Seocho 208west 1365 (209.03.09)

Where a title trust property is donated to a truster, the timing of donation.

When a truster donates real estate under title trust to a trustee, it is reasonable to see the point at which the ownership transfer agreement between the truster and the trustee is reached as the time of acquisition of the donated property, considering the circumstances already registered in the name of the trustee.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

피고가 2007. 10. 1. 원고, 여★★, 한○○, 한●●, 한◎◎에 대하여 한 별지 목록 기재 상속세 부과처분 중 원고와 한○○에 대하여 각 14,633,052원을 초과하는 부분을 각 취소한다.

1. Circumstances of the disposition;

가. 원고의 부친인 한◇◇(이하, '망인'이라고 한다)는 2003. 9. 15. 사망하였는데, 이 에 망인의 상속인인 원고, 여★★, 한○○, 한●●, 한◎◎은 2004. 3. 16. 피고에게 상속재산 1,026,000,000원에서 상속공제 1,039,000,000원을 차감하여 과세표준을 0원으로 한 상속세 신고를 하였다.

나. 한편, 피고는 상속세 및 증여세법(2003. 12. 30. 법률 제7010호로 개정되기 전의 것, 이하 같다) 제13조, 제76조, 같은 법 시행령(2003. 9. 29. 대통령령 제18108호로 개정되기 전의 것) 제23조 제1항 제1호에 따라 원고와 한○○(이하, 이들을 통틀어 '원고 등'이라고 한다)이 상속개시일 전 10년 이내에 망인으로부터 증여받은 서울 강남구 ◆◆동 21-2 대 198.8㎡ 및 그 지상 건물(이하, '이 사건 대지', '이 사건 건물'이라고 하고, 이틀을 통틀어 '이 사건 부동산'이라고 한다) 중 1/2 지분 상당액인 310,000,000원 및 원고 등을 포함한 망인의 상속인들이 신고누락한 기타 상속재산 1,213,930,000원을 상속재산과세가액에 포함하여, 2007. 10. 1. 별지 목록 기재와 같은 상속세 부과처분 (이하, 별지 목록 기재 상속세 부과처분 중 원고 등에 대한 부분을 '이 사건 처분'이라고 한다)을 하였다.

C. On April 14, 2008, the Plaintiff filed a request with the Tax Tribunal for a trial on the grounds that the disposition of this case is unlawful as a prior donation property, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s request on March 9, 2009.

[Case of Recognition: Facts without dispute, evidence 1-1, evidence 1-2, evidence 4, evidence 5-1, 2, evidence 10-1, 2, 11-1, 11-2, evidence 1, evidence 2, the whole purport of pleading]

2. Whether the dispositions of the instant case are legal.

A. Summary of the ground for the plaintiff's claim

On April 18, 2002, at the time when the Plaintiff and the Deceased agreed on the instant real estate on April 18, 2002, the deceased lost the right to the said real estate pursuant to the Act on the Registration of Real Estate under Actual Titleholder’s Name. As such, the 1/2 share of the said real estate in the name of the Plaintiff, etc. is not a prior donation property, but a prior donation property

(b) Fact of recognition;

1) On July 1, 1989, the Deceased purchased the site of the case from Kim Jong-tae, and newly constructed the building on the land of the case on which the price was paid, and on August 1, 1989, registered one-half shares of the real estate in title to the Plaintiff, etc. by paying for the registration of transfer of the ownership in the name of the Plaintiff at the corner of the Plaintiff.

2) Since then, the deceased filed a lawsuit against the plaintiff et al. on the claim for the ownership transfer registration on the ground of termination of title trust as Seoul Civil Procedure District Court 92Gahap52530, and the above court rendered a judgment on September 22, 1992 that "the deceased's share of 1/2 of the real estate of this case" is "the title trust is terminated on September 2, 1992, the plaintiff is "the plaintiff will implement each procedure for ownership transfer registration for each reason of termination of title trust on September 1, 1992," and the above judgment became final and conclusive on October 17, 1992.

3) However, on January 17, 1996, when the deceased had failed to register the ownership transfer pursuant to the above 92Gahap52530 decision, the Plaintiff registered the right to claim ownership transfer of 1/2 of the instant building under the name of ○○○○○ on January 17, 1996. On June 18, 1998, the Plaintiff had the Doi-gu in Kim-ri completed the registration of the right to claim ownership transfer of the instant real estate.

4) Accordingly, the deceased filed a lawsuit seeking cancellation of provisional registration against the plaintiff, Kim-dong, Seoul District Court (20017) and 25431. On June 15, 2001, the above court rendered to the plaintiff, etc. the cancellation registration procedure for the registration of the right to claim cancellation of the entire co-owner's transfer of the real estate of this case, and the plaintiff issued to Han○○○○ a judgment that "the registration procedure for the right to claim transfer registration of ownership of 1/2 of the building of this case shall be implemented". Accordingly, the plaintiff and Kim-dong, Seoul High Court (2001Na41386) appealed and Kim-ri (hereinafter referred to as "the settlement of this case") reached a settlement with the following contents pursuant to Article 220 of the Civil Procedure Act between the deceased and the deceased on April 18, 2002.

1. For the Deceased, Kim Jong-ri shall perform the procedure for registration of cancellation for the registration of the price of the co-owner's right to claim transfer of the real estate in this case, and the Plaintiff shall implement the procedure for registration of cancellation for the registration of the price of the right to claim transfer transfer

2. After the execution of Paragraph 1, the plaintiff et al. shall implement the procedures for the registration of ownership transfer as to one half of their shares in the ownership of the real estate of this case to the deceased.

3. As a result of the implementation of paragraph 2, it is confirmed that the deceased owns one half of the real estate in this case, and that the plaintiff et al. own the remaining one half of the real estate in this case, and that the profits from the lease of the real estate in this case are divided according to the above shares.

5) After that, on August 1, 2002, the Plaintiff entered into a transfer registration for shares of 1/4 out of the instant real estate on the ground of the reconciliation in the instant case, with respect to that portion on August 1, 2002.

[Reasons for Recognition: Facts without dispute, Gap evidence 6, 8, 9, 10-1, 2, 11-1, 2, and 12; the purport of the whole pleadings]

C. Determination

On the other hand, even if Article 41-2 of the Inheritance Tax and Gift Tax Act applies to the trustee with respect to the property trusted by the decedent under title trust, the substance that the property belongs to the ownership of the decedent, who is the truster, does not change. Whether the property falls under the inherited property to be included in the value of inherited property should be determined by the principle of substantial taxation. Furthermore, the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) only aims to prevent anti-social acts, such as speculation, evasion and evasion of laws, etc. which abuse the real estate registration system, and to contribute to the sound development of the national economy by preventing real estate transactions from abusing the ownership of the decedent and stabilizing real estate prices by having the ownership and other real rights to the real estate under the name of the actual owner, and to ensure that the sale contract between the deceased and Masan is still valid, so long as the ownership transfer agreement between the deceased and the plaintiff under the above real estate under the name of the title trust agreement is concluded to be null and void at its own expense.

In addition, the time of acquisition of donated property, which is the time of establishment of tax liability in general real estate donation, shall be the time of completing the registration of ownership transfer following donation. However, considering the circumstances already registered in the name of the trustee in the case of donation to the trustee by the truster, it is reasonable to view the time of agreement between the truster and the trustee on the transfer of ownership as the time of acquisition of donated property. Thus, it is difficult to deem that there is any error of law in calculating the amount of inherited property tax based on the market price at the time of compromise and disposing of this case by the plaintiff, etc. through the settlement in this case with respect to 1/2 shares among the instant real estate for which the registration of ownership transfer was

3. Conclusion

Therefore, the disposition of this case is lawful, and the plaintiff's claim seeking its revocation is dismissed as it is without merit. It is so decided as per Disposition.