Seoul Administrative Court-2016-Gu Partnership-73955 (O2.03, 2017)

Cho High-2016-Seoul Government-0765 (2016.07)

Land acquired in the name of spouse to develop and avoid the lending limit shall be held in title trust.

Acquisition of land under the name of the husband who is a real estate developer in order to promptly permit development and avoid the lending limit of the bank constitutes title trust, not donation.

Article 45 (1) of the former Inheritance Tax and Gift Tax Act (Presumption of Donation of Property Acquisition Funds, etc.)

2017Nu 38401 Revocation of Disposition of Imposing gift tax

PPP

o The Secretary General;

September 4, 2017

October 12, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The disposition of imposition of gift tax for the year 2012 imposed on the Plaintiff**,**,**,**,**, gift tax for the year 2014****,**,**,**,** each disposition of imposition of KRW*.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is the same as the reasoning of the judgment of the court of first instance, except for the addition or dismissal of some contents as follows. Thus, it shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

Addition or height shall be the part

○ The second line of the judgment of the first instance court, "Evidences 5 through 28 of the A", shall be deemed to be "Evidences 5 through 36 of the A".

○ The following shall be added to the second sentence of the judgment of the first instance.

5) The Defendant asserts to the effect that the Plaintiff acquired the instant land by means of money donated to NAM, the husband, based on the Plaintiff’s written vindication (Evidence No. 3), Assumption of Obligation (Evidence No. 10) and written confirmation (Evidence No. 11). However, in light of the fact that the Plaintiff acquired the instant land by means of money donated to NAM, the husband, i.e., the debt acquisition contract *. *. *, the written confirmation *. *, 2015 * * *. *. *. 2015 * *. * * from the date of the Defendant’s investigation on the acquisition of the instant land * * * * * * 2015 * * * * *) and immediately after the written vindication submitted by the Plaintiff, and the parties to the said debt acquisition contract are the Plaintiff and NAM, it is difficult to conclude that the Plaintiff acquired the instant land by means of donation from NAM.

6) The Defendant asserts to the effect that even if the instant land was title trusted to the Plaintiff by NAM, the said land was subject to penalty surcharges pursuant to Article 5 of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), since NAM was intended to reduce or avoid global income tax and transfer income tax, and thus, was conducted for the purpose of tax evasion. However, if title trust of the instant land was for tax avoidance or tax reduction, it is imposed based on the substance of the instant land through the system, such as an unfair act calculation book, etc. under the Income Tax Act, and if penalty surcharges are imposed pursuant to the Real Estate Real Name Act, it does not affect the title trust of the instant land.

2. Conclusion

Since the judgment of the first instance is justifiable, the defendant's appeal is dismissed as it is groundless.