(a) The method of determining the taxable value of donated property, in case of onerous donation bearing a guarantee obligation on the property;

(b) The legislative purpose of Article 29-4(2) of the Inheritance Tax Act concerning onerous donation between specially related persons, such as spouse, etc. and the reasons for taking into account in determining the taxable amount of gift

C. Whether the gift of the real estate provisionally seized and the amount of debts of provisional seizure are considered (negative)

A. In the case of onerous donation bearing a secured obligation, the taxable value of the gift tax shall be the value calculated by deducting the acquisition amount from the value of the property in case the donee takes over the secured obligation, but in case the donee does not take over the secured obligation, the value of the property which is not deducted. However, if the donee takes over the secured obligation due to the donor’s nonperformance of obligation, the donee would lose the ownership of the donated property, and eventually, the conclusive acquisition of the donated property depends on the obligor’s performance of obligation and the exercise of the security right. Therefore, in cases where it is clear that the donee’s exercise of the security right is effective due to the donor’s insolvent, taking into account the existence of the conditional right as stipulated in Article 10(1) of the Inheritance Tax Act and the certainty of the fulfillment of the terms and conditions

B. The legislative purpose of Article 29-4(2) of the Inheritance Tax Act is to prevent the evasion of gift tax by taking over any obligation without credibility of a donor to a donee with no capacity to repay in the form of onerous donation between his/her spouse and any related party, such as a related party, etc., and deducting the amount of such obligation from the value of donated property. Thus, if a donee donated any secured real estate between related parties, even if the donee takes over the secured obligation, the amount of the obligation is not naturally deducted from the value of donated property, but the taxable value of donated property may be determined by taking

C. The provisional attachment registration on the donated real estate does not necessarily mean that the creditor is not certain to enforce compulsory execution. Therefore, in determining the taxable amount of gift taxes, the amount of the provisional attachment obligation should not be considered.

(c)Article 29-4 of the Inheritance Tax Act;

A. Supreme Court Decision 78Nu334 delivered on May 29, 1979; Supreme Court Decision 87Nu518 delivered on June 28, 198

[Judgment of the court below]

Head of Yeongdeungpo-do Tax Office

Daegu High Court Decision 85Gu382 delivered on September 30, 1987

The part of the lower judgment against the Defendant shall be reversed, and that part of the case shall be remanded to the Daegu High Court.

The plaintiff's appeal is dismissed, and the costs of appeal on this appeal are assessed against the plaintiff.

1. We examine the Plaintiff’s attorney’s grounds of appeal.

In light of the records, the court below did not err in the misapprehension of legal principles as to the actual profit of the donation, such as the assertion of intention, as we agree with the measures that judged the donation of each real estate of this case as an onerous donation between lineal ascendants and descendants.

2. We examine the grounds of appeal by the defendant litigation performer.

(1) The original onerous donation refers to a donation that imposes an obligation upon the donee while making a donation to the donee at the same time imposing an obligation to pay a certain amount of benefit, and where the donor has given a gift to the donee that created a security right in the name of a third party, the donee is liable for a secured obligation, and thus, constitutes an onerous donation.

In this regard, in the gift tax amount of gift tax, when the donee takes over the secured debt, the value of the gift tax amount shall be the value deducting the acquired debt from the value of the property when the donee takes over the secured debt, but in the case where the donee does not take over the secured debt, the value of the property which has not deducted the secured debt amount shall become the gift tax

However, even in a case where a donee did not take over a secured obligation, when a secured right is extinguished due to the repayment of the secured obligation by the donor, the donee will lose ownership of the donated property if the secured right to the mortgaged real estate is exercised because the donor failed to perform his/her obligation and the donor does not perform his/her obligation, and eventually, the conclusive acquisition of the donated property depends on the ownership of the donated property depending on whether the principal debtor fulfills his/her obligation and whether the secured right is exercised. Therefore, in a case where the donee is deemed as a conditional right as stipulated in Article 10(1) of the Inheritance Tax Act and it is evident that the exercise of the donee's right to indemnity against the donor is not effective due to the donor's insolvency, taking into account the certainty of the facts and conditions constituting the condition as stated in Article 10(1) of the Inheritance Tax Act, the gift tax and the amount of gift tax shall be determined by taking

(2) However, Article 29-4(2) of the Inheritance Tax Act provides that, with respect to onerous donation between spouse or lineal ascendants and descendants, in principle, even if the donee takes over the secured obligation, it shall not be deducted from the value of the donated property. However, it shall be limited to cases where the donee is deemed to have the ability to assume the obligation of the donee and such obligation is recognized and the obligation becomes final and conclusive by the State, local governments and other financial institutions prescribed by

The legislative purpose of the above provision is to prevent evasion of gift tax by taking over non-refluent debts of a donor to a donee who has no capacity to repay in the form of onerous donation between his/her spouse and related parties, and deducting this amount from the value of donated property. Therefore, in cases where real estate was donated by a person with a special relationship, such as his/her spouse, etc., even if the donee takes over the secured debts, the amount of debts is obviously un

However, even in the case of the gift of secured real estate, if the secured obligation is not taken over, it shall be deemed as conditional rights, and pursuant to Article 10(1) of the Inheritance Tax Act and Article 7 subparag. 1 of the Enforcement Decree of the same Act, the taxable value of donated property may be determined by taking into consideration all circumstances, such as the fact constituting the contents of the condition and the certainty of the fulfillment of the condition. Therefore, in the case of the gift of secured real estate between lineal ascendants and descendants, in which the exercise of security right by the donor, who is the primary debtor, is certain and it is obvious that the exercise of right to indemnity against the donor cannot be invalidated due to the donor's insolvency, regardless of whether the secured obligation is taken over, the taxable value of donated property may be determined by taking

(3) According to the reasoning of the judgment below, the above non-party 1 did not satisfy the above non-party 1's 5,14,373 won, non-party 2's total amount of 30,00,00 won for the above non-party 1's non-party 7 non-party 1's non-party 7 non-party 1's 5's non-party 1's non-party 1's non-party 5's non-party 1's non-party 5's non-party 1's non-party 2's non-party 1's non-party 3's non-party 1's non-party 1's non-party 3's non-party 1's non-party 5's non-party 1's non-party 2's non-party 1's non-party 3's non-party 1's non-party 3's non-party 1's non-party 1's non-party 1's non-party 1'

However, as to the debt of the non-party 1 among the above debt of the non-party 1, who is the donor, it is not a security right to the real estate of this case, but it is merely a provisional seizure registration, and it cannot be said that the creditor is not certain to enforce compulsory execution. Thus, it cannot be said that the deduction of the above provisional seizure debt amount in determining the gift tax and the tax amount is erroneous.

Then, regarding the debt of Nonparty 1 to the above Yang Dong-dong corporation, the right to collateral security was established in the name of the above company in the real estate of this case, but there is no evidence to prove that the above non-party company is certain to exercise the right to collateral security. Thus, even if there is no such material, the above collateral security amount was deducted in determining the taxable amount of gift tax. Thus, the above collateral security amount was also erroneous.

Ultimately, the court below did not err in the misapprehension of legal principles as to the appraisal of the value of donated property in a onerous donation between lineal ascendants and descendants, or in the misapprehension of legal principles as to the determination of evidence, which affected the judgment.

3. Therefore, the part of the judgment of the court below against the defendant is reversed, and this part of the case is remanded to the Daegu High Court. The plaintiff's appeal is dismissed, and the costs of appeal as to this part of the appeal are assessed against the plaintiff. It is so decided as per

Justices Lee Jae-seok (Presiding Justice)