(영문) 서울고등법원 2018.05.02 2017누66727

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(영문) 서울고등법원 2018.05.02 2017누66727

양도소득세부과처분취소

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1. The plaintiff's appeal is dismissed.

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

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The grounds for the court’s explanation concerning the instant case, such as accepting the judgment of the court of first instance, are as stated in the reasoning of the judgment of the court of first instance (including the relevant part of the judgment of the court of first instance, but excluding the part on March 2, 200), and therefore, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The modifications shall take place between 8 and 4 pages below the 3 pages as follows:

Taxation Summary

The burden of proof for the existence of a true fact is against the tax authority, but in light of the empirical rule.

If it is proved that the other party has presumed a fact-finding, it shall prove that the circumstances that are not subject to the application of the empirical rule have to be proved. If, under Article 830(1) of the Civil Act, the real estate acquired in the sole name of the spouse during marriage is presumed to be the unique property of the nominal owner, and if the source of the fund to acquire the real estate has become clear that the other spouse is not the nominal owner, the nominal owner may be presumed to have received a donation of the fund to be the acquisition from the spouse. In this case, as the real estate concerned is not the special property of the nominal owner but the title trust between the other spouse, the taxpayer shall assert and prove

In order to reverse such presumption of special property, the other spouse bears the actual burden of paying the price for the pertinent real estate and proves that the other spouse acquired the said real estate in order to actually own it. As such, the mere fact that the other spouse is the source of the purchase fund does not necessarily mean that the presumption of special property was reversed and a title trust was made with respect to the pertinent real estate. In full view of all the circumstances revealed through the relevant evidence, the other spouse actually owns the relevant real estate.

참조조문

-민법 제830조 제1항

-민사소송법 제420조

-행정소송법 제8조 제2항

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