The legality of gift tax assessment on title trust without the purpose of tax avoidance (negative)

The provisions of Article 32-2 of the Inheritance Tax Act, in principle, may be interpreted as a donation by the actual owner on the date of transfer of registration to the title holder. However, in a case where it is evident that the actual owner and the title holder are different in any other circumstance without the purpose of tax avoidance, it is illegal to levy gift tax by deeming it as donation.

Article 32-2 of the Inheritance Tax Act

Supreme Court Decision 88Nu1234 Decided December 22, 1989

Plaintiff Kim Chang-chul et al., Counsel for the plaintiff-appellant

Head of Yongsan Tax Office

Seoul High Court Decision 87Gu334 delivered on March 30, 1988

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

According to the reasoning of the judgment below, the court below affirmed the defendant's taxation on the ground that the land subject to the gift in this case was purchased for the purpose of using it as the site for L.P.G. charging station directly operated by the Seoul Petroleum Co., Ltd., and refused to transfer the registration from the seller to the name of the corporation, and thus, the seller was registered under title trust with the plaintiff, the representative director of the company, and again completed the registration of transfer in the future of the company that is the real owner, but in such a case, there is no case where there is a substantial donation among them, or that the mere title trust is deemed as a donation pursuant to Article 32-2 (1) of the Inheritance Tax Act, and dismissed the plaintiff's claim.

However, the provisions of Article 32-2 of the Inheritance Tax Act, in principle, may be interpreted as the donation of the real estate to the title holder on the date of transfer of registration. However, if it is obvious that the title holder has different from the actual owner due to any other circumstance without the purpose of tax avoidance, it shall be deemed as donation and the gift tax

According to the above facts acknowledged by the court below, it is difficult to deem that the Plaintiff’s acquisition of the registration of this case was made because the seller did not transfer the registration to a corporation in the future, and that there was a purpose of tax avoidance. Ultimately, the judgment of the court below was affected by the interpretation of Article 32-2 of the Inheritance Tax Act, and the appeal pointing this out has merit.

Therefore, the judgment of the court below shall be reversed and remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)