(a) Purport of Article 34 of the Inheritance Tax Act which is regarded as a donation by a spouse, etc.;

B. Whether a notarial deed of promissory notes as a title of debt that a donee claims to have taken over from a donor constitutes “debted debt” subject to deduction under Article 29-4(2) of the Inheritance Tax Act (negative)

A. Article 34(1) of the Inheritance Tax Act provides that “The value of the property that is transferred to his spouse or lineal ascendants or descendants shall be deemed to have been donated to the transferor at the time of transfer of the property by the transferor,” while Article 34(3) provides that “Where the transferor falls under any of the following subparagraphs, and it is clearly recognized that the transfer has been made by paying the price therefor, and it is prescribed by the Presidential Decree” in subparagraph 5 of Article 34 provides that “The purpose of the above provision is to ensure that the property is transferred to his spouse or lineal ascendants or descendants, it shall not be deemed to have been donated if it is transferred to the transferor or the transferee by paying the price, and it shall not be deemed to have been donated only

B. Article 29-4(2) of the Inheritance Tax Act provides that “The gift subject to an onerous donation between a spouse, or a lineal ascendant or descendant shall not be deducted even in cases where a donee takes over the obligation of a donor: Provided, That this shall not apply in cases where a donee, who is objectively deemed capable of performing his/her obligation in view of occupation, sex, age, income, property status, etc., takes over the obligation of the State, local governments, and other financial institutions prescribed by Presidential Decree or judicial confirmations, etc., and even if a testamentary donee takes over the obligation of a donor as a title of debt for which he/she claims that he/she had taken over from the donor, the said obligation cannot be deemed to be “a final and conclusive debt”

(a) Article 34 (1) and (3) of the Inheritance Tax Act;

A. Supreme Court Decision 90Nu4419 decided Aug. 28, 1990 (Gong1990, 2047) 90Nu6002 decided Sep. 28, 1990 (Gong1990, 2215) 90Nu7012 decided Feb. 26, 1991 (Gong191, 114)

[Judgment of the court below]

Head of Namyang District Tax Office

Seoul High Court Decision 90Gu17691 delivered on August 27, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. Judgment on the ground of appeal No. 1 by the Plaintiff’s attorney

Article 34 (1) of the Inheritance Tax Act provides that "the value of the property that is transferred to the spouse or a lineal ascendant or descendant shall be deemed to have been donated to the transferee at the time of transfer of the property by the transferor," while Article 34 (3) provides that "the provisions of paragraphs (1) and (2) shall not apply where it falls under any of the following subparagraphs, and it shall not apply where it is clearly recognized that the transfer has been made by paying the price therefor, and where it is prescribed by Presidential Decree" in subparagraph 5 of Article 34 provides that "The purpose of the above provisions is to ensure that the property is transferred to the spouse or a lineal ascendant or descendant, it shall be deemed to have been donated if it is transferred to the transferee

The court below acknowledged that the registration of ownership transfer for the real estate of this case, which was originally owned by the non-party whose father was the plaintiff, has been made for sale in the plaintiff's future. The court below rejected the evidence that the plaintiff properly purchased the real estate of this case from the above non-party and paid the price. In light of the relevant evidence compared with the records, the judgment of the court below is just and acceptable, and it cannot be viewed that the judgment of the court below did not contain any errors of law by violating the rules of evidence or by misunderstanding the legal principles as to the burden of proof like the theory of lawsuit, or by misunderstanding the legal principles as to the burden of proof, and it cannot be viewed that the judgment of the court below violated the sound common sense or legal sentiment

2. Determination on the ground of appeal No. 2

Article 29-4 (2) of the Inheritance Tax Act provides that "A gift subject to an onerous donation between spouse or lineal ascendants or descendants shall not be deducted even in cases where a donee takes over the obligations of a donor: Provided, That this shall not apply in cases where a donee, who is objectively deemed capable of repaying obligations in view of occupation, sex, age, income, property status, etc., takes over the obligations of the State, local governments, and other financial institutions prescribed by Presidential Decree or judicial final and conclusive obligations, etc., as prescribed by Presidential Decree." Thus, even if a notarial deed of a promissory note is prepared as a title of debt for which the plaintiff claims that he/she had taken over from the above non-party as a title of debt for which he/she had taken over

In the same purport, the court below is just to have determined that there was no evidence to deem that the obligation asserted by the plaintiff was confirmed in court, and it cannot be viewed that there was no error in the judgment below's failure to satisfy the reasons like the theory of lawsuit.

3. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)