[1] The case where an agreement on co-owned property becomes a donation

[2] In a case where new construction funds for a building jointly owned by minor children and fathers are appropriated as a security deposit for the building, whether the donation from the father is presumed to have been made (negative)

[1] Division of an article jointly owned is an exchange or sale of shares between co-owners under law. If co-owners divide the article jointly owned with their share, it is only an exchange or sale of shares, but it is not an issue of donation. However, only if a specific co-owner dividess the article jointly owned with another co-owner's share in excess of his/her share, the donation of the article in excess can be established

[2] In a case where new construction funds for a building for which registration of preservation of ownership has been made for common use of minor children and father are appropriated as a security deposit for the lease of the building, barring any special circumstance otherwise, they shall bear the obligation to return the security deposit according to their respective shares of ownership at the expiration of the lease, and thus, they correspond to the "debt and the money received" under Article 41-5 subparagraph 3 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14082, Dec. 31, 1993) and thus, they cannot be presumed to have been donated from the father.

[1] Articles 269 and 554 of the Civil Act / [2] Article 34-6 of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996); Article 41-5 subparagraph 3 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14082 of Dec. 31, 1993)

At least two implied and three others (Attorney Engine-won, Counsel for the plaintiff-appellant)

Head of Dong Daegu Tax Office

1. The defendant notified as of December 16, 1994;

(a) gift tax of 62,704,140 won, defense tax of 10,450,690 won, as gift tax of 190 for the Plaintiff’s implied permission;

B. The portion of the gift tax exceeding KRW 140,346,00 for the Plaintiff Lee Jae-chul in 190, and KRW 23,391,00 for the defense tax (total 163,737,000), which exceeds KRW 85,710,00 for the gift tax, and KRW 14,285,00 for the defense tax (total 99,95,000);

C. Of gift tax of 141,426,00 won on the Plaintiff’s Lee Jae-forest and of 23,571,000 won on the defense tax of 1990 (total 164,97,000 won), the portion exceeding KRW 86,010,000 on the gift tax of 14,335,00 on the defense tax (total 100,345,00 won);

D. The portion of gift tax exceeding KRW 120,456,00, and the defense tax exceeding KRW 20,456,678,700 (total 141,134,700), among the gift tax of KRW 177,192,00, and the defense tax of KRW 30,134,70 (total 207,326,700), and each disposition of imposition of gift tax of KRW 140,30,240, and 193 shall be revoked.

2. The remaining claims of the plaintiff Lee Dong-man are dismissed.

3. Of the costs of lawsuit, the part arising between the plaintiff's implied, pseudonymd, Lee Jae-forest and the defendant's implied, Lee Jae-forest and the part arising between the plaintiff's Lee Jae-forest and the defendant shall be five minutes, and one of them shall be borne by the plaintiff's Lee Jae-in, and

The judgment of the plaintiff Lee Jong-chul, Lee Jae-chul, Lee Jae-soo, Lee Jae-soo, the disposition of imposition of gift tax of KRW 177,192,00 for the gift tax of December 16, 1994, and KRW 30,134,70 for the defense tax of KRW 85,710,00 for the gift tax of KRW 30,70 for the gift tax of KRW 177,192,00 for the gift tax of KRW 30,134,70 for the gift tax of KRW 14,285,00 for the defense tax of KRW 14,285,00 for the gift tax of KRW 140,30,240 for the gift tax of KRW 193 is revoked.

1. Details of taxation; and

Gap evidence 1-1, 2, 3, 2, 2, 3, 4, 5-1, 2, 6, 7-2, 7-3, 8 through 15-1, 2, 16-1 through 11, 1-2, 16-1, 3, 2-2 of 2-2, 5, 6-2, 7-1, 3, 8-4, 8-1 through 6-1, 7-2, 7-2, 8-2, 9-1 through 6, 10-1, 2, 11-1, 1-2, and 1-2 of 1, and 15 of 1-1, and 1-2 of 1-2 of 1-2 of 1-2 of 1-3, and 1-3 of 3-2 of 3-2 of 3-2 of 3-2 of 1 of 3-2 of 1 of 3.

A. On May 10, 198, at least the Plaintiff: (a) donated 826/1,286 shares of 1,286 shares among 1,283, Nam-dong 653, Nam-gu, Daegu-dong 653 on May 10, 198 to three persons, including the Plaintiff, Lee Jae-gu, the son, and his son, and completed the registration of transfer of shares in the future (Therefore, the share of the Plaintiff above was 460/1,286; (b) on June 16, 1989, the land category of the above land was 207 square meters and less than 200 square meters and less than 20 square meters, and the land category of the above land was 362,250,000,000,000, which was 160 square meters and more than 16,000 square meters of the above land and 16,06,000 square meters of the above land was altered or more than 16.

B. On June 29, 190, the plaintiffs entered into a co-owned property partition agreement which is to divide the land No. 2 of this case into the sole ownership of the plaintiff Lee Jae-chul, Lee Jae-chul, Lee Dong-young, and Lee Dong-dong, and to divide the land No. 2 of this case into the exclusive ownership of the plaintiff above the plaintiff, and completed the registration of ownership transfer by each land on the same day. On July 16, 1997, the plaintiff et al. completed the registration of ownership transfer for the land No. 2 of this case on the ground

C. On the other hand, the plaintiff Lee Jae-chul, Lee Jae-soo, and Lee Jae-gu (the plaintiff Lee Jae-chul, January 23, 1985) jointly owned with the land of this case and its neighboring land of this case 658-15, 17, 18, and 18 of the same land of this case and its neighboring land of the same 658-15, 17, 18 of the same land of this case, and 19 to 5 lots of land of this case, and 2,93.76 square meters (the above building of this case, business facilities, neighborhood living facilities, education and research facilities, etc., hereinafter "the building of this case") were newly constructed with three joint names, the plaintiff Lee Jae-chul, Lee Jae-chul, Lee Jae-ho, who was represented by the Lee Jong-ho and Lee Jong-ho, concluded that the above construction work price of this case should be paid to the above plaintiffs of this case as 19,500,000,000.

D. Afterwards, the non-party Lee Jae-chul paid 100,000,000 won out of the above construction cost to the above non-party, but the above non-party paid 10,000,000 won for parking machinery excluded from the construction cost on behalf of the above plaintiffs, and the above non-party paid 1,410,000,000 additional construction cost to the above plaintiffs. After which the above non-party paid 1,410,000,000 won, the remainder of the construction cost is 1,410,000 won, and the non-party paid 1,2,300,000 won out of the building of this case to the above non-party 1,80,000 won out of the underground floor among the building of this case, the non-party 1,80,000 won and the non-party 9,000,000 won out of the rental deposit to the above non-party 1,000,006.

E. Meanwhile, on June 1, 1993, the Plaintiff Lee Jae-chul leased all the fourth floor (private teaching institutes) of the instant building to Nonparty Park Jin-hee for a period of two years to lease deposit of 100,000,000 won. On March 25, 1994, the Plaintiff Lee Jae-chul leased part of the fifth floor (53 square meters) of the instant building to Nonparty Kim Byung-ho on the lease deposit of 30,000,000 won to the lease deposit of 1 million won.

F. Accordingly, the Defendant rendered a tax disposition and a decision of correction as follows.

(1) Disposition No. 1 of this case

Since the plaintiff's abnormal implicit used 322,00,000 won for the sale of the above land received from Daegu Special Metropolitan City and Daegu Special Metropolitan City upon delegation by the remaining plaintiffs, 68,940,383 won (32,00,000 x 826/1,286 x 1/3) for the sale of the above land corresponding to each of the remaining three plaintiffs' shares shall be deemed to have been donated to each of them, and on December 16, 1994, as stated in the tax invoice on December 16, 1994, the amount of 62,704,140 won, 10,450 won, and 690 won for the sale of the above land corresponding to each of the remaining plaintiffs' shares was imposed and notified (hereinafter referred to as "first taxation disposition").

(2) The second taxation disposition of this case (the initial decision)

The Defendant: (a) deemed that at least the Plaintiff’s implied share of at least 394.18 square meters (1,102 x 460/1,286) was donated to the Plaintiff, respectively; and (b) divided the amount of KRW 131.4 square meters (394.18 x 1/3) for each of the said 39.4 square meters divided into 92 square meters and 39.4 square meters for 1990; (c) KRW 184,00,000 (per 1922,000,000) and KRW 20,000 for each of the said 194, KRW 265,00 for 20,000 for 190, KRW 2965 for 20,000 for 196, KRW 360 for 20,000 for 29,000 for 3610,000 for 361,00.

(3) Disposition No. 3 of this case

With respect to the new construction and acquisition of the building of this case by the plaintiff Lee Jae-chul, Lee Jae-soo, and Lee Jae-soo, the defendant recognized the amount of KRW 1,130,00,000 (1,000,000,000 for the lease deposit under the lease contract between the plaintiff Lee Jong-tae, Lee Jong-tae, and Lee Jong-jin as the source of financing KRW 1,25,00,000 for the lease deposit for the non-party Kim Jong-jin, plus KRW 1,00,000 for the lease deposit for the non-party Kim Jong-jin as the source of financing KRW 30,00,00 for each of 1/2,50,000 for 30,000 and KRW 565,00 for the non-party Kim Jong-chul as the minors at the time of the time of the new construction, and there was no 30,000,000 for the non-party Lee Jong-soo as the source of financing, 1604,0164,064,06.

(4) Decision on correction of the second taxation disposition of this case

After that, according to the request for review by the plaintiff Lee Jae-chul, Lee Jae-soo, and Lee Jae-soo, the National Tax Service decided to exclude the donation amount of KRW 53,414,66, May 10, 198 from the donation amount of KRW 53,414,66, among the second taxation disposition of this case, on the ground that the exclusion period for the imposition of national tax should not be added to the donation amount for which the exclusion period for the imposition of national tax has expired, and accordingly, the defendant issued a decision to correct the tax base and tax amount thereof around March 1995 (as for the plaintiff Lee Jae-chul, around April 4, 1995).

2. The parties' assertion

As to the Defendant’s assertion that each of the instant taxation dispositions is lawful in light of the details of the disposition and relevant statutes, the Plaintiff asserts as follows.

A. The plaintiff et al.'s assertion on the first taxation disposition of this case

The plaintiff et al. argues that the land No. 2 of this case was owned solely by the co-owned property partition contract between himself and the remaining plaintiffs, and that the sales contract through consultation with Daegu Metropolitan City and Daegu Metropolitan City became final and conclusive, and that the ownership transfer registration was completed in the future of Daegu Metropolitan City. Thus, the plaintiff et al. seems to have received the purchase price for the land No. 2 of this case with the delegation of the remaining plaintiffs. However, the land No. 2 of this case was merely a receipt of the purchase price as the owner of land No. 2 of this case, and it was not a donation from the other plaintiffs

B. The Plaintiff’s assertion as to the second taxation disposition of this case by Lee Jae-chul, Lee Jae-soo, and Lee Jae-in

Pursuant to the plaintiffs' partition contract, the part of 39.4 square meters in each of 131.4 square meters (1,102 x 460/1,286 x 1/3) among the land No. 1 of this case acquired by the plaintiff Lee Jae-chul, Lee Jae-chul, and Lee Dong-dong from the plaintiff's implied permission in accordance with the plaintiff's partition of co-owned property, is corresponding to the land of 39.4 square meters (184 x 826/1,286 x 1/3) among the land No. 2 of this case registered as his/her sole ownership under the above partition of co-owned property contract, which corresponds to the land of this case, which belongs to the plaintiff Lee Jae-chul, Lee Jae-chul, and Lee Dong-dong's co-owned share. Thus, the imposition

C. The plaintiff Lee Dong-in's argument about the third taxation disposition of this case

The plaintiff Lee Dong-man's appropriation of the new building's new building's new building's rental deposit is today's practice in real estate transactions. Even if the person who received the actual rental deposit in this case transferred the plaintiff to the plaintiff, this is merely a person with parental authority over the plaintiff Lee Jong-chul's resident. Thus, the plaintiff Lee Jae-soo's 376,66,00 won (rental deposit 1,130,000,000 x x 1/3) out of the rental deposit received from the lease of the building in this case exceeds 328,046,6666 won (984,140,000 x 1/3) of the amount of the new building's shares of the plaintiff Lee Jong-soo's son's son's son's son's son'

3. Determination

A. Whether the first taxation disposition against the plaintiff et al. was legitimate

According to the facts found above, since the contract for partition of co-owned property became final and conclusive as the sole ownership of the plaintiff above, the sales contract for the land No. 2 between the plaintiff above and Daegu Special Metropolitan City was established and the ownership transfer registration was made accordingly. Thus, even if the plaintiff above implied was received and consumed independently prior to the division of co-owned property, this is merely a temporary payment of the sales price paid as a provisional measure prior to the execution of the sales contract by the Daegu Special Metropolitan City and Daegu Special Metropolitan City, and thus, the above sales price is the owner of the land No. 2 and the purchaser of the land, and the plaintiff et al. who is the party to the transaction. Thus, the above sales price is the owner of the land No. 2 and the purchaser of the land of this case, and under the premise that the land No. 2 of this case is jointly owned by the plaintiffs, the tax disposition No. 1 of this case is unlawful.

B. Whether the taxation disposition of this case 2 against the plaintiff Lee Jae-chul, Lee Jae-soo, and Lee Lee Jae-soo is legitimate

(1) Relevant statutes

Article 34 of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996) 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 transferee at the time of transfer of the property by the transferor (paragraph (1))" and "paragraph (1) shall not apply to cases falling under any of the following subparagraphs (paragraph (3)" and subparagraph 5 of Article 41 (3) of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 13801 of Dec. 31, 1992) provides that "the transfer of the property is clearly recognized to have been made by payment of the price and the transfer of the property shall not apply to cases prescribed by Presidential Decree". This provision provides that "The transfer of the property by the transferor or the transfer of the right shall be deemed to have been donated to the transferee at the time of transfer or exercise of the right."

(2) Division of the common property is a legal exchange or sale of shares among the co-owners. If co-owners divide the common property into their shares, only the exchange or sale of shares is not problematic. However, in the case, only if a specific co-owner divided the shares of other co-owners in excess of his/her share, a gift can be established as to the excess portion. In accordance with the contract on partition of co-owned property as of June 29, 1990, the part of the land of this case, which is owned by the plaintiff Lee Jae-chul, Lee Jae-chul, and Lee Dong-chul, pursuant to the contract on partition of co-owned property as of June 29, 1990, as to the part of the land of this case, which is owned by the plaintiff 394.18 square meters (1,102 x 460/1,286), the part of the previous land of this case, which is owned by the plaintiff 2 or more impliedly owned by the plaintiff 39.4 square meters (the part of the previous land of this case is not less than the plaintiff 1394.3 square meters).

(3) Therefore, the portion exceeding KRW 85,710,00, KRW 14,285,00, KRW 14,000 (total amount of KRW 99,95,00, KRW 920, KRW 200, KRW 995,000, and KRW 2. Attached Table 2. The decision of correction of tax account statement, KRW 92,000, KRW 86,010, KRW 14,335,000, KRW 14,000, KRW 340, KRW 345,000, and KRW 3.0, KRW 92,00, KRW 40, KRW 200, KRW 200, KRW 300, KRW 400, KRW 14,000, KRW 500, KRW 200, KRW 400, KRW 29,000, KRW 5,09, KRW 209, KRW 4000.

C. Whether the disposition of this case 3 against the plaintiff Lee Dong-in was legitimate

(1) Relevant statutes

Article 34-6 of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990, and amended by Act No. 5193 of Dec. 30, 1996) provides that "Where it is difficult to recognize that the purchaser of the property acquired the property by his own means due to his occupation, gender, age, income, property status, etc., as prescribed by the Presidential Decree, the purchaser of the property shall be presumed to have received the donation of the acquisition fund from another person, and Article 41-5 of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 13196 of Dec. 31, 1990) provides that "the total amount of the amount verified by the provisions of each of the following subparagraphs falls short of the acquisition value of the property" and subparagraph 3 of the same Article provides that "the person who acquired the property by his own means bears the burden of proving the amount of the property by his own means or by his own means being disposed of in return for the disposal of the property:

(2) According to the facts acknowledged above, since the lessor under the lease contract for the building of this case is composed of the two separate owners, Article 263 of the Civil Code can use and benefit from the whole common property at the rate of shares. The lessee may reject the order of the leased building from the lessor to the time when the lease contract is terminated, barring any other special circumstances, he shall bear the obligation to return the lease deposit at the rate of 00, 300, 500, 100, 300, 500, 100, 50, 100, 100, 100, 300, 100, 100, 50, 106, 100, 100, 300, 50, 106, 106, 300, 100, 100, 100, 300, 50, 106, 300, 300, 100, 10.

4. Conclusion

Therefore, the part of the first taxation against the plaintiff et al. and the second taxation against the plaintiff Lee Jae-chul in excess of KRW 85,710,00 and KRW 14,285,00 (total amount of KRW 99,95,00) and the part of the second taxation against the plaintiff Lee Jae-soo in excess of KRW 86,010,00 and KRW 14,35,00 (total amount of KRW 100,345,00) among the second taxation against the plaintiff Lee Jae-chul in this case, and the part of the second taxation against the plaintiff Lee Jae-chul in this case which exceeds KRW 120,456,00 and KRW 20,678,70 (total amount of KRW 141,134,700) and the third taxation against the plaintiff Lee Jae-chul in this case shall be revoked by applying the second taxation to the plaintiff Lee Jae-soo in this case, and the remaining part of the appeal shall be dismissed by the plaintiff Lee Jae-soo in this case as it is without merit.

Judge Lee Dong-dong (Presiding Judge)