Whether the provision on deemed donation of Article 32-2(1) of the Inheritance Tax Act is in violation of Article 22 of the Constitution.

The provision on deemed donation of Article 32-2(1) of the Inheritance Tax Act recognizes a need for a tax liability to be imposed on a nominal person when there is a separate person from a nominal person in the property requiring a registration on the transfer of the right or its exercise, etc. In fact, where the actual and property taxed based on the register or the tax ledger, etc. in the tax administration is registered in the name of a third party in the actual tax administration, at least in external relations, the ownership is deemed to exist on the nominal person, and even if the nominal person disposes of the property without the consent of the actual owner, it is necessary to have the third party pay the tax liability to the nominal person under the tax legislation policy because the third party acquires the ownership lawfully. In light of the above, Article 32-2(1) of the Inheritance Tax Act is not contrary to the spirit

Article 32-2(1) of the Inheritance Tax Act, Article 22 of the Constitution

[Judgment of the court below]

Daejeon director of the tax office

Seoul High Court Decision 86Gu710 delivered on January 28, 1987

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

As to the ground of appeal by the Plaintiff’s attorney:

In theory, Article 32-2 (1) of the Inheritance Tax and Gift Tax Act is a provision that ignores the purpose of Article 22 of the Constitution that guarantees the property rights of the people.

Article 32-2(1) of the Inheritance Tax Act provides that in case where the de facto owner and the nominal owner are different with respect to property which requires a registration, etc. for the transfer or exercise of rights, the actual owner shall be deemed to have donated such property to the nominal owner on the day when the registration, etc. is made to the nominal owner, notwithstanding Article 14 of the Framework Act on National Taxes. Although Article 14 of the Framework Act on National Taxes seeks to prevent the phenomenon of unjustly avoiding taxes on the basis of the actual owner’s assumption of the substance and the nominal owner’s premise, it is the provision of the above Inheritance Tax Act, deeming that it is necessary to allow a nominal owner to bear the tax liability when there is a separate person with respect to the de facto owner and the nominal owner. In other words, in property which requires the transfer or exercise of rights, it is deemed that the de facto owner and the nominal owner are donated to the nominal owner on the day when the registration is made based on the registry or tax ledger, etc. in actual tax administration, at least in case where a third party’s name is registered, it shall be deemed that the title holder has no reason to lawfully assume the tax liability.

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 Jong-chul (Presiding Justice)