The legitimacy of the assertion that the sale price of the husband’s real estate that he received from the husband constitutes a title trust real estate

In the case of withdrawal of pure separate accounts on the marital property system, deposit, etc. in the deposit account in the Plaintiff’s name shall not be deemed to have been made as a means of implementing a title trust. If a public property position is withdrawn, it shall not be deemed that real estate acquired through cooperation between the Plaintiff’s husband and wife during the marital life and transferred part of the proceeds from sale to the Plaintiff is deemed to be the settlement of the Plaintiff’s shares or the continuation of sharing, and this shall not also be deemed to have been a donation.

Article 2 of the Inheritance Tax and Gift Tax Act

1. On November 1, 2003, the imposition disposition of gift tax stated in the column of section B(C) is revoked by the Defendant against the Plaintiff.

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

The same shall apply to the order.

1. Details of the disposition;

가. 피고는 2003. 11. 1. 원고가 남편인 소외 ○○○로부터 2000. 11. 15.부터 2002. 11. 30.까지 7차례에 걸쳐 별지 과세처분 내역표(이하 별지 표라고 한다)㉣란 기재와 같이 현금을 증여받았다는 이유로 위 표 ㉢란 기재 증여세를 부과하는 이 사건 부과처분을 하였다.

B. The Defendant’s gift subject to gift tax is specifically as follows.

(1) On November 14, 200, 200, ○○○○ donated KRW 220,000,000 to the Plaintiff on the following day. The Plaintiff used the said money as a part of the real estate acquisition fund, thereby acquiring a building of approximately 4902-12, 242.4 square meters and its third-story stores on the ground (hereinafter “○○-dong Real Estate”).

(2) The Plaintiff sold a building owned by ○○○○○, Seoul, ○○-dong 196-6 224 m24 m2 and 4 m24 m2 (hereinafter referred to as “○○-dong real estate”) and donated KRW 394,50,000, out of the sales price of 750.00 m20 m2, as indicated in the table Nos. 2-7 in the table No. 1 of the attached Table No. 2-7, on six occasions. The Plaintiff used the above money to acquire 1542-4 and 343 m2.3 m2, 343 m2, 203-12, 2039-12 m2 of the same building and newly built a building on the same land (hereinafter referred to as “○○-5 m2,000 m2,000 m25385 m2,585 m2.

Each entry of evidence Nos. 1-1 through 10, evidence Nos. 19-1, 2, 1-1 through 7 of evidence Nos. 1-7, 4 of evidence Nos. 4, and the whole purport of oral argument

2. Whether the imposition of this case is lawful.

A. The plaintiff's assertion

Each real estate located in ○○○ Dong, ○○○○ Si, and ○○○ City, for which the registration of ownership transfer has been made under the name of the Plaintiff, is a real ownership owned by ○○○ or co-owned property jointly acquired by the Plaintiff and ○○○○○. Accordingly, the instant disposition of imposition, which was rendered by deeming that the Plaintiff received the funds for acquiring each real estate from the trademark, was unlawful.

In addition, ○○○○’s real estate under the name of ○○○ is the property acquired by the Plaintiff’s husband and wife through joint efforts during marriage and is co-owned by the husband and wife, even if the Plaintiff acquired part of the proceeds from sale, it cannot be viewed as a gift that belongs to the Plaintiff’s share. In this regard, the instant disposition of taxation is unlawful.

(b) Fact of recognition;

(1) The Plaintiff and ○○○ is a legally married couple who completed the marriage report in 1985 and has two children under the sleep, and the Plaintiff was a professional father after marriage.

(2) From June 15, 1983 to December 31, 1994, ○○○○○, an agent of ○○○○○, operated ○○○○○, a sub-factory of ○○, from July 1, 1995 to June 19, 197, and operated ○○○○, a sub-factory of ○○○, a small store and multi-household, etc. from April 26, 1996.

(3) On September 18, 200, 200, ○○○ purchased the real estate from ○○○○○○○○○○○○, a goldly KRW 6.220 million and supervised construction works for remodeling the said real estate to ○○○○, while staying at the construction site at the above site and paying the construction cost.

(4) ○○○○ entered into a sales contract on real estate with ○○ Dong-dong, and ○○○○○○○○○○○○○. The Plaintiff did not participate in the said sales contract. The telephone number stated next to the Plaintiff’s name on the lease contract on real estate (No. 9) and on the confirmation and explanatory note of heavy objects (No. 10) is the Handphone number (○○-○○-○○-○○○○○○) of the Plaintiff’s Handphone number rather than the Plaintiff’s Handphone number (○○-○).

(5) The ○○○○ has awarded a contract for a new construction of a multi-household constructed on the land to the ○○○○ at the time of public interest, and supervised the construction and paid the construction cost by staying at the construction site.

(6) During the purchase and new construction of real estate at ○○○○ City, ○○○○ paid the purchase price and supervised the construction site while staying at the construction site.

(7) In the process that ○○○○ paid the purchase price, etc. of each of the above real estate, the money listed in the table Nos. 1 was paid to the seller directly from a financial institution (the date of acquisition of the real estate in ○○○ Dong-dong was considered as the donation date) Nos. 2-6 and the money listed in the table Nos. 7, which deposited the sale price of the real estate in the name of the Plaintiff in the deposit account in the name of the Plaintiff, was withdrawn and used for the payment of the purchase price or the construction price (the date when the money was deposited in the deposit account in the name of the Plaintiff was considered as the donation date) was paid directly as the purchase price of the real estate at ○○○○-si without going through the deposit account in the name of the Plaintiff as part of the sale price of the above real estate (the Defendant was specified on November 30, 200

(8) The Plaintiff did not perform any role in the process of purchasing and constructing each of the above real estate.

Each evidence in front of the basis for recognition, Gap evidence 3-1 through 6, Gap evidence 5-1, 2, 6, 7, Gap evidence 8-1, 2, 9, 10, Gap evidence 11-1, 2, Gap evidence 12, 13, Gap evidence 17-1 through 8, Gap evidence 18-1 through 3, Gap evidence 21, Eul evidence 23-1 through 8, witness 0, 00, 00, 00, 000 and 00, and the whole purport of the pleadings.

C. Determination

(i)Matrimonial property system

(A) In the instant case, since the funds ○○○○ donated to the Plaintiff mainly from the proceeds from the sale of the real estate sold to the Plaintiff, it is ultimately necessary to first determine whether ○○○ Dong real estate is deemed a unique property of ○○○○○○, or the public property of the Plaintiff’s husband and wife, and then determine whether to grant a donation.

Therefore, I will first examine the marital property system.

(B) The Korean Civil Code provides that the property that one side of the father has prior to marriage and the property acquired under his/her own name in the marriage shall be the special property (Article 830(1)), and the property that belongs to anyone of the husband and wife is not clear shall be presumed to be the co-ownership of the husband and wife (Article 830(2)).

Although the Korean Civil Code adopts the separation of the couple, it is problematic how to interpret the relationship between the two parties. ① Under the premise that the current marital property system adopts pure separation system, the other party's cooperation and contribution to the acquisition of the property by the other party is not directly considered in the reversion of the property during marriage. ② The view that the current marital property system and the division of the property system are integrated into one joint system, and that the property acquired through mutual cooperation between both parties during marriage is the public property of the other party regardless of whose name is the nominal person, and that the other party has the right to share the property against the other party, and that the other party may claim such right against the other party as well. ③ The view that the property ownership of the property formed through mutual cooperation between the other party during marriage is divided into external relationship and internal relationship between the other party and the other party, and that the property division belongs to the other party in the name of the other party is the procedure of division by resolving such internal sharing situation through the resolution of divorce.

(2) Determination from purely separate accounting standpoint

(A) First of all, considering that cooperation and contribution of the other party to the acquisition of the property by the husband and wife is not directly considered in the reversion of the property during marriage, in this case, ○○○○’s real estate shall be deemed as the unique property of ○○○○○. On the premise of this, it shall be deemed as to whether ○○○ can be deemed as a donation of part of the proceeds from the sale of the real estate

As long as ○○○○○○’s real estate is deemed as a unique property of the Plaintiff’s name, each of the instant real estate acquired from the proceeds of the sale of the instant real estate or received a loan from ○○○○○○○, and paid the purchase price, should be deemed as bearing the actual acquisition price by ○○○○○○○○. In light of the fact that ○○○ engaged in all business, such as entering into a contract in the process of purchasing, constructing, or remodelling each of the instant real estate, and the Plaintiff paid the purchase price or the construction price to the transacting party, while the Plaintiff did not play any role in the process of purchasing, constructing, or remodeling the real estate, each of the instant real estate is deemed as in real title trust to the Plaintiff, as ownership of ○○○○○, and even if ○○○○ paid the purchase price to the Plaintiff, it was only a means taken during the process of title trust, and cannot be said that ○○○ intended to donate the deposit amount

Ultimately, it cannot be deemed that ○○○ donated money used as the acquisition fund of each real estate of this case to the Plaintiff.

(B) The defendant asserts that since the title-holder of the deposit account shall be deemed the deposit account holder after the Real Name Financial Transactions and Guarantee of Secrecy enters into force, the owner of the amount deposited in the account under the name of the plaintiff shall be deemed to have been donated to the plaintiff at the same time as the deposit is made

In this case, a financial institution is bound to recognize only the title-holder of the deposit under the name of the trustee as the deposit owner, barring any special circumstance, after the emergency financial economic order on the Real Name Financial Transactions and Guarantee of Non-Performings was enforced. Thus, the money deposited in the name of the trustee can only be legally controlled and disposed of by the trustee, and the truster cannot assert that the deposit owner is himself/herself. However, the above money deposited in the name of the trustee shall not belong to the trustee or the truster cannot claim the return of the above money (see Supreme Court Decision 00Do000 delivered on August 18, 200). Thus, even in this case, even if the Plaintiff’s account is deemed as the Plaintiff, not the Plaintiff, the deposit is made by the Plaintiff using the method of keeping the money entrusted by 000, so it cannot be deemed that the deposit amount of the deposit in the deposit account is transferred without compensation to the Plaintiff, and therefore, it cannot be viewed as a donation.

(C) The defendant also asserts that the title trust between the couple is not a valid condition, but is valid only when it is not for tax evasion, evasion of compulsory execution, or avoidance of statutory restrictions, and that, unless it cannot be deemed that there was no such purpose in the plaintiff's husband and wife, it cannot be deemed that the title trust was established as a means in the process of the title trust, and that the deposit in the plaintiff's name was made as a means in the process of the title trust. Accordingly, ○○ is bound to be deemed to have made a donation

In the instant case, there is no evidence to deem that there was a purpose of tax avoidance, etc. against the Plaintiff’s husband and wife, and even if a title trust agreement becomes null and void, since ○○○, a trust, can seek a return of unjust enrichment from the Plaintiff, the trustee, the amount equivalent to the purchase price, and thus, the Plaintiff does not gratuitously belong to the Plaintiff, and most of all, if the parties had the intention of title trust and received money to be used as the purchase price in the process, and the parties received the money to be used as the purchase price in the process, it is not the intention of gratuitous attribution. Accordingly, it cannot be deemed that the money deposited in the deposit account in the Plaintiff’s name or paid to the seller

(D) Lastly, the Defendant argues that since the Constitutional Court decided that the aggregate taxation system for property assets of the married couple was unconstitutional, and the above system was abolished, it is possible for high-income earners on property assets to avoid the progressive tax rate in income tax by entrusting the title of assets to their spouse, and on the other hand, since the regulation on deemed donation for real estate title trust was repealed, the gift tax should be imposed on the title trust as to the receipt of funds for the use of purchase price between the married couple conducted in the process of title trust in tax justice, since the provision on deemed donation for real estate title trust was repealed.

The purpose of the taxation system itself is to prevent title trust, etc. between husband and wife and to ensure the efficiency of applying progressive tax rates to high-income earners for property assets by adding up property assets between husband and wife. Meanwhile, it is based on the fact that the Constitutional Court made a decision on the unconstitutionality of the above system is likely to undermine the protection of marital life. Accordingly, it is necessary to operate the above system by supplementing the conflicting aspects, and instead, it is necessary to abolish the aggregate taxation system on property income of husband and wife after the above decision on unconstitutionality, and furthermore, although the Act on the Registration of Real Estate under Actual Titleholder's Name was enforced, it is reasonable to see that the title trust between husband and wife is valid in principle, while the title trust between husband and wife was enforced under the Inheritance Tax and Gift Tax Act, and to see or presume that the acquisition fund was donated to the real estate which was made between husband and wife due to the occurrence of a difference in taxation.

This is because, in identifying the subject of taxation in tax legal relations, the judicial legal relations should be respected as much as possible in order to ensure legal stability and uniformity, and the transaction activity should be identified in accordance with the substance of the people's economic life, and it should not be interpreted or abused the agenda under the tax law without permission, unlike the substance of judicial or economic life, on the basis of the purpose of tax justice.

In the instant case, no evidence exists to deem that ○○○ donated part of the proceeds from the sale of real estate in the instant case to the Plaintiff, and there is no explicit title trust agreement, etc. on the other hand, and in such a case, the interpretation consistent with the reality that the married couple lives as an economic community does not intend to transfer ownership to the other party on a conclusive basis, and it is reasonable to deem that either spouse is entrusted to a person who keeps the money at issue in the course of economic life as an economic community. Thus, the Defendant’s assertion that the money used in the sales price of each of the instant real estate was donated on the basis of tax justice is not acceptable.

(3) Determination on the position of deeming public property as public property

Next, we examine whether the gift was made from ○○○ to the Plaintiff in the instant case from the standpoint that the marital property, which is not purely independent position, is considered as public property.

In this case, ○○ Dong real estate in this case shall be deemed as the property acquired by the plaintiff through mutual cooperation between the parties in the marriage and the property acquired through mutual cooperation between the parties in the marriage regardless of whose name is the joint property of the parties, and in this case, it shall be deemed as the property acquired by the plaintiff through mutual cooperation between the parties in the marriage, and it shall not be deemed that the plaintiff was engaged as the part of the full-time marriage.

Furthermore, if 394,50,000 won out of the sales price of 750,00,000 won of the real estate owned by the husband and wife was sold and delivered to the Plaintiff, the said money is deemed to have been divided and transferred or the said money is also deemed to have been jointly owned by the Plaintiff’s husband and wife, and in any case, ○○○○ does not mean that ○○○ was a donation to the Plaintiff (in a case where ○○ is deemed to be co-ownership as above, it may be deemed that the amount given to the Plaintiff is more than the share of the Plaintiff’s share, but at least it would be obvious that the Defendant deemed to have donated the entire amount given to the Plaintiff as seen in the instant disposition of taxation. Moreover, in the property deemed to be a substantial co-ownership of the husband and wife, it is difficult to grasp the share of the husband and wife’s share in the property deemed to have been given to the Plaintiff, and eventually, it would be subject to the conclusion that no taxation may be imposed on the transfer between the husband and wife’s effort.

(4) The theory of lawsuit

Ultimately, if a pure separate and separate position as to the marital property system is withdrawn, each of the instant real estate is deemed to have been trusted to the Plaintiff by ○○○○, and deposit, etc. in the deposit account in the Plaintiff’s name, etc. conducted in the process of acquiring each of the said real estate, cannot be deemed to have been a gift as a means of implementing a title trust. In the event of withdrawal of a common property position, the transfer of part of the proceeds from sale to the Plaintiff of the real estate acquired through mutual cooperation between the Plaintiff and the Plaintiff during the marital life is deemed to have been the settlement of the Plaintiff’s share or to have continued to be

Therefore, the instant disposition is unlawful, regardless of whether it appears from the point of view.

3. Conclusion

Therefore, the plaintiff's claim is justified and it is so decided as per Disposition to accept it.

Details of taxation

No.

Dormant

Date of donation;

Maritime Affairs

Amount of donation

V. V.

Imposition Tax Amount

㉣ 증여등 내역

1

November 15, 2000

20,000,000

43,313,660

○○○’s ○ Bank’s loan of KRW 220,000,000 and used to acquire ○○○ Real Estate

2

may 6, 2002

45,000,000

11,652,750

○ Acquisition of 45,00,000 won out of the proceeds from the sale of the Dong real estate by donation and ○○-dong real estate

3

May 15, 2002

30,000,000

7,778,070

○ Acquisition of 50,000,000 won out of the proceeds from the sale of the Dong real estate by donation and ○○-dong real estate

4

June 12, 2002

130,000,000

3,781,570

○ Acquisition of the same real estate by gift of KRW 130,000,000 among the proceeds from the sale of the real estate ○○

5

July 24, 2002

50,000,000

12,893,460

○ Acquisition of 50,000,000 won out of the proceeds from the sale of the Dong real estate by donation and ○○-dong real estate

6

September 23, 2002

9,500,000

32,235,850

○ Acquisition of real estate at ○○○ by donation of KRW 99,500,000 among the proceeds from the sale of the same real estate

7

November 30, 2002

40,0000

14,798,910

○ Acquisition of real estate at ○○○ by donation of KRW 40,000,000 among the proceeds from the sale of the same real estate

Total

614,500,000

156,453,970

[Seoul High Court Decision 2005Nu19933, 2006.04.14)]

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The costs of lawsuit shall be borne by the plaintiff in both the first and second instances.

1. Purport of claim

On November 1, 2003, the Defendant revoked the disposition imposing gift tax stated in the table "Depris" column, which was issued against the Plaintiff on the Plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. On April 16, 1998, the Plaintiff, the husband of Nonparty 00, donated one half of the share (the donation value of KRW 484,691,652) of the building in Seoul 00-Gu 00-0,000 commercial buildings (hereinafter “0-0 commercial buildings”) from Nonparty 1, the husband of Nonparty 1, the Plaintiff reported the gift tax.

나. 피고는 2003.11.1. 원고가 000로부터 2000. 11. 15.부터 2002. 11. 30.까지 7차례에 걸쳐 별지 과세처분 내역표(이하 별지 표라고 한다) ㉣란 기재와 같이 현금을 증여받았다는 이유로 위 ㉣란 기재 각 금액을 순차 위 가.항 기재 증여액과 합산한 다음 배우자 공제로서 500,000,000원을 공제한 후 위 표 ㉢란 기재 증여세를 부과하는 이 사건 부과처분을 하였다.

C. The Defendant’s gift subject to gift tax is specifically as follows.

(1) On November 14, 200, 200, the Plaintiff donated KRW 220,000,000 to the Plaintiff on the following day. The Plaintiff acquired a building with the above money of KRW 210,00,000,000 sold 0 real estate as real estate acquisition fund, using the above money of KRW 210,00,00,000, and the above money as real estate acquisition fund.

(2) The Plaintiff sold a building owned by 00, 00, 00, 00, 196-6, 224 square meters, and 44 square meters on that ground (hereinafter referred to as “0-owned real estate”), and donated 394,50,000 won out of 750,00,000 won to the Plaintiff for six times as indicated in the table Nos. 2-7 in the attached Table No. 2-7. The Plaintiff used the above money to acquire the land outside of 1542-4, 343, 343.3 square meters, and 2032-12, 2039-12, the same building was newly constructed on the same land (hereinafter referred to as “real estate, including the above-sale right,” and the building was acquired on the same 00,000,000-5,000 square meters and 530,000 square meters on that ground (hereinafter referred to as “real estate”).

Based on recognition, Gap evidence 1-1 to 10, Gap evidence 19-1, 2, Eul evidence 1-1 to 7, Eul evidence 4, and the whole purport of oral argument

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Each real estate located at 00 dong, 00 si, 00 si, and 00 si-si, for which the registration of ownership transfer has been made under the name of the Plaintiff, is owned by 00 or co-owned property jointly acquired by the Plaintiff and 00, and 00 is under title trust in the Plaintiff’s future. Therefore, the instant disposition of imposition, which was rendered by the Plaintiff deeming that the Plaintiff received

In addition, 00 real estate in this 00 real estate is the property acquired by the Plaintiff’s husband and wife’s joint efforts during marriage and is public property of the husband and wife, even if a part of the proceeds from sale was acquired by the Plaintiff, it cannot be viewed as a gift that belongs to the Plaintiff’s share. In this regard, the disposition of this case is unlawful.

(b) Fact of recognition;

(1) The Plaintiff and 00 have two children under the sleep as the legal couple who completed the marriage report in 1985, and the Plaintiff was the full-time father after marriage.

(2) This0 operated 000,000 agents from June 15, 1983 to December 31, 1994. From July 1, 1995 to June 19, 197, 000, which is a subordinate factory of 00, a corporation, operated from July 1, 1995 to June 19, 197, and operated real estate leasing business such as small stores and multi-household houses from April 26, 1996.

(3) On September 18, 200, 200, 000do real estate was purchased from 000,000, from 620,000, and the construction cost was paid to 00,000,00 after entering the said remodeling construction work at the above construction site and having been placed at the above construction site and supervising the construction work, and having been paid as the money he borrowed and the sales price for the Plaintiff’

(4) Without any particular involvement of the Plaintiff, this0 entered into a sales contract for the purchase of real estate in the Plaintiff’s name, and deposit part of the sales price for the 00 real estate into the Plaintiff’s account in the Plaintiff’s name, and then withdrawn it and paid it as the purchase price. 00% of the construction work for the new construction of multi-household housing constructed on the land at 00 cubic centimeters was awarded a contract, and the construction was

(5) This0 also paid the purchase price in the process of purchasing and newly constructing 00 real estate in the name of the Plaintiff and supervised the construction site while staying at the construction site.

(6) In the process of paying the purchase price, etc. of each of the above real estate, the money listed in the separate sheet Nos. 1 was paid to the seller directly from a financial institution (the date of acquisition of 00 real estate was considered as the donation date), and the money listed in the No. 2-6 of the above real estate sales price was deposited in a deposit account in the name of the plaintiff in the name of the plaintiff, and was withdrawn and used for payment of the purchase price or the construction cost (the defendant considered the date of deposit in the bank account in the name of the plaintiff as the donation date). The money listed in the No. 7 of the above real estate sales price was paid directly as the real estate sales price at 00 hours without going through the deposit process in the deposit account in the name of the plaintiff as part of the sale price of the above real estate (the defendant specified the date of donation as the donation date on November 30, 2002,

(7) The Plaintiff did not perform a special role in the process of purchase and new construction of each of the above real estate, and 000 paid additional sales proceeds after deducting the amount of KRW 394,500,000 from the total purchase price of KRW 484,50,000 from the total purchase price of 00 real estate and KRW 394,50,000 from the total purchase price of 00 real estate, the amount of remodeling of 00 real estate, the amount of multi-household new construction of 00 real estate, and the amount of funds for

(8) Meanwhile, from July 2001 to August 2002, both the above 00 real estate and the above 00 real estate were sold to a third party, excluding 00 p.m. Around 00 p.m., the Defendant, while conducting a tax investigation on the Plaintiff, purchased each of the above real estate with the funds donated from 00 p.m., imposed gift tax on the Plaintiff, and the Defendant deemed the sales of the above real estate as the transaction of the real estate sales businessman, and imposed global income, detailed disposition, imposition disposition, and value-added tax

(9) In the first instance court of this case, the Plaintiff sought revocation of the entire taxation disposition by asserting that the said real estate was acquired under title trust or through joint ownership from 00, and that global income tax, transfer income tax, and value-added tax should be imposed according to the Plaintiff’s shares, not subject to gift tax, but should be imposed. However, the Plaintiff paid all the above global income tax, transfer income tax,

Each evidence in front of the basis for recognition, Gap evidence 3-1 through 6, Gap evidence 5-1, 2, 6, 7, Gap evidence 8-1, 2, 9, 10, Gap evidence 11-1, 2, Gap evidence 12, 13, Gap evidence 17-1 through 8, Gap evidence 18-1 through 3, Gap evidence 21, Eul evidence 23-1 through 8, witness 00, 00, and the whole purport of the pleadings, and the whole purport of the pleadings.

C. Determination

(1) The Korean Civil Act provides that the property which one side of the father has prior to marriage and the property acquired under his/her own name in the marriage shall be the special property (Article 830(1)), and the property whose belongs to anyone of the husband and wife shall be presumed to be the co-ownership of the husband and wife (Article 830(2)).

Therefore, in principle, if one spouse acquires real estate in his/her own name during the marriage, the property shall be the special property of the nominal owner. However, even if our Civil Act adopts the separate property system of the married couple, the right to claim the division of property at the time of divorce is recognized, and since there are cases where the property acquired through mutual cooperation between both parties during the marriage can be the public property of the married couple regardless of whose name is the nominal owner, the other spouse may have the inherent right of the property (However, even if the property registered in one’s name is considered as public property and can be considered as the object of division, the other spouse may also claim such right against the third party even if it is considered as the property registered in one’s name, and the ownership of the property formed through mutual cooperation between the married couple is divided into external and internal relationships, and in principle, sharing in the married couple, or in the relationship with the third party, it is divided into the procedure of division by resolving such internal co-ownership with the divorce).

However, even if a property acquired in one’s name is recognized as a co-ownership right to the other spouse, if such property is a real estate, it can only be subject to the division of property when it reaches the stage of the division of property following the resolution of marriage, and there is no way to recognize or recognize a co-ownership right in an external relationship during the marriage without the registration of change due to co-ownership. In other words, since the creditor of the spouse, other than the nominal owner, who is registered in the sole name, is a real estate formed through the cooperation of the husband and wife during the marriage against the nominal owner, it is alleged that the property belongs to co-ownership. As such, a creditor may not demand the division of property or the division of co-ownership on behalf of the obligee, and even between the husband and wife, the division of real estate registered in one’s name by the method of

However, although the nominal owner may transfer part of the property to the other spouse to co-owned property, it is presumed that the property transferred under Articles 44 and 45 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter the same shall apply) is donated to the other spouse, the other spouse is unable to be exempted from the imposition of gift tax. In such cases, even if the property acquired under one’s name but the substance of the property formed through the cooperation of the married couple is in the form of a joint ownership of the property, the imposition of gift tax is not consistent with equity in the purport that the imposition of gift tax is not consistent with Article 53(1)1 of the Act.

Therefore, if one of the spouse purchases real estate with funds from another spouse, the relevant real estate shall be presumed to be the special property of the nominal owner inside and outside of the country, and the tax authority should impose gift tax on the portion exceeding KRW 500,000,000, which is the spouse's deductible amount, on the part that the nominal owner purchased the real estate from the other spouse.

(2) However, in cases where a title trust is made between a clan member and his/her spouse pursuant to Article 8(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, the validity of the title trust agreement and the change of real rights pursuant to the title trust agreement becomes effective. In cases where a title trust is made in the name of his/her spouse, the real estate is a special property of the truster, not the nominal owner, in violation of Article 830(1) of the Civil Act presumed to be the special property of the nominal owner. In other words, in cases where a title trust agreement is made between the parties, other than his/her spouse, and the title trustee entered into a contract on real estate between the owners who were not aware of the fact that the title trust agreement was made, the title truster may claim against the title trustee, not the pertinent real estate itself, the purchase funds he/she provided, and on the other hand, the title truster may claim for the return of the real estate itself on the ground that the title trust was made through the permission of title trust or the resolution of marriage. It is reasonable to deem that the real estate is not subject to be disposed under a tax evasion or joint.

However, a title trust between a spouse is fully opposed to external relationship of rights and internal substance. Since the intention of a husband and wife is to form external legal relations on the premise that ownership is owned by the nominal owner, it is necessary to decide whether to vest in the trust or transaction relationship between the truster and the trustee in order to protect the trust or transaction relationship of a third party. In this case, although the purchase fund of the pertinent real estate can be one of the important criteria for determining that the title trust is held, most of the purchase fund can be provided by one spouse, and it does not necessarily mean that the real estate is a real estate which is held in title trust to another party. In other words, as long as the purchase fund is provided by the Civil Act as the purchase fund is based on a separate title trust system that is presumed to be a special property by one spouse, in principle, if the purchase fund is provided from the other party, the relevant real estate should be deemed as a special property acquired by the nominal owner by donation from the other party. If there is no need to recognize that there is a need to recognize the need between the parties in addition to the provision of the fund to the title trust trust, if there is no need to dispute between the other parties.

(3) Therefore, first of all, 00 .0 .0 .00 . 00 . . 00 . . . . . . . .. .. .. .. .. ... ... ... .... .... ... .... ... .... .... .... .... ..... ..... ..... ..... 1. 1. 1. ... 1. ... 1. .. 1. 1. 1. 1. .. 1. 1. 1. 1. 1. .. 1. 1. 1. ... .... 1. 1. 1. 1 to 1. , etc. 1 to 1. 1. . . . . . . ... . .... .... ...... ...... .... .... .. ..... ....... ............. ........... .. .... . .......... .............................. ......................... .................... ........................... ........................................................

Then, we examine whether the real estate remaining in the name of the plaintiff is the real estate in title trust, and the fact that the above real estate is deemed as a title trust to the plaintiff, in addition to the provision of funds, there should be evidence to prove that there was the intention and necessity of the title trust between the plaintiff and the plaintiff in addition to the provision of funds. As above, it is insufficient to recognize that the evidence of No. 13, No. 14, No. 17-1, and No. 18-3, No. 22-2, and No. 24, and the testimony of No. 200, No. 100, and No. 100 were purchased to the plaintiff's husband and wife of this case, and there is no other evidence to prove that there was an intention or need to return the above real estate due to the termination of the title trust, and there is no reason for the above assertion.

(4) The Plaintiff asserts that since 00 real estate, which is the source of the instant real estate purchase fund, was owned by the Plaintiff and 00, was also owned by the Plaintiff and 00, since 00 real estate, which is the source of the instant real estate purchase fund, was exclusively in charge of household affairs for 20 years after marriage with 00 and 20 years after marriage, and thus, the instant real estate, which is the source of the instant real estate purchase fund, was also owned by the Plaintiff and 00, was transferred under title trust only with the shares of 00.

However, there is no evidence to acknowledge that the Plaintiff did not engage in actual income during the marriage period, and there is no other evidence to support that the Plaintiff’s funds were provided to purchase 00 real estate at 00 or more times. (Although the Plaintiff’s family activity contributed to the increase in property of 00, this argument is not acceptable in light of the following: (a) where the marriage between the Plaintiff and 100 is resolved, it would be a basis for determining whether the Plaintiff may have a right to shared property as a property subject to division of property; (b) the Plaintiff did not have a right to 00 real estate externally; (c) the full purchase price of 00 real estate was not used as a fund to acquire the instant real estate; and (d) the scope of the rights that the Plaintiff could have until division of property is performed.

(5) Therefore, the Defendant’s disposition imposing the gift tax of this case is lawful, where the Plaintiff received a donation of part of the purchase price of the instant 00 real estate from this0 from this0 and determined that it purchased the instant 00 .0 .00 .00 .00

3. Conclusion

Therefore, the judgment of the first instance court with different conclusions is unfair, so it is revoked, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Details of taxation

No.

Dormant

Date of donation;

Maritime Affairs

Amount of donation

V. V.

Imposition Tax Amount

㉣ 증여 등 내역

1

November 15, 2000

20,000,000

43,313,660

00 Of 00 bank loans, 220,000,000 shall be donated and used for the acquisition of 00 real estate

2

may 6, 2002

45,000,000

11,652,750

00,000,000 won out of the proceeds of sale of the same real estate shall be donated and acquired at least 00,000

3

May 15, 2002

30,000,000

7,778,070

00,000,000 won out of the proceeds from the sale of the same real estate shall be donated and acquired at least 00

4

June 12, 2002

130,000,000

3,781,570

00,000,000 won out of the proceeds from the sale of the same real estate shall be donated and acquired at least 00

5

July 24, 2002

50,000,000

12,893,460

00,000,000 won out of the proceeds from the sale of the same real estate shall be donated and acquired at least 00

6

September 23, 2002

9,500,000

32,235,850

Acquisition of real estate at 00 times by gift of KRW 99,500,000 among the proceeds from sale of the same real estate

7

November 30, 2002

40,000,000

14,798,910

00,000,000 won out of the proceeds from the sale of the same real estate shall be donated and acquired at 00

Total

614,500,000

156,453,970

The Inheritance Tax and Gift Tax Act (amended by Act No. 635, Dec. 18, 2002)

○ Article 44 (Presumption of Donation at Time of Transfer to Spouse, etc.)

(1) Any property transferred to a spouse, or lineal ascendants and descendants (hereafter in this Article, referred to as the “spouse, etc.”) shall be presumed to have been donated to the spouse, etc. at the time the transferor transfers the property.

Article 45 (Presumption of Donation of Funds, etc. for Property Acquisition)

(1) Where it is difficult to recognize that a person acquired the property by his own means in view of his occupation, age, income and property status, etc. as prescribed by the Presidential Decree, it shall be presumed that the person who acquired the property concerned has received a donation of funds from another person when he acquired the property.

Article 53 (Gift Property Deductions)

(1) In case where a resident receives a donation from a person falling under any of the following subparagraphs, the amount according to the classification of the following subparagraphs shall be deducted from the taxable amount of gift taxes. In this case, if the sum of the amount to be deducted within 10 years prior to the relevant donation and the amount to be deducted from the relevant donation amount exceeds the amount provided for in the following subparagraphs, the relevant excessive portion shall not be deducted: <

1. 50 million won, where a donation is received from a spouse;

Act on the Registration of Real Estate under Actual Titleholder's Name

Article 4 (Effect of Title Trust Agreement)

(1) The title trust agreement shall be null and void.

(2) Any change in any real right to real estate by the registration made under a title trust agreement shall be null and void: Provided, That the same shall not apply where the title trustee was the party in a contract for the acquisition of the real right to real estate and the other party was unaware of the fact that

The provisions of Articles 4 through 7 and 12 (1) and (2) shall not apply to cases which fall under any one of the following subparagraphs and are not involved in evading any tax, evading any compulsory execution, or evading any legal restrictions:

2. Where goods concerning real estate are registered in the name of his spouse.

civil law

Article 830 (Peculiar Property and Property of which Title is Unknown)

(1) The proprietary property owned by one side of a father prior to marriage, and the property acquired in his name during the marriage, shall be the special property.

(2) Any property whose father belongs to anyone shall be presumed to be jointly owned by the husband and wife.

Article 839-2 (Claim for Division of Property)

(1) One of the parties who has been divorced by agreement, may claim a division of property against the other party.