Whether the obligation has been discharged from the obligation at the time of onerous donation

It is legitimate to deny the original disposition that denies an onerous donation by deeming that the plaintiff could not be deemed that the creditor had assumed the obligation that was not approved and changed as of the date of donation and that there was no fact that the plaintiff actually repaid the obligation thereafter.

Article 45 of the Inheritance Tax and Gift Tax Act: Estimated donation of funds for acquiring property

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s disposition of imposition of gift tax of KRW 21,353,790 on the gift of May 24, 2006 against the Plaintiff on August 24, 2006, and KRW 2,639,070 on the gift of June 1, 2005, and KRW 20,621,790 on the gift of August 22, 2005, respectively, shall be revoked.

1. Details of the disposition;

A. On May 6, 2005, the Plaintiff entered into a contract of donation (hereinafter referred to as “instant donation contract”) under which 4/6 of the 00 square meters of 00-0 large 600 square meters of this case’s ownership (hereinafter referred to as “the instant real estate”) are to be donated with ○○○○○○○○○○-dong, 00-0 large 600 square meters, which is the father of this case. On May 24, 2005, the Plaintiff completed the registration of ownership transfer on the ground of donation under the status of 98390 on the receipt of registration office of Suwon District Court, Mawon-si, Mawon District Court No. 98390 on May 6, 2005, on May 2, 2005, ○○○○-si, Inc., Ltd. (hereinafter referred to as “○○ bank”) established the maximum debt amount of the instant real estate and the instant ground mortgage as joint collateral.

B. The Plaintiff reported and paid 9,51,770 won of registration tax on May 23, 2005, and 11,087,710 won of acquisition tax on June 1, 2005. On August 22, 2005, when the Plaintiff reported the gift tax base to the Defendant on August 22, 2005, assessed 504,000,000 won of the instant real estate, and assessed 4,24,000,000 won of the instant real estate, which was deducted from the liability to pay 8,00,000 won as gift tax, as gift tax base. The Plaintiff calculated 394,00,000,000 won after deducting 3,00,000 won of gift tax deduction from 3,00,000,000 won after deducting 68,80,000 won of gift tax deduction from 68,000,000 won of the instant real estate as gift tax base.

C. However, on the ground that the instant donation contract does not constitute an onerous donation, the Defendant denied the deduction of the instant obligation from the taxable value of donated property reported by the Plaintiff on the ground that it does not constitute an onerous donation. At the same time, the Defendant disposed of and notified the Plaintiff of the gift tax of KRW 82,58,00 (hereinafter “instant gift tax, etc.”) on August 2, 2006 by deeming that the sum of the registration tax of KRW 9,551,770 and acquisition tax of KRW 11,087,710 and gift tax of KRW 61,920,00 paid by the Plaintiff, and the sum of KRW 82,58,000 (hereinafter “the instant gift tax, etc.”) on the donation of KRW 21,353,790 for the portion of gift tax of May 24, 2006 on the donation of KRW 21,639,00 for the portion of gift tax of June 1, 2005, Aug.22

Facts without dispute over the basis of recognition, Gap evidence 1 through Gap evidence 3-4, Gap evidence 11-2, Gap evidence 13, Gap evidence 17-1, Eul evidence 17-2, Eul evidence 5-2, Eul evidence 5-3, Eul evidence 6, 7, 10, 16, and 17, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

After the conclusion of the donation contract of this case, the name of the debtor of the right to collateral security related to the debt of this case was not changed from ○○, which is the father of the plaintiff, to the plaintiff, and the debt acquisition becomes effective retroactively by changing the name of the debtor of the right to collateral security to the plaintiff and then changing the name of the debtor of the right to collateral security has become the debtor of this case. Thus, the amount of the debt of this case should be deducted from the taxable value of gift tax. In addition, since 1992, the plaintiff did not collect or pay the debt of this case under the premise that the plaintiff actually paid the gift tax of this case, including the wage of 48 million won while serving in the company run by ○○○, which was 15,938,938,00 won from June 5, 200 to September 28, 201.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The gift contract of this case (No. 5-2) states that "No. 00, who is the donor, donated the real estate of this case to the plaintiff to the witness, shall assume the obligation of collateral security (the base amount on May 6, 2005: KRW 80 million) which has already been established on the said real estate in addition to the donation contract of this case."

(2) However, after the conclusion of the instant gift contract, the Plaintiff failed to implement the procedure to change the name of the debtor of the instant obligation from ○○ to ○○ to the Plaintiff for about one year and five months. On November 6, 2006, the Plaintiff made a registration of change of the right to collateral security that changed the debtor from ○○ to ○○○ to the Plaintiff.

(3) The interest on the debt of this case was paid KRW 400,000 each month through the bank account opened in the name of the plaintiff (hereinafter "the account of this case"). From June 10, 2005 to May 10, 2006, KRW 80,000 per month was deposited into the above account. From May 18, 2006, 1 million to KRW 170,000 per month from Red ○○○○. However, ○○○ was a lessee of a building located in ○○○○○○, 00-00, which was owned by ○○○○○○○○, which was delegated by ○○, the plaintiff, at the time of entering into the donation contract of this case, to manage the above real estate in the name of the tenant and to receive it from the above building in the name of ○○.

(4) From ○○○ Bank Account (000-00-000) under the Plaintiff’s name to ○○○ Bank Account (000-000), KRW 11,640,000 on May 22, 2005, and KRW 640,640,000 on May 30, 2005, and KRW 64,460,00 on June 7, 2005, respectively, were remitted to ○○○ Bank Account under the Plaintiff’s name to ○○○○○ Bank Account, and KRW 64,460,000 on June 8, 2005, deposited KRW 64,60,000 on August 222, 2005.

(5) According to the income data deliberation council on the plaintiff and his spouse, the plaintiff acquired business income equivalent to 3,434,000 won from 200 to 2005 through ○○○○○○, etc., while the ○○○ acquired earned income equivalent to 38,147,000 won from the transportation company, etc. for the same period. On the other hand, the plaintiff’s father, the ○○○, who is the plaintiff’s father, was engaged in the real estate leasing business at ○○○○○○-gu and ○○○○○○○○ Dong, ○○○-dong, and reported the transfer value as 87,792,00 won for the reported income in 204, and 94,592,000 won for the reported income in 205, while reporting the transfer value of real estate on November 2006.

(6) Meanwhile, on May 9, 2006, the time when the Plaintiff was donated the instant real estate, the Plaintiff entered into a sales contract on the said real estate surface building, and completed the registration of ownership transfer on the grounds of the said sales contract on May 24, 2005, and entered into a lease contract on some of the above buildings with Park○, ○○, and Do○○, etc. on June 15, 2005, and Hong○, who was delegated the receipt of rent from Lee○, as well as from May 17, 2006, transferred the money equivalent to the rent that the Plaintiff received from Lee○, who was not the Plaintiff, to the account in the name of Lee○, not the Plaintiff.

Facts without dispute over the basis of recognition, Gap evidence 1, 2, Gap evidence 19-1 through 3, Gap evidence 21, Eul evidence 2, Eul evidence 5-2, 3, Eul evidence 8, 9, 11 through 15, and the purport of the whole pleadings.

D. Determination

(1) Judgment on the disposition imposing gift tax on the portion of gift made on May 24, 2005

(A) Article 47(1) of the Inheritance Tax and Gift Tax Act provides that "the taxable amount of gift taxes shall be the amount calculated by subtracting the amount acquired by the donee from the aggregate amount of the donated property as of the date of donation, which is a debt secured by the donated property as of the date of donation." This is because, in case of a donation of a property on condition that a donor takes over the debts of the donor, the pecuniary gain acquired by the donee shall be limited to the difference between the value of the donated property less the amount of the assumption of the debts, and thus, only such difference shall be imposed. However, even though a creditor, a donor, who is a debtor, has already taken over the debts guaranteed by the real estate in the future when he/she donated the property to the donee, without the consent of the creditor, the assumption of debts between the donor and the donee is merely an internal acceptance of performance without any effect for the creditor, or a overlapping assumption that the donee may claim the performance of the donee against the donor as well as the donor. Therefore, in such a case, since the donor's debt is not transferred to the donee, it cannot be recognized that the donee has taken over the obligation.

(b)In addition, Article 47 (3) of the Inheritance Tax and Gift Tax Act provides that "if a donee takes over a donor's obligation with respect to an onerous donation between the spouse or between lineal ascendants or descendants, the donee shall be presumed to have not taken over the donee's obligation, except in such cases where the donee objectively recognizes the amount of obligation as such under the conditions as prescribed by the Presidential Decree, such as an obligation which is not attributable to the spouse or a local government." This is to prevent the evasion of the gift tax which is convenient for the onerous donation between the spouse or lineal ascendants or descendants. Therefore, in case of an onerous donation between the spouse or lineal ascendants or descendants, it shall be determined at the time of the donation in question as to whether the donee's obligation which the donee takes over is subject to deduction as it constitutes the obligation of the proviso of the donor in question (see Supreme Court Decision 87Nu1242 delivered on May 24, 198), it shall not be deemed that the donee takes over the collateral immediately in case of a donation from the spouse or a lineal ascendant.

(C) As to the instant case, it is difficult for the Plaintiff to view that ○○○○○○○○’s lineal descendants were not assumed by the donee pursuant to Article 47(3) of the Inheritance Tax and Gift Tax Act. Thus, the Plaintiff, who was a donee, at the time of donation, should prove that ○○○○○○○ was discharged from liability, or that ○○○○○○○○○○○ was discharged from liability upon acceptance of obligation jointly. As seen earlier, it is difficult for the Plaintiff to view that ○○○○○○○○○○○’s obligation was an obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-backed obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based obligation-based.

(2) Determination on the imposition of each gift tax on the gift of June 1, 2005 and August 22, 2005

(A) The fact of donation of property, which is a requirement to impose gift tax, is presumed to have been donated by a spouse or a lineal ascendant without any proof, in a case where a person with a certain occupation and considerable refluence has not clearly verified the source of part of the funds in the course of trading real estate, such as purchase by the tax office. However, in a case where a person without any special occupation or property fails to prove that he/she received the funds from his/her spouse or a lineal ascendant, and his/her lineal ascendant, etc. has the ability to give a gift, it shall be presumed that he/she received the funds from the person with the refluence thereof (see, e.g., Supreme Court Decisions 2004Du8958, Apr. 14, 2005; 96Nu1900, May 10, 1996). In this case, in order to presume that the assets were donated by identifying the source of funds to acquire property, the donee should be presumed to have been used not only as the funds but also as the funds acquired by the funds (see Supreme Court Decision 2197Nu 197Nu.

(B) Regarding the instant case, as seen earlier, the Plaintiff did not have any special income to pay the gift tax at the time of the conclusion of the instant donation contract, while this ○○, the lineal ascendant, recognized that the Plaintiff had sufficient income and financial capability to pay the gift tax of this case. Therefore, it is reasonable to presume that the Plaintiff received a donation from ○○○ to receive the repayment of the gift tax of this case.

On the other hand, the plaintiff asserted that the total amount of KRW 115,938,00,00, including the amount of KRW 48,8,000,000,000,000,000,000,0000,000,000 as a marriage incentive around 1995 as well as the amount of KRW 28,000,000,000,000,000, 115,938,000,000, which was formed from June 5, 200 to September 28, 2004 as the her husband’s monthly salary, etc., paid to the company operated by ○○○ from around 192. However, there is insufficient evidence to acknowledge that the plaintiff paid the gift tax, etc. of this case with the funds raised by the plaintiff. Thus, the plaintiff’s assertion is without merit

Ultimately, as seen earlier, it is reasonable to deem that the Plaintiff received not only the gift of the instant real estate from ○○○ but also the funds to redeem the instant gift tax, etc., so the Plaintiff’s each disposition imposing gift tax on the gift of June 1, 2005 and August 22, 2005 is lawful.

3. Conclusion

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