A. The scope of application of Article 32-2(1) of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990) and the burden of proof of the exceptional circumstance that there is no purpose of tax avoidance excluded from the application (=titled person)

B. The case reversing the judgment of the court below that excluded the application of the provisions of Paragraph A, on the ground that it is inevitable for convenience in the transaction, on the ground that if the actual owner who registered the real estate in dispute in the name, such as friendship, obtains the profit from resale of the real estate, such as the real estate, is the one which is the object of tax avoidance due to the real estate speculation transaction, it is nothing more than

A. Article 32-2(1) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990) provides that Article 32-2(1) shall not apply in cases where the reason why the owner and the nominal owner are different from the nominal owner is insufficient to transfer the registration in the future due to any limitation under the positive law, refusal of cooperation by a third party, etc., or where it is proved that the nominal owner was not using it for the purpose of tax avoidance, and that it was not used for the purpose of tax avoidance. Therefore, unless the above exceptional circumstance is proved by the nominal owner, the pertinent property is naturally deemed to be a donation by the nominal owner, and it is subject

B. The case reversing the judgment of the court below which excluded the application of the provisions of Paragraph (a) of this Article on the ground that it is inevitable due to transaction convenience, on the ground that if the actual owner who registered the real estate in the name of the real estate brokerage business, such as friendship, purchases a large quantity of land directly with another person's name, and resells it again, thereby gaining profits from resale, it is nothing more than for the purpose of tax avoidance due to the real estate speculation transaction, on the ground that it is nothing more than for the purpose of real estate speculation transaction by concealing the fact of violation of the Real Estate Brokerage Act, and thus, it is difficult for

Article 32-2(1) of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990); Article 26 of the Administrative Litigation Act

A. Supreme Court Decision 89Nu8224 delivered on July 24, 1990 (Gong1990, 1817) 90Nu3430 delivered on August 28, 1990 (Gong1990, 2046) 90Nu5320 Delivered on November 9, 1990 (Gong191,111)

Plaintiff 1 and 2 others, Counsel for the plaintiff-appellant

Head of Sungnam Tax Office

Seoul High Court Decision 89Gu14351 delivered on January 25, 1991

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

As to the ground of appeal by Defendant Litigation Performers

According to the reasoning of the judgment below, since the court below purchased the forest of this case jointly owned by the non-party 1 and the non-party 2 and paid only part payments after purchasing the forest of this case, the plaintiff 1 purchased it again, and paid the price in full. With respect to the share 73,061/1461 out of the above forest of this case on July 29, 198, the deceased non-party 6, who is his father, the deceased non-party 3, as to the share 7,986/146/146 of the above forest of this case, he held that the above non-party 6 and the plaintiff 3's registration constitutes a case where the actual owner and the title holder are different from the above real owner, the court below determined that the above non-party 6 and the plaintiff 3 acquired the ownership transfer registration under the name of the plaintiff 1's own forest of this case for convenient sale of the forest of this case, and that it was unlawful for the plaintiff 1 and the plaintiff 6's heir to purchase the forest of this case under the title trust agreement.

The legislative intent of Article 32-2(1) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990) is to recognize an exception to the principle of substantial taxation to the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, the reason why the difference between the actual owner and the nominal owner is different is due to restrictions under the positive law or rejection of cooperation from a third party, etc., and it is not applied in cases where the title of registration was not transferred to the actual owner, or where it was proved that it was not used for the purpose of tax avoidance. Therefore, unless the above exceptional circumstance is proved by the nominal owner, the pertinent property shall be deemed as naturally donated under the above provision, and it shall be subject to the gift tax (see, e.g., Supreme Court Decisions 89Nu4857, Mar. 13, 190; 89Nu224, Jul. 24, 1990; 8Nu3094, Aug. 304, 1990).

However, the court below acknowledged that the title trust of this case was inevitable due to the testimony of the witness non-party 7 and the personal examination of the plaintiff 1, the actual owner, and that the title trust of this case was inevitable due to the convenience in the transaction of the plaintiff 1, the actual owner. However, the above non-party 7 was the person who was the title trustee with respect to the real estate of this case and is in the actual position of the party. The contents of the above evidence are convenient for the plaintiff 1 to purchase and register the real estate in another person's name without any explanation which is convenient in that it is convenient for the plaintiff 1 to sell and register the real estate in the real estate transaction of this case. Thus, it should be deemed that these evidence alone was extremely rare for the reason that the title trust of this case was made due to the inevitable circumstances where the title trust of this case was not registered in the name of the actual owner. Rather, considering the above evidence Nos. 3 and Eul No. 4-12,13,23,27, and 30, it can be viewed that the plaintiff 1 purchased the real estate transaction of this case under the title 3's.

Ultimately, the court below erred in the misapprehension of legal principles as to the scope of application of Article 32-2 (1) of the former Inheritance Tax Act, or in the misapprehension of legal principles as to exceptional circumstances that are excluded from the application of the above provision due to the violation of the rules of evidence, and there

It is so decided as per Disposition by the assent of all participating Justices on the bench that the judgment of the court below is reversed and the case is remanded to the court below.

Justices Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho