As the actual owner of the instant real property, the Defendant should be deemed to have held a title trust with his spouse for convenience.

Considering that the Defendant’s spouse has no reason to contribute to monetaryly in purchasing the instant real estate, the presumption that 1/2 shares out of the instant real estate are unique property of the spouse who is the nominal owner cannot be maintained.

Article 45-2 of the Inheritance Tax and Gift Tax Act [Presumption of Donation of Title Trust Property]

Suwon District Court Decision 2013Na109250

Korea

o

July 1, 2014

September 2, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The agreement on the donation made on October 11, 2013 with respect to 1/1/100 of shares among OOOH HH HH HOOO No. OOO in Mapo-si between the Defendant and AA shall be revoked. The Defendant will implement the procedure for the cancellation of ownership transfer registration made on October 11, 2013 with respect to the real estate stated in the attached list to the Plaintiff by the Suwon District Court within the known registry office in the Suwon District Court.

1. Basic facts

A. Imposition of gift tax on AA by the Plaintiff

1) The Plaintiff conducted an integrated corporate investigation into BB stock companies (hereinafter “BB”) and CCC stock companies (hereinafter “CCC”) for a period from July 16, 2013 to October 14, 2013. During that process, DD, the representative director of the said company, verified that it held the title trust of BB stocks and CCC stocks under title trust with AA, the employees of the said company.

2) On October 16, 2013, the Plaintiff: (a) applied the deemed gift tax of title trust property (Article 45-2 of the Inheritance Tax and Gift Tax Act) to AA, a title trustee, as the due date for payment on November 15, 2013; and (b) imposed gift tax of KRW 000,000,000,000,000, and KRW 000,000,000.

(b) Donations made by AA;

AA completed the registration of ownership transfer with respect to the real estate stated in the purport of the claim (hereinafter referred to as the "real estate of this case") on June 11, 2010 with the defendant who is the spouse, as being jointly owned by 1/2 shares each on the grounds of sale and purchase as of August 4, 2009. On October 11, 2013, AA completed the registration of ownership transfer with respect to the whole shares of the real estate of this case on the grounds of the donation as of October 11, 2013 (hereinafter referred to as "the gift of this case").

[Ground of recognition] Unsatisfy, Gap 1 to 3 statements

2. The assertion and judgment

A. The parties' assertion

The plaintiff, in a state of debt excess by AA, has his share in the real estate of this case to the defendant.

Since the gift and the registration of transfer of ownership was completed, it should be revoked as a fraudulent act detrimental to the plaintiff, who is the creditor, and the registration of transfer of ownership as to the above shares should be cancelled. Accordingly, the defendant asserts that the real estate in this case was purchased with full payment. However, the defendant asserted that the gift in this case did not constitute a fraudulent act because it was merely a title trust of 1/2 shares to AA, who is the spouse, but was returned through the gift contract in this case.

B. Determination

Although one side of the married couple is presumed to have acquired the property under his own name during the marriage as the special property of the nominal owner, if the other party proves that he actually acquired the property by bearing the price for the pertinent property, the presumption is reversed, and the other party bearing the price may be deemed to have held title trust with the title holder for convenience as the actual owner. Meanwhile, the act of the title trustee of the real estate who completed the registration of ownership transfer of the trusted real estate by performing a duty of return based on the trust act does not constitute a fraudulent act as the performance of existing obligation (see, e.g., Supreme Court Decision 2006Da79704, Apr. 6, 2007)

In full view of the purport of each statement in Eul evidence Nos. 1 through 4 (including a serial number), the defendant concluded a sales contract for the real estate of this case with the Korea Land and Housing Corporation on August 4, 2009 and paid 000 won as the down payment to the Korea Land and Housing Corporation. The defendant obtained a loan of 000 won from a new bank (hereinafter referred to as "new bank") in order to prepare the purchase price for the real estate of this case on May 13, 2010, the defendant was 00 won as the new mortgagee for the real estate of this case, and the debtor completed a registration of establishment of mortgage for the defendant, and the defendant paid interest on the loan of this case to the new bank from June 14, 2010 to the closing date of argument, and it can be recognized that the above loan of this case has been partially repaid as the principal of the real estate of this case. The real estate of this case, other than the real estate title trust of this case, is presumed to have been able to have been able to have been able to purchase the real estate of this case.

Therefore, it cannot be deemed a fraudulent act where AA completed the registration of transfer of ownership on October 11, 2013 with respect to the portion of 1/2 of the instant real estate donated to the Defendant. Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.