2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s imposition of gift tax of KRW 81,579,210 against the Plaintiff on February 1, 2016 shall be revoked.

A. On July 12, 2005, the Plaintiff purchased 3/5 shares in 340,000,000 as to the land of 215 square meters in Busan-dong, Busan-dong (hereinafter referred to as the “instant land”) and its ground buildings (hereinafter referred to as the “Gu building,” the combination of the said land and the Gu building, and purchased 2/5 shares in 110,000,000 as to the instant 1 real estate on May 21, 2008.

B. On November 22, 2006, the Plaintiff acquired an apartment (hereinafter referred to as “the instant 2 real estate”) located in Busan-gu, Busan-do, in 227,500,000, with 1/2 shares of the Plaintiff’s spouse, according to Busan-gu, Busan-do, (hereinafter referred to as “the instant 2 real estate”) (the Plaintiff’s share value of KRW 113,750,00), and the building was extended on or around December 27, 2011. The building price at the time of acquisition of the extended commercial building (hereinafter referred to as “the instant 3 real estate”) is KRW 81,652,00,00. The Defendant determined against the Plaintiff that the amount of funds, such as the acquisition of real estate and repayment of bank loans from 2005 to 2011, subtracting the Plaintiff’s share value of the instant real estate from the amount of KRW 315,205,315,205,315,2,315,35, etc.

On May 21, 2008, gift tax was imposed on the donated portion of KRW 6,849,60, KRW 73,288,570 on December 31, 2008, KRW 3,792,190 on the donated portion of December 27, 201, KRW 1,170,510 on the donated portion of KRW 3,792,190, and KRW 85,100,870 on the donated portion of December 31, 201 (hereinafter referred to as the "instant disposition of imposition"), but the subject of the revocation is as follows: (a) the gift tax was imposed on the donated portion of KRW 73,231,050 on the Plaintiff.

D. On March 29, 2016, the Plaintiff filed an objection with the Busan Regional Tax Office on March 29, 2016. The Defendant determined that the above objection was partially well-grounded, and determined that the acquisition value of the instant 1,2, and 3 real estate was KRW 509,402,00, KRW 307,716,923, and KRW 37,147,905, and KRW 310,00,00 (hereinafter “the instant loan”) were corrected to KRW 30,00, KRW 293,00, KRW 293 (hereinafter “the instant loan”), KRW 205, KRW 20, KRW 200, KRW 375, KRW 286, KRW 285, KRW 2885, KRW 47,5785, KRW 20, KRW 1685,57, KRW 2781,575,575,297.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 4 through 7, Eul evidence 1 to 5 (including various numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the loan of this case, which was borrowed from financial institutions to acquire real estate 1, 2, and 3, was owned by the plaintiff at the time of acquiring the real estate 1, 2, and 3 of this case with the so-called "Ocheoncheon Fund", in calculating the value of donated property, the amount of the loan of this case should be deducted from the acquisition value of the 1, 2, and 3 real estate of this case, but the defendant has committed an unlawful act of calculating the value of donated property without deducting the loan of this case from the acquisition value of the 1, 2, and 3 real estate of this case. Ultimately, there is no value of donated property where gift tax can be imposed when deducting the loan of this case from the 270,131,535 won of the value of donated property of this case calculated by the defendant.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As a matter of principle, the fact of donation of property, which is a requirement for the imposition of gift tax, is a matter of proof by the tax authority. Thus, even if the tax authority does not offer daily funds required for acquiring the property if there is a person who has a considerable financial capacity with a certain occupation and substantial income at the time of acquiring the property, it cannot be presumed that the portion of funds required for acquiring the property was donated to another person, barring special circumstances. However, it is reasonable to presume that a person who has no occupation or income does not have any financial resources sufficient to clearly present the source of funds for acquiring the property, and that a person has received funds from a person who has no occupation or income, if there is a financial ability to donate the property, it is reasonable to presume that such funds were donated from the person who has re-existent the said funds (see, e.g., Supreme Court Decisions 90Nu6071, Oct. 26, 190; 94Nu9603, Nov. 8, 1996; 9Nu1658, supra.

(2) Meanwhile, Article 45 of the Inheritance Tax and Gift Tax Act (hereinafter “the Inheritance Tax and Gift Tax Act”) provides that where it is difficult to recognize that an acquirer of the property acquired the property by his own means in view of his occupation, age, income, property condition, etc., the acquisition fund of the property shall be presumed as having been donated to the acquisitor of the property, and it is difficult to recognize that the acquirer of the property has repaid the property by his own means (including partial repayment; hereinafter the same shall apply) when considering the obligor’s occupation, age, income, property condition, etc., the Inheritance Tax and Gift Tax Act provides that the amount of money to be repaid shall be presumed as having been donated by the obligor at the time of repayment of his/her obligation and shall be deemed as the amount of donated property (Article 45(1) of the Inheritance Tax and Gift Tax Act); where the amount of money acquired by his/her own means or received by his/her own means (Article 5(3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act or the amount of donated property acquired by his/her own means (Article 4(1) or 4(3) of the Inheritance Tax Act).

4) In full view of the evidence and the purport of the entire pleadings as to the instant case, the Defendant presumed that the Plaintiff did not have certain occupation or income, while the Plaintiff’s lineal ascendant, etc. had sufficient financial capabilities to donate property acquisition value to the Plaintiff, and that the Plaintiff’s gift tax was donated 854,26,828 won, including the instant issues 1,2, and 309,402,000 won, repayment debt amount of KRW 307,716,923 won, credit card, etc., and KRW 37,147,905 won, which was 854,266,828 won. However, it is difficult to view that the Defendant calculated gift tax imposed on the Plaintiff under the provision of Article 34(1)3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act by deducting KRW 584,135,293 [the amount verified by the Plaintiff’s source of the instant loan + the amount of gift tax imposed on the Plaintiff’s 310,00,50,30050 won,500 won.

5) As alleged by the Plaintiff, if the loans of this case were to be deducted from KRW 310,00,000 from KRW 270,131,535 of the value of donated property of this case, then the loans of this case, which were deducted from the acquisition value of the real estate of this case 1,2, and 3, are deducted from the Plaintiff’s “originalcheon Fund,” and thus, the Plaintiff’s assertion is difficult to accept.

6) Furthermore, even if the tax authority erred in the calculation method, etc. of the tax base and amount of tax in the process of specifically calculating and determining the tax base and amount of tax, if the tax amount imposed and notified as such does not exceed the scope of the justifiable tax amount to be borne by the pertinent taxpayer, and if the erroneous method does not vary in the scope of the taxation unit and the reason for disposition, it cannot be cancelled as it is unlawful (see, e.g., Supreme Court Decisions 91Nu10695, Jul. 28, 1992; 92Nu10180, Sept. 28, 1993; 92Nu10180, Sept. 28, 1993). Thus, in calculating the acquisition value of real estate of 1,2, and 3 real estate, the remaining amount after deducting the loan of this case (= 509,402,000 won (= 509,4002,000 won - 310,0000,000 won).

3. Conclusion

Therefore, the part of the claim for revocation of the disposition imposing gift tax exceeding KRW 73,231,050 among the lawsuit of this case is unlawful as it seeks revocation of the reduced gift tax. Thus, the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.