(a)where it is impossible to be deemed as a donation, the burden of proving that the registration of the title holder unilaterally by the actual owner has been made, regardless of the intention of the owner on the registry;

B. Whether the provision on property right guarantee in the Constitution or the principle of substantial taxation under the Framework Act on National Taxes is violated in a case where there is no assertion or proof of an inevitable circumstance that makes it impossible to transfer the registration to the owner of the real property (negative)

A. Where the registration of an owner on the registry of real estate has been made unilaterally by the owner regardless of the intent of the owner, the provisions of Article 32-2(1) of the Inheritance Tax Act concerning the deemed donation cannot be applied. However, in this case, the fact that the registration was made unilaterally by the owner of real estate regardless of the intent of the owner of the real estate should be proved by the party asserting it.

B. Unless there is any proof that the transferor, not the transferor, intended to avoid the gift tax by concealing the fact of donation, but rather to avoid the gift tax by concealing the fact of donation, the transferor’s refusal to transfer the registration to the actual owner or the transfer of the registration in the future to the actual owner, etc., or other similar inevitable circumstances, the application of Article 32-2(1) of the Inheritance Tax Act to consider the donation as a gift by applying Article 32-2(1) of the Inheritance Tax Act is justifiable, and it cannot be said that it violates the provisions of Article 23 of the Constitution of the Republic of Korea

Article 34-2(1) a. Article 26 of the Administrative Litigation Act; (b) Article 23 of the Constitution of the Republic of Korea; Article 14 of the Framework Act on National Taxes

A. Supreme Court Decision 86Nu290 decided Oct. 14, 1986 (Gong1986, 305) (Gong1986, 305) 88Nu27 decided Oct. 11, 1988 (198, 1418). Supreme Court Decision 90Nu4143 decided Oct. 10, 199 (190, 2314)

Attorney Kim Tae-soo et al.

Head of Dong Tax Office

Seoul High Court Decision 88Gu4296 delivered on December 22, 1988

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

With respect to No. 1:

Even in cases where the owner of a real estate is different from the actual owner on the registry, if the registration of the owner of the real estate has been unilaterally made by the actual owner regardless of the intent of the nominal owner, the provisions of Article 32-2(1) of the Inheritance Tax Act may not apply. However, in such cases, the fact that the registration was made unilaterally by the actual owner regardless of the intent of the nominal owner should be proved by the party asserting it (see, e.g., Supreme Court Decision 86Nu290, Oct. 14, 1986; Supreme Court Decision 88Nu27, Oct. 11, 1988).

The court below rejected the plaintiff's assertion that the registration of transfer of ownership in the name of the plaintiff as to the real estate of this case was made unilaterally by the non-party Lee Young-young, who is the actual owner regardless of the plaintiff's intention, and rejected the plaintiff's assertion. The court below's above evidence preparation and fact-finding are justified and there is no error of law in violation of the rules of evidence or incomplete deliberation, or in misunderstanding the legal principles on the burden of proof as to Article 32-2 (1) of the Inheritance Tax Act, such as the theory of lawsuit, or in misunderstanding the legal principles. The arguments are groundless.

With respect to the second ground:

The purport of the provision of Article 32-2 of the Inheritance Tax Act is that if the actual owner and the registrant are different, the actual owner shall be deemed to have donated the property to the titleholder on the day when the transfer of registration was made. However, it is not intended to avoid gift tax by concealing the donation, but if the transferor refuses to transfer the registration to the actual owner or is made impossible to transfer the registration to the actual owner in the future under the law or any other similar circumstances. (See Supreme Court Decision 90Nu4143 delivered on October 10, 1990). Thus, in this case where there was no assertion as to the existence of inevitable circumstances that cannot be viewed as the donation, the court below is justifiable by applying the above legal provision, and it is not in violation of the provision of Article 23 of the Constitution of the Republic of Korea on the guarantee of property rights or the principle of substantial taxation under Article 14 of the Framework Act on National Taxes.

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 on the bench.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won