Gift tax on any real estate for which the property has not been publicly announced as donated property shall be set up.

In the case of a real estate which is not publicly announced as an inherited or donated property on the entry of the real estate register, because it cannot be predicted that the secured real right holder should levy the inheritance or gift tax on the real estate concerned, the inheritance or gift tax does not fall

2012 Gohap1893 Unlawful gains

United StatesA, EB

Korea

October 24, 2013

January 23, 2013

1. As regards the compulsory auction of real estate in this Court, the dividend amount for the defendant among the dividend table prepared on December 28, 2011 by this Court, the dividend amount of the defendant shall be changed to the amount of the dividends amount for the plaintiff UA, the dividend amount of the plaintiff UAA, the dividend amount of the plaintiff UA, the dividend amount of the plaintiff BB, and the dividend amount of the plaintiff BB shall be changed to the amount of the OOO.

2. The plaintiffs' remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

Cheong-gu Office

With respect to a compulsory auction case for the real estate held by OO directors, OO directors, OO directors, OO directors (combined), OO directors, OO directors (combined), and OO directors (combined), the dividend amount for the defendant in the dividend table prepared on December 28, 2011 by this court shall be corrected as OO directors, the dividend amount for the plaintiff UA as the dividend amount for the plaintiff UA as the amount of OO directors, and the dividend amount for the plaintiff BB as the dividend amount as the amount of OO directors, respectively.

1. Facts of recognition;

A. The plaintiffs' right to collateral security

On December 2006, the Plaintiffs were set up a collateral security right of KRW 500,000,000 with respect to each real estate listed in [Attachment Nos. 1, 2, and 3, 500,000,000 with respect to the respective real estate listed in [Attachment Nos. 1, 29, 3, and 6, owned by the NA and each real estate listed in [Attachment No. 3, 3, and 6] owned by the NA as collateral (hereinafter “mortgage”).

(b) Inheritance and donation of some real estate;

1) Upon the death of E on February 1, 2007, the real estate listed in Articles 3 through 6, 13 through 15 of the [Attachment List owned by E] was succeeded to the wife leapF in the proportion of 3/19 shares, 3/19 shares, 3/19 shares, 3/19 shares, sonG, NAD, JeonJ, Jeon J, KK, JeonK, AL, and JeonM, respectively. The head of OO under the defendant-owned office levied inheritance tax on them.

2) On April 22, 2008, among the co-inheritorss of the Network EE, the remaining co-inheritors except JeonG and JeonH donated the shares (total 13/19 shares) of the said inherited real estate to JeonD (hereinafter “instant donated real estate”).

In imposing gift tax on the gift tax of KRW 161,330,986 (hereinafter referred to as "the gift tax of this case"), the head of the office of tax office affiliated with the defendant assessed the value of the gift property of this case as shown below:

(c)

(c) Procedure for the auction of the instant case;

1) On August 9, 2010, the compulsory auction of each real estate listed in Section 1, 7, or 12 of the annexed Table No. 1, 2010, which was held by NA and entered into a compulsory auction by this court under OOOO of this court on each real estate listed in Section 2 of the annexed Table No. 3 through 6, 13, or 15 of the previous list No. DoD owned by NA, was initiated in order as stated in the order of the order, and the compulsory auction of real estate and the voluntary auction of real estate were commenced in the first place (hereinafter referred to as the “instant auction”).

2) In the instant auction procedure, the Plaintiffs reported that the secured claim amount within the scope of the maximum debt amount of the instant right to collateral security is OOOB, and the head of the OO tax office under the Defendant filed a claim for the issuance as indicated below.

3) On December 28, 2011, this Court drafted a distribution schedule of the instant auction (hereinafter “instant distribution schedule”) and distributed the Defendant’s inheritance tax claim for JeonD, JeonE, and Jeon H to the Defendant in the first priority order, on the premise that each of the inheritance tax claims for Jeonwon x 3) is an OOOwon (OOwon x 3) in total, the remainder of 2011-57 Comprehensive Real Estate Holding Tax + OOOOwon ＋ + OOOOOwon + + + OOOOOOOwon £« + OOOOOOOwon) in the order of five in total.

4) On December 28, 201, the Plaintiffs appeared on the date of distribution of the instant auction, and raised an objection against the Defendant regarding the entry of the said distribution schedule.

(d) Partial repayment of the taxation rights;

After the commencement of the auction of this case, the Defendant, in the public auction procedure conducted with respect to each of the above comprehensive real estate holding tax, value-added tax, inheritance tax, and gift tax, and only KRW 126,807,390 of the current gift tax, which have been claimed for delivery in the auction procedure of this case, remains at least KRW 15/19 of each of the above comprehensive real estate holding tax, value-added tax, inheritance tax, and gift tax, which were claimed for delivery in the auction procedure of this case.

[Ground of Recognition] A without dispute, Gap evidence 1, 2, Eul evidence 3-1 through 3, Eul evidence 1-1 through 15, Eul evidence 2, 4, 5, Eul evidence 3-1 through 7, Eul evidence 6-1 through 6, Eul evidence 7-1 to 3, Eul evidence 7-1 to 7, and the purport of the whole pleadings

2. Determination

A. Full amount of comprehensive real estate holding tax, value-added tax, inheritance tax, and part of gift tax repaid

In a lawsuit of demurrer against distribution, the Plaintiff may assert the grounds arising from the date of distribution to the date of closing argument in the fact-finding court. As such, even in a case where the amount of claims owed by the other party creditor during the lawsuit of demurrer against distribution partially extinguished due to such reasons as repayment, etc. during the lawsuit of demurrer against distribution, the remaining amount of claims falls short of such claims (see Supreme Court Decision 2007Da27427, Aug. 23, 2007).

As seen earlier, the fact that only OOO members of the current gift tax have been paid out of all the above comprehensive real estate tax, value-added tax, inheritance tax, and gift tax claims claimed by the Defendant in the instant auction procedure and remains as seen earlier. As such, the Defendant’s taxation claim against the remainder OO members other than the above remaining OOO0 won among the OO0 won distributed to the Defendant in the instant dividend schedule was extinguished. Therefore, the above amount should be distributed to the Plaintiffs, who received dividends lower than the Defendant as the mortgagee or ordinary creditor.

(b) The remaining portion of gift tax;

Article 35(1)3 of the Framework Act on National Taxes intends to harmonize judicial requests to guarantee transaction safety and public interest requests to realize tax claims with respect to the secured real rights accompanying public notice. Thus, even if the pertinent tax is priority over claims secured by the secured real rights, it shall not infringe on the essential contents of the secured real rights. Therefore, the term “national tax imposed on the property” under the proviso of Article 35(1)3 of the same Act shall be deemed to mean only the national tax imposed by recognizing the taxable capacity in the possession of the pertinent property, as it can be reasonably predicted that the person who acquired the secured real rights can impose on the future property. Therefore, in the case of the real estate which is not publicly announced as inherited property or donated property on the real estate donated to the real estate, it cannot be predicted that the secured real right holder is subject to the inheritance tax or gift tax, and thus, it does not constitute the pertinent tax (see, e.g., Supreme Court Decision 2001Da44376, Jan. 10, 2003).

The plaintiffs received the establishment of the right to collateral security of this case with respect to each real estate listed in the attached list 1 through 6 on December 29, 2006. On the other hand, EE inherited each real estate listed in the attached list 3 through 6 on February 1, 2007 and donated 13/19 shares of each of the above real estate to Eddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd.

Therefore, among the gift tax of this case, the part that the defendant can receive in the auction procedure of this case among the gift tax of this case is limited to the part of each real estate listed in the attached Table 13 through 15, except the real estate listed in the above paragraphs 3 through 6 among the gift tax of this case. Among the amount of gift tax of this case, the scope of the gift tax of this case, which is equivalent to the total value of each real estate listed in the above paragraphs 13 through 15, i.e., the amount equivalent to the appraised value of the gift tax of this case x OOwon x OOOwon x x OOOO x x OOOO x OOO x less than won hereinafter). Since the remaining gift tax of this case is OOO, the defendant can receive a dividend of the gift tax of this case only within the scope of the above OOO won (see Supreme Court Decision 201Da6448, Feb. 5, 2002).

C. Sub-committee

Since the instant distribution schedule is unfair, among the OOO members distributed to the Defendant under the instant distribution schedule, the remaining OOO directors (excluding the above OOO directors - OO directors) should be distributed to the Plaintiffs.

3. Conclusion

Thus, among the dividend table of this case prepared by the court in relation to the auction of this case, the dividend amount to the defendant shall be corrected as the OOO, the dividend amount to the plaintiff UA, the dividend amount to the plaintiff UA, and the dividend amount to the plaintiff BB shall be corrected as each OOO (OOO + OOO KRW) x 1/2). Thus, the plaintiffs' claims shall be accepted within the scope of each above recognition, and the remaining claims shall be dismissed as they are without merit. It is so decided as per Disposition.