Whether donated property can be deemed as property with a collateral security;

Until a donation takes place, where the right to collateral security exists effectively even before the donation takes place, it shall be deemed to be included in the "property on which the right to collateral security has been created".

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

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

1. 성립에 다툼이 없는 을제1호증의 1내지 6, 을제2호증의 1내지 10(을제2호증의 8은 갑제2호증과, 을제2호증의 9는 갑제1호증과 각 같다.)의 각 기재에 따르면, 원고가 아버지인 소외 서ㅇㅇ한테서 그 소유이던 별지 목록 기재 1토지를 1988. 8. 23.에, 2토지를 그달 27일에 각 증여받은 다음, 그해 9. 7. 상속세법(1988. 12. 26. 법률 제4022호로 개정되기 전의 것, 이하 같다.) 제34조의5, 제20조의 규정에 따른 신고서를 제출하면서 그 증여재산의 가액을 같은법 제34조의 5, 제9조 제1항 그 시행령(1988. 12. 31. 대통령령 제12567호로 개정되기 전의 것, 이하 같다.) 제42조 제1항, 제5조 제2항 제1호 (나)목(이하에서는 증여세에 대한 준용규정인 상속세법 제34조의5와 그 시행령 제42조 제1항의 제시는 생략한다.)의 규정에 따라 지방세법상의 과세시가표준액대로 계산한 금 148,783,500원(1토지분 68,083,000원 + 2토지분 80,700,500원)으로하여 증여세를 금 70,253,193원, 그 방위세를 금 14,050,038원으로 각 계산, 이를 자진 납부하자, 피고는 1989. 6. 30. 같은법 제25조 제1항에 따라 별지 세액산출내역서 중 당초결정란 기재와 같이 원고가 신고 납부한대로 결정하고서 그해 9. 26. 같은법 제25조의 2의 규정에 따라 이를 원고에게 통지하였다가, 그해 11월경 감사를 통한 지적에 따라 증여재산 중 별지목록기재 2토지의 가액평가에 오류가 있다하여 같은법 제25조 제3항, 제9조 제4항 제1호, 그 시행령 제5조의 2 제3호를 적용하여 그 토지에 설정된 근저당권의 채권최고액인 금 134,947,764원(이는 등기부상의 채권최고액을 공동담보된 그 지상건물과 기준시가비율로 배분한 금액이다.)을 그 가액으로 평가하고, 1토지의 재산가액은 종전대로 하여 증여재산가액을 당초보다 금 54,247,264원(134,947,764원 - 80,700,500원) 증액하여 별지 세액산출내역서 경정결정란 기재와 같이 세액을 산출하여 원고가 자진납부한 세액을 공제한 잔액으로서 증여세 금 30,338,850원, 그 방위세 금 6,067,770원(국고금단수계산법에 따라 10원미만은 버림)을 1990. 1. 16. 원고에게 추가로 부과,고지한 사실을 인정할 수 있고, 반증 없다.

2. First, the Plaintiff’s donation of 2 land listed in the separate list and completed the registration of ownership transfer is against August 27, 198, and the registration of ownership transfer was already cancelled before the Plaintiff was registered under the name of the Plaintiff on August 26, 1988, the preceding day. In light of the principle of subsidiary nature of the mortgage and the legislative purpose of reducing the national tax burden, the above 2 land cannot be deemed as the property on which the mortgage or pledge under Article 9(4)1 of the Inheritance Tax Act was established, and Article 9(1) of the Enforcement Decree of the Inheritance Tax Act and Article 5(2)1(b) of the same Enforcement Decree of the same Act, which are the principle provision, should be applied to the taxation disposition of this case. Second, the Defendant, who is the original taxation office, should have determined the tax base and the amount of the gift tax under Article 2 of the Framework Act on National Taxes to be unlawful after the issuance of the initial tax base and the duty to pay the gift tax under Article 5(2) of the same Enforcement Decree.

3. Therefore, according to the statement Nos. 2-2 and 8-9 on the first ground of the plaintiff's first ground for the plaintiff's first ground for the registration, it is recognized that the registration of the ownership transfer of the plaintiff's name with respect to the first and second shares in the attached list was cancelled on August 27, 1988 on the ground that the five establishment registration was made between August 11, 1981 and September 18, 1987 as to the second land listed in the attached list on August 26, 198 on the ground that the payment of the secured obligation (a renunciation of the right on the registration) was made on August 27, 198, the receipt number No. 71099 and 71103 on August 27, 198, and thereafter the receipt number was 7104.

However, Article 9(4)1 of the Inheritance Tax Act provides that property on which a mortgage or a pledge is established shall be deemed as a premise of its application at the time of donation. On the other hand, Article 9(1) of the same Act and Article 5(1) of the Enforcement Decree thereof provide that the value of donated property shall be assessed on the basis of the market price at the time of donation. In addition, when comprehensively considering each provision under Article 9(2) of the Inheritance Tax Act and each provision under Article 5(2) of the Enforcement Decree thereof, the value of donated property shall be assessed on the basis of the market price. In conclusion, the purport of the provision under Article 9(4)1 of the Inheritance Tax Act provides that the value of donated property shall be determined on the basis of the market price, and in particular, the purport of Article 5-2 subparag. 3 of the Enforcement Decree of the same Act provides that where a mortgage is established on real property, the amount of the secured claim shall be deemed to be determined within the ordinary maximum limit of the value of the donated property, and thus, it shall be deemed that the actual maximum amount of secured claim exists.

Therefore, Article 9 (4) 1 of the Inheritance Tax Act is not acceptable only when the right to collateral security is established effectively at the time of donation.

Next, the second point of the plaintiff's principal is that unless the registration of creation of a mortgage (right to collateral security) is cancelled at the time when the registration of creation of a mortgage was made due to the donation, there is no evidence to acknowledge the existence of practices in national tax administration that the said Article does not apply regardless of the time of cancellation, and the third point is that the liability to pay taxes is extinguished at the time when the national tax under Article 26 (1) of the Framework Act on National Taxes is paid. The provision provides that the obligation to pay the national tax shall be extinguished by the payment of the tax, and the provision provides that the right to pay taxes shall be extinguished by the payment of the tax, as provided in Article 25 (3) of the Inheritance Tax Act, if there is an omission or error in the tax base and tax amount as provided in Article 25 (3) of the Inheritance Tax Act, it shall not be the purport to prohibit the correction of

Therefore, the disposition of this case does not recognize any illegality of the plaintiff's principal, and there is no other reason to revoke it. Thus, the plaintiff's claim seeking its revocation is dismissed as without merit, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition.

May 29, 191