Whether a disposition imposing gift tax on a real estate title trust without the purpose of tax avoidance, or whether a disposition imposing gift tax is void as a cause for ownership transfer registration (negative)

In the case of title trust of real estate without the purpose of tax avoidance, applying the provisions of Article 32-2 of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990), the imposition of gift tax was illegal in the case of title trust of real estate, or in the case where the registration of ownership transfer that caused the imposition of gift tax is invalidated due to the lack of the cause of ownership transfer that caused the imposition of gift tax. However, such defect is nothing more than the cause of revocation, and it cannot be said that it is a grave and apparent defect that makes the

Article 32-2 of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990); Article 19 of the Administrative Litigation Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff

head of Dongjak-gu Tax Office

Seoul High Court Decision 89Gu1680 delivered on April 4, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

As to the Plaintiff’s ground of appeal

Despite the fact that a real estate title trust was made without the purpose of tax avoidance, the gift tax was imposed by applying the provisions of Article 32-2 of the Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990), or in such case, the disposition imposing the gift tax in such a case becomes null and void because the ownership transfer registration, which caused the imposition of the gift tax, has not been caused. However, such defect is nothing more than the ground for revocation, and it cannot be said that it is a grave and apparent defect that makes the disposition null and void as a matter of course.

In the same purport, the court below's decision that the disposition of this case cannot be held null and void as a matter of course is just and cannot be employed to criticize the judgment of the court below from the opposite opinion.

For these reasons, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)