분양권 증여시 증여재산을 임대하여 채무부담을 약정한 경우 공제가능한 채무인지 여부[국패]
Whether it is a deductible obligation, if an obligation is agreed to be borne by leasing donated property at the time of donation of sale right.
Even in case of onerous donation between lineal ascendants and descendants, in case where the obligation which the donee takes over or bears is true, the amount to be borne shall be deducted from the value of donated property, as in the case of onerous donation between those who have no such status relationship.
Article 47 (Taxable Amount of Gift Tax)
Article 10 (Method of Verifying Obligations, etc.)
[Supreme Court Decision 2007Du25107 ( October 28, 2008)]
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
All of the records of this case and the judgment of the court below and the grounds of appeal were examined. However, the grounds of appeal on the grounds of appeal are not included in the grounds stipulated in each subparagraph of Article 4(1) of the Act on Special Cases Concerning the Procedure for Appeal, and the appeal is dismissed pursuant to Article 5 of the same Act. It is so decided as per
[Seoul High Court Decision 2007Nu14802 ( November 08, 2007)]
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
1. Purport of claim
The Defendant’s disposition of imposition of KRW 1,963,952, among the disposition of imposition of KRW 26,935,610 against the Plaintiff on July 10, 2005, revoked the part exceeding KRW 1,963,952.
2. Purport of appeal
The judgment of the first instance is revoked. The plaintiff's claim is dismissed.
The court's explanation about this case is identical to the entry in the reasoning of the judgment of the court of first instance other than to dismiss or add a part of the entries in the reasoning of the judgment of the court of first instance as follows. Thus, it is citing it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the
가. 제1심 판결 이유란 제2의 ̋나. 관계법령″의 내용을 다음과 같이 변경한다.
(b) Related statutes;
Article 47 (1) The taxable amount of gift tax is the amount calculated by subtracting the amount taken over by the donee from the aggregate of the donated property under this Act as of the date of donation [excluding the value of the donated property under Articles 40 (1) 2, 41-3, 41-5 and 42 (4) (hereinafter referred to as the “ donated property”)], which is secured by the donated property concerned (including any obligation prescribed by the Presidential Decree, such as any obligation, etc. related to the donated property),
(3) In the application of the provisions of paragraph (1), with respect to an onerous donation between spouse, or between lineal ascendants and descendants (including the cases presumed to be a donation under Article 44), even if the donee takes over the obligation of the donor, the donee concerned shall be presumed not to have taken over the obligation of the donee: Provided, That this shall not apply in case the amount of the obligation concerned is objectively recognized under the conditions as prescribed by
(1) For the purpose of Article 10 (4) of the Act, the term “those proved by such method as prescribed by the Presidential Decree” means those proved by one of the following subparagraphs that the inheritor actually bears, at the time of the commencement of the inheritance:
1. Documents confirming that debts owed to the State, local governments and financial institutions are debts owed to such institutions;
2. For obligations to persons other than those under subparagraph 1, documents evidencing the fact by means of a contract for liability bearing, written confirmation of creditors, documents evidencing the establishment of collateral and the payment of interest, etc.
(1) For the purpose of Article 47 (1) of the Act, the term “liability as prescribed by the Presidential Decree” means the relevant rental deposit in case where the donor leases the relevant property to another person.
(2) "Cases objectively recognized under the conditions as prescribed by Presidential Decree" in the proviso to Article 47 (3) of the Act means cases of proof under the provisions of each subparagraph of Article 10 (1).
나. 제1심 판결 이유란 제2의 라. (2)항 중간의 ‶ㆍㆍㆍㆍㆍㆍㆍㆍ판단할 것이다‶(제1심 판결 제5면 제6행)를 ‶ㆍㆍㆍㆍㆍㆍㆍㆍ판단할 것이다(대법원 1988 .5. 24. 선고 87누1242판결 등 참조)‶로 고친다.
다. 제1심 판결 이유란 제2의 라.(2)항 말미의 ‶ㆍㆍㆍㆍㆍㆍㆍㆍ공제한 금액이 된다.‶(제1심 판결 제5면 아래로부터 제8행)부분에 이어서 아래의 추가사항을 괄호 속에 덧붙인다.
‶{피고는 이 사건 임대보증금 채무는 황○○이 원고에게 이 사건 오피스텔을 증여할 당시에는 증여재산에 담보된 채무에 해당하지 아니하였고 단지 증여계약 당사자간의 조건부 채무약정에 불과하였음에도 이를 부담부증여로 보아 증여세액 산출시 그 부담액을 공제하게 되면 장차 증여세 면탈 등 조세회피목적이 계속되게 되고, 그와 같은 해석은 세법의 엄격해석원칙에 위배되는 것이라고 주장한다. 살피건대, 배우자 또는 직계존비속간의 부담부증여인 경우에도 수증자가 인수하거나 부담하는 채무가 진정한 것인 때에는 이러한 신분관계가 없는 자들간의 부담부증여의 경우와 마찬가지로 그 부담액은 증여재산의 가액에서 공제되어야 할 것인바(대법원 1997. 7. 22. 선고 96누17493판결, 대법원 2003. 10. 10. 선고 2002두 5184 판결 등 참조), 위에서 본 바와 같이 원고는 임대차계약 체결 직후 임차인으로부터 받은 임차보증금 합계 110,000,000원을 증여자인 모 황○○에게 송금하였고, 이 사건 오피스텔의 수증으로 인하여 장차 임차인에 대한 위 보증금 반환의무를 자신이 부담하게 괸 사실을 인정할 수 있으므로 원고가 부담하는 위 채무는 진정한 것으로 보이고, 그 밖에 위와 같은 부담부증여에 조세회피 목적이 있다고 볼 자료도 없으므로 피고의 위 주장은 받아들이지 아니한다}‶
Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.
[Seoul Administrative Court 2007Guu1583, 11 May 2007]
1. The part of the disposition imposing gift tax of KRW 26,935,610 on the Plaintiff on July 10, 2005, which exceeds KRW 1,963,952, shall be revoked.
2. The costs of the lawsuit are assessed against the defendant.
Cheong-gu Office
The same shall apply to the order.
1. Details of the disposition;
A. On May 28, 2004, the Plaintiff, her mother, donated ○○○○○○○○-dong, ○○○○○○○○○○-dong, 1614 and 1615 the sales right (hereinafter “instant donation”).
B. The Plaintiff reported KRW 36,711,00,000 as gift tax on each officetel on August 28, 2004, each of the property value of the instant officetel 1 at KRW 91,711,00,000, deducting KRW 55,000 from the initial sale price of the instant officetel from KRW 91,711,00.
C. Accordingly, on July 10, 2005, the Defendant imposed KRW 26,935,610 of the gift tax on the ground that in calculating the value of donated property to the Plaintiff, the said deposit cannot be deducted. On November 14, 2006, the Defendant issued a notice of deduction of KRW 481,470 among them according to the national tax adjudication decision. The details of the calculation are as stated in the corresponding portion of the “attached Form”.
[Ground of Recognition] Facts without dispute, Gap evidence 1, 2, 4, 5, Eul evidence 1 and 2 (including abnormal numbers)
2. Whether the disposition is lawful;
A. The plaintiff's assertion
As the Plaintiff entered into a contract of gift with Yellow ○, the Plaintiff’s share of the Plaintiff’s share of expenses should be deducted from the amount of acquisition by the donee pursuant to Article 47(1) of the Inheritance Tax and Gift Tax Act. In other words, even if not, the Plaintiff bears the obligation to pay the amount equivalent to the lease deposit to Yellow ○○, and takes over two bonds of the above officetel, so the property donated is the remainder after deducting the amount equivalent
(b) Related statutes;
[Inheritance Tax and Gift Tax Act]
(1) The taxable amount of gift taxes shall be the total amount of the donated property under the provisions of this Act as of the date of donation [excluding the value of the donated property under the provisions of Articles 40 (1) 2, 41-3, 41-5, and 42 (4) (hereinafter referred to as the “ donated property”)] minus the amount taken over by the donee, which is secured with the relevant donated property (including the debts prescribed by the Presidential Decree, such as debts, etc. related
[Enforcement Decree of the Inheritance Tax and Gift Tax Act]
Article 36 (Liability Deducted from Taxable Amount of Gift Tax)
(1) The term “liability as prescribed by the Presidential Decree” in Article 47 (1) of the Act means the relevant rental deposit in case where the donor leases the relevant property to another person.
(c) Fact of recognition;
(1) On May 28, 2004, the Plaintiff entered into the instant gift agreement with Yellow ○○, and agreed to pay the lease deposit received after renting each of the instant officetels to Yellow ○○○. On the other hand, Yellow ○ paid KRW 18,342,00 for the sales balance of the instant officetels 2 debentures after the date of donation on its own account.
(2) On June 21, 2004, after the completion of the above officetel building, the Plaintiff entered into a lease agreement with respect to the above officetel 1615 on June 21, 2004, and received KRW 55,000,000 from the lessee, and transferred the lease deposit to Yellow○ on June 29, 2004. On June 22, 2004, the Plaintiff entered into a lease agreement with respect to the above officetel 1614, and received KRW 55,00,000 from the lessee, and transferred it to Yellow○ on July 12, 2004.
(3) The ○○○ paid a total of KRW 6,787,980 and KRW 16,433,360, including the total of KRW 9,825,380 and the total of local taxes that the Plaintiff reported on its account.
[Ground of recognition] Unsatisfy, entry of Gap evidence 3 through 6 (including each number), the purport of the whole pleadings
D. Determination
(1) According to Article 47(1) of the Inheritance Tax and Gift Tax Act, the taxable amount of gift taxes shall be the amount calculated by deducting the amount taken over by the donee from the aggregate of the donated property under the same Act as of the date of donation (including debts prescribed by the Presidential Decree, such as debts related to the donated property in question). According to paragraph (3) of the same Article, with respect to onerous donation between spouse, or between lineal ascendants and descendants (including cases presumed to be a donation under Article 44), the amount of debts shall be presumed not to have been taken over by the donee even when the donee takes over the obligation of the donor. In addition, according to Article 36(1) of the Enforcement Decree of the same Act, the term "liability prescribed by the Presidential Decree" in Article 47(1) of the same Act means the relevant rental deposit in case where
According to the above facts, the instant gift is the right to sell an officetel, and since Y○○, a donor at the time of the instant donation, did not have leased the instant officetel to any other person, even if the Plaintiff leased it to another person after receiving the donation, the Plaintiff’s obligation to pay the lease deposit is not a debt secured by donated property. Therefore, the Plaintiff’s assertion that the said lease deposit obligation constitutes the obligation secured by donated property under Article 47 of the Inheritance Tax and Gift Tax Act is groundless.
(2) However, a donation under the Inheritance Tax and Gift Tax Act refers to a gratuitous transfer of any tangible or intangible property, in which economic values can be calculated, to another person by direct or indirect means (Article 2(3) of the same Act). In a case where a donor has made a donation with a certain burden on the donated property, the donated property shall be the value after deducting the amount to be borne from the donated property. Therefore, even in a case of onerous donation between lineal ascendants or descendants, if the donee takes over or bears the burden for the donated property, the amount of the donated property shall be the value of the donated property after deducting the amount to be borne by the donee, and whether the donee bears such obligation shall
According to the above facts, at the time of the completion of an officetel, which is a subject matter of gift, the Plaintiff agreed to receive two copies of officetel bonds between YO and YO, and the Plaintiff agreed to pay the lease deposit received by leasing an officetel after completion to YO, a donor. Accordingly, the Plaintiff actually leased an officetel received KRW 10,000,000 in total of the lease deposit to YO. Accordingly, at the time of the instant donation, the Plaintiff agreed to pay the amount equivalent to the lease deposit amount to be paid by leasing an officetel, which is the subject matter of gift, between YO and the Plaintiff. Therefore, the economic value gratuitously transferred to the Plaintiff is the amount calculated by deducting the above lease deposit amount from the sales amount of the officetel sales.
(3) Ultimately, when calculating a legitimate amount of gift tax on the basis of the aggregate of the Plaintiff’s total amount of gift tax of this case and that paid by Yellow ○○○, the portion exceeding KRW 1,963,952, as claimed by the Plaintiff, among the disposition imposing gift tax of KRW 26,935,610 against the Plaintiff on July 10, 2005, is unlawful.
3. Conclusion
If so, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.
(Attached Form)
A statement of gift tax calculation;
Details
(1) Decisions
(2) Decisions
(3) Justifiable tax amount.
Gu Sector
July 10, 2005
November 14, 2006
Amount of gift tax
199,855,360
199,855,360
89,855,360
The estimated amount of re-donations;
32,000,000
32,000,000
32,000,000
Gift Tax Deduction
30,000,000
30,000,000
30,000,000
Tax Base
201,855,360
201,855,360
91,855,360
Calculation Statement
30,371,072
30,371,072
9,185,536
Reporting Tax Credit
754,220
754,220
754,220
Amount of final tax
29,616,852
29,616,852
8,413,316
Additional Tax on negligent tax returns
1,932,402
*1,450,932
**0
Additional Dues
2,174,338
2,174,338
***156,281
Total determined tax amount
3,723,592
3,723,592
8,257,035
Voluntary Tax Amount
6,787,980
6,787,980
6,787,980
Original Decision-Notification Tax Amount
26,935,612
26,935,612
Amount of tax notified after deduction
-481,470
Justifiable Tax Amount
1,781,617
*the amount of recovery from the tax base excluding the amount of recovery from
*** 9,185,536 X [89,85,360- 73,422,00 (the initial return amount for office debentures 2) - 30,000] ± 91,855,360.1
**** (9,185,536 - 754,220 - 6,787,980) X 317 (from August 28, 2004 to July 10, 2005) X 0.03