Busan District Court-2016-Gu 2255 (Law No. 14, 2017)

Whether the subject of the collateral security obligation and the title truster are included

The Plaintiff’s occupation and income size are not sufficient to repay the Plaintiff’s debt, and the instant real estate cannot be deemed as a title trust.

Article 45 of the Inheritance Tax and Gift Tax Act: Presumption of Donation of Property Acquisition Funds

2017Nu23834 Revocation of Disposition of Imposing gift tax

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북@@세무서장

June 20, 2018

July 11, 2018

1. Revocation of the part against the defendant among the judgment of the court of first instance, and the plaintiff's claim corresponding to the above revocation part;

The dismissal is dismissed.

2. The plaintiff's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s imposition of gift tax of KRW 391,384,710 (including penalty tax) against the Plaintiff on October 1, 2015 shall be revoked.

2. Purport of appeal

A. Plaintiff: The judgment of the first instance court is modified as follows. It is so decided as to the purport of the claim.

B. Defendant: as described in paragraph (1) of the Disposition (see, e.g., Supreme Court Decision 322,088,080 won in Paragraph (1) of the Disposition of the First Instance 322,08,080 won in a clerical error of KRW 322,083,060 in the judgment of the court of first instance).

1. Details of the disposition;

(a) Quotation of judgment of the first instance;

The reasoning for this part of this Court is as follows: ① deleted the contents of Section 3.D.(3) of the judgment of the court of first instance; ② adds the contents of Section 3.f. of the judgment of the court of first instance as follows; ③ adds the contents of Section 6, Section 15, and Section 16 to Section 3 of the judgment of the court of first instance as it is identical to the corresponding part of the reasons for the judgment of the court of first instance except adding evidence 6, Section 15, and Section 16 to Section 3 of the judgment of the court of first instance.

B. Additional parts

1) Meanwhile, on November 10, 2017, the Plaintiff was sentenced to KRW 14,720,45,362 for the Plaintiff’s active value of the Plaintiff’s active property from Busan High Court, which is the appellate court of the case involving the above Aa District Court 2014Dhap250 (principal lawsuit), and KRW 14,720,45,362 for the Plaintiff’s active value of the property. The small property value of the Plaintiff was 391,09,025,79,790 (Evidence 16, No. 24, No. 24, No. 17, No. 17), and KRW 165,00 for the return of the deposit for lease of real estate (see, e.g., evidence No. 16, evidence No. 24, No. 17), KRW 164,00,00 for the Plaintiff’s active property * 6,31,481,5080,5,39485,200.

2) Under the name of the Plaintiff and Dob, an account with the repurchase agreement was opened in Busan Bank as described in the following account statement, and was terminated.

2. Whether the disposition is lawful;

A. The portion of the instant repayment

1) Quotation of the first instance judgment

The reasoning for this part of this Court is that the reasoning for this Court is identical to the corresponding part of the reasoning for the judgment of the first instance except for adding the following 2) judgment of the Plaintiff’s assertion in this part of this Court, and thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420

2) Additional parts

A) On December 7, 199, the Plaintiff primarily borrowed the Plaintiff’s name and purchased KRW 700,000,000 from MabBB and the Plaintiff’s funds to the extent of KRW 1,000,000,000,000,000 from Macbbbb and Macccc. The loan obligations secured by Macbb and the Plaintiff’s real estate were repaid in installments, Hubbb and management of tric legal real estate was also Hubb, and even in the instant divorce judgment, it was proved that the Plaintiff’s real estate in the Plaintiff’s name was not donated to the Plaintiff. Therefore, the actual owner of tric legal real estate was Hubb, but only borrowed the owner’s name and the loan’s name during the process of acquiring tric legal real estate, and thus, this case’s repayment was asserted to have been repaid.

살피건대, ① 우선 원고의 주장에 의하더라도 괘법동 부동산을 매수함에 있어서 원고가 그 매수대금의 일부를 부담하였다는 것인데, 원고는 괘법동 부동산의 매매대금 및 그 지급조건을 알 수 있는 자료를 제출하지 아니하는 점, ② 원고는 허bb이 괘법동 부동산의 매수대금 일부를 부담하였다고 인정할 자료를 제출하지 못하는 점, ③을 제2호증의 1, 2, 3, 을 제6호증의 3의 각 기재 및 변론 전체의 취지에 의하면, 원고가 2001. 5. 26. 부산은행으로부터 이 사건 채무가 포함된 7억 4,000만 원을 대출받을 당시 괘법동 부동산 외에 원고 소유의 부산 북구 *** *** 화명현대아파트 101동 ***호를 그 공동담보로 제공한 점, ④ 원고가 윤##를 상대로 부산지방법원 2016가단 351***호로 임료 미지급을 이유로 한 임대차계약해지를 원인으로 한 건물명도 소송을 제기한 것으로 보아 허bb은 원고 명의로 2008. 8. 20. 괘법동 부동산 일부를 윤##에게 임대한 것으로 보이고, 윤##는 그 무렵부터 원고의 계좌로 월 임료 200만 원을 입금하였고, 원고도 이를 수령하였음을 인정하는 점(갑 제21호증 제2면 참조), ⑤ 이 사건 이혼판결에서는 원고의 이 사건 변제금에 대한 조세채무 및 괘법동 부동산 임대차보증금반환채무를 원고의 소극재산으로 평가하고 있을 뿐 아니라 괘법동 부동산이 허bb의 소유라고 명시적으로 인정하지 아니하였고, 원고가 허bb으로부터 원고 명의로 된 부동산을 증여받았다고 인정할 증거가 부족하다고 판단하면서도 원고가 허bb으로부터 증여받은 부동산이 있다 하더라도 재산분할의 대상이 된다고 판단하고 있어 이 사건 이혼판결에서 괘법동 부동산이 원고에게 증여된 것이 아님이 확인되었다고는 볼 수 없는 점(갑 제16호증 제8면 참조) 등 제반사정에 비추어 보면, 괘법동 부동산은 원고가 조cc로부터 매수하여 취득한 원고 소유의 부동산이라고 할 것이고, 괘법동 부동산의 실질 소유자가 허bb임을 전제로 하는 원고의 주장은 이유 없다.

B) The Plaintiff asserts, preliminaryly, that since the trigram legal real estate was owned jointly by the Plaintiff and Hubb, 1/2 shares in the trigram legal real estate held in title in title in the Plaintiff, and 1/2 of the instant debt was the obligation of HubB. The owner of the trigram legal real estate in this case is the Plaintiff as seen earlier, and the testimony of Dol legal real estate in this court is insufficient to recognize that the trigram legal real estate was owned jointly by the Plaintiff and Hubb, and there is no other evidence to acknowledge this otherwise, and there is no reason for the Plaintiff’s assertion on this premise.

C) The Plaintiff conjunctive. ① KRW 246,581,792 out of the instant repayment amount was withdrawn from the Busan Bank account under the Plaintiff’s name on August 11, 2008, and thus, the Plaintiff is the Plaintiff and the right holder of the said account cannot be deemed to be Hubb. As such, the Plaintiff cannot be deemed to have donated KRW 246,581,792 from among the Plaintiff’s account under the Plaintiff’s name. ② Heb deposited KRW 230,000,000 in the Busan Bank account on August 13, 2007, but on August 20, 2008, the Plaintiff cannot be deemed to have received KRW 240,618,218,218 as principal and interest on August 20, 208, and the Plaintiff received KRW 240,618,468,618,67,208,208.

(4) The Plaintiff’s claim that the Plaintiff purchased the above bonds under the name of 10b. Busan Bank Co., Ltd. (see, e.g., Supreme Court Decision 201Do12288, Apr. 1, 2011; 201Do328, Jun. 1, 2011; 201Do328, Jun. 22, 2011; 201Do328, Jun. 21, 2011; 201Do328, Jun. 21, 2011; 202Do318, Jun. 201, 201; 202Do328, Jun. 21, 2011; 2008Do327, Jun. 22, 2011; 2002Do327, Jan. 18, 2015).

B. The real estate portion of this case

1) Facts of recognition

A) On December 28, 2001, the Plaintiff: (a) from Hubb’s father Dodd, ① Youngdong-si, Yangsan-si***-4 large 660 square meters (hereinafter “the instant case****-4 site”); (b) Yangsan-si, Seogdong-si, Yangsan-si, ******-19 square meters, 119 square meters, *****-6 1,384 square meters; and (d) on December 31, 2001, the Plaintiff completed each registration procedure for transfer of ownership in the name of the Plaintiff with respect to each of the above real estate.

(B) Yangsan-si Dopo-si ****-6 Dopo-si Mapo-si 1,384 square meters due to division, merger and land category change as of April 19, 2010 ***-6 Mapo-90 square meters due to the division, merger and land category change*********-91 square meters due to the same Ri-si Dopo-dong 381 square meters **** 381 square meters due to Yangsan-si Dopo-si *******-19 square meters due to the combination of land on December 5, 2012, the land category was changed to the site on December 5, 2012, ****-6 Dopo-190 square meters due to the combination of land** 1-14 square meters due to the combination of two or more sites*** 1-14 square meters due to the combination of two or more.

C) Dob obtained a building permit from the Gyeongnam-do mayor on October 8, 2010 to the owner of the instant real estate as the Plaintiff with respect to the instant land*****-4 site, and ② on December 23, 2011, ***-1 site, the owner of the instant real estate as the owner of the instant real estate was granted a building permit as Dob with respect to the instant building site as Dob.

D) On December 28, 201, Dob commenced a new construction of Dob Housing on December 28, 201, and completed the registration procedure for preservation of ownership in the name of Dob on November 19, 2012 after obtaining approval for use for Dob Housing on November 19, 2012.

E) On June 14, 2012, Dob commenced the new construction of the instant real estate, and completed the registration procedure for preservation of ownership in the Plaintiff’s name on March 25, 2013 after obtaining approval for the use of the instant real estate on March 28, 2013.

F) Meanwhile, Hubb, who was residing with the Plaintiff as of May 201, **********10,000,00 won in total from December 30, 201 to October 10, 201, went out from the Plaintiff, and resided in the second floor of the Gangseo-gu, Busan, where the children's thosesssssssssssssssssssssssssssssssssssssssssss in the Dong-dong, Busan, 2012 **************** apartment 16,00,00 won in total from December 30, 201 to October 10, 2013 (refer to the evidence No. 15, No. 117, No. 17).

G) The mother of Dob’s strongff is residing in the instant real estate from March 25, 2013 upon obtaining approval for the use of the instant real estate.

H) The Defendant imposed a gift tax of KRW 69,301,650 on the Plaintiff on March 28, 2013, with the gift value of KRW 119,766,422.

I) On August 16, 2013, the Plaintiff became aware of the influorial relationship between Hubb and Gag. On November 22, 2013, the Plaintiff filed a lawsuit of divorce, etc. against Hubb and Ga District Court 2013Ddan12877 against Hub and Gag on November 22, 2013. On February 6, 2014, Hub filed a counterclaim against the Plaintiff on the same court as the counterclaim, including divorce 2014ddan1034. On May 22, 2014, each of the above cases was counterclaimed by Aa District Court 2014Dhap250 (main claim), 2014Dhap267 (267).

(j) On January 15, 2014, Dob has received a provisional disposition order against the Plaintiff against the Plaintiff, aa district court 2013 business group*** by the instant****-4 site, the instant real estate and the instant case***-1 site, with respect to each of 2/3 shares in each of the sites **-1 site as the preserved right.

C) In the instant divorce judgment, the value of the instant real estate was KRW 668,015,640, and the value of the instant real estate was assessed as KRW 324,168,80 in total.

[Ground for Recognition] A without dispute, Gap evidence 2, Eul evidence 3, Eul evidence 11-1, 12-1, 2, Gap evidence 12-1, 12-2, Gap evidence 16, Gap evidence 19-9, Gap evidence 21, Eul evidence 23-4, 5, Eul evidence 2-2, Eul evidence 3-2, Eul evidence 15, Eul evidence 17, and the purport of whole pleadings

2) Determination

A) The Plaintiff asserts that registration of preservation of ownership in the name of the Plaintiff on the instant real estate was not a gift of the instant real estate from Hebb, because Heb borrowed the name of the owner from the Plaintiff or used the Plaintiff’s name without permission.

(5) On October 8, 2010, the Plaintiff’s owner of the instant real estate owned by the Plaintiff *****-4 on December 23, 201, and the Plaintiff’s building permit was issued under the name of the Plaintiff on December 21, 201, in light of the following circumstances: (b) the Plaintiff’s request for disposal of the instant real estate under the name of 20b. 1 and the Plaintiff’s request for disposal of the instant real estate under the name of 20b. 1 and the Plaintiff’s request for disposal of the instant real estate under the name of 30b. 2, which had not been known by the court; (3) the Plaintiff’s request for disposal of the instant real estate under the name of 20b. 1 and the Plaintiff’s request for disposal of the instant real estate under the name of 30b. 1 and the Plaintiff’s request for disposal of the instant real estate under the name of 20b. 1 and 30b. 1 and each of the instant real estate after the Plaintiff’s separate ownership.

Therefore, the plaintiff's assertion that Hebb borrowed the name of the owner from the plaintiff or the registration procedure for preservation of ownership of the plaintiff's real estate of this case has been completed by using the plaintiff's name without permission is without merit.

B) Preliminaryly, the Plaintiff: (a) KRW 460 million out of the new construction funds of the instant real estate; (b) on October 2013, 2013.

2. From October 31, 2013 to October 31, 2013, the Plaintiff asserts that the Plaintiff does not receive a donation within the extent equivalent to the above KRW 460 million since it is either the Plaintiff’s funds by withdrawing KRW 229,645,686 from the Plaintiff’s living cost passbook to the Plaintiff’s KRW 229,645,686 and the funds paid to the wwwwwws of the contractor of

Then, there is no objective material to know the costs of new construction of the real estate in this case [The evidence No. 22 of this case is, even according to the plaintiff's assertion, the plaintiff's new construction of the real estate in this case and the construction cost of Hebb house in this case (see, e.g., page 8 through 9 of the plaintiff's legal brief dated May 11, 2018), ② the plaintiff's new construction cost of the real estate in this case is recognized to have been borne by Hebb (see, e.g., No. 11 of the plaintiff's legal brief dated 14, 2017). The plaintiff's new construction cost of the real estate in this case is KRW 600,700,000,000,000,000 won 606,000,000 won and KRW 706,000,000,000,000,000 won.)

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the part concerning the repayment of this case in the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed as it is without merit, and since the part concerning the real estate of this case in the judgment of the court of first instance is unfair in conclusion with different conclusion, it is so revoked and the plaintiff's claim corresponding to the above revocation part