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(영문) 부산지방법원 2017. 09. 14. 선고 2016구합22255 판결
근저당권 피담보채무의 주체와 명의신탁자산 여부[일부국패]
Title

Whether the subject of the collateral security obligation and the title truster are included

Summary

The Plaintiff’s occupation and income scale are not sufficient to repay the Plaintiff’s debt, and real estate owned by the Plaintiff was actually acquired by the Plaintiff, and thus, the title trust should be recognized in the instant real estate.

Related statutes

Article 45 of the Inheritance Tax and Gift Tax Act: Presumption of Donation of Property Acquisition Funds

Cases

2016Guhap2255 Revocation of Disposition of Imposition of Gift Tax

Plaintiff

김##

Defendant

북@@세무서장

Conclusion of Pleadings

August 24, 2017

Imposition of Judgment

September 14, 2017

Text

1. The part exceeding KRW 322,088,080 among the disposition imposing gift tax on the Plaintiff on October 1, 2015 (including penalty tax) shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s imposition of gift tax of KRW 391,384,710 (including penalty tax) against the Plaintiff on October 1, 2015 shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff and the Plaintiff are married couple on December 8, 1983.

B. (1) On December 16, 1999, the Plaintiff completed the registration of transfer of ownership on the ground of sale on December 7, 1999, with respect to the trigrams in Busan Seo-gu + + 554.7 square meters in total and two above-ground buildings (hereinafter referred to as the “real estate with trigrams”).

(2) On December 30, 199, the Plaintiff completed the establishment registration of a mortgage with respect to the real estate with trigram on December 30, 1999, consisting of the Plaintiff, the collateral security holder, the Light Bank, and the maximum debt amount of KRW 962 million, which was cancelled on May 30, 2001.

(3) On May 26, 2001, the Plaintiff borrowed trigram real estate from the Busan Bank Co., Ltd. (hereinafter “Sasan Bank”) as collateral KRW 740 million. On May 30, 2001, the Plaintiff completed the registration of the establishment of a neighboring mortgage with the Plaintiff, Busan Bank, and the maximum debt amount of KRW 888 million.

(4) Of the above loans, KRW 450 million and its interest and fees were repaid on February 18, 2009 (the above repayment and KRW 450 million referred to as “the instant repayment and the instant repayment,” and the remaining KRW 290 million were repaid on April 30, 2009, and the registration of establishment of a neighboring mortgage in the name of Busan Bank was cancelled on September 3, 2010.

C. On October 8, 2010, the Plaintiff was a building permit that had the Plaintiff as the owner on October 8, 2010, with respect to the 218.52 square meters of detached housing of the general wood structure and the traditional wood structure of the ground roof (hereinafter “instant real estate”). After the instant real estate was newly constructed, the registration of ownership preservation was completed in the Plaintiff’s future on March 28, 2013.

D. (1) The Plaintiff and the Plaintiff were separated from May 201, 201, and the Plaintiff was the Plaintiff on November 22, 2013.

A lawsuit, such as divorce, has been filed against the State, and the State and local governments have instituted a counterclaim for claims, such as divorce.

C. [Ulsan District Court 2014Dhap//(principal office), 2014Dhap--(Counterclaim)]

(2) On January 15, 2014, Ulsan District Court 2013 business group427 rendered a provisional disposition prohibiting the disposal of the instant real estate’s 2/3 shares as the preserved right, with respect to the property’s 2/3 shares as the preserved right.

(3) 위 이혼소송에 관하여 울산지방법원은 2016. 2. 18. 원고와 허&&은 이혼하고 각 재산분할의 이행(이 사건 부동산에 관하여는 원고가 허&&에게 이전할 것)을 명하는 등의 판결을 선고하였고, 이에 대한 항소가 제기되어 현재 부산고등법원 2016르〇호로 소송계속 중이다.

E. On February 18, 2009, the Defendant: (a) as a result of the Plaintiff’s tax investigation with respect to the Plaintiff, donated the instant real estate (tax amounting to KRW 119,766,442) on March 28, 2013; (b) on October 1, 2015, the Defendant imposed gift tax of KRW 391,384,710 (including additional tax; (c) gift tax of KRW 322,083,060 on the instant repayment; and (d) gift tax of KRW 69,301,650 on the instant real estate).

F. The Plaintiff appealed and filed an appeal with the Tax Tribunal on January 6, 2016, but on January 6, 2016

12.23. The dismissal was made.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1-3, 7, 9, 11, 12, 14, Eul evidence Nos. 1-4, 8-10, 15-19 (including a separate number, hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The instant repayment portion constitutes an obligation jointly borne by the Plaintiff for the acquisition process of real estate, which is a common property during the marriage period, with the fact that the instant repayment portion was given a loan under the Plaintiff’s name and was not the Plaintiff’s obligation, or that it was jointly borne by the Plaintiff for the acquisition process of real estate, which is a common property during the marriage period, or within the scope of ordinary family affairs, and thus constitutes joint and several liability, and thus, it cannot be deemed that the Plaintiff received the instant repayment amount, which is not the Plaintiff’s sole obligation. Even if it is deemed the Plaintiff’s sole obligation, the instant repayment amount was made by the Plaintiff

(2) The real estate portion of this case

The instant real estate is merely title trust to the Plaintiff after the Plaintiff acquired ownership by newly constructing the instant real estate through cost and effort, and there was no fact that the Plaintiff donated the instant real estate from the Hu&&D.

B. Relevant statutes

Civil Act

§ 830. Peculiar property and property of which ownership is unknown

(1) The proprietary property owned by one side of a couple before marriage, and the property acquired in his name during marriage.

property shall be its unique property.

The former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter referred to as "Inheritance Tax and Gift Tax Act").

(2)

Article 2 (Gift Tax Taxables)

(3) The term "donations" in this Act means economic prices regardless of the name, form, purpose, etc. of the act or transaction.

It means a free transfer (including the transfer of tangible and intangible property at a remarkably low price) of the tangible and intangible property to another person in a direct or indirect manner, or an increase in the property value of another person by contribution.

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

(1) Property was acquired as a self-sufficiency in light of occupation, age, income, property status, etc.

In cases prescribed by Presidential Decree, where it is difficult to recognize the property, the fund for acquiring the property shall be presumed to have been donated to the person who acquired the property, and it shall be deemed to be the donated property of the person

C. Determination

(1) As to the taxation of gift tax on the instant repayment amount

Gap evidence 1-2, Gap evidence 6-10, Eul evidence 2-3, Eul evidence 3-1, Eul evidence 4

In light of the following circumstances, in light of the evidence Nos. 5-1 to 5-3, evidence Nos. 6, 7, 11-21 as well as the overall purport of the arguments and arguments, the Plaintiff’s gift tax disposition on the instant amount is lawful, since the Plaintiff received the instant amount from the He/she was deemed to have received the instant amount of reimbursement from the He/she purchased and sold. Accordingly, the Plaintiff’s assertion on this part is rejected

(A) The trigram % real estate was real estate in the name of the Plaintiff, which was owned by the Plaintiff, and was loaned KRW 740 million including the instant debt in the name of the Plaintiff, and was established in the name of the Plaintiff. The interest on the loan after the loan was paid from the Plaintiff’s account, and the Plaintiff was registered as a rental business operator on the trigram real estate, and the Plaintiff obtained the lease income and paid taxes on the loan. In light of these circumstances, even if the Plaintiff participated in the loan process under the Plaintiff’s consent or approval, it is deemed that the loan was made under the Plaintiff’s consent or approval, and unless there is sufficient data to regard the Plaintiff as the principal debtor in the form, it is reasonable to view the instant debtor as the Plaintiff. Moreover, even if the instant debt was borne by the Plaintiff and the Plaintiff as the principal debtor in the form of the Plaintiff’s joint property formation, it cannot be deemed that the reimbursement was made by the Plaintiff at the time of the instant repayment, which was included in the subject of liquidation, or that it was jointly and severally liable with the Plaintiff and the Plaintiff.

(B) In the course of tax investigation, the Plaintiff made a statement that the instant obligation was repaid by the Plaintiff by donating the instant reimbursement to the Plaintiff. In other words, the said statement may be reliable in light of the following circumstances. ① Although the Plaintiff was running a part of restaurant business during the marriage period, most of the Plaintiff was able to coordinate the Plaintiff’s business, which is a business entity, as a family owner. From around 2001 to 2009, the Plaintiff did not have financial ability to repay the instant obligation to the Plaintiff without the intention of hub&&&D in light of the Plaintiff’s occupation, size of income, and income and details of the loan, etc. from 2009 to 2009, the date of repayment. ② The instant claim with resale agreement under the name of the Plaintiff and the Plaintiff was established on August 13, 2007 (the Plaintiff was KRW 230 million, 2000,000,000, and KRW 200,000,000).

(C) Therefore, it can be deemed that the Plaintiff transferred the instant repayment without compensation to the Plaintiff for the repayment of the instant obligation owed by the Plaintiff. As such, the fact of donation can be recognized.

(2) As to the gift tax disposition on the instant real estate

(A) Relevant legal principles

The presumption is not reversed solely on the fact that one side of a married couple's property acquired in his/her own name in the marriage is presumed to be the special property of the nominal owner, and that the other side has cooperation or had contributed to the acquisition of the property. However, where the other party proves that he/she has actually acquired the property by bearing the price for the said property, the presumption may be reversed, and where the other party bears the price for the said property, it may be deemed that the other party has held title trust with the nominal owner for convenience (see, e.g., Supreme Court Decisions 98Du15177, Dec. 22, 1998; 2006Da79704, Apr. 26, 2007).

(B) Determination

In light of the following circumstances, Gap evidence 1-1, Gap evidence 2-4, 7-9, 11, 12 evidence, Eul evidence 2-2, Eul evidence 4-5, Eul evidence 3-2, Eul evidence 5-4, Eul evidence 5-4, Eul evidence 6, Eul 7, 11-19, and the overall purport of the pleadings, the presumption of special property for the real estate in the name of the plaintiff was destroyed, and it can be deemed that the plaintiff was donated the real estate in title trust to the plaintiff as the actual owner of the real estate in this case. Accordingly, the gift tax disposition on the real estate in this case is unlawful.

(1) The instant real estate was constructed with the cost and effort of the He& Do, and the instant real estate was completed while the instant divorce lawsuit was pending, and the Plaintiff used and profit from the instant real estate, and the fact that it was used and profited by the Plaintiff is not all.

(2) The real estate in this case was built at a time similar to the instant real estate and completed registration of the preservation of ownership on December 27, 2012, in order to construct the hanok house located within the fence such as the instant real estate + + + + / / / *** ground single-story house was built at a time similar to the instant real estate.

(3) It appears that the registration of preservation of ownership of the instant real estate was completed in the future of the Plaintiff for the sake of convenience in the normal marital life between the Plaintiff and the Plaintiff, and that there was no motive to donate the instant real estate to the Plaintiff at the time of the registration date of registration of preservation of ownership in light of the fact that the said registration of preservation of ownership was completed on March 28, 2013, which was after the Plaintiff’s status was separated from the Plaintiff, and that the said registration of preservation of ownership was instituted on March 28, 2013, and that there was no motive to donate the instant real estate to the Plaintiff at the time of the registration date of registration of preservation of ownership (or after the filing of a divorce lawsuit, so that the right to the instant real estate was claimed to him/her, and the prohibition of provisional disposal was decided as the

(4) The Plaintiff asserts that the instant real estate is its own unique property in a divorce lawsuit with Hu&&&D. However, this is merely a fact that the assessment of gift tax on the instant real estate has not been revoked (fairness) or a unilateral assertion in the trial process, and thus, cannot be acknowledged solely on the ground that the Plaintiff made such a assertion.

(5) The Defendant asserts that a gift tax assessment on the instant real estate is lawful pursuant to Article 45(1) of the Inheritance Tax and Gift Tax Act. However, the said legal provision is based on the provision premised on the taxpayer’s acquisition of property, and the real acquisition of the instant real estate was based on the negative development, and thus, it is not recognized that the Plaintiff acquired the said

3. Conclusion

Therefore, the claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

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