Suwon District Court 2008Guhap595 (Law No. 23, 2008)

Early High Court Decision 2007J2654 ( October 29, 2007)

Transfer date of real estate donated property at its incorporation

When a foundation is established through the pre-sale disposition in accordance with Article 48 of the Civil Act, the property contributed is the property of the foundation from the time when the foundation is established, and the date of the transfer of the contributed real estate is the date of registration of the foundation, and the purport of requesting registration in relation to the relationship between the contributor and a third party other than the foundation is to prevent the risk of loss if a bona fide third party acquires it, and the tax authority to collect taxes by ascertain

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

Article 98 (Time of Transfer or Acquisition)

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of capital gains tax of KRW 516,136,070 against the Plaintiff on May 1, 2007 shall be revoked.

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

The same shall apply to the order.

1. Acceptance of a judgment of the court of first instance;

The reasoning for this Court’s explanation is as follows: (a) the time when the house contributed in this case was transferred to the court of first instance (hereinafter “the time when the house contributed in this case was transferred to the court of first instance”) is as stated in the reasoning for the judgment of the court of first instance; and (b) such reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The part to be mard;

B. Time of transfer of the instant contributed house

Article 48 of the Civil Act provides that "where a foundation establishes a foundation through a pre-sale disposition, the donated property shall be the property of the foundation from the time when the foundation establishes the foundation." The donated property shall belong to the foundation at the time of establishment of the foundation under the above provision of the Civil Act in relation with the contributor corporation, and even where the donated property is real estate, registration other than the above requirements is not required in relation between the above parties. Thus, in the case of the acquisition of the donated property under the above provision of Article 162 (1) 5 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005), Article 23 (1) 1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, Article 187 of the Civil Act provides that the donated property shall be the date of transfer registration of the property before the date of establishment of the foundation or transfer registration of the transferred property under the above provision of Article 16 of the Enforcement Decree of the Income Tax Act shall be deemed as one of the transferred property before the date of transfer or transfer of the transferred property.

The defendant asserts that the transfer date of the contributed house of this case is the date when the contributed house of this case was donated to the above incorporated foundation, i.e., the date of the registration date of the establishment of the incorporated foundation, and that the transfer date of the contributed house of this case was July 11, 2005 where the ownership transfer registration of the contributed house of this case was completed on the above incorporated foundation, unless June 15, 2005, the registration date of the establishment of the incorporated foundation was made.

In case where the property contributed at the time of incorporation of an incorporated foundation is real estate, the act of contribution is a juristic act in relation to a third party, not to be a juristic person, and thus, the ownership of the property contributed to the incorporated foundation requires registration in addition to the establishment of the incorporated foundation (see, e.g., Supreme Court Decision 93Da8054, Sept. 14, 1993).

However, the purport of requesting registration in addition to the establishment of a legal entity in relation to a third party is to prevent the risk of property loss that a bona fide third party who is not aware of such circumstances in the name of the contributor even after the contribution of an incorporated foundation remains in the name of the incorporated foundation and to protect the safety of transaction. Thus, the tax authority that should exercise the right to appropriate tax collection based on ascertaining the substantial relation of the relationship between the contribution of property and the contribution of property between the contributor of property and the legal entity is not deemed to be included in the above third party. Thus, the defendant's assertion cannot be accepted

3. Conclusion

Thus, the plaintiff's claim of this case seeking the cancellation of the disposition of this case on the premise that the transfer of the house of this case is a single house owner is just, and since the judgment of the court of first instance which differs from this conclusion is unfair, the judgment of the court of first instance is revoked, and it is so decided as per Disposition by the defendant's cancellation of the disposition