Transfer registration of ownership due to a testamentary document before the deceased's death is subject to gift tax, not inheritance tax, because it cannot be considered a testamentary gift.

A testamentary gift refers to a single act whose content is to transfer his own property to the donee by will without compensation after the death of the deceased, and its effect is derived from the death of the testator, and it cannot be viewed as a testamentary gift under the Civil Act, since the registration of transfer of ownership in this case was made before

Subparagraph 6 of Article 2 of the Inheritance Tax and Gift Tax Act

2017Guhap10277

The registration of transfer of ownership cannot be deemed completed on the ground of testamentary gift, and the plaintiff's objection

It is reasonable to view that the acquisition of each real estate constitutes a gift under Article 2 subparagraph 6 of the Inheritance Tax and Gift Tax Act.

Therefore, we cannot accept the Plaintiff’s assertion on this part.

(1) A testamentary gift means a testamentary gift without compensation by the testator to the testamentary donee of his property by will.

act solely with the content to be assigned, and the effect thereof shall be the death of the testator.

The transfer registration of ownership in this case takes place from the time of death of the deceased (Article 1073(1) of the Civil Act).

On December 13, 2013, the former can not be determined as being based on testamentary gift under the Civil Act.

(2) The Deceased is deemed to have had the intent to donate each of the instant real estate to the Plaintiff before his birth.

The plaintiff shows that "the deceased will bring about a dispute between the plaintiff and other inheritors."

It is argued that the ownership of each of the instant real estate was transferred before such death.

(3) The above judgment between the plaintiff and AD is owned by the plaintiff of this case in accordance with the principle of pleading.

As to the assertion that the transfer registration is valid in accordance with the substantive relationship, the Deceased

Whether each of the instant real estate was donated to the Plaintiff separate from the legacy before such death

The reason for the registration of transfer of ownership of this case by the above judgment is not that of the judgment.

It is not a testamentary gift.

(4) "Gift" under Article 2(3) of the former Inheritance Tax and Gift Tax Act means the name of the act or transaction.

In person, tangible and intangible property that can calculate economic values regardless of their names, forms, purposes, etc.

A gratuitous transfer to another person by an indirect method (a transfer at a significantly low price)

(iii) means to increase the property value of another person by means of or by means of contribution to the property;

As seen above, the plaintiff is stipulated as "the case before the death of the deceased."

Since each immovable property was transferred to its own ownership without compensation, this is subject to the old Inheritance Tax and Gift Tax Act.

It is reasonable to view the donation as a donation.

2) Determination as to the Plaintiff’s assertion 2

(A) Unless there are special circumstances, money is possessed by transfer of possession or an account under one’s name.

It shall be deemed that the owner acquired the ownership or the right to claim the return of deposit by transfer.

section 3.

B) According to the descriptions, etc. of Gap evidence Nos. 4, 5, and Eul evidence Nos. 12, the plaintiff's behalf is deceased.

Although payment of part of the money is recognized, such circumstance alone alone does not lead to the Plaintiff.

In addition, the custody of KRW 00,000,000 was entrusted by means of account transfer, or the private certification was granted.

It is insufficient to recognize that the plaintiff did so, and there are no other grounds to recognize it, and the plaintiff is the above.

Recognition that money has been managed separately for the purpose of being entrusted separately from his money;

Inasmuch as there is no basis for the Plaintiff to pay 00,000,000 won or more, the Plaintiff’s total amount of 00,000 won or more.

It is reasonable to view that a person acquired it by transferring it to an account.

C) Therefore, the Plaintiff collected money of KRW 000,000,000 in total before the Deceased’s death; or

It appears that the deceased acquired and donated by transferring it to his own account, and the deceased’s status

The plaintiff cannot be deemed to have inherited when the deceased died. Thus, the plaintiff cannot be deemed to have been kept on his deposit.

This part of the argument is not accepted.

3) Judgment on the Plaintiff’s assertion

A) Gratuitously, the donor’s property is given to the donor before the donee receives a gift from the donor.

of the donee, even if the donee had a duty of property, this is another party to the donor.

It is merely a gift, and the above-mentioned burden of the donee shall not be deducted from the gift value, provided that the donee is not a gift.

Where a donee bears a certain obligation under a condition of donation to a donor, the donee shall assume a certain obligation under the Civil Act.

amount equivalent to the debt borne as above as it constitutes an onerous donation may be deducted from the amount of donation;

(b) Lineal ascendants and descendants in the case of such onerous donation (Article 47(1) of the Inheritance Tax and Gift Tax Act);

With respect to onerous donation, even if a donee takes over a donor's obligation, the amount of such obligation;

It shall be presumed that the donee has not been accepted, but the amount of debt shall be the State and local governments

amount of debt taken over may be deducted only if it is objectively deemed, such as debt, etc. (the former inheritance);

Article 47(3) of the Tax and Gift Tax Act.

B) According to the descriptions, etc. of Gap evidence Nos. 4, 5, and Eul evidence Nos. 12, the plaintiff's behalf is deceased.

Although the fact that some of the payments were made, the details of the above disposition and Gap evidence Nos. 3 through 5;

The plaintiff's act of disbursement according to the contents and the whole purport of the evidence No. 12

money or each of the instant real property had already been given by the deceased before being given a donation from the deceased

of this case’s each of the instant real property is deemed to have been assumed on the condition that it was donated.

The Plaintiff and the deceased’s will may not be paid such money on the condition that the deceased donate it to the Plaintiff.

No contribution shall be deemed to have been made on the part of the deceased, and otherwise, the plaintiff shall be free from the deceased.

It is recognized that such expenditure was made on the condition that the property of this case was donated.

There is no basis.

C) Accordingly, the Plaintiff’s above expenditure may be another gift to the Deceased.

It shall not be considered to be deducted from the gift value of each disposition of this case, and otherwise deducted it.

The plaintiff's assertion on this part is not accepted, since it is not possible to find the grounds that need to be found.

3. Conclusion

Therefore, the plaintiff's claim is without merit, and it is dismissed and it is so decided as per Disposition.

(c)

AAA

BB Director of the Tax Office

April 10, 2018

May 15, 2018

1. The plaintiff's claim is dismissed.

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

The Defendant’s gift tax amounting to KRW 0,00,000,000 on December 8, 2013, 2013 against the Plaintiff on February 11, 2016, and KRW 2013.

12. 9. Assignment of gift tax of KRW 000,000,000, and KRW 00,000,000 on December 18, 2013;

Each disposition shall be revoked.

1. Details of the disposition;

A. On December 19, 2013, the netCC (hereinafter referred to as “the deceased”) died, and the Plaintiff is the deceased’s infant.

B. The Plaintiff deposited KRW 00,000,000 from the D bank account of the Deceased to December 19, 2013, before the Deceased’s death, ① from November 29, 2013 to December 19, 2013. ② on December 9, 2013, the Plaintiff transferred KRW 00,000 to its own account from the deceased’s national bank account to 00,000,000; ③ on December 13, 2013, △△△△△-Do x x 00 x 20 x 00 x 0 0 0 x 0 0 0 0 - 0 0 0 0 10 0 , 200 , 200 , 200 , 200 , 300 , 200 , 100 , 200 , 2014.

2. Determination on the legitimacy of each of the dispositions of this case

A. The plaintiff's assertion

Each of the dispositions of this case shall be revoked for the following reasons.

1) Although the ownership transfer registration of this case was completed as the cause of registration for payment in substitutes, it was actually completed as the cause of the deceased’s legacy. Accordingly, each of the instant real estate ought to be deemed as the inherited property bequeathed rather than the property which the Plaintiff donated in advance.

2) The deceased’s total sum of KRW 00,000,000,000, which was withdrawn by the Plaintiff or transferred from the deceased’s account to the Plaintiff’s account, was bequeathed upon the death of the deceased while being kept by the Plaintiff according to the deceased’s will for the payment of medical expenses. Therefore, the said money is not the property donated in advance by the Plaintiff, but the inherited property inherited by the death

3) Even if the Plaintiff received a donation of KRW 000,000,000 in total from the deceased by means of a withdrawal or account transfer, ① the Plaintiff’s lending on behalf of the deceased or on behalf of the deceased, and ② the total sum of the expenses for medical treatment, nursing, and simple meal expenses incurred on behalf of the deceased, and ② the total sum of the expenses for the test of real estate to be borne by the deceased, shall be excluded from the value of donated property.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Judgment on Plaintiff 1’s assertion

A) Relevant legal principles

A taxpayer may choose one of the several legal relationships in order to achieve the same economic purpose in economic activities, and the tax authority shall respect the legal relationship chosen by the parties, barring any special circumstance, and as long as the taxation relationship is premised on a transaction relationship under the private law, it must respect the legal form of the private law chosen by the parties and form it on the basis. Therefore, as long as the taxpayer selects a certain legal relationship, the tax authority should determine the relevant legal relationship, and even if the taxpayer ultimately intended another legal relationship, it cannot be interpreted differently from the legal relationship chosen by the taxpayer (see, e.g., Supreme Court Decision 200Du963, Aug. 21, 2001)

On the other hand, the Inheritance Tax and Gift Tax Act amended by Act No. 7010 on December 30, 2003 introduced the so-called comprehensive taxation system of comprehensive taxation of gift tax by comprehensively defining the object of taxation of gift tax including not only the concept of donation but also the increase of property value by the direct and indirect transfer of property, and the concept of donation, and by converting the provisions on the time of donation and calculation of the value of property by the previous listed method into the provisions on the calculation of donation.

In light of the fact that the concept of comprehensive gift under tax law is introduced in order to cope with the changing inheritance and gift in advance, and that the previous provision on deemed donation is uniformly converted into the regulation on the calculation of value, in principle, where any transaction and act constitutes the concept of gift under Article 2 (3) of the Inheritance Tax and Gift Tax Act, it shall be deemed that gift tax may be levied pursuant to Article 2 (1) of the same Act (see, e.g., Supreme Court Decision 2013Du13266, Oct. 15, 2015).

B) the facts of recognition

The following facts may be acknowledged according to the contents of Gap evidence 1, 3, and Eul evidence 12 and the purport of the whole pleadings.

(1) On December 6, 2013, the Deceased drafted a testamentary document stating that “The Plaintiff shall testamentary gift each of the instant real estate, etc.”.

(2) The Deceased’s tea and the Plaintiff’s her birth together filed a lawsuit against the Plaintiff seeking the cancellation of the ownership transfer registration of this case. Accordingly, the Plaintiff asserted that the ownership transfer registration of this case is valid in accordance with the substantive relationship since it was completed in the future of the Plaintiff who holds the right to claim ownership transfer registration due to the legacy of the Deceased. The court accepted the Plaintiff’s assertion and rendered a judgment dismissing the claim of AD, and the said judgment became final and conclusive (Seoul Western District Court 2014Kahap31684)

C) Determination

According to the above facts of recognition, the plaintiff has the title to complete the registration of ownership transfer of each of the real estate of this case on the ground of testamentary gift after the death of the deceased. However, in light of the above legal principles, the following circumstances known by the background of the above disposition and the purport of the entire pleadings, the plaintiff completed the registration of ownership transfer before the death of the deceased.