모자 사이의 부동산 매매에 대해 증여로 보아 과세한 처분은 적법함[국승]
Board of Audit and Inspection 2009 depth039 ( October 25, 2010)
disposition imposed on the sale of real estate between the mother and child is legitimate.
Since the property transferred to a lineal ascendant and descendant is presumed to be a donation, if the plaintiff fails to assert and prove that the presumption of donation can be reversed, the transfer of real estate ownership between the mother and the child takes the form of the cancellation of title trust. Since the plaintiff's failure to prove it, the disposition imposed on the property is legitimate.
Article 44(1) of the Inheritance Tax and Gift Tax Act
2010Guhap2303 Revocation of Disposition of Imposition of Gift Tax
CHAPTER A
○ Head of tax office
December 2, 2010
January 20, 201
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Defendant’s disposition of imposition of gift tax of KRW 104,776,690 against the Plaintiff on April 1, 2009 shall be revoked.
1. Details of the disposition;
A. On January 16, 2007, the Plaintiff transferred the ownership of the real estate in the U.S. (hereinafter “instant real estate”) from the KimA, the Plaintiff’s children.
B. As to the transfer of the above ownership, the Plaintiff deemed to have received the instant real estate from KimA, and imposed gift tax of KRW 104,776,690 on the Plaintiff on April 1, 2009 (hereinafter “instant disposition”).
C. On July 29, 2009, the Plaintiff requested the Board of Audit and Inspection to review the instant disposition, but the Board of Audit and Inspection dismissed the Plaintiff’s request for examination on February 25, 2010.
[Ground of recognition] Facts without dispute, Gap evidence 7, 8, Gap evidence 12-1 to 6, Eul evidence 1 to 3, the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
On November 2, 2006, the Plaintiff transferred KRW 443,300,00,00 of the refund, etc. received from ○○ Life Insurance Co., Ltd. to ○○ KimB to purchase the instant real estate to reside in the Plaintiff’s his/her father, his/her dependent in the U.S... The KimB left the name of the owner of the instant real estate in the name of KimA. However, the Plaintiff again transferred the ownership of the instant real estate from ○A on the wind against ○○ Life Insurance Co., Ltd., and this cannot be deemed as a donation since the instant disposition is unlawful.
B. Determination
According to Article 44(1) of the Inheritance Tax and Gift Tax Act, the value of the property transferred to a lineal ascendant or descendant shall be presumed to have been donated by a lineal ascendant or descendant at the time of transfer of the property by the transferor, and the transfer of ownership to the real property in this case between the Plaintiff and KimA is presumed to have been donated pursuant to the said provision. If the Plaintiff fails to assert and prove that the said presumption may be reversed, the transfer of ownership to the real property in this case was made between her mother and child under the form of termination
According to the evidence mentioned above, Gap evidence Nos. 3-1 through 7 and Gap evidence Nos. 4-1 through 4, the plaintiff cancelled his insurance contract under the name of KimB on October 24, 2006 and transferred refund 39,677,920 won to the Busan bank account in the name of KimB. On the same day, the plaintiff again transferred the above amount to the AA bank account in the name of the plaintiff, but on November 2, 2006, remitted 443,300,000 won from the Busan bank account in the name of the plaintiff to the AA bank account in the name of KimB, and KimA purchased the real estate of this case on November 16, 2006.
Meanwhile, according to Gap evidence Nos. 1 and 2-15, Gap evidence Nos. 5, Eul evidence Nos. 6-1 through 3, Eul evidence Nos. 4-1 through 3, witness KimA, and KimCC's testimony, the plaintiff received 1,248,372,078 won with the maturity insurance money under the name of the plaintiff on September 13, 199 and concluded an insurance contract under the name of KimB, KimD, Kim Yong-A (total insurance premium of 1,100,046,372 won, total insurance premium of 1,898,594,145 won), and the fact that the plaintiff entered into an insurance contract under the name of the administrator of Kim Jong-B under the name of May 16, 200 and the name of 15B on May 22, 200, which was designated by the administrator of Kim Jong-B as at the time of cancellation of the contract.
According to the above facts, the plaintiff can be recognized as the source of the funds to purchase the real estate of this case. However, in light of the fact that the plaintiff had already concluded an insurance contract that reaches approximately KRW 1.90 million in the name of Kim Jong-ju, KimDD, and KimA, a child, in 199, to distribute the property in advance to the child, and that the real estate of this case also purchased for KimB who is residing in the United States, and the administrator was determined as SongB's father, and that the plaintiff did not exercise the right to the real estate of this case, and that currently KimB's family is residing in the real estate of this case and exercising the right to the real estate of this case, the plaintiff seems to have donated the real estate of this case to KimB by taking the form of acquiring the real estate in the name of KimB. Accordingly, the plaintiff's assertion on the premise that the title trust was concluded between the plaintiff and KimA
3. Conclusion
Therefore, the defendant's disposition of this case is legitimate since KimA's transfer of ownership of the real estate in this case to the plaintiff is presumed to be a donation and there is no reason to reverse this differently. Thus, the plaintiff's claim of this case in this case is dismissed as it is without merit. It