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(영문) 쟁점부동산 취득자금 등을 아버지로부터 증여받은 것으로 보아 과세한 처분의 당부 등

조세심판원 조세심판 | 2014-09-29 | 조심2014중3201 | 상증

[Case Number]

[Case Number] Trial 2014 middle 3201 (Law No. 29, 2014)

[Items]

【GiftGiftGiftCorrection of Donation】

[Summary of Decision]

[Summary of the Decision] The Claimant appears to be short of funds to acquire the key real estate, so it is difficult to view that the Claimant acquired the key real estate by his own means, but it is reasonable to correct the gift tax base and tax amount to be deducted from the value of the donated property.

[Related Acts]

[Related Acts] Article 45 of the Inheritance Tax and Gift Tax Act

【Reference Decision】

[Reference Decision] Trial Decision 2012west 1974

【Disposition】

On July 6, 2012, 2012, when the OO filed an applicant on February 12, 2014, the imposition of OO on the gift tax shall be excluded from the value of donated property, and the tax base and tax amount shall be corrected, and the remainder of the appeal shall be dismissed.

【Reasoning】

1. Summary of disposition;

A. The OO conducted an investigation into the source of funds for the claimant, and the claimant acquired and established three real estate and chonsegwon (hereinafter “sub-owned real estate”) from 2004 to 2012 as follows: (a) from 2004 to 2012, the OO notified the disposition agency of the taxation data that the OO was donated to the OO of the acquisition fund by his father YOO.

Details of real estate in question and receipt of funds for acquisition of real estate in the table1.

Acquisition process, etc. of key real estate in the table 2

B. On February 12, 2014, the disposition agency decided and notified OO in total, three cases of gift tax, as shown below, to the claimant.

Details of notification of gift tax.

C. The claimant appealed and filed an appeal on March 26, 2014.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

(1) The claimant has increased funds necessary for real estate investment through stock investment, etc. since 1992, and since 2003 to 2012, the claimant's employment at OOO has generated earned income from OOO, the claim that the acquisition fund of the real estate at issue was donated from his father should be revoked. In addition, the claimant is an unmarried person who actually supports OO as his father and is in charge of fund management while organizing the same household, and thus, the funds transferred by account transfer should be deemed as a temporary loan, not a donation.

(2) The remainder of the Bank Loans OO and OO paid directly by the claimant in connection with the issue officetel shall be excluded from the value of the donated property.

(3) On September 17, 2013, the sum of the OO transferred by the Kim OO to the savings account of his father and the claimant on November 29, 2013 in relation to the key deposit for the lease on the issues must be deducted from the value of donated property.

(b) Opinions of disposition agencies;

(1) Although the claimant asserts that the amount of funds to acquire real estate as earned income is secured, the claimant's argument is not persuasive since the balance between the 2003 and 2012 when the claimant's office is operated by POO and the amount of earned income is limited to the total amount of OO from 2003 to 2012, and the OO's account submitted in relation to stock investment is merely the small amount at the time of the opening of the account in 192 to the termination of November 23, 2009.

(2) On March 29, 2004, the claimant asserted that he acquired the relevant officetel with his own funds, and submitted the details of establishment of the right to collateral security established under the name of the claimant on March 29, 2004, receipts of loan balance issued by the OO branch (OO. 10 February 10, 2004) and the deposit certificate of the OO bank (O. 10, 2004) (O. O. 10, 2004) with the evidence of the balance. In light of the contents of the establishment of the right to collateral security of officetels, the contract was concluded on March 29, 2004 and the registration was cancelled on July 13, 2004 was requested by the disposition agency to additionally submit the details of the bank transaction and account transfer related to the repayment of the loan. However, it was not possible to verify that the applicant failed to submit it, and even in the case of the balance, the claim statement is without merit.

(3) The claimant asserts that the OO that he remitted the property to his father after the rent should be deducted from the value of donated property. However, on July 6, 2012, when establishing a right of lease on a deposit basis, the property acquired as a result of the establishment of the right of lease on a deposit basis was partially returned on September 17, 2013 and November 29, 2013. However, according to the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Act”), the gift tax returned after the lapse of several months after the donation was completed, and the claim claim is not accepted.

3. Hearing and determination

A. Key issue

(1) The propriety of a disposition imposing tax, deeming that the acquisition fund for key real estate (three cases, such as officetels) was donated by his/her father as a donation

(2) In relation to the issue officetel, whether the claimant should exclude theO for loans of banks and the remainder of theO paid from the value of the donated property.

(3) Whether the OO transferred to his/her father after receiving the refund of the deposit for the deposit for the lease on the deposit basis of the issue should be excluded from the value of donated property.

(b) Relevant Acts;

Inheritance Tax and Gift Tax Act (Amended by Act No. 7010, Dec. 30, 2003)

Article 45 (Presumption of Donation of Funds, etc. for Acquisition of Property) (1) Where it is difficult to recognize that a person acquired the property by his/her own means in view of occupation, age, income, property status, etc., as prescribed by the Presidential Decree, the acquisition fund of the property shall be presumed to have been donated to the person who acquired the property at the

(2) Where it is difficult to recognize that a debtor has repaid his/her debts (including partial repayment; hereafter the same shall apply in this paragraph) by his/her own means in view of his/her occupation, age, income, property status, etc., as prescribed by Presidential Decree, the relevant repayment fund shall be presumed to have been donated to the relevant debtor at the time

(3) The provisions of paragraphs (1) and (2) shall not apply to cases where the relevant acquisition fund or repayment fund falls below the amount prescribed by Presidential Decree in consideration of occupation, age, income, property status, etc. and where sufficient vindication exists on the source of the relevant acquisition fund or repayment fund.

(5) Where a donee returns the donated property (excluding money) to a donor or re-donates the donated property to a donor within 3 months after the expiration of the time limit for report pursuant to the provisions of Article 68, gift tax shall not be imposed on such returned or re-donates.

C. Facts and determination

(1) First, we examine the issues1.

(A) The claimant asserts that since 1992, the applicant increased funds necessary for real estate investment through stock investment, etc., and that the disposition that deemed that the acquisition fund of the real estate at issue was donated from his father due to income generated from 2003 to 2012 by OO was erroneous.

(B) The annual total wage of the claimant as presented by the agency is as listed below, and the annual average wage of the claimant is OO.

Table 4. Current status of annual gross pay for applicant.

(C) The claimant submitted the customer transaction details issued by the OO with respect to stock investment, and the deposit and withdrawal are repeated from April 10, 1992 to October 23, 2001, so it is difficult to ascertain the balance of the account, or it does not appear to be the amount to acquire the key real estate.

(D) In light of the above facts and relevant laws, where it is difficult to recognize that a person, such as a lineal ascendant or a spouse, etc., has acquired the property by his own means in light of his occupation, age, income, property status, etc., as prescribed by the Presidential Decree, the acquisition fund of the property should be presumed to have been donated to the person who acquired the property at the time of acquiring the property. Since the fact of donation of the property, which is the requirement to impose the gift tax, is, in principle, proven by the tax authority. Thus, if a person, who had a substantial re-existence of occupation and a considerable amount of income at the time of acquiring the property, is a person who actually had a considerable income, it cannot be presumed that the portion of the fund required for acquiring the property was donated to another person, but it is reasonable to presume that a person, such as a lineal ascendant or a spouse, etc., who has no certain occupation or income, has received the funds from the person who acquired it again, even if there is a certain occupation or income, should be the same as the case where the person who acquired the property can obtain the property at issue.

Since the wage and salary income or details of stock investment transactions presented by the claimant in relation to the acquisition of the disputed real estate fall short of the funds to acquire the disputed real estate, such evidence alone is difficult to deem that the claimant acquired the disputed real estate by himself/herself, among the key real estate, there is the fact that the claimant has already recognized the OO attested as the acquisition fund in relation to the key real estate deposit, and the applicant is in charge of fund management in organizing the same household as his/her father and unmarried father, so the claimant's assertion that the funds transferred by account transfer should be deemed a temporary loan, not a donation, is not specific and objective, it is determined that the disposition of gift tax is not erroneous, considering that the claimant is deemed to have received funds from his/her father in relation

(2) We examine the issues ②

(A) The claimant asserts that the claimant should exclude any balance of OO paid to OO of bank loans succeeded to in relation to the issue officetel from the value of the donated property.

(B) On December 18, 2003, the claimant purchased the right to sell an officetel from the GoOO to the OO on December 18, 2003, succeeded to the OO on February 10, 2004, and paid the remainder OO to the OO as the selling company. < Amended by Presidential Decree No. 18270, Feb. 10, 2004>

(C) Upon examining the copy of the register of the issue officetel, it is confirmed that the right to collateral security (OOO) was established on March 29, 2004 and cancelled on July 13, 2004. In this regard, the disposition agency suggested that the applicant requested the submission of additional details of bank transactions and account transfer related to the repayment of the loan, but the applicant could not be confirmed that the loan was repaid with the applicant's funds because the applicant failed to submit it.

(D) In full view of the above facts and relevant laws, the claimant paid the remainder of the OO to the OO in connection with the acquisition of the OO. However, it is difficult to see that the claimant has substantiated the source of the acquisition fund. However, although the claimant succeeded to the OO of bank loans, the loan succeeded by the former owner has been repaid four months after succession, and the claimant has not presented the source of the repayment fund, and the other presented evidence is insufficient to see that the remainder OO and OO of bank loans were paid for the claimant's own funds.

(3) Finally, this paper examines the issues third.

(A) The claimant asserts that the OO returned to his father out of the key deposit should be deducted from the value of donated property.

(B) On July 6, 2012, the claimant: (a) set up an OO on the OO under his/her name; (b) the disposition authority imposed the remainder of the OO, except the OO explained with the acquisition fund, on the assumption that the OO was donated property.

(C) According to the copy, etc. of the passbook presented by the claimant, it is confirmed that the claimant had the Kim OO (the wife of the real estate owner who received the dispute charter deposit) deposited the OO in the father's account on September 17, 2013, and that the claimant deposited the OO in the father's account on November 29, 2013. < Amended by Presidential Decree No. 24880, Nov. 29, 2013>

(D) In full view of the above facts and relevant laws, the claimant has proved that he/she was supported and supported with his/her father as an unmarried person with respect to the key rent deposit, and accordingly he/she has been managing the father's funds accordingly, and the claimant has confirmed that he/she received the key rent deposit and deposited the OO into the father's account. In light of the fact that the claimant received the refund of the key rent deposit and the fact that he/she deposited the OO in the account of his/her father, the above OO which was confirmed to have temporarily borrowed the funds for acquiring the key rent deposit from his/her father and repaid it before the date of taxation by the disposition agency, shall be deemed that

4. Conclusion

This case shall be decided as ordered in accordance with Article 81 and Article 65 (1) 2 and 3 of the Framework Act on National Taxes, because the petition for appeal is partly well-grounded as a result of the review.