[증여세부과처분취소][공1995.1.15.(984),519]
(a) Where a donor who was an owner of real estate died before the registration of ownership transfer is completed, whether such real estate belongs to inherited property;
(b) In case where one of the co-inheritors was donated real estate before the death of the inheritee, but completed the registration of ownership transfer after the death, whether the donee may be deemed to have received the inheritance shares of such real estate from other co-inheritors, and thus, be subject to the imposition of gift tax
A. As for the real estate donation, the acquisition date of the real estate is the time of the registration of ownership transfer following the donation, and as long as the registration of ownership transfer was not completed, it cannot be deemed that the real estate has yet been acquired. Therefore, if the donor who was an owner under such circumstances dies, it is reasonable
B. In a case where one of the co-inheritors was donated the immovables before the death of the inheritee, but did not complete the ownership transfer registration, and subsequently received a favorable judgment by filing a lawsuit for ownership transfer registration on the ground of sale against the deceased, the co-inheritors of such immovables shall be deemed to have succeeded to both the real estate and the obligation of donation of the immovables to the donee. As such, the remainder in excess of the inherent inheritance shares of the donee among the registration of ownership transfer in the name of the donee regarding such immovables shall be deemed to have fulfilled the obligation of donation to the donee by other co-inheritors. Therefore, the disposition of gift tax on the premise that the donee was donated the inheritance shares from other co-inheritors cannot be revoked by unlawful means.
A. Article 186(a) of the Civil Act: Article 187(1)3(a) of the Framework Act on National Taxes; Article 4(1) of the Inheritance Tax Act; Article 1007(b) of the Civil Act; Article 29-2 of the Inheritance Tax Act
A. Supreme Court Decision 91Nu1493 delivered on June 11, 1991 (Gong1991, 1953) 92Nu4529 delivered on November 27, 1992 (Gong193Sang, 1480)
[Judgment of the court below]
Head of tax office
Busan High Court Decision 93Gu920 delivered on November 3, 1993
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. According to the reasoning of the judgment below, the court below determined that the taxation of this case on the premise that the plaintiff received the share of other co-inheritors with respect to the real estate of this case on January 5, 1984, before the plaintiff died on November 13, 1985, but did not complete the registration of transfer of ownership. The court below determined that the taxation of this case on the premise that the plaintiff received the share of other co-inheritors with respect to the real estate of this case on the premise that the plaintiff had received the share of donation from the above non-party 1 after the death of the non-party 1 was unlawful, because it was confirmed that the lawsuit against the above non-party 1 was won by filing a favorable judgment on February 15, 190, and completed the registration of transfer of ownership on February 15, 1990.
2. We examine the records and find the above fact-finding by comparing it with the records, and there is no error of violation of the rules of evidence or incomplete hearing such as theory of lawsuit.
3. In the case of real estate donation, the acquisition date of the real estate shall be the time of the registration of transfer of ownership following donation, and unless the registration of transfer of ownership is completed, it shall not be deemed that the real estate has been acquired yet, and therefore, in case where the donor who was an owner of the real estate was deceased, it shall be deemed that the real estate belongs to the inherited property (see Supreme Court Decision 92Nu4529 delivered on November 27, 1992). Thus, the real estate in this case shall be deemed to have been jointly inherited with other co-inheritors
However, the co-inheritors of the instant real estate should be deemed to have performed the gift obligation of Nonparty 1 to the said Plaintiff along with the instant real estate. As such, among the registration of transfer of ownership in the name of the Plaintiff on the said real estate, the remainder in excess of the Plaintiff’s own inheritance share may be deemed to have fulfilled the above gift obligation of other co-inheritors against the Plaintiff. Therefore, the instant disposition of taxation on the instant real estate on the premise that the Plaintiff received the inheritance share from other co-inheritors cannot be deemed to have been donated their inheritance share. Therefore, the revocation of the instant disposition of taxation on the premise that the said inheritance
Therefore, the court below's decision to revoke the disposition of this case is just and without merit.
4. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-ho (Presiding Justice)