Seoul High Court 2009Nu5888 ( December 04, 2009)

early 2007west2048 (Law No. 9, 26, 2008)

The disposition imposed on the gift is legitimate because it constitutes the termination of title trust.

The Plaintiff’s donation to the Plaintiff on the ground that there was no asset or income under the Plaintiff’s name and there was no evidence to deem that the real estate was managed and received under the name, and only the form was title trust termination or payment in kind.

2010Du702. Revocation of revocation of disposition of gift tax imposition

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○ Head of tax office

The Seoul High Court Decision 2009Nu5888 Decided December 4, 2009

March 24, 2011

The intermediate confirmation shall be dismissed.

The appeal is dismissed.

All costs of litigation and costs of appeal due to the lawsuit for interim confirmation shall be borne by the plaintiff (Intermediate confirmation plaintiff).

1. Determination as to the lawsuit for intermediate confirmation

A lawsuit for interim confirmation refers to a lawsuit seeking confirmation of legal relations by combining the litigation procedures when there is a dispute between the parties as to the existence of legal relations with respect to the determination of the original claim during the proceeding, and thus, it can only be filed before the closing of argument at the fact-finding court. The lawsuit for interim confirmation filed by combining the claims for revocation of disposition imposing gift tax of this case is unlawful.

2. Judgment on the grounds of appeal

A. Generally, the burden of proof regarding the taxation requirements is against the tax authority in a lawsuit seeking revocation of a taxation, but if it is proved that the taxation requirements are presumed in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the pertinent taxation disposition is illegal disposition unless the other party proves that the facts are not eligible for the application of the empirical rule (see, e.g., Supreme Court Decisions 2006Du13831, May 29, 2008; 2002Du6392, Nov. 13, 2002).

B. According to the reasoning of the judgment below, the court below acknowledged the facts of the judgment based on the employed evidence, and found the following facts: ① purchased land including 84,85-2 at its own expense around 1966 at ○○○○○○-dong, 85-2, etc., and promoted the construction of △△○○-dong, but there is no evidence to acknowledge that the plaintiff (hereinafter referred to as the "Plaintiff") managed the funds invested by the U.S. and purchased real estate from around that time; ② there is no evidence to support that the plaintiff actually transferred the land purchased by the U.S. and the new construction cost of △△△-dong, and the funds intended to use the new construction cost of △△-dong, and there is no evidence to acknowledge that the plaintiff actually acquired the real estate in the name of the owner of the real estate including each of the real estate of this case, and there was no evidence to support the construction or operation of the above real estate in the name of △△-dong, and ③ there was no evidence to acknowledge that the plaintiff actually purchased or proposed the real estate of this case 1981.

C. In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and they do not contain errors in the misapprehension of legal principles as to the res judicata of the final judgment, as otherwise alleged in the grounds of appeal, such as misconception of facts against the rules of evidence and experience, violation of precedents concerning title trust and donation, violation of Articles 9 and 23 of the Constitution, violation of Articles 54 and 555 of the Civil Act, violation of the principles of private autonomy, violation of the burden of proof, misapprehension of legal principles as to the burden of proof, incomplete deliberation, omission of judgment, etc. In addition, the res judicata effect of the administrative judgment rendered between the plaintiff and UA, JBB, U.A, U.S.B, and JB and △△△△△△, etc. which are decided between the plaintiff and U.S.A., U.B, U.S.

3. Conclusion

Therefore, the intermediate confirmation lawsuit of this case is dismissed as it is unlawful, and the appeal is dismissed as it is without merit. The costs of the lawsuit for intermediate confirmation and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.