Cho High Court Decision 2010Du2597 ( November 17, 2011)

Each disposition of this case on the premise that the property of this case is owned by the inheritee is unlawful.

In light of the fact that the plaintiff did not have sufficient means to acquire the property of the deceased, all the property in the name of the deceased is the source of income of the plaintiff, and that the plaintiff's words were paid a prescribed amount of money from the plaintiff and did not hold any legal responsibility for future inheritance, etc., it is reasonable to deem that the property of this case is placed in trust with the deceased only.

Article 2 of the Inheritance Tax and Gift Tax Act

2012Guhap5046 Revocation of Disposition of Imposition of Gift Tax

The AA

1. Distribution director of the tax office; and

September 6, 2013

October 18, 2013

1. The head of the tax office on May 1, 2010 who imposed the gift tax on the Plaintiff on April 5, 2006, OOOOOO on the gift as of May 26, 2006, OOOOOO on the gift as of June 5, 2006, OOOOO on the gift as of July 5, 2006, OOOOO on the gift as of July 5, 2006, OOOO on the gift as of November 16, 206, OOOO on the gift as of December 12, 2006, OOOO on the gift as of December 21, 206, OOO on the gift as of December 21, 2006, OOOO on the gift as of December 7, 2007, O10, 1301.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

(1) On March 11, 2008, the Plaintiff: (a) on September 1, 2008, succeeded to the property of 1B (hereinafter referred to as “the deceased”); (b) on the gift of 100, 2000, 2000, 2000, 2000,0000,0000,0000,0000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3 (including each number, hereinafter the same shall apply), Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The instant property is placed in trust with the deceased only in the name of the Plaintiff, and the actual owner of the instant property is not the deceased, but the Plaintiff. Therefore, even if part of the purchase price of CCC real estate and EE real estate reverts to the Plaintiff, it cannot be deemed that part of the purchase price was donated from the deceased, and the balance of the accounts, contact membership, and deposit money for lease should be excluded from inherited property. Thus, each of the instant dispositions based on the premise that the instant property is owned by the deceased is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

"1) On September 26, 1995, the ownership transfer registration was made in the name of the deceased on October 13, 1998 under the name of OO2 OF apartment 694, FF apartment 105, FF apartment 1403 (hereinafter referred to as "FF apartment 105, 1403"), and on October 16, 1998, the ownership transfer registration was made in the name of OF apartment 694, FF apartment 102, 1303 (hereinafter referred to as "FF apartment 102, 1303"), and the ownership transfer registration was made in the name of the deceased on December 10, 1992 under the name of 20, 200, 300, 200, 206, 300, 206, 300, 206, 200, 306, 206, 206, 201,

3) Of the sales price OOO of the real estate purchased, the CCC transferred from the deceased’s account to the deceased’s account, or withdrawn from the deceased’s account as a check and deposited into the Plaintiff’s account. In addition, the OOO of the sales price of EE real estate transferred from the deceased’s account to the deceased’s account, or withdrawn from the deceased’s account as a check, and deposited into the Plaintiff’s account. The OOOO was withdrawn from the KimL’s account and deposited into the Plaintiff’s account.

See Decision 4-5 see Decision 4-5

4) On December 2, 2009, HoN, the deceased’s leader, filed a lawsuit against the Plaintiff for the return of inheritance shares. On January 15, 2010, he withdrawn the said lawsuit and agreed with the Plaintiff on January 19, 2010 to the following purport:

1. A (the withdrawal of a lawsuit filed by the Plaintiff on January 15, 2010) shall be withdrawn from the Seoul Southern District Court 2009Kadan91938 (the withdrawal of a lawsuit filed by the Plaintiff on January 15, 2010).

2. Eul shall transfer OOO to A for a national bank (or old coordinate number: O-O-O-O-OOOOO) on January 2010.

3. A shall not impose any legal liability on B in connection with future inheritance, etc.

5) Afterward N filed a lawsuit against the Plaintiff on March 24, 2010, but on September 30, 2010, the Seoul Central District Court 2010Kahap29275 decided to dismiss the lawsuit, which became final and conclusive on October 14, 2010.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, 23 through 28, 40, 41, Eul evidence 2, 5, and 11, and the purport of the whole pleadings

D. Determination

In the name of the deceased, FF apartment 105 and 1403, in the name of the deceased, have been sold to the changedG for OO on or around September 13, 1998; FF apartment 102 and 1303, in the name of the deceased, have been sold to this H on July 2, 1999; the real estate II in the name of the deceased and this JJ was sold to Kim K, etc. on or around June 26, 2000.

However, in full view of the following circumstances, it is reasonable to view that the property of this case was placed in trust with the deceased, taking into account the following circumstances: Gap's 3 through 8, 10, 17, 18, 41 evidence, Eul's testimony, Eul's testimony, and the entire purport of the argument as a result of the plaintiff's personal examination. Accordingly, each of the dispositions of this case based on the premise that the property of this case is owned by the deceased is unlawful.

1) At the time when the ownership registration was made in the name of the Deceased with respect to FF apartment Nos. 105, 1403, FF apartment Nos. 102, 1303, and II real estate, the deceased was more than 60 years old at the time when the ownership registration was made in the name of the Deceased, CCC real estate and EE real estate, and it seems that there was no particular occupation and income, and there was no economic ability to acquire each of the above real estate.

2) On the other hand, the Plaintiff appears to have economic ability to acquire each of the above real estate by receiving assistance from the visitors while residing in Japan for most of the periods from March 26, 1990 to April 26, 1998.

3) In light of the fact that YN, who appears to have been well aware of the process of forming the deceased’s property relatively well and agreed on January 19, 2010, received OOOO members from the Plaintiff and did not hold any legal responsibility for future inheritance, etc., it is deemed that N recognized that the inherited property under the name of the deceased was based on the Plaintiff’s title trust.

" 4) 그럼에도 정NN은 2010. 3. 24. 원고를 상대로CCC 부동산과 EE 부동산의 매매대금 중 1/2을 지급하라'는 취지의 소를 다시 제기하였는데, 원고는 2010. 4. 20.자 답변서, 2010. 6. 22.자 준비서면 등을 통해 일관되게 CCC 부동산과 EE 부동산은 원고가 명의만을 망인에게 신탁하여 놓은 것이라는 취지로 주장하였다.", " 5) 한편, 원고가 2006. 6. 20. 인천지방법원에서2005. 11. 19. 14:08경 일본에서 입국하면서 일화 OOOO엔을 세관 신고 없이 반입하려다가 검거됨으로써 미수에 그쳤다'는 범죄사실로 벌금 OOOO원의 약식명령을 발령받은 점에 비추어 원고가 CCC 부동산과 EE 부동산을 취득하기 전에도 일본에서 얻은 수입을 세관 신고 없이 반입하였던 것으로 보인다.", " 6) 원고의 지인인 김QQ, 조RR, 한SS과 원고의 친척인 정TT, 정UU, 박VV은망인은 아무런 소득이 없었고 망인의 명의로 원고의 재산을 관리하였다'는 취지의 서면을 작성하였고, 원고의 지인인 조WW은몇 차례 원고의 부탁으로 망인에게 목돈을 전달하였다'는 취지의 서면을 작성하였다.", " 7) CCC 부동산과 EE 부동산에 관한 매매계약의 체결에 관여하였던 이PP은 이 법정에서망인이 원고가 일본에서 힘들게 벌어서 보내준 돈으로 부동산을 매입하는 것이라고 말하였고, 매매대금은 망인이 가져온 적도 있으며 원고가 가져온 적도 있다'는 취지로 진술하였다.",3. 결론

Therefore, the plaintiff's claim of this case is justified, and all of them are accepted, and it is so decided as per Disposition.