(a) Purport of the provision on deemed donation under Article 32-2 (1) of the Inheritance Tax Act;

B. Whether the provisions on property registered in title trust, etc. and deemed donation are applied to golf membership provisionally as a method of preserving rights;

C. Criteria for determining the legality of taxation disposition

A. The provision on deemed donation under Article 32-2(1) of the Inheritance Tax Act shall be interpreted to the effect that, insofar as there is an agreement between the actual owner and the nominal owner or if the registration is made in the name of the nominal owner due to communication, the donation shall be deemed to have been made when there is no substantial donation among them, i.e., the establishment of trust under the Trust Act is merely a case of title trust, or when the registration is made, etc. between the actual owner and the nominal owner.

B. If a company, which is a de facto owner of golf membership, entered it in the membership roll with the consent of the vice president of the relevant company, in the name of the vice president, the company at the time of the establishment of the company, was unable to enter it in the membership roll, and was provisionally taken as a means of preserving rights until it is possible to enter it in the membership roll, such circumstance is merely an internal circumstance among them, and thus, the application of Article 32-2(1) of the Inheritance Tax Act concerning deemed donation cannot be excluded due to such circumstance.

C. Whether the requirements for taxation are satisfied should be determined at the time of taxation. As such, the name of golf membership of this case was returned to the name of the actual owner after the instant taxation disposition, and thus, the instant disposition of imposing gift tax pursuant to Article 32-2(1) of the Inheritance Tax Act does not go to the unlawful disposition.

(c)Article 32bis 1(c) of the Inheritance Tax Act;

A. Supreme Court Decision 86Nu290 decided Oct. 14, 1986; 85Nu1001 decided Mar. 10, 1987; 86Nu341 decided Mar. 24, 1987

[Judgment of the court below]

Head of Eastern Tax Office

Seoul High Court Decision 85Gu841 delivered on June 11, 1986

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, since the non-party Korea Industries Lease Co., Ltd. (hereinafter referred to as the "non-party company") acquired golf membership from the non-party on October 7, 1983 on the non-party's membership list, and entered this in the non-party company's name on August 8, 198 of the same month, the vice president of the non-party company, the vice president of the non-party company. Accordingly, the defendant deemed that the non-party company donated this case's membership to the plaintiff on September 29, 1984 pursuant to Article 32-2 (1) of the Inheritance Tax Act, and that the non-party company purchased this case's membership right and entered it in the non-party company's name as the non-party company's name for external activities, but it was impossible to register it in the non-party company's name as the non-party company's name because the number of members at that time was different and it was impossible to register it in the non-party company's name as the plaintiff company's name.

However, according to Article 32-2 (1) of the Inheritance Tax Act, which was amended by Act No. 3474 of December 31, 1981 and enforced from January 1, 1982, which requires the transfer or exercise of the right, if the actual owner and the nominal owner are different, the actual owner shall be deemed to have donated to the nominal owner on the date when the registration is made in the nominal owner, notwithstanding Article 14 of the Framework Act on National Taxes. The above provision on deemed donation provides that insofar as there is an agreement between the actual owner and the nominal owner or communication and the registration is completed in the name of the nominal owner, it shall be interpreted that the donation was made when the establishment of the trust under the Trust Act was merely a title trust, or when the establishment of the trust is registered, etc. between the actual owners, and thus, it shall not be deemed that the donation was made when the establishment of the trust is made in the name of the plaintiff company and the non-party company cannot be deemed to have been made temporarily by being registered in the name of the actual owner of the golf membership under the name of the plaintiff company.

Therefore, the court below's decision that the tax disposition of this case was unlawful in different opinions is erroneous by misapprehending the legal principles of Article 32-2 of the Inheritance Tax Act as to deemed donation, which affected the conclusion of the judgment. Thus, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition with the assent of all participating Justices.

Justices Lee Jin-Post (Presiding Justice)