[1] In a case where a third party’s property on which the right to collateral security was established was donated from a lineal ascendant, whether it can be deemed that the donee took over the right to collateral security obligation as a discharge of obligation (negative), and the burden of proof as to the fact that the donee took over the right to collateral security obligation as a discharge of obligation, or performed by the donee’

[2] Whether gift tax and capital gains tax can be imposed together (affirmative with qualification)

[1] Article 29-4 of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996) (see Article 47 of the current Inheritance Tax and Gift Tax Act), Article 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15193 of Dec. 31, 1996), and Article 40-5 (see Article 36 (2) of the current Inheritance and Gift Tax Act) / [2] Articles 3 and 4 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), Article 29-3 (see Article 22 of the current Inheritance Tax and Gift Tax Act) of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 196)

[1] Supreme Court Decision 99Du12168 delivered on March 24, 200 (Gong2000Sang, 1091) / [2] Supreme Court Decision 94Nu15189 delivered on May 23, 1995 (Gong1995Ha, 2293), Supreme Court Decision 98Du11830 delivered on September 21, 199 (Gong199Ha, 2256), Supreme Court Decision 2002Du12458 delivered on May 13, 2003 (Gong203Sang, 1353)

Kim Young-young (Law Firm Dong, Attorneys Seo Young-ro et al., Counsel for the defendant-appellant)

The director of the tax office

Seoul High Court Decision 2001Nu1453 delivered on November 30, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. As to the Plaintiff’s assertion that the registration of transfer of ownership in the name of the Plaintiff on the instant land was made by the Plaintiff by purchasing the shares in the instant land from Nonparty Kim Jong-ok, and was not a donation from the her mother, his mother, the mother, the right to claim for transfer of ownership, the lower court acknowledged the facts as stated in its reasoning, and determined that the provisional registration in the name of Kim Jong-ok, which was made for the instant land, was in the form of a provisional registration to preserve the right to claim for transfer of ownership, and that even if the provisional registration was made for the purpose of preserving the right to claim for transfer of ownership, the provisional registration was made in the name of the Plaintiff, the owner of the instant land, in fact, in order to secure the loan obligation owed to Kim Jong-ok, and that the Plaintiff’s mother, on May 1994, paid the 49,651,280 won to Kim Jong-ok for the obligation guaranteed by the provisional registration, and that the obligation secured by the said provisional registration was extinguished.

In light of the relevant laws and regulations, the above recognition and judgment of the court below are just, and there is no violation of law such as failing to exhaust all necessary deliberations, violating the rules of evidence, or inconsistency in the reasons for the judgment.

2. In general, in the case of a donation of a real estate on which the right of collateral security was established in the third party’s name, the donee is deemed to have taken over the right of collateral security from a lineal ascendant, and thus, the donee cannot be deemed to have taken over the obligation which is directly deducted from the value of the donated property. In this case, the donee bears the burden of proving that the donee actually assumed the obligation of collateral security with the donor’s obligation. In such a case, the donee took over the obligation of collateral security with the exemption from liability or performed the obligation by his own disposal of the donee (see Supreme Court Decision 9Du12168, Mar. 24

In the same purport, the court below is just in holding that it is difficult to recognize that the plaintiff was deemed to have subrogated to Kim Jong-he for the order of return and deducted from the procedure of the preceding trial as to the above debt, other creditors, such as the National Treasury Mutual Savings and Finance Company and Seo Young-gu, which are creditors in the order of return, by accepting the debt of the collateral security in the order of return and subrogated for it, and it is not allowed to additionally deduct it from the taxable value of the gift tax of this case. There is no violation of the law of misunderstanding the legal principle

3. Gift tax and capital gains tax are different in terms of the requirements, timing, and taxpayers for the establishment of tax liability, and thus, in imposing each tax, the tax authority should make an independent determination in accordance with the substance of each taxation requirement, and if all the requirements of the provisions are satisfied, it is not possible to impose both taxes unless there are special provisions excluding overlapping application (see Supreme Court Decision 98Du11830 delivered on September 21, 199).

On the same premise, the judgment of the court below which held that even if the plaintiff imposed gift tax on the land of this case on the plaintiff on the ground that the ownership of the land of this case was donated to the plaintiff from the Kim Jong-he, but the ownership was transferred to the plaintiff from the Kim Jong-he, it is reasonable to conclude that the decision of the court below is a separate disposition different from the taxpayer, and there is no error of law by misunderstanding the legal principles on double taxation or the purport of the judgment.

4. Therefore, the plaintiff's appeal is dismissed and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Hong-hoon (Presiding Justice)