쇠지지 지은은 3000 아은은은은 3000 아은은은은은은은은 3000 아은이 이 3000 아은은은은은 3000 이 이 3000 이 300209 7172

4479 decided April 16, 2009 【300 【3000 【3000 【3000 Seoul High Court Decision 2008Nu2479 decided April 16, 2009

쇠은은 이 개은은은 3000 개은은은 3000 개은은은은은 3000 이 이 이 3000 fishery 28 October 28, 2002

44 44 44 44 44 45 44 444 64 44

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

쇠鹬 쇠鹬 3000 쇠鹬 3000

The grounds of appeal are examined.

1. Article 98 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) and Article 162(1)5 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008) stipulate assets acquired through inheritance or donation in relation to the transfer or acquisition of assets as the date on which inheritance commences or donation is received. Article 31(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916 of Jan. 1, 2010), Article 23(1)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the date of acquisition of donated property shall be the date of registration or enrollment for assets required to be registered or recorded in the transfer or exercise of the right, but with respect to real estate ownership not required to be registered under Article 187 of the Civil Act, the date of actual acquisition of real estate.

On the other hand, Article 187 of the Civil Act provides that "the acquisition of real rights to real estate through inheritance, expropriation, judgment, auction and other provisions of law shall not be required to be registered. However, if an incorporated foundation is established through the pre-sale disposition, it shall not be disposed of unless it is registered." Article 48 (1) of the Civil Act provides that "where an incorporated foundation is established through the pre-sale disposition, the contributed property shall become the property of the incorporated foundation from the time when the incorporated foundation is established." Article 48 (1) of the Civil Act provides that "In relation with the contributor and the incorporated foundation, the time when the contributed property is attributed to the incorporated foundation." Since Article 48 (1) of the Civil Act provides that "in relation with the incorporated foundation, the contributed property shall belong to the incorporated foundation if the incorporated foundation is established in accordance with Article 48 (1) of the Civil Act in relation with the contributor and the third party, the contributed property shall belong to the incorporated foundation upon completion of registration in addition to the incorporation of the incorporated foundation (see Supreme Court en banc Decision 78Da481, en banc Decision 482, Sept. 38, 194, 1993).

Therefore, the time when the real right to real estate contributed for the establishment of an incorporated foundation is transferred from the contributor to the incorporated foundation in determining the time of transfer or acquisition of assets under the relevant laws such as the former Income Tax Act.

2. According to the reasoning of the judgment below, the court below held that the plaintiff acquired and possessed the house of this case on February 29, 1998 and the N, her husband, acquired the house of this case on November 5, 2004 and acquired the house of this case on May 18, 2005, NN established the KR Welfare Foundation (hereinafter referred to as the "K Welfare Foundation") which is a foundation by contributing the house of this case to HaN on June 15, 2005, and completed the registration of transfer of the house of this case on July 11, 2005. The court below held that the plaintiff transferred the house of this case to Ga Welfare Foundation on April 16, 2005, and that the transfer of the house of this case to HaN constitutes a contract to sell the house of this case to Y on April 16, 2005 and that it constitutes a temporary transfer of the house of this case on June 15, 2005.

The court below did not err in the misapprehension of legal principles as to the scope of two houses temporarily subject to non-taxation of capital gains tax, as alleged in the grounds of appeal.

3. 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 on the bench.

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