Seocho 209west 1793 (209.06.02)

The disposition imposed on the property of the inheritee, which is a title truster, is legitimate.

Even if a gift tax may be imposed on a property under title trust by applying a provision on deemed donation to the trustee with respect to such property, there is no change in the substance that such property belongs to the ownership of the inheritee, who is the truster, so that such property naturally belongs to the inherited property at the time of

2010Guhap3375 Revocation of Disposition of Levying Inheritance Tax

1.김〇〇2.전△△3.김◇◇

〇〇세무서장

April 21, 201

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The disposition of imposition of KRW 153,294,990, inherited property on February 27, 2005, which the defendant jointly notified to the plaintiffs on November 16, 2009, shall be revoked.

1. Details of the disposition;

A. The plaintiff Jeon F is the spouse of the deceased KimA (the deceased on February 27, 2005, hereinafter referred to as the "the decedent"), the plaintiff KimBB, and KimCC are the children of the decedent, and KimD is the mother's children, and the E is the son's son's son's son's son's son's son.

B. On August 19, 2005, the Plaintiffs reported and paid inheritance tax to the Defendant on August 19, 2005, with the Plaintiff’s inheritance shares at KRW 95.1%, Plaintiff KimB at KRW 4.9%, and Plaintiff KimCC at KRW 959,354,586 as inheritance tax base, and KRW 205,025,739 as inheritance tax jointly and severally liable for Plaintiff Jeon F KimB among the successors.

다; 서울지방국세청장은 김DD에 대한 양도소득세 관련 조사결과, 김DD이 2004. 7. 20. 피상속인에게 〇〇시 〇〇동 1123-4에 있는 〇〇자 801호(집합건물의 전유 부분 883.61㎡ 및 대지권 209.17㎡ /1557.8㎡' 이를 통틀어 이하 '이 사건 부동산'이라 한다)를 양도하면서 정EE 앞으로 소유권이전등기를 마쳐준 점을 확인하고, 2006. 12. 11. 피고에게 이 사건 부동산이 피상속인의 명의신탁 재산이라는 점을 과세자료로 통보하였다.

D. Accordingly, on November 16, 2009, the Defendant deemed that the Plaintiffs omitted the report of inherited property regarding the instant real estate, and included KRW 1,007,207,50 as the appraised value of the instant real estate in the inherited property value, and then rendered a disposition imposing inheritance tax of KRW 153,294,990 on the Plaintiffs as joint and several taxpayers (hereinafter “instant disposition”).

[Reasons for Recognition] Each entry into the facts without dispute, Gap evidence 2 through 5, and 9 (hereinafter referred to as "written evidence for Recognition") and the purport of the whole pleadings, unless the number is specified

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

Unlike the fact that the defendant was the actual owner of the real estate of this case and completed the registration by lending the name of MaE, unlike the fact that the plaintiff KimB and his MaE did not refuse to make a MaE for a long time, even though the purchaser of the real estate of this case is not the defendant, he only prepared a confirmation document (Evidence No. 3) stating that the defendant was the actual owner of the real estate of this case and completed the registration by lending the name of MaE. However, on the premise that the defendant actually purchased the real estate of this case from MaD without any other objective data than the substantive truth, without any other objective data, and only lent only the name of MaE, and then sold the real estate of this case to the plaintiffs by deeming the above real estate as the inherited property, the disposition of this case should be revoked as unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

The following facts may be recognized by comprehensively taking account of the descriptions of Gap's evidence Nos. 2, 12 through 14, 18, Eul's evidence Nos. 3 and 5, Eul's partial descriptions of Eul evidence Nos. 4, Eul's witness E testimony and the whole purport of pleadings (in particular, each evidence Nos. 3) is written by the tax authority as a person responsible for tax payment and related persons in the course of the tax investigation, and each evidence Nos. 14 through 17 of the evidence value cannot be easily denied unless there are special circumstances such that it is difficult for the tax authority to make it difficult for the person liable for tax payment and related persons to make a specific tax evasion against the author's will or to make it difficult for the person liable for tax payment to make a specific proof of facts due to lack of its contents, each evidence Nos. 16, 17, 15, 17, and 17 of the witness evidence Nos.

(1) 피상속인은 그 사망 이전에 부동산에 대한 관리 ・ 처분 등을 주된 사업으로 하는 '공간경제연구소'를 운영하면서 전국 도처에 있는 부동산을 매수하여 이를 임대하는 사업을 영위하였고(피상속인은 이 사건 부동산이 위치한 집합건물인 〇〇자 5층의 8개 점포를 소유하고 있었다) 원고 김BB는 공간경제연구소의 대표로서 부동산 관리 등에 대한 전반적인 업무를 총괄하면서 매매 및 임대차계약서 등의 작성업무를 거의 도맡아 하였다.

(2) On July 20, 2004, Plaintiff KimB drafted a contract to sell the instant real estate at the office of the Spatial Economic Research Institute, and KimD, at that time, EE only did not have such a position, sent the certificate of personal seal impression, seal impression, etc. necessary for the preparation of the sales contract to Plaintiff KimB by mail, and did not know the specific location, size, etc. of the instant real estate. As to the instant real estate, Plaintiff KimB was responsible for the repayment of the principal and interest of the secured debt of the instant real estate, which he was the debtor, at the Spatial Economic Research Institute.

(3) Plaintiff KimBF, who had performed the substantial duties of the spatial economic research institute, kept the above sales contract and the registration right certificate in the office of the said research institute, and takes full charge of the management of the said real estate, including the lease of the instant real estate and the payment of management expenses, through the spatial economic research institute, and then, he was given the agricultural bank account opened in the name of E to the said account if he was given the deposit account in the name of E, then he was not fully aware of the specific lease details of the instant real estate and the accurate amount of rent received every month.

(4) On December 10, 2005, Plaintiff KimB prepared a written contract to sell the instant real estate to the leastGGG in KRW 9.10 million, and completed the registration of ownership transfer on the instant real estate on the 29th day of the same month. Although EE did not know of the fact of disposal of the said real estate after the completion of the said registration of ownership transfer, Plaintiff KimB did not know the specific fact of disposal of the said real estate from Plaintiff KimB, and did not properly know the amount of the down payment, the intermediate payment and the balance, and the payment details of capital gains tax.

(5) Meanwhile, while Plaintiff KimB’s transfer from the above No. E account under the name of Plaintiff KimB, the amount of money that was relatively periodically withdrawn was merely KRW KRW 00,000,000,000, the maximum amount of money from KRW 1,000,000 to KRW 1,000,000 was either withdrawn in cash or transferred to a bank account that cannot be confirmed by the account holder.

D. Determination

Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7580, Jul. 13, 2005); the legislative purpose of Article 45-2(1) is to recognize exceptions to the principle of substantial taxation in order to realize tax justice by effectively neglecting the tax avoidance act using the title trust system; it is only applicable to cases where gift tax is imposed on a trustee; even if the above provision on constructive gift is applied and gift tax is imposed, the substance of the relevant transaction is not determined as a gift. Therefore, even if the provision on constructive gift is applied to a property under a title trust by an ancestor to a trustee, even if gift tax may be imposed on the property under a title trust, the substance that the property belongs to the ownership of the inheritee, which is the truster, does not change from the substance that the provision on constructive gift is applied to the property under the title trust, and thus, the property of the decedent shall be deemed naturally belonging to the inherited property at the time of the death of the decedent (see, e.g., Supreme Court Decisions 2002Du12137, Nov. 28, 20000>

In light of the following circumstances, including the return to the instant case and the relationship between the decedent, EE, KimD, Plaintiff KimB, and the developments leading up to the conclusion of the sales contract on the instant real estate, it is reasonable to deem that the decedent agreed with EE that the decedent would own the instant real estate in substance and trust only the name of the said real estate externally to EE, and that the registration of ownership transfer of the said real estate was completed immediately from EE under the above agreement (the title trust agreement between the decedent and EE is concluded between the title truster and the title truster to purchase the real estate with the third party, while only the ownership transfer registration of the said real estate is completed in the future of the title trustee, the so-called three-party registered title trust or Black, a title trustee entered into a contract with the third party to purchase the real estate directly in accordance with the agreement with the title truster and the third party to purchase the real estate, but it is unclear that the registration of the real estate is a title trust in the future, even if any of the type of title trust is different from the actual owner of the instant real estate).

Therefore, since the real estate of this case is deemed to be included in the inherited property of the deceased, the above assertion by the prior plaintiffs is without merit under different premise.

(1) As the decedent purchased several real estate, it is difficult to externally recognize that the lessor of each real estate is a spatial economic research institute because the decedent established a spatial economic research institute in order to systematically manage the leased real estate, and managed real estate through the said research institute, such as rent receipt, etc., and the Plaintiff KimBF, a spouse of the decedent, performed specific management tasks.

(2) As alleged by the Plaintiffs, if the EE purchased the instant real estate in the position of actual purchaser from KimD, it is extremely exceptional that the EE would not be aware of the fact that the EE was not involved in the process of concluding the sales contract, and that it would have a direct impact on the conclusion of the sales contract as the most basic factor specifying the subject matter, such as the specific location and size of the said real estate.

(3) The fact that the EE is not aware of specific rent when it delegates the management of the instant real estate to a third party through the said research institute by entrusting the management of the instant real estate owned by it, or in disposing of the said real estate to a third party, that it does not properly know the specific rent, the amount of intermediate payments and remainder payments and the details of receipt, and the payment of capital gains tax, does not accord with the common sense in light of trade practices, social norms, etc.

(4) In the event that only a real estate owner’s title is entrusted to another person, documents proving the legal relationship, such as a certificate of registration, are generally held by the title truster, who is the actual owner. A sales contract and a certificate of registration, prepared between EE and KimD, were kept in the office of the Spatial Economic Research Institute.

(5) The plaintiffs asserted that EE paid KRW 13,48,130,00, which is the remainder after deducting the loan amount, lease deposit, acquisition and registration process from the above real estate price from the above real estate price by determining the value of the pertinent real estate as 875,00,000 won between E and KimD, and that E paid KRW 266,976,260,260, which is the remainder after deducting the loan amount, lease deposit, actual expenses of the acquisition and registration process from the above real estate price. However, the rent due to the lease of the instant real estate was deposited into the above agricultural bank account in the name of E. At the time of investigation by the National Tax Service, it is difficult to view the sale price of the instant real estate as the sale price of the instant real estate to be deducted from the sale price of the real estate in light of the fact that the sale price of the instant real estate was stated as 1/2,000,000,000 won, and the sale price of the instant real estate was deducted from the sale price of the real estate.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit. It is so decided as per Disposition.