National High Court Decision 2007west0955 (Law No. 27, 2007)

Whether a disposition of imposition on the premise that the apartment acquisition fund under the name of the husband was donated by the husband is legitimate

There is no evidence to deem that there was a circumstance to avoid tax evasion, evasion of compulsory execution, or statutory restrictions on the Plaintiff’s husband and wife, and that the husband’s departure from the position of an officer of the company led to the necessity of title trust. Thus, this constitutes a valid title trust

The contents of the decision shall be the same as attached.

Article 2 (Gift Tax Taxables)

Article 44 (Presumption of Donation at Time of Transfer to Spouse, etc.)

1. The Defendant’s disposition of imposition of KRW 121,493,700 against the Plaintiff on December 5, 2006 shall be revoked.

3. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the imposition;

A. The director of the Seoul Regional Tax Office conducted a survey on the source of acquisition of ○○ apartment, ○○○○○ apartment, ○○○○ apartment, 512 Dong 901 (hereinafter referred to as “○○ apartment”), and ○○○○○ apartment, ○○○○○ apartment, hereinafter referred to as “○○ apartment,” and the head of the Seoul Regional Tax Office conducted a survey on the source of acquisition of ○○ apartment, 250,000 won out of 285,000,000 won for acquisition of ○○ apartment, and 250,000 won out of 280,000 won for ○○ apartment, ○○○○ apartment, ○○○○ apartment, 802 Dong 1304 (hereinafter referred to as “○○ apartment”), and notified the Plaintiff of the fact that the Plaintiff did not own 1,50,000 won for acquisition of ○○ apartment, and 50,000 won for 205 won for 200.

2. Whether the disposition of imposition is lawful.

A. The parties' assertion

(1) The plaintiff

㈎ 이 사건 취득자금의 출처는 남○○인데, 이 사건 아파트는 실질적으로 남○○의 소유이나 조세포탈, 강제집행의 면탈 또는 법령상의 제한을 회피할 목적이 없이 처인 원고에게 명의신탁한 것이므로, 이러한 명의신탁은 유효하다.

㈏ 따라서 원고는 위 명의신탁약정에 따라 명의신탁을 실현하기 위한 수단으로 남○○으로부터 이 사건 취득자금을 제공받은 것에 불과하지 남○○으로부터 이 사건 취득자금을 증여받은 것이 아님에도 불구하고, 이와 달리 보고 한 피고의 이사건 부과처분은 위법하다.

B. Doz.

㈎ 배우자 중 한 명이 다른 한 명의 자금을 받아 부동산을 매수하였다면 일단 당해 부동산은 대ㆍ내외적으로 모두 명의자의 특유 재산으로 추정되고 과세관청은 명의자가 상대방 배우자로부터 자금을 증여받아 자기 명의의 부동산을 매수하였다고 보고, 배우자 공제액인 3억 원을 넘는 부분에 대해서 증여세를 과세할 수 있다.

㈏ 이와 달리 이를 명의신탁 재산으로 보기 위하여는 취득자금을 제공한 것 외에 당사자 사이에 명의신탁의 의사와 필요성을 입증하여야 하는바, 이 사건에서 명의신탁의 의사 및 필요성이 있었다고 볼 수 없다.

㈐ 따라서 원고가 이 사건 취득자금을 남○○으로부터 증여받은 것으로 보고 한 피고의 이 사건 부과처분은 적법하다.

(b) Related statutes;

Article 2 (Gift Tax Taxables)

Article 44 (Presumption of Donation at Time of Transfer to Spouse, etc.)

Article 45 (Presumption of Donation of Funds, etc. for Acquiring Property)

Article 45-2 (Presumption of Donation of Title Trust Property)

Article 53 (Gift Property Deductions)

(c) Fact of recognition;

(1) On March 1987, 1987, ○○ apartment was acquired from around 00 to February 19, 2005, and retired from office under the name of judge, chief judge, judicial researcher of the Supreme Court. From around March 2005, ○○○○○ Co., Ltd. (hereinafter “○○○○○”). The Plaintiff, from around September 198 to February 1998, was in the name of ○○○ Day, ○○ Newspapers, etc.; from around March 1998 to around 199, ○○○ apartment Co., Ltd. (hereinafter “○○○ apartment”), ○○○○ apartment Co.,, Ltd. (hereinafter “○○○○○”). The Plaintiff was in the name of ○○○○ apartment Co., Ltd. (hereinafter “○○○”)’s residence 1 to May 2005, 197, 200 the Plaintiff and ○○ apartment Co., Ltd. (hereinafter “Plaintiff”).

• The Plaintiff’s husband and wife paid 620,000,000 won out of 770,000,000 won for the sale of ○ apartment, which was loaned from the Plaintiff under the name of the Plaintiff, in part of the above 890,00,000 won (current 270,000,000 won still remains).

(v)the details of income returns made between the Plaintiff’s husband and wife from 2000 to 2005 are as follows:

⑹ 남○○은 평소 수입이나 지출 등 재산의 관리를 전적으로 원고에게 맡겨왔고, 원고 부부는 그 동안 대부분의 법률행위를 원고 명의로 하였으며, 남○○이 실질적으로 매수자금을 지급한 경기 ○○군 ○○면 ○리 354 임야 5,200㎡ 중 지분 2/45에 관하여도 원고 명의의 소유권이전등기가 경료되어 있다.

[Ground of recognition] Facts without dispute, Gap 2 through 10 evidence, Gap 11-1, 2, Gap 12, 13-1, Eul 1-2, Eul 1-2, plaintiff 1-2, the result of the plaintiff 1-1, and the purport of the whole pleadings

D. Determination

(1) If the burden of proof as to the existence of the facts requiring taxation exists against the tax authority, but it is revealed that the other party is presumed to have the facts requiring taxation in light of the empirical rule, the other party shall prove the circumstances that are not subject to the application of the empirical rule (see, e.g., Supreme Court Decision 89Nu6006, Apr. 27, 1990). Since real estate acquired by one spouse in one’s sole name during marriage under Article 830(1) of the Civil Act is presumed to be the unique property of the nominal owner, if the other spouse is not the nominal owner, the nominal owner may be presumed to have received a donation of the acquisition fund from the other spouse. In such a case, as to the fact that the real estate in question is not the unique property of the nominal owner, but the title owner cannot be deemed to have received a donation of the acquisition fund, it shall be asserted

In addition, the Plaintiff’s assertion that “○○○○○○○○○○○○○○” had been based on the actual acquisition of real estate under the name of the Plaintiff’s ○○○○○○○○○○○○○○○○○○○○ apartment fund, and that the Plaintiff had no real estate property under the name of the Plaintiff’s ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ apartment fund, and that the Plaintiff acquired the real estate under the name of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ apartment fund, etc., was insufficient to deem that there was a title trust based on the following facts: (a) the Plaintiff’s acquisition of the real estate under the name of the ○○○○○○○○ apartment fund, which was not based on the title trust revenue.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition with the acceptance of it.