In case of donation from a lineal ascendant of real estate over which the right to collateral security was created;

In the case of a third party's donation of real estate established by the right to collateral security from the lineal ascendant, the donee cannot be deemed to be the true obligation which the donee takes over or bears, and the donee bears the burden of proving that the donee took over or bears the burden of proving that the donee took over or bears the obligation of collateral security upon his own request.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of KRW 94,065,200 on the gift of May 29, 2008 against the Plaintiff on December 1, 2009 is revoked.

1. Circumstances of the disposition;

A. The Plaintiff’s mother KimA, on June 28, 2007, took out a loan of KRW 460,000,000 from ○○○○-dong 524-8, ○○○-dong 112, 802, ○○-dong Do, ○○-dong ○○-dong 112, Do-dong 112 (hereinafter “the apartment of this case”), which is a creditor, set up a collateral security right with the debtor Do-dong Do-dong 112, 802 (hereinafter “the apartment of this case”).

B. On May 29, 2008, the Plaintiff donated the instant apartment from Ma KimA, and reported the gift tax to the Defendant on the ground that the Plaintiff acquired KRW 44,80,000,00,000, which is the standard market value of the instant apartment, as the value of donated property, and that he/she acquired KRW 460,000,000,000,000,000,000,000,000,000 from the value of donated property as the gift tax amount.

C. Accordingly, pursuant to Article 47(3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9924, Jan. 1, 2010) of December 1, 2009, the Defendant deemed that the donation of the apartment of this case was a donation between lineal ascendants and descendants, and the amount of KRW 460,000,000,000,000,000,000 was not deducted from the value of donated property, and the Defendant corrected the tax base and imposed KRW 94,065,20,00 on the Plaintiff on May 29, 2008 (hereinafter “instant disposition”).

D. On January 13, 2010, the Plaintiff filed a request for a trial with the Tax Tribunal on January 13, 2010, but was dismissed on March 29, 2010.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to Gap evidence 4, Eul evidence 1 to Eul evidence 3

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) In the case of a gift with a real guarantee obligation, if the donee takes over the secured obligation, the taxable amount of gift taxes shall be the value calculated by deducting the acquisition amount from the value of the property when the donee takes over the secured obligation. As the plaintiff takes over the debt 460 million won to △△△ Bank of △△△△△△△, after receiving the apartment in this case from KimA, it is unlawful for the defendant to calculate the taxable amount of gift taxes without deducting the amount of the debt that the plaintiff takes over in this case.

(2) The representative director is the father of the Plaintiff, and the auditor is a small-scale family company, which is the Plaintiff, and if the amount of the obligation is not repaid, the Plaintiff, which is a collateral, should be repaid as the apartment of this case, that is, the Plaintiff, who is scheduled to accept the said clause. It is unlawful for the Plaintiff to impose tax on the Plaintiff by deeming that the Plaintiff did not assume the collateral collateral obligation even though it actually assumed the collateral collateral obligation of Doggging.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) As seen earlier on May 16, 2008, the Plaintiff agreed to receive the instant apartment from the mother KimA, and therefore, the Plaintiff was liable for and repaid the liability of KRW 460 million with respect to the instant apartment on May 29, 2008. As to the instant apartment on May 19, 2008, the registration of ownership transfer was made on the ground of the said gift agreement with the Plaintiff on May 19, 2008.

(2) From June 29, 2007 to August 21, 2009, △△ Bank paid interest equivalent to KRW 5,750,000 per month on the total cost of KRW 2240,000 per month as interest on the said debt amount of KRW 460,000.

(3) On July 23, 2002, YU was established for the purpose of the business of manufacturing motor vehicle parts and measuring instruments. KimB, the representative director, KimB is the plaintiff's father, and the above KimA is registered as a director of YU and the plaintiff as the auditor.

[Reasons for Recognition] Facts without dispute, each of the evidence mentioned above, Eul evidence No. 4-1 to 3, and 8, the purport of the whole pleadings

D. Determination

(1) Judgment on the first proposal

Article 47(2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9924, Jan. 1, 2010) provides that even in cases where a donee takes over a donor’s obligation with respect to a gift with a burden on a lineal ascendant or descendant, the relevant amount of debt shall be presumed not to have been taken over by the donee. However, in cases where the relevant amount of debt falls under each subparagraph of Articles 36(2) and 10(1) of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 22151, May 4, 2010) and where the donee takes over it objectively, the amount of debt shall be calculated by subtracting the relevant amount of debt from the value of the donated property. In general, in cases of a gift with a real estate established by a third party as a collateral security right, it shall not be deemed that the donee takes over or bears the burden of proof as to the fact that the donee took over a collateral obligation with a discharge from the value of the donated property.

In this case, Kim A and the plaintiff, a donor of the apartment of this case, were the mother-and-child relationship as mentioned above. There is no evidence to acknowledge that the plaintiff, who received the apartment of this case from KimA, exempted the obligation of collateral security, or the plaintiff paid it by his own purchase after the acquisition. Rather, there is no other objective evidence to acknowledge that the plaintiff, in addition to the donation contract prepared under the agreement between the plaintiff and Ma KimA, and the ownership transfer registration under the above donation contract, the assumption contract entered into between the plaintiff and △△ bank, in addition to the ownership transfer registration under the above donation contract, there is no other evidence to acknowledge that the plaintiff acquired the above collateral obligation of Masung, such as the real estate copy of the real estate register, etc. with the debtor's name, and ② the obligation of collateral security on the apartment of this case, which was established as of June 28, 2007, was still liable for the acquisition of the above collateral obligation of YU, an apartment of this case, which was established by the debtor and the debtor of this case.

(2) Judgment on the second ground

In addition, as seen earlier, KimB, the representative director of Ma terms terms and conditions, is the Plaintiff’s father, and the Plaintiff was registered as the auditor of Ma terms and conditions, and even if the Plaintiff was donated the apartment of this case from the Plaintiff’s mother, he is a director of Ma terms and conditions, the Ma terms and conditions have separate independent legal personality and have reached the degree of being identical with Ma terms and conditions at the time of the donation of this case, and there is no evidence of exceptional circumstances that the Plaintiff’s succession to the status of Ma terms and conditions of Ma terms and conditions to the extent of being identical with Ma terms and conditions at the time of the donation of this case, the Plaintiff cannot be deemed to have taken over the obligation of Ma terms and conditions against Ma terms and conditions. Therefore, the Plaintiff’s above assertion is without merit (the Plaintiff’s assertion that the Plaintiff paid the obligation of Ma terms and conditions through a reference document, but there is no evidence to acknowledge it, and even if the Plaintiff paid the obligation of Ma terms and conditions on behalf of Ma terms and conditions.

3.In conclusion

Therefore, the plaintiff's claim of this case is without merit, and it is so decided as per Disposition by the court below.