above donation, and there is no other evidence to acknowledge it otherwise. In addition, in order to establish a constructive gift as stated in Article 32-2(1) of the Inheritance Tax Act, “where the actual owner and the nominal owner are different, it shall be deemed that the actual owner have donated money to the nominal owner on the day when the transfer or exercise of the rights is registered, notwithstanding the provisions of Article 14 of the Framework Act on National Taxes,” the actual owner should first be deemed to have received money from the bank under the name of the actual owner and the nominal owner. Furthermore, it is necessary to acknowledge that the registration, etc. in the name of Nonparty 1 was made in accordance with the agreement between the above bank owner and the nominal owner, and that it constitutes the requirements of Nonparty 2’s non-party 1’s non-party 4 and non-party 2’s non-party 1’s non-party 2 testimony and testimony.
(3) If so, the disposition of objection against the plaintiffs by the head of Mapo District Tax Office cannot be subject to revocation due to its illegality. Therefore, the plaintiffs' claim for revocation against the defendant is justified, and all of them are accepted, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.
Judges Lee Han-gu (Presiding Judge) and Ma-nam