Seocho 209west 1661 (Law No. 24, 2009)

The legitimacy of the assertion that the disposition of gift tax on the acquisition fund of real estate is a title trust between husband and wife

Although it is recognized that the husband has borne the acquisition fund of apartment, it cannot be said that there was a title trust on the apartment acquired between the husband and the husband, or that the apartment was owned by the husband and was a title trust under the denial name.

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.

The imposition of each gift tax (including additional tax) stated in the "total amount of tax assessment" column in attached Table 2 of the attached Table 2, which the defendant made against the plaintiff on December 12, 2008 against the plaintiff on December 12, 2008 is revoked (the date of the disposition in the written complaint is clear that it is a clerical error).

1. Circumstances of the disposition;

가. 원고는 2003. 6. 4. 학교법인 ☆☆대학교와 사이에 원고가 서울 ★★구 ○○동 227-6 외 6필지 지상에 신축되는 ●●●●●● 아파트 디(D)동 3302호(이하 '이 사건 아파트'라 한다)를 대금 935,279,000원에 분양받기로 하는 계약을 체결하고, 그 날부터 2007. 5. 23.까지 위 분양계약에 따른 계약금, 중도금, 잔금, 취득세ㆍ등록세를 모두 납부한 후 원고 명의로 이 사건 아파트의 소유권이전등기를 마쳤다.

B. On December 5, 2008, the Defendant imposed and notified the Plaintiff, on December 12, 2008, each gift tax (including additional tax) indicated in the column of "total amount of tax assessment" in the attached Table 2, which is calculated as shown in the attached Table 1 and 2, on the ground that the Plaintiff received cash equivalent to the instant apartment sales contract and the registration of transfer of ownership in succession, as indicated in the attached Table 1, from June 4, 2003 to May 23, 2007, on nine occasions, from June 4, 2003 to May 23, 2007.

[Ground of recognition] Each entry in Gap evidence 1, 2, 3, 5, 9, and Eul evidence 1 (including paper numbers)

2. The assertion and judgment

A. The plaintiff's principal

(1) The imposition of gift tax of this case shall be revoked as it is unlawful for the following reasons:

(가) 원고의 남편인 위◎◎이 ●●●●●● 아파트의 당첨확률을 높이기 위하여 원고 명의로도 청약신청을 하여 당첨되자 원고 명의로 이 사건 아파트의 분양계약을 체결하고 소유권이전등기를 경료하였으나, 위◎◎이 이 사건 아파트의 취득자금을 전부 부담하였고, 이 사건 아파트를 직접 관리하고 있으므로, 이 사건 아파트의 실질적인 소유자는 위◎◎이다. 따라서, 이 사건 부동산은 원고에게 명의신탁된 것일 뿐 증여된 것 이 아니고, 그 취득자금 역시 원고에게 증여된 것이 아니다.

(B) The instant real estate is substantially owned by the Plaintiff’s husband and wife with property acquired through joint efforts during marriage. As such, 1/2 shares out of the instant real estate from the beginning is owned by the Plaintiff. Therefore, 1/2 shares out of the instant real estate are not donated to the Plaintiff.

(2) The imposition of the additional tax on this case shall be revoked as it is unlawful as the following grounds:

(A) Under Article 47 (2) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter the same), the Defendant calculated the pertinent amount of gift tax by adding the amount of gift tax to the amount of gift tax, based on which the amount of gift tax is to be added to the relevant amount of gift tax, and then deducted the amount of gift tax from the amount of gift tax. In calculating the additional tax on the relevant amount of gift tax, the Defendant imposed the additional tax on the transferred amount of gift tax because it includes the additional tax on the amount of gift tax on the relevant amount of gift tax.

(B) As the Plaintiff completed the registration of ownership transfer on June 25, 2007 on the instant real estate, it shall be deemed that it was donated on that day pursuant to Article 45(1) of the Inheritance Tax and Gift Tax Act. The imposition of additional tax for the erroneous payment was imposed prior to that day.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

(c) Fact of recognition;

(1) 위◎◎은 원고와 법률상 부부 사이로 10여 년 전부터 변호사엽무에 종사하여 오면서 자신의 수업을 원고 명의 은행계좌에 보관ㆍ관리하여 왔고, 2006. 3. 28. 충북 음 성군 ◆◆면 ◇◇리 3-7 토지 외 3필지와 위 3-7 토지 지상 건물(이하 '□□군 부동산'이라 한다)을 자신 명의로 매수하면서도 원고 명의 은행계좌에서 돈을 인출하여 매매 대금을 지급하였다.

(2) 원고와 위◎◎은 2003. 5. 28.경 ●●●●●● 아파트에 관하여 각각 청약신청을 하면서 위◎◎의 자금으로 각 30,000,000원씩의 청약금을 납부하였는데, 원고만 당첨되자 위◎◎은 2003. 6. 4. 자신의 자금으로 원고로 하여금 계약금을 납부하도록 하였다 (별지 과세내역표 1 중 순번 1).

(3) The Plaintiff paid the intermediate payment, the balance, and the acquisition tax and the registration tax according to the acquisition of the apartment of this case with each money recorded in the column of "the donation amount," which is the fund of her son, on each of the dates stated in the attached Table 1 of the attached Table 1.

(4) On August 23, 2007, the Plaintiff leased the apartment of this case and kept it in the account under the Plaintiff’s name with the lease deposit of KRW 450,000,000,000. On August 20, 2008, the Plaintiff repaid KRW 500,000 out of the loan obligations on the mortgage of Mack-gun with the money located in the said account as collateral for the movable property of Mack-gun.

(5) The Defendant: (a) deemed that he donated the Plaintiff the money indicated in the column of "donation 2 through 9" in the annexed Table 1 to the Plaintiff on each date indicated in the annexed Table 1; and (b) calculated by applying the gift tax rate by making the amount calculated by deducting the calculated tax amount on the amount of the gift from each stated in the "calculated tax list" column of the attached Table 1, which is calculated by applying the gift tax rate, as the tax base, from each stated in the "calculated amount" column of the attached Table 1, the Defendant calculated the gift tax on the amount of the gift by deducting the calculated tax on the amount of the gift by transfer from each stated in the "calculated amount" column of the attached Table 2; and (c) calculated the gift tax on the amount of the gift by deducting the calculated tax on the amount of the gift by transfer from each stated in the attached Table 2; and (d) calculated the additional tax without filing a return and the additional tax on the amount of the gift in the attached Table 2 from each of the date from each stated in the "date of return" column of payment until December 1, 2.

[Ground of recognition] The aforementioned evidence, Gap evidence Nos. 6, 7, 10 through 14 (including paper numbers) and the purport of the whole pleadings

D. Determination

(1) Determination as to the plaintiff's assertion of entry in paragraph (1) (A)

According to Article 830(1) of the Civil Act, since real estate acquired by one spouse in the name of his/her own name during marriage is presumed to be the special property of the nominal owner, if the source of funds to acquire such real estate has been identified by the other spouse, then the nominal owner may be presumed to have been donated the funds to the other spouse. Since the pertinent real estate is not the special property of the nominal owner and is nominal trust by the other spouse, it cannot be deemed that the funds to acquire such real estate have been donated to the other spouse, so the other spouse cannot be deemed to have been donated the funds to acquire the real estate under the above provision in order to reverse "the presumption of special property" under the above provision. The other spouse's actual burden of the funds to purchase the real estate and the fact that the other spouse acquired the real estate in the name of his/her own possession is the source of funds to purchase the real estate shall not be deemed to have a title trust as to the pertinent real estate, and it shall be determined by comprehensively taking account of all the circumstances revealed through the relevant evidence, whether or not the other spouse bears the funds to own the real property (see Supreme Court Decision 2008Du68Du68.

With respect to the instant case, although it is recognized that the Plaintiff’s husband, her husband, knife knife knife, had a title trust with respect to the instant apartment, or that the instant apartment was actually owned by knife knife knife knife knife.

Therefore, this part of the plaintiff's assertion is without merit.

(2) Determination as to the plaintiff's assertion of entry in paragraph (1) (b)

The real estate acquired by one spouse in the name of the married can be the object of the division of property according to the resolution of marriage, but can not be recognized or recognized as a co-ownership right in an external relationship during the marriage.

Therefore, with respect to the apartment of this case acquired under the name of the plaintiff, since the 1/2 share of 1/2 shares can not be deemed to exist, the plaintiff's assertion on this part is without merit

(3) Determination as to the Plaintiff’s assertion as to paragraph (1)(2)

According to the above facts, the defendant can recognize the fact that the additional tax of this case is calculated in accordance with the Inheritance Tax and Gift Tax Act (amended by Act No. 8139 of Dec. 30, 2006) or the relevant provisions of the Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006), and there is no error in the calculation of additional tax. Thus, the plaintiff's assertion on this part is without merit.

3. Conclusion

If so, the plaintiff's claim of this case is without merit, and it is dismissed.