[증여세등부과처분취소][공1990.10.15.(882),2046]
Whether the donation is deemed in case where exceptional circumstances are not proven that there is no purpose of tax avoidance (affirmative)
The provisions of Article 32-2(1) of the Inheritance Tax Act concerning deemed donation shall not apply to a property which requires registration, etc., in cases where the actual owner and the nominal owner are different due to any other cause, such as restrictions under the positive law or refusal to cooperate with a third party, without the purpose of tax avoidance. However, since the liability for proof of proof is the nominal owner, it shall be deemed that the property concerned is naturally donated and thus, is subject to gift tax unless the above exceptional condition is proved. In this case, it shall not be presumed that a separate specific purpose of tax avoidance exists or that the specific fact of tax avoidance should not be clarified, and it shall not be deemed that there is a passive fact that there is no objective of tax avoidance.
Article 32-2 (1) of the Inheritance Tax Act, Article 26 of the Administrative Litigation Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)
Attorney Shin-young et al., Counsel for the plaintiff-appellant
Head of Seodaemun Tax Office
Seoul High Court Decision 89Gu8035 delivered on April 12, 1990
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
On the first ground for appeal
Upon examining the reasoning of the judgment below in light of the records, the court below's finding of the court below's rejection of witness's testimony or the court below's finding of facts is justified, and the registration of transfer of ownership in the name of the plaintiff to the forest of this case cannot be acknowledged as being unilaterally made by the non-party's husband, who is the non-party's husband without agreement or communication with the plaintiff. Thus, it cannot be said that there was an error of law by misunderstanding the rules of
In addition, if the facts are the same, there is no error of law by misapprehending the interpretation and application of the Inheritance Tax Act concerning deemed donation in the court below's decision that the defendant's taxation of this case was lawful by deeming the forest at issue in this case to be purchased and the registration of ownership transfer in the name of the plaintiff, his wife, as a donation.
The precedent of the theory of lawsuit is not appropriate in this case.
Therefore, this paper is without merit.
On the second ground for appeal
In case where the actual owner and the nominal owner are different in the property which requires registration under Article 32-2 (1) of the Inheritance Tax Act, the actual owner and the nominal owner are deemed to have donated to the nominal owner on the day when the registration is made to the nominal owner, but in case where the actual owner and the nominal owner are different in terms of any other circumstances, such as restrictions under the positive law or refusal of cooperation by a third party without the purpose of tax avoidance, the provisions of the Inheritance Tax Act concerning the deemed donation shall not be applied, and the burden of proof shall be borne by the party member (see, e.g., Supreme Court Decision 88Nu4997, Mar
Therefore, unless the above exceptional circumstances are proved, it is naturally presumed that the pertinent property is donated and subject to gift tax. In this case, it should be presumed that there exists a separate specific purpose of tax avoidance, or it should not be clarified that there is a specific purpose of tax avoidance, and it does not necessarily go against the legal principles of burden of proof on the ground that there is a passive fact that there is no objective of tax avoidance.
Therefore, we cannot accept the argument of the lawsuit that criticizes the judgment of the court below from the opposite position, and there is no reason to discuss.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Young-ju (Presiding Justice)