(a) Requirements for "assignor's relative" deemed a donation under the Inheritance Tax Act and the burden of proof therefor;

(b) Stockholders relations of non-standing small corporations and special relations under the Inheritance Tax Act;

(a) In order to establish a special relationship that is deemed a gift under Article 41(2)6 of the Enforcement Decree of the Inheritance Tax Act and Article 11 of the Enforcement Rule of the same Act as the relative of a transferor, the person must be in the same relationship as at the time when the cause of taxation arises in light of the principle of substantial taxation or the principle of fair taxation, and the facts related to the transferor must be objectively proved by the tax authority, and the verification must be conducted by the tax authority.

B. It cannot be readily concluded that only a shareholder relationship of a small-scale non-permanent corporation has a special relationship under the preceding paragraph.

(a)Article 34-4 of the Inheritance Tax Act, Article 41(2)6 of the Enforcement Decree of the same Act, Article 11 of the Enforcement Rule of the same Act, Article 261 of the Civil Procedure Act;

A. Supreme Court Decision 87Nu698 Decided January 19, 1988

Plaintiff

Head of the tax office

Seoul High Court Decision 88Gu7028 decided Nov. 4, 1988

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

As to the Grounds of Appeal:

Article 41 (2) 6 of the Enforcement Decree of the Inheritance Tax Act provides that a transferor's relative shall be one of the persons who are deemed to have a special relationship under Article 34-4 of the Inheritance Tax Act, and Article 11 of the Enforcement Rule of the same Act provides that a transferor's relative refers to an objectively obvious person who is related to a transferor's relation, such as a transferor's relation, a alumni relation, and a workplace relationship. If such a person has a special relationship, in light of the legal principles of substantial taxation or fair taxation, it must be related at the time when the cause of taxation arises, and objectively and clearly prove the fact related to the transferor, and the burden of proof shall be borne by the defendant who is the tax authority (see Supreme Court Decision 87Nu698 delivered on January 19, 198).

Unlike the shareholder relationship of a listed corporation, the theory of the lawsuit is developing the logic under the premise that it is objectively apparent that the fact related to the transferor is in the shareholder relationship of a small-scale non-listed corporation, but it cannot be concluded that the above special relationship exists with only the shareholder relationship such as the theory of the lawsuit. Therefore, the court below's determination that the relationship between the plaintiff, the non-party 1 and the non-party 2 was confirmed by the evidence and that the above special relationship cannot be seen as the above is not unlawful.

Therefore, this appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice)