[증여세등부과처분취소][판례집불게재]
Limited Dong (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)
Racing Head of the Tax Office
August 17, 1978
The Defendant’s disposition imposing KRW 1,736,980 on the Plaintiff on July 1, 197 and KRW 347,396 of the defense tax for the year 77 is revoked.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
In full view of each of the statements in the evidence Nos. 1-1, 2, 3 (Decision-making, Investigation Documents, and Data), where there is no dispute over the authenticity of the petition, the facts that the defendant imposed the disposition on the plaintiff as to the disposition of imposition on the plaintiff, and the grounds for the disposition of imposition on the same shall be acknowledged by the defendant, on June 4, 1976, on the ground that the non-party Han Yong-ran purchased the land in the attached list and did not register the fact that it was a trust property under Article 3 of the Trust Act while trusting the plaintiff on June 4, 1976, and did not register the fact that it was a trust property under Article 3 of the Trust Act, on the ground that the above person who is the truster, was a donation of the above land to the plaintiff as the trustee, pursuant to Article 32-2 of the Inheritance Tax Act. Accordingly
The plaintiff, as a Korean national in Japan, purchased the above land for poverty and cultivated it to the same students. The plaintiff argued that the above taxation disposition is unlawful and unjust, and the defendant's first asserted that the plaintiff raised an objection against the above taxation disposition and received a decision of dismissal, and then received a request for examination, and the plaintiff asserted that the plaintiff's lawsuit was unlawful since it did not comply with the plaintiff's prior decision. The plaintiff asserted that, on April 15, 197, the above taxation disposition was unlawful and unjust, although he returned the ownership transfer registration under the title trust in the name of the above one crime, he returned the ownership transfer to the plaintiff in the name of the above one crime.
First, according to the evidence No. 7-1 and No. 2 (Notice of Determination of National Tax Tribunal, Decision) No. 8 (Written Decision), each of which does not dispute the establishment of the defendant's appeal against the defect in the pre-determination requirement, the plaintiff filed a legitimate request for a review against the above taxation disposition by the defendant, and received a decision of dismissal on Nov. 29, 197, and filed a request for a trial on Nov. 23, 1978, and received a decision of dismissal on April 22, 197, while the lawsuit in this case is pending, and there is no counter-proof, so the defendant's above assertion is groundless.
Then, as to the plaintiff's above assertion, the plaintiff's assertion is examined.
In full view of the statements in Gap evidence 6 No. 1-2 (written investigation) No. 1-2 (written investigation) evidence No. 1-2 (written investigation) without dispute over the authenticity, the testimony in the evidence No. 6-2 (written investigation) evidence No. 1-2 (written investigation) evidence No. 1-2 (written investigation), and the whole purport of the pleadings as a result of the verification by the court of the party court, it is intended to purchase the above land and cultivate it to the same students as the above allegations by the plaintiff, and in the idea that they depend only on the above single-use crime, and in the idea that they would depend only on the above one-use crime, they will scambling their lives, such as cultivating the above land, and then return their right to cultivate from the same children on June 4, 1976, and sell it to another person, the plaintiff's ownership was transferred in the name of the plaintiff, the title of which was completed with the registration of ownership transfer before the plaintiff, and the plaintiff, the trustee, shall not return the ownership to the above land again.
If the facts are as above, the above trust relationship between the above Han used crime and the plaintiff is merely transferred only to the plaintiff as the trustee, and it is not exclusively granted the right and obligation to manage and dispose of the above land to the plaintiff as the trustee. Thus, the trust relationship is so-called title trust or passive trust ( even if the right to cultivate the above land was granted to the plaintiff simultaneously with the above trust, it is merely a cultivation right under a separate cultivation contract which is granted as a lump sum incidental to the above trust, and the above taxation disposition is merely a right to cultivate under a separate cultivation contract which is granted in addition to the above trust, and the trust relation cannot be deemed as a trust under the Trust Act as stipulated in Article 1 (2) of the Trust Act. Accordingly, the trust relation cannot be deemed as a trust under the premise that the trust relation is a trust under the Trust Act. Thus, the trust relation is not registered under the provisions of Article 32-2 of the Inheritance Tax Act, on the premise that it is a trust under the Trust Act.
Therefore, since the above taxation disposition by the defendant is deemed to be unlawful, the plaintiff's claim seeking the cancellation of the disposition is reasonable, and therefore, it is accepted, and the litigation cost is decided as per Disposition at the defendant's expense as the losing party.
September 7, 1978
Judge Lee Jong-dae (Presiding Judge)