Seoul Administrative Court-2015-Gu Partnership-83122 ( October 23, 2017)

In case where shares are inherited due to the death of a title truster, the title truster does not apply the legal fiction of title trust donation.

If shares are inherited due to the death of a title truster after a title truster becomes a title truster due to a title trust and transfer of title in the future of the title trustee, it is not subject to the provision on deemed donation

Inheritance and Gift Tax Act Article 45-2 Presumption, etc. of Title Trust Donation

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Part 1. Ministry of Justice

sales agreement

2017Nu60637 Revocation of Disposition of Imposition of Gift Tax

***

*The Director of the Tax Office

1. The defendant's appeal is dismissed.

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

1. Purport of claim

Each disposition imposing gift tax on the Plaintiff on December 1, 2014 (this case’s No. 2) indicated in the separate sheet No. 1 that the Defendant rendered to the Plaintiff.

Each disposition of imposition 4 and 5 shall be revoked (in the case of this case listed in the attached Table 1 list, each disposition of imposition 1 and 3 of this case).

하여는 @@세무서장이 당심에 이르러 직권취소함에 따라 원고가 이에 대한 소를 취하

2)

2. Purport of appeal

제1심 판결을 취소하고, 원고의 청구를 기각한다(제1심 판결 중 @@세무서장에 대한

Since the part becomes invalid due to the withdrawal of the plaintiff's lawsuit, the object of this court's adjudication is limited to the defendant

In the attached list, each disposition of this case Nos. 2, 4, and 5 is limited to the disposition of this case).

1. Quotation of judgment of the first instance;

The reasoning for the judgment of the court in this case is as stated in the reasoning for the judgment of the court of first instance except for the following parts to be used, added, or deleted. Thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ 제1심 판결서의 '피고 @@세무서장'을 '세무서장'으로, '피고들'을 '피고와 @@ 세무서장'으로, '피고 **세무서장'을 '피고'로 모두 고쳐 쓴다.

○ It is said that 'the donation was made' from 7th to 4th under the judgment of the first instance court.

○ The following shall be added at the 8th day below that of the first instance judgment:

H. On October 10, 2017, the director of the Seongbuk-do Tax Office ex officio cancelled the imposition of the first and third dispositions of this case. - 3-

○ 8th written judgment of the court of first instance shall consist of 1 to 5, 11, 12 'Nos. 1 to 5'.

○ Judgment of the first instance court was executed with 13 13 o, 2 o-3 o-4 o-5 o-4 o-5 o-8 o-2 o-2 o-3 o-2 o-7 o-7

The judgment of the court of first instance shall consist of 9 pages 1, 2, 3, and 5 of 12 '2, 5' respectively. The judgment of the court of first instance shall be 7 '7 '2, 3, and 5' under 9 '2, 5 '2' under '2 and 5'. The judgment of the court of first instance shall be '7 '7 '2' under 9 '2 and 5'.

○ From 9th judgment of the first instance court to 5's successor, the plaintiff, who is his heir, was 'the deceased Kim Jong-do'. The plaintiff, who is his heir, shall be 'the plaintiff.'

The judgment of the court of first instance shall be deleted from 10th to 5th one, and the 6th Ma."5th 5th 5th 5th 5th 4th 4th 4th 5th 5th 5th 5th 5th 6th 5th 5th 6th 5th 5

○ The following shall be added to 17th written judgment of the first instance court:

Meanwhile, as long as the authenticity of a disposal document is recognized, the court shall recognize the existence and content of the declaration of intent in accordance with the content of the document unless there is any reflective evidence, and shall not reject it without any reasonable reasoning. However, even in the case of a disposal document, if there is an express or implied agreement different from the content of the document, it may recognize facts different from the content of the document, and in interpreting the legal act of the originator, it may be freely determined as a documentary evidence insofar as it does not contravene the empirical and logical rules (see, e.g., Supreme Court Decision 2005Da34643, Apr. 13, 2006).

○ The 17th 6th 6th 6th eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth 2014du 4046th eth eth eth 201

The judgment of the first instance court was deleted from the 24th and the 5th and the 24th and the 3th and the 5th and the 5th and the 5th and the 5th and 3th and the 2th and 2th, respectively.

The following is added under the judgment of the first instance court 24 pages 9. Meanwhile, the Defendant asserts that the heir of the title truster may voluntarily change the title and escape from such status in cases where the shares are inherited after the name truster died after the shares are nominal trust and the change of title is made in the future of the title trustee. As such, the provision on deemed donation of transfer of title is not applicable to the name truster, and that the gift tax may be imposed on the title truster’s inheritance.

However, Article 4(5) of the former Inheritance Tax and Gift Tax Act provides that in cases falling under Article 45-2 of the former Inheritance Tax and Gift Tax Act, the donor is jointly and severally liable to pay the gift tax with the donee. In full view of the above provision and the content of the instant provision, it is reasonable to deem that the primary taxpayer of the gift tax pursuant to the provision of this case is the trustee, and that the title truster’s joint and several liability to pay the gift tax is premised on the establishment of the above gift tax by the title trustee. Therefore, if the shares are inherited after the title truster died and then his/her shares are transferred to the title trustee, it is impossible to apply the provision on the constructive gift of transfer to the title trustee, and thus, it cannot be deemed that the heir of the title truster is liable

○ From 24 10 m24 m2 to 25 m25 m20 m20 m20

2. Conclusion

Therefore, the disposition of imposition Nos. 2, 4, and 5 of this case must be revoked illegally, and the plaintiff's claim is accepted in all grounds (as long as the plaintiff's claim is accepted in all, it shall not be judged any further as to the conjunctive argument about the disposition of imposition No. 4 of this case), and the judgment of the court of first instance is just in conclusion, and therefore, the defendant's appeal