The deceased’s transfer of the land of this case to a truster at the same time as the title trust cannot be deemed to have been made.

At the time of the successful bid of land, the deceased transferred the status of the truster to the Plaintiff while title trusting the land shares, and it cannot be deemed that the trustee consented thereto.

Article 45-2 of the Inheritance Tax and Gift Tax Act

2015Guhap54513 Revocation of Disposition of Imposition of Gift Tax

AA

BB Director of the Tax Office

August 21, 2015

September 18, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 0,000,000,000 against the Plaintiff on April 11, 2014 is revoked.

1. Details of the disposition;

A. The plaintiff (the plaintiff on December 31, 1960) and DD (the plaintiff on December 12, 1953), EE, FF, and GG are children of HH deceased on May 22, 201 (the plaintiff on November 21, 1929) (the plaintiff on December 31, 1960), and the JJ is the plaintiff's external village.

B. On August 7, 1992, the Deceased and DD completed the registration of ownership transfer for shares of 00-0,000,000,000,000 25,927 square meters (hereinafter “the land in this case”) in Asan-si on August 7, 1992, and the JJ completed the registration of ownership transfer for shares of 59%.

C. On December 29, 2006, the Deceased, DD and JJ sold the instant land to KKK (hereinafter “KK”) established by the Plaintiff for the purpose of housing development business in KRW 00,000,000,000. The deceased was paid KRW 0,000,000 as the selling price for each of the above lands, and DD was paid KRW 0,000,000 as the selling price for each of the above lands, and the J was paid KRW 0,000,000 as the selling price for each of the above lands.

D. The Plaintiff received KRW 0,000,000 from January 23, 2007 to June 22, 2007 the deposit of KRW 0,000,000 (hereinafter “the instant money”) out of the sale price of the said land’s shares deposited into the JJ account, and received KRW 0,000,000 in total from August 3, 2005 to June 22, 2007.

E. On April 11, 2014, the Defendant determined and notified the Plaintiff of KRW 0,00,000 as gift tax of KRW 0,000 and KRW 0,000 on August 3, 2004 (However, as a result of the Plaintiff’s reexamination following the Plaintiff’s objection, KRW 00,000,000 and KRW 00,000,000 in cash donation of KRW 16, Nov. 16, 2005 and KRW 00,000,000 after subtracting gift tax of KRW 0,000,000 from the gift tax of KRW 00,000 and KRW 00,000,000 after subtracting the gift tax of KRW 00,00,000 from the cash donation of KRW 16,00,000.

F. The Plaintiff appealed and filed an appeal with the Tax Tribunal on July 1, 2014, but was dismissed on December 31, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 7, 13, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On August 7, 1992, the Deceased donated 59% shares of the instant land to the Plaintiff (hereinafter “the instant land shares”) during the adjudication process, but merely entrusted the Plaintiff with the name of JJ because the Plaintiff, who did not reach 32 years of age at the time, could be subject to gift tax. As such, the instant land shares were owned by the Plaintiff from the time of the adjudication of the instant land, and was deposited into the account under the name of JJ in return for the instant land shares also owned by the Plaintiff. Accordingly, the instant disposition on a different premise is unlawful.

B. Relevant legal principles and issues

1) Generally, in a lawsuit seeking revocation of the disposition imposing tax, the burden of proving the facts of taxation requirements should be borne by the imposing authority. However, if the facts alleged in light of the empirical rule in the course of a specific lawsuit are revealed, it cannot be readily concluded that the pertinent disposition is an unlawful disposition that failed to meet the taxation requirements, unless the other party proves that the pertinent facts in question are not eligible for the application of the empirical rule (see, e.g., Supreme Court Decisions 97Nu13894, Jul. 10, 1998; 2003Du14284, Apr. 27, 2004).

2) Meanwhile, in a case where a person donated a parcel of land, the effect of which is a registration before the transfer of a real right, and the time of acquisition of the donated property, which is the time when the liability to pay the gift tax, is established, should be deemed to be the time of transfer of ownership, barring special circumstances (see Supreme Court Decision 91Nu1493, Jun. 11, 1991). However, in a case where a truster of a real estate, which is a title trust, donated a third party with the title of registration without having registered the title thereof, if the trustee is aware of the fact of the donation and succeeds to the position of the truster by obtaining the consent or approval as to the transfer of the status of the truster, it is reasonable to view that the trustee is the time of acquiring the donated property (see Supreme Court Decision 97Nu20663, Feb. 5,

3) In light of the above legal principles, the Plaintiff’s assertion that the deceased donated the instant land share to the Plaintiff at the time of the successful bid, and only the deceased trusted to the JJ only in its name, appears to the same purport as the deceased transferred the trust status to the Plaintiff at the time of the successful bid of the instant land. Thus, unless it is proved that there exists a mutual agreement between the deceased and the Plaintiff on the donation of the instant land share at the time of the successful bid of the land, and whether the J consented or consented to the transfer of the title truster status of the instant land, the actual owner of the instant land share should be deemed the deceased, and the “donation” means the transfer of tangible and intangible property whose economic value can be calculated, regardless of the name, form, purpose, etc. of the relevant act or transaction, or the increase of the value of another’s property, or the transfer of the status of the donor to the truster of the instant land to a third party under the strict method of transferring the ownership transfer status of the truster of the real estate to the truster of the title trust.

C. Determination

In light of the following circumstances, the evidence No. 3, No. 4, 8, and 11 (including the number of the Plaintiff’s title trust) were comprehensively considered, i.e., if the deceased tried to transfer his/her share in the land of this case to the Plaintiff at the time of the successful bid, the JJ would have to obtain in writing consent or consent on the transfer of trust status in preparation for the failure of the Plaintiff to return the said share in the land. However, the evidence No. 2 prepared by the JJ on August 23, 201 (Evidence No. 3) was written by the Plaintiff at the time of the sale of the land of this case by the Plaintiff and the Plaintiff’s title trust No. 1 and the Plaintiff’s title trust No. 2, and there was no evidence to prove that the Plaintiff’s share in the land of this case was transferred to the Plaintiff at the time of the sale of the land of this case, and there was no evidence to prove the Plaintiff’s transfer of the trust status of the Plaintiff at the time of the sale of the land of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.