Cho High Court Decision 2010Du054 ( December 10, 2010)

The acquisition time of title trust property shall be the registration day for ownership transfer.

Even if the registration of ownership transfer was completed due to the title trust, it is reasonable to see that the truster at the time of the donation as the predecessor. Therefore, the time of donation of this real estate is the date of registration of ownership transfer and the honorarium and penalty related to the title trust

2011Guhap7939 Revocation of Disposition of Levying Inheritance Tax

South XX 3 others

Head of the District Tax Office

November 1, 2011

January 13, 2012

1. On October 1, 2009, each part exceeding 000 won among the imposition of each of the imposition of ○○○○○○ by the Defendant against Plaintiffs South A, SouthB, SouthCC, and SouthD on October 1, 2009, and each part exceeding 000 won among the imposition of ○○○○○○○○ of inheritance tax imposed on Plaintiff JeongE is revoked.

2. Each of the plaintiffs' remaining claims is dismissed.

3. 3/5 of the costs of lawsuit are assessed against the plaintiffs, and the remainder is assessed against the defendant.

On October 1, 2009, each imposition of the inheritance tax ○○○○○○○ on the part of the Defendant against the Plaintiff South A, SouthB, SouthCC, and SouthD is revoked.

1. Details of the disposition;

A. On November 26, 2004, the Plaintiffs succeeded to the property of the inheritee as their offspring and spouse, who died on November 26, 2004, and filed a tax base return on inheritance tax with the Defendant having the value of inherited property and the amount of deduction as ○○○○○.

B. From April 13, 2009 to June 30, 2009, the director of the Seoul Regional Tax Office conducted an inheritance tax investigation with respect to the plaintiffs. On October 20, 2004, the land and building (hereinafter referred to as "the first real estate of this case") in Jung-gu, Seoul, where the transfer of ownership was completed under the name of the plaintiff Nam-gu, Seoul, where the transfer of ownership was registered under the name of the plaintiff Nam-gu (hereinafter referred to as "the first real estate of this case") had been registered under the name of the plaintiff Nam-A, but had been registered under the name of the third party. As such, the plaintiff Nam-gu, who received the transfer of ownership from the deceased on October 20, 204, deemed that the above real estate was donated by the deceased and added the value of the real estate to the inheritance tax base by the deceased to the tax base of the inheritance tax. ② The defendant notified the above amount of tax assessment data to the defendant on October 30, 2001.

C. On October 1, 2009, the Defendant determined and notified each of the inheritance tax ○○○○○○○○○○○, the sum of the KRW ○○○○○○○, which was repaid by the decedent on behalf of the decedents, based on the foregoing data, as the tax base, on October 1, 2009, on the aggregate of the KRW ○○○○○○ and the KRW ○○○○○, which was repaid by the decedents on behalf of the decedents, as the inheritance tax base.

D. On November 26, 2009, the Plaintiffs were dissatisfied with the instant disposition and requested for a trial to the Tax Tribunal, but the said claim was dismissed on December 9, 2010.

E. Meanwhile, on the other hand, the defendant applied the ratio of the portion of the non-reported additional tax in the disposition of December 15, 2009 as 10% (the first 20% per annum) and decided to deduct the 00 won from the initial tax amount (hereinafter "the following disposition of taxation remaining after deduction").

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) In a case where Plaintiff South A received a donation of the instant real estate No. 1 from the inheritee, the value of the said real estate is not added to the inherited property on March 21, 1987, which was 10 years prior to the commencement date of the inheritance. Even if Plaintiff South A, on October 20, 204, donated the said real estate on October 20, 2004, the value of the said real estate may not be added to the inherited property. Even if Plaintiff South A, who received a donation of the said real estate on the said real estate, was paid a penalty for breach of contract, ○○○ and ○○○○○○○○

2) Since ○○○○○○ who repaid by the decedent on behalf of ParkG ought not to be a donation, but to be an honorarium for a nominal trust, the said amount may not be added to the inherited property.

B. Relevant statutes

Attached Form 1 shall be as listed in attached Table 1.

(c) Fact of recognition;

1) The details of ownership transfer of the first real estate of this case are as follows.

2) On July 19, 2001, Plaintiff South A entered into a contract to sell the instant real estate 1 to tinK and tinM for the purchase price to ○○○○○○○○○○○○. However, the said contract was rescinded due to a cause attributable to the Plaintiff Southern A’s fault, and the said contract was rescinded and paid to the buyer the sum of ○○○○○○○○○○○ and the penalty to ○○○○○○○○○○○. In addition, on October 20, 2004, Plaintiff South A paid ○○○○○ on the instant real estate 1 after completing the registration of ownership transfer with respect to the instant real estate 1.

3) The details of the change in ownership of the second real estate in this case are as follows. The registration in the name of MaO or Park GG is the registration in title trust, which is the trust of the decedent.

4) On April 23, 2001, 201, Park Ho-H, a person who was the former employee of the inheritee, provided the above real estate as collateral and used the ○○○○○○○○○ source from the AA bank, on the ground that the instant real estate 2 was registered as a transfer of ownership in his name.

5) On July 12, 2001, the decedent entered into a contract with BBD to sell the instant real estate No. 2, and completed the registration of ownership transfer to BBD on August 30, 2001, at the same time receiving sales balance from BBPDD with payment on behalf of BBG’s debt, and completed the registration of ownership transfer on behalf of BBD after cancelling the registration of ownership transfer.

6) Meanwhile, on June 9, 2009, the Plaintiff was unaware of the fact that an ancestor held real estate on March 1987 by his head of the competent regional tax office, and stated that the real estate of this case was donated to his head of his relative, and that he could complete the registration procedure for transfer of ownership after paying the title trust expenses to his head of the competent tax office.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4 through 8, 14, 15, Eul evidence Nos. 2 and 3, the purport of the whole pleadings

D. Determination

1) Determination on the first argument of the plaintiffs

In a case where a person donated a parcel of land, the validity requirement of which is registered before the transfer of a real right, and the time of acquisition of a gift tax liability, which is the time when the person liable for the payment of the gift tax, is established, shall be deemed to be the time when the ownership is transferred, unless there are special circumstances (see Supreme Court Decision 91Nu1493, Jun. 11, 1991). In a general real estate donation, the time of acquisition of a gift tax liability, which is the time when the person liable for payment of the gift tax, is established, shall be the time of registration of transfer of ownership pursuant to the donation. However, in a case where a truster of a real estate under title trust, while he/she knew of the fact of donation and consented to or consented to the transfer of the trust, and succeeds the status of a truster to the donee, it shall be deemed that the time when the trustee gave consent or consent is the time of acquisition of the gift tax (see Supreme Court Decision 97Nu

In light of the above legal principles, it is insufficient to find that the title trustee was aware of the fact that the title trustee was donated the instant real estate from the decedent, or that the trustee consented or consented before the status of the truster, and there is no other evidence to recognize it. Rather, as seen earlier, Plaintiff South A stated that the decedent was unaware of the title trust of the real estate owned by the decedent on March 1, 1987, and that the Seoul Director of the Seoul Regional Tax Office requested the cancellation of the determination of the transfer income tax on November 11, 2009 (No. 13 evidence), even if the time when the Plaintiffs submitted the “Request for the cancellation of the determination of the transfer income tax” (No. 13 evidence), it is reasonable to view that the decedent was recorded as having been trusted the instant real estate to Park H as having been trusted the instant real estate under the name of the decedent on October 20, 2004, and that it was reasonable to view that the title trustee was entitled to the registration of title transfer under the title of the Plaintiff 1, the title of the real estate under the title trust of the title trustee.

However, prior to October 20, 2004, the owner of the instant first real estate is the decedent, and the expenses related to the said real estate should be borne by the decedent. As seen earlier, it can be recognized that Plaintiff South South A paid ○○○○○○○○○○○○○○○○○ in the course of the sales and purchase contract for the instant first real estate and Park HH on behalf of the decedent. As such, it is reasonable to deduct ○○○○○ from the inherited property of the decedent.

2) Judgment on the second argument by the plaintiffs

Article 36 of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007) provides that "if a creditor has been exempted from an obligation, or he has received or has received from a third party an acceptance or repayment of obligation, the amount equivalent to the profits made by such exemption, acceptance, or repayment (if a compensation amount has been paid, it shall be the amount less such compensation amount) shall be the value of property donated to the person who has obtained such profits," and Article 13 (1) 2 of the Inheritance Tax and Gift Tax Act provides that "the value of inherited property shall be determined by adding up the value of inherited property to the value of property donated to a person who is not the heir

In light of the above provisions, as to the nature of the money repaid by the decedent on behalf of Park GG, it is reasonable to deem that the KRW ○○○○○○, which was repaid by the decedent on behalf of Park GG, was a donation rather than the cost of title trust, in full view of the following: (a) the obligor was liable for the obligation; (b) the obligor’s repayment of the instant real estate was to facilitate the ownership transfer registration procedure after selling the instant real estate to a third party, not to restore the property to the original state; (c) the obligor’s repayment of the obligation; (d) the obligor’s repayment of the obligation by Park GG; and (e) the relationship between the decedent and Park H, etc.

3) Sub-decisions

Ultimately, the instant disposition is unlawful only in the part of KRW 440,00,000 from its tax base. Thus, the exclusion therefrom is as follows when calculating legitimate inheritance tax on the Plaintiffs (see attached Form 2).

3. Conclusion

Therefore, among the plaintiffs' claims, the part of the defendant's claim of this case, which exceeds 00 won of each 00 won among the imposition of 00 won of inheritance tax on October 1, 2009 by the plaintiff Nam, SouthB, SouthCC, and SouthD, and the part of the defendant's claim for revocation of exceeding 00 won of inheritance tax's imposition of 00 won against the plaintiff JeongE is justified, and the remainder of the claim is dismissed as it is without merit. It is so decided as per Disposition.