[1] Legislative intent of Article 35(1)3 of the Framework Act on National Taxes and the scope of "national taxes imposed on the property" under the proviso of Article 35(1)3 of the same Act

[2] The case holding that the gift tax imposed on the constructive gift due to the low-price transfer under Article 34-2 (1) of the former Inheritance Tax Act does not constitute the pertinent tax

[1] The legislative intent of Article 35(1)3 of the Framework Act on National Taxes is to properly harmonize the judicial request to guarantee transaction safety and the public interest request to secure the realization of tax claims with respect to the secured real estate which requires disclosure. Thus, even if the pertinent tax has priority over the claims secured by the secured real right, it shall not infringe on the essential contents of the secured real right, and therefore, the "national tax imposed on the property" as referred to in the proviso of Article 35(1)3 of the same Act means a national tax imposed solely on the possession of the pertinent property, as it can be predicted to the extent that it would be imposed on the property by the person who acquired the secured real right in the future.

[2] The case affirming the judgment of the court below which held that the gift tax is not 35 (1) 3 of the Framework Act on National Taxes, since the gift tax imposed on the gift itself is different from the ordinary gift tax imposed on the gift of the pertinent property, and it is different from the nature of the pertinent tax under Article 35 (1) 3 of the Framework Act on National Taxes, which recognizes the taxpayer's ability to pay taxes, and it is difficult to view that there is a special relationship under the above Inheritance Tax Act between the donor of the real estate and the donee, whether the property is transferred for the price lower than the market price, and whether the gift tax to be imposed in the future can be imposed on the gift of the pertinent property, since the gift tax is imposed on the gift of the pertinent property itself, and it is not able to see that there was predictability on whether there is a special relationship under the above Inheritance Tax Act between the donor of the real estate and the donee, whether the property is transferred for the price lower than the market price, and whether the gift tax to be imposed in the future

[1] Article 35(1)3 of the Framework Act on National Taxes / [2] Article 35(1)3 of the Framework Act on National Taxes; Article 18(1) of the Enforcement Decree of the Framework Act on National Taxes; Article 34-2(1) of the former Inheritance Tax Act (wholly amended by Act No. 5193, Dec. 30, 1996) (see current Article 35 of the Inheritance Tax and Gift Tax Act)

[1] Supreme Court en banc Decision 96Da23184 delivered on March 18, 1999 (Gong1999Sang, 715) Supreme Court Decision 2000Da47972 delivered on January 30, 2001 (Gong2001Sang, 535)

Korea

Busan Mutual Savings Bank

Busan High Court Decision 2000Na2917 delivered on August 9, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Article 35 (1) 3 of the Framework Act on National Taxes aims to properly harmonize the judicial request to guarantee transaction safety and the public interest request to realize tax claims with respect to the secured real rights accompanying the public disclosure. Thus, even if the pertinent tax is priority over the claims secured by the secured real rights, it shall not infringe on the essential contents of the secured rights, and therefore, the "national tax imposed on the property" under the proviso of Article 35 (1) 3 of the same Act means national tax imposed by the person who acquires the secured real rights can be predicted to the extent that it would be imposed on the property in the future, and it shall be deemed that the person who acquires the secured real rights can predict to the extent that it can be imposed on the property in the future, and only means national tax imposed by recognizing the ability to pay on the property in question (see Supreme Court en banc Decision 96Da23184 delivered on Mar.

According to the reasoning of the judgment below, the court below determined that the non-party 1 transferred 1/3 of the land of this case to the non-party 2, who is the form of the above share, and completed the registration of transfer of ownership on the ground of sale in the future on January 29, 1993. The defendant, around September 1995, completed the registration of establishment of ownership on the land of this case 465-20, Busan, which is divided from the land of this case, with the maximum amount of claim 2,025,00 won, and it is difficult to view that the non-party 1 transferred the above share to the non-party 2 on February 16, 1998 at a price significantly lower than that of the gift tax on the non-party 1, who is the owner of this case, as the gift tax on the non-party 2, who is the property of this case, the gift tax on the non-party 1, who is the real estate under the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996, 197).

In light of the above legal principles, relevant legal provisions and records, the above judgment of the court below is just, and there is no error of law by misunderstanding legal principles as to the pertinent tax under the Framework Act on National Taxes as asserted by the plaintiff

The Supreme Court decision cited in the ground of appeal by the plaintiff is not appropriate to be invoked in this case since it differs from the case.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)