Whether gift tax is levied on a real estate seller (negative) where a real estate seller becomes entitled to a title trust from a real owner because the seller did not transfer the real estate to the actual owner (negative)

The provisions of Article 32-2 of the Inheritance Tax Act, in principle, may be interpreted as a donation to the title holder on the date of transfer of registration, but in case where it is evident that the title holder and the title holder are different in any other circumstances without any purpose of tax avoidance, it is illegal to levy gift tax by deeming the donation as a donation. Thus, if the acquisition by registration is made because the seller does not transfer the registration to the title holder, it is difficult to deem that there was a purpose of tax avoidance.

Article 32-2 of the Inheritance Tax Act

Supreme Court Decision 88Nu5464 delivered on December 22, 1989 (Gong1990, 375) 89Nu22 delivered on February 27, 1990 (Dong Branch) 89Nu3120 delivered on February 27, 1990 (Dong Branch)

Park Jong-hun, Attorney Park Jae-hoon, Counsel for the plaintiff-appellant

Head of Dong Tax Office

Supreme Court Decision 85Nu633 Decided May 12, 1987

Seoul High Court Decision 87Gu805 delivered on December 17, 1987

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

With respect to heading 1, 2, and 3:

The provisions of Article 32-2 of the Inheritance Tax Act, in principle, may be interpreted as a donation of real estate to the title holder on the day prior to the transfer of registration. However, if it is evident that the title holder and the title holder differ without the purpose of tax avoidance, deeming such donation as a gift is illegal. In the event the acquisition of registration is made not by the seller but by transfer of registration in the future of the actual owner, it is difficult to deem that the purpose of tax avoidance exists (see Supreme Court Decision 88Nu5464, Dec. 22, 1989).

According to the facts established by the court below, the plaintiff, working as the manager of the Uniform Training Center, was in charge of the purchase of land at a university located in the same church located in the name of the non-party 2, who is the head of the Uniform Training Association, and purchased the rice, paddy field, land, forest land, and standing timber on the ground. After that, the non-party 2, who is the manager of the Foundation for the Maintenance of the Uniform Religious Association, carried in the Republic of Korea with overseas funds from the above literature, he would raise the price to the plaintiff who is a party to a sales contract and raise the price to the above Jeonmon owner as a party to the contract for the transfer of the above name, taking into account domestic and foreign counter-party 1 list of the court below's judgment's decision excluding unregistered real estate (hereinafter "the land of this case"), and the plaintiff, who completed the registration of transfer of the ownership from the above title trustee 1 to the plaintiff on May 20, 1982, and completed the registration of transfer of ownership under the name of the non-party 1's title truster 98.

Therefore, whether the standing timber on the forest land of this case should be determined as the object of donation by forming part of the land of this case and being incidental to the transfer of land ownership, or whether the standing timber can be deemed as the property requiring the registration of change of title, etc. as stipulated in Article 32-2 of the same Act, and whether there is no room for applying Article 32-2 of the same Act to the group of trees on the forest land of this case, the decision of the court below is not affected by the result of this case, and as long as the recognition of deemed donation on the land of this case (including standing timber on the land of this case) is illegal, the recognition of the sale price of forest land of this case and standing timber of this case or whether the court below rejected Eul evidence No. 5 and calculated the value of forest land of this case is not affected by the result of this case

Therefore, the argument that the Plaintiff is entitled to legal donation with respect to the land of this case, and the argument that the Plaintiff is entitled to legal donation should return to the Plaintiff as well as to the effect that all the arguments are groundless without examining it.

With respect to the fourth point:

In this case, it is just that the court below determined that there is no evidence that the plaintiff received the gift tax amount of KRW 7,492,790, such as acquisition tax, which the court below included in the gift tax base amount, and there is no violation of the rules of evidence or the violation of the law in light of the reasoning. The argument is groundless.

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 Young-ju (Presiding Justice)