early 2008west0803 (Law No. 9, 2009)

Whether there was a gift bypassing real property

Disposition imposing gift tax by deeming that the Plaintiff’s purchase of real estate from the construction company is donated by the father of the Plaintiff who is the ordering person;

The contents of the decision shall be the same as attached.

1. The Defendant’s imposition of KRW 89,60,00 on February 1, 2008 against Plaintiff KimA, and the imposition of KRW 17,920,000 on April 8, 2008 against Plaintiff BB and the imposition of KRW 71,680,00 on the gift tax against Plaintiff KimCC is revoked.

2. The litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to the statements in Gap evidence 1 (including numbers), Gap evidence 2, Eul evidence 3, Eul evidence 1, Eul evidence 2, Eul evidence 3, Eul evidence 4, Eul evidence 5, Eul evidence 6, Eul evidence 7, Eul evidence 12, Eul evidence 19, Eul evidence 21, and Eul evidence 21.

A. On July 29, 1995, KimD and Choi E-E entered into a contract with ○○○○○-dong 192-61 to construct a new construction of a main complex building with ten floors above ground, and the construction cost of 5,142,336,00 won below the second underground (the final change was made to 6,216,00,000 won on October 25, 1997), and completed registration of the preservation of ownership in their names with respect to 1/2 shares in each of the above buildings completed on November 25, 1997.

B. At the same time, E completed the registration of ownership transfer with respect to one-half of 2 underground floors, 3, 4, and 5 underground floors among the above buildings, which were agreed to be owned by DoD to be owned by DoD from DoD on the same day, and KimD completed the registration of ownership transfer with respect to 5,500,000 won of the maximum debt amount regarding the above part of the building in order to secure the obligation for the payment of the construction cost which Do has decided to be responsible to the above company.

C. On March 6, 1998, upon a request based on the right to collateral security of the above company, the auction procedure of movable property was commenced on March 6, 1998. In the auction procedure, the above company sold the above building portion to 2,90,000,000 won on January 22, 1999 and completed the registration for transfer of ownership. After that, the above company sold the above building portion to Plaintiff KimA and KimF (hereinafter referred to as “Plaintiff KimA et al.”) on June 28, 200 that the company decided to take over the above building portion to 100,100,000,000 won, including the security deposit repayment obligation of 10,100,000,000 won, and then the registration for transfer of ownership was completed on each of the above building portion, and on November 22, 2002, Plaintiff Kim F died died, and Plaintiff BBB 1, 2014.

D. The head of ○○ regional tax office: (a) based on the result of regular audit of duties on the Dobong Tax Office’s book; and (b) based on the fact that the value of the above building portion was KRW 3,800,000,000 when the Plaintiff KimA et al. borrowed KRW 2,00,000 from the Korea Life Insurance Co., Ltd. in order to raise the above purchase price, the head of ○○ regional tax office deemed that the market value of the above building portion was KRW 3,80,000,000,000; and (c) notified the Defendant of KRW 1,80,000,000 calculated by subtracting the acquisition value of the above building from KRW 2,00,000,000,000 from the acquisition value of the above building as the value of the property

E. Accordingly, the defendant decided on February 1, 2008 that the above company's 2,90,000,000 won paid from the above purchase price of KRW 2,100,000,000 and the lease deposit repayment obligation of KRW 100,000,000 calculated by subtracting the total of KRW 2,100,000,000,000, which was paid from the above company's 2,90,000,000, which was paid by the above company to the above company's sale price of KRW 1/2,00,000, each of the amount of KRW 89,60,000,000, which was donated from the KimD on June 28, 200 and notified each of the plaintiff's 89,60,000,000,000 among the 80,000,000,000 won, but confirmed the death of KimF.

2. Whether the disposition is lawful;

(a)Recommendations of the plaintiffs;

At the time of the above sale, the plaintiffs asserted that the owner of the above part of the building was not KimD, but had legal and factual relations, and that the market price of the above part of the building was KRW 2,100,000,000, not KRW 2,100,000,000, and thus, the above increase detailed and disposition against the plaintiffs on different premise is unlawful.

(b)a recognition;

(1) On July 29, 1995, KimD entered into a construction contract with the largest E on the above contents of the above construction contract with the insurance industry. On November 25, 1997, on its own name, Kim Jong-chul completed the registration of ownership preservation and the registration of ownership transfer for the remainder of the above building portion, and became to own the above building portion independently. The insurance industry completed the registration of ownership creation for the above building portion as security for the construction cost claim against Kim Jong-D, and completed the registration of ownership transfer for the above building portion with the above part sold to 2,90,000,000 won on January 222, 1999, and completed the registration of ownership transfer for the above part of the building portion sold to 1/2,00,000,000 won on June 28, 200, and each Plaintiff, etc. sold the above part to 100,000,000 won including the above maximum debt amount, and 10/10,000,000A.

(2) 그리고 앞서 든 증거에 갑4호증, 을8호증, 을9호증, 을10호증, 을14호증, 을15호 증, 을16호증, 을17호증, 을18호증의 각 기재, 증인 이경우의 증언과 변론 전체의 취지를 보태어 보면, □□산업이 위 건물의 공사를 완성한 후 김DD와 최EE이 그 무렵 닥친 IMF 사태로 상가를 분양하지 못하는 등으로 인하여 공사대금을 지급하지 못하고 있었던 사실, 위 경매 당시 □□산업의 공사대금채권은 지연이자를 포함하여 총 4,200,000,000원 정도에 이르렀는데, □□산업은 김DD와 최EE을 분리하여 금융기관 대출 등으로 미지급 공사대금을 지급할 여력이 있던 최EE으로부터는 그가 책임지기로 한 1,300,000,000원을 현금으로 지급받기로 하여 1999. 2. 3.부터 2000. 1. 31.까지 전액 회수하였고, 신용상태마저 좋지 않아 미지급 공사대금을 지급할 능력이 전혀 없던 김DD로부터는 위 건물부분을 경매하여 그가 책임지기로 한 2,900,000,000원 정도를 회수하기로 하여 위 건물부분에 관하여 임의경매를 신청하게 되었던 사실, 그런데 위 경매절차가 4차례 유찰되고 최저경매가격도 2,808,328,800원까지 하락하자, □□산업은 일단 다음 매각기일에 위 건물부분을 2,900,000,000원에 매각받기로 하되, 그 전에 1998. 11. 초경 김DD와 사이에, □□산업이 위 건물부분을 매각 받게 될 경우 김DD가 위 건물부분을 분양하여 그 분양대금을 입금하는 방법으로 미지급 공사대금을 지급하고, 그것으로 미지급 공사대금이 전부 충당되지 않으면 □□산업이 직접 위 건물 부분을 매매 또는 임대하여 미지급 공사대금을 회수하며, □□산업이 미지급 공사대금을 전부 회수한 때에는 김DD나 그가 지정하는 자에게 위 건물부분의 소유권을 이전하기로 합의한 다음, 1998. 11. 8.경 위 건물부분을 낙찰 받은 사실, 그 후 □□산업이 1999. 2. 초경부터 분양대행팀을 위 건물 5층에 상주시키고 분양을 시도하였으나 부동산 경기가 더 악화되어 1999. 10.까지 전혀 분양을 하지 못한 채 분양대행팀을 철수시킨 사실, 거기에 더하여 □□산업이 당시 유동성 부족으로 부도 위기에까지 몰리게 되자, 위 건물부분을 2,000,000,000원 정도로라도 낮추어 매각하기로 하여 김DD측과 접촉하여 대출 알선까지 해주겠으니 위 건물 부분을 매수하라고 제의하였는데, 김DD는 신용불량자인 등의 사정으로 거절하고 대신 원고 김AA 등이 나서서 □□산업의 알선으로 ▽▽생명보험 주식회사로부터 2,000,000,000원을 대출받아 □□산업으로부터 위 건물부분을 매수하여 소유권이전등기를 마침과 동시에 주식회사 ♧♧부동산신탁 앞으로 신탁을 원인으로 한 소유권이전등기를 마쳐준 사실을 인정할 수 있다.

C. Determination

(1) As seen in the above facts, in order to recover the claim for the payment of the construction cost against the KimD in the △ industry, the insurance industry, which is the right to collateral security regarding the above part of the building, has been sold in accordance with the agreement that the insurance industry, which is the right to collateral security regarding the above part of the building, was to receive the above part of the building, so the ownership of the above part of the building is acquired externally or internally by the insurance industry (see Supreme Court Decision 2000Da7011, 7028, Mar. 15, 2002). However, if the insurance industry collects the whole amount of the construction cost unpaid from KimD under the above agreement, it bears the duty to transfer the ownership of the above part of the building to KimD or its designated person, but such conditions have not been fulfilled, and in light of the motive, circumstance, execution method, and its subsequent progress, it is reasonable to deem that the above sale between the insurance industry and the Plaintiff, etc. constitutes a new legal relation unrelated to the above agreement.

In addition, the statement in Eul evidence 21 alone is insufficient to view the objective market price of the above building as KRW 2,90,000,000 at the time of the above sale, and rather, according to the statement in Eul evidence and Eul evidence Nos. 12 and Eul evidence No. 19, the market price of the above building according to the supplementary evaluation methods under the Inheritance Tax and Gift Tax Act is only KRW 1,956,00,000.

(2) The Defendant asserts that, even after the insurance industry acquired the ownership of the above building portion, KimD owned a substantial ownership of the above building portion at the time of the sale on behalf of the insurance industry, on account of the fact that KimD leased a part of the above building portion to KRW 100,000,000 on behalf of the insurance industry, repayment of approximately KRW 200,000 out of the unpaid construction cost, and use a part of the above building portion free of charge.

However, it is difficult to see that KimD leased part of the above building on behalf of the △ industry in violation of the purport of the above agreement, with a view to selling the above building part and repaying the unpaid construction cost, and rather, it is merely a circumstance supporting the fact that △ Industries is the owner of the above building part, and then, KimD's repayment of unpaid construction cost should be considered a method of taking measures to re-acquisition the ownership of the above building part, which is the ownership of the △ industry. Lastly, just because KimD used part of the above building part free of charge, the decision as to the owner of the above building part cannot be followed.

(3) Therefore, each of the above gift tax imposed by the Defendant against the Plaintiffs on the contrary premise is deemed to be unlawful.

3. Conclusion

Therefore, all plaintiffs' claims are accepted.