[1] In a case where a trustee transfers a title trust property at his/her discretion without delegation or consent of the truster, and the transfer income is not returned to the truster, whether the truster is a person liable to pay the transfer income tax (negative)

[2] The case holding that the transfer income cannot be deemed to have been returned to the truster in case where the truster received part of the successful bid price as compensation for tort by compulsory means, such as provisional seizure of claim, claim for damages, compulsory execution, etc., when the trustee disposed of the title trust property through a compulsory auction by means of a false debt burden

[1] Although the title of title trust property is owned by the trustee, the actual ownership is owned by the truster. Thus, if the truster transfers the trust property at his/her own will, he/she shall be liable to pay the transfer income tax in a position of de facto controlling, managing, and disposing of the transfer income. However, if the trustee arbitrarily transfers the title trust property without the delegation or consent of the truster, the transferor is not the trustee, but the truster is not the trustee, and as long as the transfer income is not returned to the truster, the truster is not in a position of de facto controlling, managing, and disposing of the transfer income, and thus, he/she cannot be deemed the person liable to pay the transfer income tax.

[2] The case holding that the transfer income cannot be deemed to have been returned to the truster in case where the truster received part of the successful bid price as compensation for tort by compulsory means, such as provisional seizure of claim, claim for damages, compulsory execution, etc., when the trustee disposed of the title trust property through a compulsory auction by means of a false debt burden

[1] Article 14 of the Framework Act on National Taxes, Article 4(3) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; see current Article 88(1)); Article 7(1) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; / [2] Article 14 of the Framework Act on National Taxes; Article 4(3) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; see current Article 8(1)); Article 7(1) of the former Income Tax

[1] [2] Supreme Court Decision 88Nu10329 decided Mar. 27, 1991 (Gong1991, 1303) Supreme Court Decision 95Nu9068 decided Feb. 9, 1996 (Gong196Sang, 996Sang, 996)

The Korean Constitutional Court Order of 198Hun-Ga146 delivered on April 1, 200

The director of the North Korean District Tax Office

Gwangju High Court Decision 97Gu1630 delivered on March 20, 1998

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. Although the title of title trust property is owned by the trustee, the actual ownership is owned by the truster. Thus, if the truster transfers the trust property at his/her own will, he/she shall be liable to pay the transfer income tax in a position to de facto control, manage, and dispose of the transfer income. However, if the trustee transferred the title trust property at his/her own discretion without the delegation or consent of the truster, the transferor is not the trustee, and unless the transfer income is returned to the truster, the truster is not in a position to de facto control, manage, and dispose of the transfer income, and thus, he/she cannot be deemed the person liable to pay the transfer income tax (see, e.g., Supreme Court Decisions 8Nu10329, Mar. 27, 191; 95Nu9068, Feb. 9, 196).

2. According to the reasoning of the judgment below, the plaintiff obtained 00 won for non-party 1's non-party 1's non-party 6's share in the non-party 9's non-party 1's non-party 6's non-party 9's non-party 1's non-party 9's non-party 1's non-party 6's non-party 9's non-party 1's non-party 9's non-party 9's non-party 9's non-party 1's non-party 9's non-party 9's non-party 1's non-party 6's non-party 9's non-party 9's non-party 9's non-party 1's non-party 1's non-party 6's non-party 9's non-party 1's non-party 9's non-party 1's non-party 2's non-party 9's non-party 1's non-party 9's non-party 9'

However, according to the facts found by the court below, the amount recovered by the plaintiff, the trustee, etc. from the non-party 2, etc. is not the price for the transfer of the land in this case, but the non-party 2, etc. received the compensation for damages caused by the illegal act arbitrarily disposed of. The process of receiving the compensation does not return it to the plaintiff as soon as the non-party 2, etc. received as the trustee's status in accordance with the purport of title trust, but the plaintiff collected it through forced methods, such as provisional seizure of claim, claim for damages, compulsory execution, etc., and it is merely that the plaintiff received part of the amount after two years or more from the date of full payment of the successful bid price. Thus, it cannot be deemed that the plaintiff received the compensation as above, with the transfer income from the transfer of

Therefore, the court below's decision that the Plaintiff was liable to pay capital gains tax on the ground that capital gains from the successful bid of the land shares sold voluntarily by the title trustee was returned to the Plaintiff, the title truster, was erroneous in the misapprehension of legal principles as to a person liable to pay capital gains tax, which affected the conclusion of the judgment. The

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-hee (Presiding Justice)