Seoul Administrative Court 2009Guhap28292 ( October 23, 2009)

Seocho 209west 1661 (Law No. 24, 2009)

The case acknowledged as a title trust between husband and wife with respect to the taxation of gift tax on real estate acquisition funds;

In light of all the circumstances, even though the husband has borne the acquisition fund of an apartment, in light of the fact that the husband has borne the acquisition fund of an apartment, it cannot be deemed that the intention of donation was based on the acquisition of the acquisition fund of an apartment, and it is reasonable to deem that the acquisition of the title trust was made through the title trust.

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

Ma-○

Head of Seocho Tax Office

1.The decision of the first instance shall be revoked.

2. On December 5, 2008, the imposition of each gift tax stated in the column of "total determined tax amount" in the attached Table 2, which the defendant made against the plaintiff on December 5, 2008 shall be revoked.

3. The total costs of the litigation shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of dispositions;

A. On June 4, 2003, the Plaintiff entered into a contract with ○○○○ University, ○○○○○-dong, 227-6, and 3302, an apartment building in Do, 3302 (hereinafter “instant apartment”) newly built on the land and six parcels, with the purchase price of KRW 935,279,00,00. From that date to May 23, 2007, the Plaintiff paid all of KRW 24,335,910, in addition to the down payment, intermediate payment, and remainder pursuant to the above sales contract, and completed the registration of ownership transfer in the name of the Plaintiff on June 25, 2007.

B. As a result of the investigation into the source of the acquisition fund for the apartment of this case conducted on December 5, 2008, the Defendant: (a) deemed that the Plaintiff received the cash equivalent to the sales contract of this case and the transfer of ownership registration, such as the down payment, intermediate payment, balance, and acquisition tax, in sequence, from 198,852,575 won as stated in the attached Table 2 of the details of taxation (hereinafter “the disposition of this case”) from her husband A decoration on nine occasions from June 4, 2003 to May 23, 2007; and (b) deemed that the Plaintiff received the cash equivalent to the acquisition tax and registration tax in sequence, the Defendant imposed and notified the Plaintiff of the imposition of KRW 198,852,575 in addition

[Grounds for Recognition: Evidence A, Nos. 1, 2, 3, 5, 9, and No. 1, 44

2. Related Acts;

It is as shown in the attached Table related statutes.

3. Whether the disposition of this case is legitimate

A. The plaintiff's assertion

In order for the Plaintiff’s husband A decoration to raise the probability of winning the apartment in △△, the Plaintiff won, applied for an offer in his name and the Plaintiff’s two names, while the Plaintiff won, the Plaintiff entered into a sales contract of the apartment in this case under the name of the winning Plaintiff, and the Plaintiff entered into the registration of ownership transfer. However, the AA decoration was fully borne with the acquisition fund of the apartment in this case and directly managed the apartment in this case. Therefore, the actual owner of the apartment in this case is the AA decoration. Therefore, the instant apartment in this case is a summary of the claim that the disposition in this case was unlawful even if the AA decoration was merely a title trust to the Plaintiff

(b) Fact of recognition;

(1)A decoration has been engaged in the legal affairs of the Plaintiff and the legal couple for more than ten years, and the Plaintiff has kept and managed its revenues in the bank account opened in the name of the Plaintiff, and there was no particular income from the Plaintiff’s family registry. In addition to the instant apartment in the name of the Plaintiff’s husband and wife, there was a building with the property of the Plaintiff’s husband and wife, ○○○○○○○-gu, △△△△△-dong, 1685, 23 605, and 3-7, and the above 3-7, and the above 3-7, △△△△△-dong, △△△△-gun, △△△△-dong, △△△-dong, 1685, and 1/2, in the name of the Plaintiff. At the time of purchase of the real estate in the said △△-gun group, the AA decoration

(2) On May 28, 2003, the plaintiff and AA decoration applied for an application to increase the probability of winning the apartment of Do-dong, △△, respectively, and paid the subscription amount of KRW 30,000 each with the funds of AA decoration. Upon the plaintiff's winning, A decoration had the plaintiff pay the down payment with the funds of the new company on June 4, 2003 (Attached No. 1 of the attached Table 1).

(3)The plaintiff paid the intermediate payment, balance, acquisition tax and registration tax according to the acquisition of the apartment of this case with the funds of AA decoration stated in the column of "amount paid" on each of the dates stated in the separate sheet Nos. 2 through 9 in the separate sheet of taxation.

(4) On August 23, 2007, the Plaintiff deposited KRW 450,000,000 in the account under the name of the Plaintiff, which received after renting the instant apartment, with the money located in the account on August 20, 2008. The Plaintiff repaid KRW 50,000,000,000, out of the debt of the AAA decoration’s collateral loan, which secured the real estate of

(5) The Defendant: (a) deemed that AA decoration donated to the Plaintiff each money indicated in the column of "payment Nos. 2 through 9" in the attached Table No. 1 of the attached Table No. 1; and (b) calculated by applying the gift tax rate based on the sum of the amounts indicated in the attached Table No. 1 as the tax base; (c) calculated by deducting the calculated tax amount on the amount of payment by the sequence No. 300 million from each stated in the attached Table No. 2 of the attached Table No. 2 of the attached Table No. 2 of the attached Table No. 2 of the assessment details; and (d) calculated the gift tax on the amount of payment by deducting the calculated tax amount on the order No. 1 from each stated in the attached Table No. 2 of the attached Table No. 2 of the attached Table No. 2 of the attached Table No. 2 of the attached Table No. 2 of the attached Table No. 9300, Dec. 1, 2008.

[Reasons for Recognition: Evidence, Gap's evidence Nos. 1 through 3, 5 through 7, and 24, the purport of the whole pleadings]

C. Determination

(1) The burden of proof of the facts requiring taxation is against the tax authority, but it is proved that the other party has presumed the facts requiring taxation in light of the empirical rule, if it is not subject to the application of the empirical rule (see, e.g., Supreme Court Decision 89Nu6006, Apr. 27, 1990). If, under Article 830, paragraph (1) of the Civil Act, real estate acquired by one of the married couple under his/her sole name is presumed to be the unique property of the nominal owner, if it is discovered that the other spouse is not the nominal owner, the nominal owner shall be presumed to have been donated the acquisition fund from the spouse, and in this case, it shall be presumed that the nominal owner cannot be deemed to have been donated the acquisition fund because the real estate concerned is not the unique property of the nominal owner, but the real estate concerned is a title trust from

In addition, in order to reverse "the presumption of special property" under Article 830 (1) of the Civil Act, the other spouse bears the actual burden of the price for the pertinent real estate and proves that the other spouse acquired the pertinent real estate in order to possess it actually (see, e.g., Supreme Court Decision 98Du15177, Dec. 22, 1998). Thus, just because the other spouse is the source of the purchase fund, the presumption of special property is not reversed and a title trust was held on the pertinent real estate. It does not mean that the mere fact that the other spouse is the source of the purchase fund does not necessarily mean that there was a title trust on the pertinent real estate. In full view of all the circumstances revealed through the relevant evidence, the issue of whether the other spouse bears the cost for the real possession of the pertinent real estate should be determined individually and specifically by taking account of all the circumstances revealed by the relevant evidence, and in particular, it is difficult to deem that there was a title trust solely on the basis that the other spouse is the source of the purchase fund (see, e.g.

(2)However, in the case of this case, it is difficult to regard the acquisition fund of this case as a donation to the Plaintiff by AA decoration, as known through the facts acknowledged earlier.

First of all, in the process of the application for parcelling-out of the apartment in this case, the plaintiff and AA decoration are considered to have applied for parcelling-out in their respective names for the purpose of raising the probability of winning the winning rate by awareness of the competition rate for the application for parcelling-out, and it does not seem to have been the intention to donate the acquisition fund and to vest the apartment in the ownership of the plaintiff.

Although AA decoration had been accumulated while running an attorney-at-law business for ten years, it is natural to understand that the Plaintiff, a legal expert, was fully aware of the fact that the donation of apartment acquisition fund would cause the problem of gift tax if it was made in the absence of any separate revenue from his/her family account, but the payment of the purchase price without taking any measures, such as receiving the loan for acquiring funds to reduce gift tax, was made to only the name of the apartment of this case as the Plaintiff, and the real ownership was to be owned by the Plaintiff, and that the Plaintiff was also aware of the same.

In light of the fact that even before the acquisition of the apartment of this case, the apartment of this case was managed without strictly distinguishing the actual ownership relationship of the funds, such as paying the purchase price for the real estate in △△ Group, which was purchased by the plaintiff after depositing the income acquired by the AA decoration into the deposit account opened in the name of the plaintiff, even before the acquisition of the apartment of this case, it seems that the apartment of this case was also the purchaser of the apartment of this case, but the apartment of this case was paid by the plaintiff and the couple with the funds of the A decoration,

The "Act on the Registration of Real Estate under Actual Titleholder's Name" prohibits, in principle, the trust in the name of real estate owner, but Article 8 subparagraph 2 of the same Act does not aim at evading taxes, evading compulsory execution, or evading statutory restrictions. Thus, it seems that there is no special tax reduction on the ground that the apartment of this case is placed in the name of the plaintiff rather than AA decoration, and that there is no legal restriction on the ownership that cannot be acquired in the name of AA decoration, and there is no other evidence suggesting that there exists any special reason that the title trust between the plaintiff and the plaintiff exists.

(3) In light of the above overall circumstances, such as the process of selling the apartment of this case and the payment of the acquisition fund, the relationship between the plaintiff and AA decoration, the financing management method of deliberation, and the provisions of laws and regulations on title trust, it cannot be deemed that AA decoration bears the acquisition fund of the apartment of this case based on the intent of donation to the plaintiff. Rather, it is reasonable to deem that AA decoration received the purchase fund in the name of the plaintiff and paid the price in the name of the plaintiff and acquired the ownership of the apartment of this case under a lawful title trust to the plaintiff who is the owner of the ownership of the apartment of this case. Accordingly, it cannot be applied to the presumption of donation of the property acquisition fund under Article 45 (1) of the former Inheritance Tax and Gift Tax Act or the provision on the donation of the property under a title trust under Article 45-2 (1) 1 of the Act on Dec. 31, 207. Thus, the disposition of this case is unlawful since it was based on the erroneous understanding of the