원고의 소유재산을 망인에게 명의신탁하였다고 볼 수 없음[국승]
Cho High Court Decision 201Do2405 (No. 2011.08)
The Plaintiff’s property may not be deemed as nominal trust to the Deceased.
In full view of the fact that there was a need to purchase a title trust under the name of the deceased at the time of acquiring real estate under the name of the deceased, or that there was an intention or a need to cancel the subsequent title trust and return it to the plaintiff after registering in the name of the deceased, it is insufficient to recognize that the title trust was made.
2011Revocation of revocation of disposition imposing gift tax, 42475
HongAA
Head of Seocho Tax Office
June 12, 2012
July 12, 2012
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the plaintiff.
"The defendant revoked each disposition of KRW 000 of gift tax on October 24, 2007 and KRW 000 of gift tax on March 30, 2009, which was made by the defendant against the plaintiff on December 1, 2010 (the date of disposition on December 9, 2010 stated in the written complaint seems to be the clerical error of December 1, 2010)", and the reasons are as follows.
1. Details of the disposition;
A. Nonparty B (hereinafter “the deceased”) died on August 15, 2009, and the Plaintiff, the wife of the deceased, as the inheritor, reported the inheritance tax amount to KRW 000, and reported the inheritance tax base to KRW 000,00.
B. The defendant, as a result of the inheritance tax investigation on the plaintiff, and 000 OOO 000 OO 000 (hereinafter "the first real property of this case") acquired by the plaintiff with the deceased, and 000 OO 000 (hereinafter "the second real property of this case"), Seoul Seocho-gu 000 OO 000 (hereinafter "the second real property of this case") respectively, and 1/2 shares acquisition fund of 000 and 0000 (OO 000 000 000 000 2000 (hereinafter "the third real property of this case") that were reconstructed and supplied to the plaintiff, the plaintiff was subject to a prior donation from the deceased, and the plaintiff was subject to a disposition of 1/200 0 00 OO 00 00 00 00 00 0. 20 0 0 00 0 00 00 01 201 20 00 1 200 1 000 .
[Ground of recognition] The non-speed facts, Gap evidence, Eul evidence 1, 2, 3, 1, 8, 2, and 3, and 1, 2, and 3, and the purport of the whole pleadings.
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
"The acquisition fund of each real estate of this case was made in the name of the deceased in the name of 531 square meters and its ground (hereinafter "the 4 real estate of this case") and 000 OOdong, Seocho-gu Seoul Metropolitan Government OOdong 000 (hereinafter "the 5 real estate of this case"). However, the 4 and 5 real estate of this case are jointly owned by the deceased and the plaintiff, which were acquired by the plaintiff through joint efforts such as operation of a house in marriage and disposal of weddings, etc., and the 1/2 of the transfer price shall also be deemed to be owned by the plaintiff since most of the acquisition fund of this case was made in the name of the deceased, and the 1/2 of the transfer price shall also be deemed to be owned by the plaintiff. Accordingly, the plaintiff's disposal of the 1/2 real estate of this case and the 3 real estate of this case shall be deemed to be unlawful by deeming that the acquisition fund of this case and the contribution of the 1/2 real estate of this case (hereinafter "the acquisition fund of this case")."
The entries in the attached Table-related statutes are as follows.
(c) Fact of recognition;
1) The developments leading up to the acquisition and transfer of the instant 4 and 5 real estate
Of the instant 4 real estate, the part on the land was sold on December 20, 1974; the part on the building was sold on July 21, 1981; the five real estate was transferred on November 24, 1989 in the name of each deceased; and the fourth real estate was sold on April 6, 2004 to a third party on April 6, 2004, and the ownership transfer registration was completed in the name of a third party on November 29, 2004; and the five real estate was sold on March 27, 2006 to a third party on May 30, 2006, and the ownership transfer registration was completed in the name of the third party on May 30, 206.
2) Particulars of acquiring each real estate of this case
The plaintiff and the deceased acquired the real estate of this case No. 1 on October 24, 2007, and on August 19, 2005, the second real estate of this case No. 2 in the joint names of 1/2 shares, respectively, and the deceased seems to have paid the sale price of the real estate of this case No. 1 and 2 and the rebuilding charges of the third real estate of this case as the sale price of the real estate of this case No. 4 and 5 real estate.
[Reasons for Recognition] The non-speed facts, Gap evidence 1, Eul evidence 3-1 to 6, Eul evidence 3, 5, 6, and 7, and the purport of the whole pleadings
D. Determination
The presumption that one side's own property acquired in the name of the deceased was presumed to be the unique property of the deceased, and that there was cooperation between the other side, or that there was nothing to do so. However, if the other side proves that the deceased actually acquired the value of the property under the name of the deceased, it may be acknowledged that the presumption was reversed and the other side's actual owner bears the value of the property under title trust (see Supreme Court Decision 2006Da79704, Apr. 26, 2007). If it is proved that the other side's acquisition of the real property under the name of the deceased was based on the premise that the other side's property was presumed to have been under title trust 4, and that the other side's property was under title trust 5, and that the other side's property was under title trust 5, and that there was no evidence that the other party acquired the real property under the name of the deceased, referring to the presumption that the other party acquired the real property under the name of the deceased was under title trust 80.
Therefore, it is reasonable to view that the Plaintiff received each of the instant acquisition funds from the Deceased, acquired 1/2 shares of the movable property 1 and 2, and paid the said shares. Therefore, the instant disposition is lawful.
3. Conclusion
The plaintiff's claim is dismissed on the ground that it is without merit.