2. The plaintiff's claim is dismissed.

3. The costs of lawsuit shall be borne by the plaintiff in both the first and second instances.

On November 1, 2003, the Defendant revoked the disposition imposing gift tax stated in the table "Depris" column, which was issued against the Plaintiff on the Plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

A. On April 16, 1998, the Plaintiff, the husband of Nonparty 1, donated one half of the share (the donation value of KRW 484,691,652) of the building in Jung-gu Seoul, Jung-gu, Seoul (hereinafter referred to as “Myeongdong Real Estate”) from Nonparty 1, the husband, and reported the gift tax.

나. 피고는 2003. 11. 1. 원고가 소외 1로부터 2000. 11. 15.부터 2002. 11. 30.까지 7차례에 걸쳐 별지 과세처분 내역표(이하 별지 표라고 한다) ㉣란 기재와 같이 현금을 증여받았다는 이유로 위 ㉣란 기재 각 금액을 순차 위 가.항 기재 증여액과 합산한 다음 배우자 공제로서 500,000,000원을 공제한 후 위 표 ㉢란 기재 증여세를 부과하는 이 사건 부과처분을 하였다.

C. The Defendant’s gift subject to gift tax is specifically as follows.

(1) On November 14, 200, Nonparty 1 donated KRW 220,00,000 to the Plaintiff on the following day, which was loaned by the Seoul Bank from the Plaintiff. The Plaintiff acquired a building with the above money of KRW 210,00,00,000, and the above money as real estate acquisition fund, using the above money of KRW 210,00,000,000, and the above money as real estate acquisition fund.

(2) The non-party 1 sold a building owned by him and 196-6 large scale 224m2 and its 4m24m2 (hereinafter “Ssung-dong, Gangdong-gu”) and donated 394,50,000, out of the sale price of KRW 750,000 to the plaintiff on six occasions as indicated in the No. 2-7 column in the attached Table No. 2-7, the Plaintiff used the above money to acquire a parcel of land outside of 1542-4, 343m2, 343m2, and 203-12 of the same Act, and newly built a building on the land (hereinafter “the above sale right and the building site”) on the same 2032-12, 2039-12 of the same Act, and acquired a building on the same real estate and a building on the same 58m2,558-15m2, Dong-dong, 98-15,57.

【Legal basis for recognition】 Evidence Nos. 1-1 through 10, Evidence Nos. 19-1, 2, Eul evidence Nos. 1-1 through 7, Eul evidence Nos. 4, and the whole purport of pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Each real estate located in Shindong-dong, Si-si, and Si-Gongju-si, for which the registration of ownership transfer has been made in the name of the Plaintiff, is the real estate owned by Nonparty 1 or the public property acquired jointly by the Plaintiff and Nonparty 1, and Nonparty 1 held in title trust in the future of the Plaintiff. Therefore, the instant disposition of imposition, which was rendered by deeming that the Plaintiff received the funds for acquiring each real estate from Nonparty

In addition, since the real estate in the name of the non-party 1 is the property acquired by the plaintiff's husband and wife through joint efforts during their marital life as co-owned property, even if the plaintiff acquired part of the proceeds from the sale, it cannot be viewed as the gift that belongs to the plaintiff's share. In this regard, the disposition of this case is unlawful.

(b) Fact of recognition;

(1) The Plaintiff and Nonparty 1 are legally married couple who completed the marriage report in 1985, and the Plaintiff was a full-time husband after marriage.

(2) The non-party 1 operated his mother company from June 15, 1983 to December 31, 1994, which is the agent of LG from July 1, 1995 to June 197. The non-party 1 operated the mother company which is the subordinate factory of LG from July 1, 1995 to June 19, 197, and operated the real estate leasing business such as small stores and multi-household houses from April 26, 1996.

(3) On September 18, 200, Nonparty 1 purchased the new road real estate from Hart Co., Ltd. in gold 6.20 million won, and supervised the construction work and paid the construction price to Nonparty 2 as the money he borrowed and the sales price for the real estate owned by the Plaintiff.

(4) Nonparty 1, without any particular involvement of the Plaintiff, entered into a sales contract on the purchase of new-ro-dong and Si-si real estate in the name of the Plaintiff, deposited part of the sales price of Sung-dong real estate into the Plaintiff’s account in the name of the Plaintiff, and withdrawn it and paid it in the purchase price. Nonparty 2 awarded a contract for new construction of multi-household housing constructed on the land at Si-si and supervised construction

(5) In addition, Nonparty 1 paid the purchase price in the process of purchasing and newly constructing public real estate in the name of the Plaintiff and supervised the construction site while staying at the construction site.

(6) In the process of paying the purchase price, etc. of each of the above real estate by Nonparty 1, the money listed in the table Nos. 1 was paid to the seller directly from a financial institution (the date of acquisition of the real estate in the new road was considered to be the donation date), and the money listed in the No. 2-6, deposited part of the sale price of the real estate in the Sung-dong into the deposit account in the name of the plaintiff, and withdrawn it and used it for the payment of the purchase price or the construction cost (the date deposited in the deposit account in the name of the plaintiff was considered to be the donation date). The money listed in the No. 7, as part of the sale price of the above real estate, was paid directly as the purchase price of the real estate in the name of the plaintiff, without going through the deposit process in the deposit account in the name of the plaintiff (the defendant was specified on November 30, 200

(7) The Plaintiff did not perform a special role in the process of purchase and new construction of each of the above real estate, and Nonparty 1 additionally disbursed the sales price of the real estate and the portion appropriated as the sales price of the real estate in Sungdong as the total purchase price of the real estate in Si/Gu in Si/Gu in Si/Gu in the amount of KRW 484,50,000 after deducting the amount appropriated as the sales price of the real estate in Si/Gu in Si/Gu in the amount of KRW 394,50,000,000.

(8) On the other hand, from July 2001 to August 2002, the above new-way real estate and Silung real estate were sold to a third party, except for the public real estate in official cities. After that, the Defendant, while conducting a tax investigation on the Plaintiff, purchased each of the above real estate with the funds donated by Nonparty 1 as a donation from Nonparty 1, imposed gift tax. The Defendant deemed the sale of the above real estate as the transaction of the real estate broker, and made a disposition imposing global income tax, imposition of capital gains tax, and value-added tax.

(9) In the first instance court of this case, the Plaintiff sought revocation of the entire taxation disposition by asserting that the said real estate was acquired by title trust or co-ownership from Nonparty 1, and that global income tax, transfer income tax, and value-added tax should be imposed according to the Plaintiff’s shares, not subject to gift tax, but should be imposed. However, the Plaintiff paid all the above global income tax, transfer income tax,

【The grounds for recognition】each of the evidence set forth in the preceding evidence, evidence Nos. 3-1 through 6, evidence Nos. 5-1, 2, evidence Nos. 6 and 7, evidence Nos. 8-1, 2, 9, and 10, evidence No. 11-1, 2, Gap No. 12, 13, evidence No. 17-1 through 8, evidence No. 18-3, evidence No. 18-1 through 3, evidence No. 21, evidence No. 23-1 through 8, evidence No. 23-2, testimony of Non-party No. 3, and Non-party No. 4, and all of the pleadings

C. Determination

(1) The Korean Civil Act employs a separate marital system and provides that “The proprietary property that one side of the father has prior to marriage and the property acquired under his/her own name in the marriage shall be the special property (Article 830(1)), and the property of which it is unclear to whom the husband belongs shall be presumed to be the co-ownership of the husband and wife (Article 830(2)).”

Therefore, in principle, if one spouse acquires real estate in his/her own name during the marriage, the property shall be the special property of the nominal owner. However, even if our Civil Act adopts the separate property system of the married couple, the right to claim the division of property at the time of divorce is recognized, and since there are cases where the property acquired through mutual cooperation between both parties during the marriage can be deemed public property of the married couple regardless of whose name is the nominal owner, the other spouse may have the right to share the property (However, even if the property registered in one’s name is deemed public property and can be considered as the property subject to division, the other spouse may also have the right to claim such right against the spouse who is the nominal owner.

However, even if a property acquired in one’s name is recognized as a co-ownership right to the other spouse, if such property is a real estate, it can only be subject to the division of property when it reaches the stage of the division of property following the resolution of marriage, and there is no way to recognize or recognize a co-ownership right in an external relationship during the marriage without the registration of change due to co-ownership. In other words, the obligee of the spouse, other than the nominal owner, who is not the nominal owner, belongs to co-ownership, since the real estate registered in the sole name against the nominal owner was formed through the cooperation of the married couple during the marriage, and thus, it cannot be claimed that the property division or co-ownership belongs to co-ownership, and the obligee’s subrogation cannot demand the division of property. The husband and wife may not register the division of the real estate

However, although the nominal owner may transfer part of the property to the other spouse to co-owned property, it is presumed that the property transferred under Articles 44 and 45 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter the same) is donated to the other spouse, the other spouse is unable to be exempted from the imposition of gift tax. In such cases, although the property acquired under one’s name but the substance of the property formed by the cooperation of the couple during marriage is in the form of a joint ownership of the property, it is not inconsistent with equity to impose gift tax even in cases where the property is in the form of a joint ownership of the property under one’s name. Article 53(1)1 of the Act provides a mutual aid between the spouse and the donated value is not subject to gift tax until 500 million won.

Therefore, if one of the spouse purchases real estate with funds from another spouse, the relevant real estate shall be presumed to be the special property of the nominal owner inside and outside the country, and the tax authority considers that the nominal owner acquired funds from the other spouse from the other spouse and purchased the real estate in its name, and the gift tax may be imposed on the portion exceeding KRW 500,000,000,

(2) However, in cases where a title trust is made between a clan member and his/her spouse pursuant to Article 8(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, the validity of the title trust agreement and the change of real rights pursuant to the title trust agreement becomes effective. In cases where a title trust is made under a title trust under the name of his/her spouse, the real estate would result in a property unique to the truster, not the nominal owner, in the internal relationship contrary to Article 830(1) of the Civil Act presumed to be the unique property of the nominal owner. In other words, in cases where a title trust agreement is made between the parties other than his/her spouse after the enforcement of the said Act, and the title trustee entered into a sales contract on real estate with the owner who was not aware of the fact that the title trust agreement was made, the title truster may claim against the title trustee for the purchase funds he/she provided, not the relevant real estate itself, and the spouse may claim for the return of the real estate itself on the ground that the title trust was terminated due to the permission of the title trust.

However, a title trust between a spouse is fully opposed to external relationship of rights and internal substance. Since the intention of a husband and wife is to form external legal relations on the premise that ownership is owned by the nominal owner, it is necessary to decide whether to vest in the trust or transaction relationship between the truster and the trustee in order to protect the trust or transaction relationship of a third party. In this case, although the purchase fund of the pertinent real estate can be one of the important criteria for determining that the title trust is held, most of the purchase fund may be provided by a spouse, and it does not necessarily mean that the real estate is a real estate which is held in title trust to another party. In other words, as long as the purchase fund of the real estate acquired in one’s name is presumed to be a special property under the Civil Act, if the purchase fund is provided from the other party in principle, it is difficult to recognize that there is a need for a title trust between the parties in addition to the provision of the purchase fund from the other party to the real estate in title trust in order to be deemed to be a real estate held in title trust to the other party.

(3) Therefore, first of all, we examine whether the new road real estate is the real estate held in title by the Plaintiff. Since most of the purchase prices of the new road real estate in this case at Silung-si is the real estate held in title by the Plaintiff, there is no dispute between the parties, it cannot be deemed that the real estate purchased in the name of the Plaintiff with the price for the sale of the real estate held in title by the Plaintiff cannot be deemed the real estate held in title by the Plaintiff. The evidence Nos. 6 through No. 14, No. 22-1, No. 24, and testimony No. 24 in this case between the Plaintiff, Silsi-dong and the non-party No. 1, which were the real estate held in title trust by the Plaintiff, was purchased in the name of the Plaintiff, or registered in the name of the Plaintiff, and there is no reason to acknowledge that the new real estate was sold in the name of the Plaintiff under the name of the title truster and the new real estate purchased in the name of the non-party No. 1.

Then, we examine whether the public real estate remaining in the name of the plaintiff is the real estate in title trust, and the fact that the non-party 1 should be recognized as having the intention and necessity of title trust between the plaintiff's husband and wife in addition to the provision of funds in order to view that the above real estate is the real estate in title trust to be held by the plaintiff. Thus, it is insufficient to recognize that the testimony of the plaintiff's husband and wife in this case, the non-party 1 purchased the real estate in the new road, the non-party 1, and the plaintiff 13, the evidence No. 14, the evidence No. 17-1, and No. 18-3, the evidence No. 22-2, and the witness No. 24, and the testimony of the non-party 4 is insufficient to recognize that the plaintiff's husband and wife in this case had the intention and necessity to return the real estate in title trust after purchasing

(4) The plaintiff asserts that since the real estate in Sungdong, which is the source of the purchase fund of the real estate of this case, is the co-owned property of the plaintiff and the non-party 1 and that the real estate of this case acquired as the sale price, is also the property owned by the plaintiff and the non-party 1. Since the plaintiff was entrusted with title only with the shares of the non-party 1, it is unreasonable to recognize the whole amount used as the purchase fund of this case out of the purchase price of the real estate in Sungdongdong as the gift.

However, the Plaintiff itself acknowledges that the Plaintiff did not engage in actual income during the marriage period, and there is no other evidence to support that Nonparty 1 provided the Plaintiff’s funds to purchase the real estate in her gender. (Although the Plaintiff’s family activity contributed to the increase of Nonparty 1’s property, it is difficult to accept the above assertion in light of the following: (a) even if the Plaintiff’s family activity was resolved, it would be a basis for determining whether the Plaintiff and Nonparty 1 would be able to recognize the Plaintiff’s co-ownership of the real estate in her gender as a property subject to division of property; (b) it does not externally have the Plaintiff’s right to the real estate in her gender; and (c) the full purchase price of the real estate in her gender was not used as the fund for the acquisition of the real estate in this case; and (d) it is impossible to determine the scope of the rights that the Plaintiff

(5) Therefore, the Defendant’s disposition imposing the gift tax of this case is lawful, where the Plaintiff received a donation from Nonparty 1 for part of the purchase price of the real estate in the Sungdong, and determined that it purchased the real estate in the Si, Si, Si, and Si, Si, and Do.

3. Conclusion

Therefore, the judgment of the first instance court with different conclusions is unfair, so it is revoked, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

[Attachment Taxation Details]

Judges Kim Jong-soo (Presiding Judge)