Early High Court Decision 201Du0640 ( November 24, 2011)

It is reasonable to view that the claimant's spouse has received real estate acquired by payment in kind of loan in the name of the claimant as a donation for the loan.

In light of the fact that the claimant is confirmed as the spouse of the claimant on the register of the real estate transferred under the name of the claimant, and the spouse of the claimant used the real estate as collateral for the claimant, but the claimant has not been confirmed as having paid interest, etc., it is reasonable to view that the claimant has received a donation of the claim equivalent to the

Article 2 of the Inheritance Tax and Gift Tax Act

2012Guhap2369 Revocation of Disposition of Imposition of Gift Tax

DoAA

BB Director of the Tax Office

July 4, 2013

August 22, 2013

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 OOO on July 12, 2010 against the Plaintiff is revoked.

1. Circumstances of dispositions;

A. On December 28, 2006, the registration of ownership transfer was made from the KimCC on the OO-dong 604-39, and 605-29 land (hereinafter referred to as “instant real estate”) owned by KimCC on the part of the Plaintiff.

B. As to this, the Defendant, and the Plaintiff’s acquisition of the instant real estate, deeming that KimD, the husband of the Plaintiff, acquired from KimCC and donated to the Plaintiff as payment in kind, and, in the amount of gift tax levied, the spouse’s gift tax deduction was deducted from KRW 300,000,000, which was the spouse’s gift tax amount, and then levied on the OOO on July 12, 2010 (i.e., the determined tax amount + the determined tax amount + the KRW OOO won in the additional tax return + the additional additional tax return + the OOOwon in the additional tax return) (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on February 16, 201, but was dismissed on November 24, 201.

Facts without dispute over the basis of recognition shall be described in 1 and 2, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff and KimD are married, but they are in a partnership relationship on the other hand, and inasmuch as KimD lends OOOO to KimCC and acquired the instant real estate under the pretext of payment in kind, it is unlawful to impose gift tax by deeming that the instant real estate was donated from her husband, her husband, even though it falls under the same business property, and that it was donated from KimD.

(2) Even if the relationship between the Plaintiff and KimD cannot be viewed as a partnership relationship, and even if the Plaintiff and KimD acquired the real estate through joint efforts during their marital life as a married property, it cannot be viewed as a gift even if they were acquired in the name of the Plaintiff.

(3) Even if all of the above arguments are not accepted, and since the plaintiff has lent OOO Won to KimD, it should be viewed as OOOO which deducts the above loan OOOOO Won from the above OOO.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Facts of recognition

(A) On July 12, 2005, KimD, the husband of the Plaintiff, was set up a collateral on the instant real estate, which is the maximum amount of claims, with the lease of the OOE to KimCC on July 12, 2005. Moreover, on April 19, 2006, the Plaintiff leased the OOOE to set up a collateral on the remainder of the maximum amount of claims. Meanwhile, on the other hand, on the instant real estate, three collateral mortgages, which are the aggregate amount of the maximum amount of claims, were set up prior to the creation of each collateral.

(B) Examining the developments leading up to the development of the above loan OOOOOO, and on October 6, 2004, sold real estate located at OOO-dong 676-257, which was owned by KimD on October 6, 2004, and stored part of OOOOOOO under the name of the plaintiff on January 11, 2005, but withdrawn OOOO won among them on July 12, 2005, and withdrawn OOO won from the deposit passbook under the name of KimD, and lent it to KimCC as above, and even loan certificates prepared at the time of the above loan were also written by KimD as a creditor.

(C) However, KimCC failed to repay the above loan, and KimD acquired the instant real estate under the pretext of payment in kind, and completed the registration of ownership transfer on the instant real estate under the name of the Plaintiff on December 27, 2006, and acquired the secured debt, which was established on January 25, 2007, under the name of the Plaintiff.

(D) On January 25, 2008, KimD took out a loan of OOO Won on the instant real estate as collateral, and repaid all the loan obligations (a loan obligations acquired under the name of the Plaintiff and a loan obligations remaining in the name of KimCC) secured by the instant real estate, and cancelled the right to collateral security established by KimD.

(E) On July 1980, the Plaintiff and KimD were legally married couples who completed the marriage report, and purchased OO-si 398-35 O-dong 103 under the name of KimD on June 24, 1981, and thereafter, on November 8, 1988, the Plaintiff and KimD leased and operated livestock products sales stores in large-scale discount stores under the name of KimD.

(F) From February 1992, the said livestock product sales store was operated in money to open and operate the said livestock product sales store in the name of MadD, OO-dong O-dong 711-18, and around April 2001, the said livestock product wholesale center was newly opened in the name of MadD, and the said livestock products sales store was discontinued in the name of MadD, and at the same time, it cannot be handled together with domestic and imported products under the relevant laws and regulations at the time. At this time, around August 2003, the said store opened a new place of business in the name of the Plaintiff and opened a new place of business in the name of the Plaintiff, and sold imported products from the Plaintiff’s place of business in the name of the Plaintiff, and closed the two above two places of business around around 2005.

(G) The Plaintiff and KimDD decided to engage in real estate rental business using property reproduced through the import of livestock product sales business and real estate sales, and acquired 21 EE stores, a commercial building located in OOO-dong 674-62, under the joint name, from November 2004, began to engage in real estate rental business in the name of both the Plaintiff and KimD business and thereafter acquired 137R stores in the joint name, and 1 in the name of the Plaintiff.

Facts that there is no dispute over the basis of recognition, and entries in Gap evidence 9 through 32 (including each number in the case where there is a number), and the testimony of witnesses KimD, and the purport of the whole pleadings.

(2) Whether the instant real estate was acquired as a business property

At the time of the acquisition of the real estate in this case, the plaintiff and KimD were engaged in real estate rental in the name of joint business, but even if the plaintiff and KimD were in a partnership business relationship, the real estate in this case was acquired as a substitute for the money lent by KimD regardless of the above lease business, and it was not a real estate for lease, and there is no other evidence to acknowledge it.

Therefore, this part of the argument is without merit.

(3) Whether they constitute common property of husband and wife

(A) The Korean Civil Act adopts a separate marital system and provides that "property acquired under the name of the father in the marriage before the marriage shall be the unique property (Article 830(1)), and the property whose belongs to any of the married couple shall be presumed to be the co-ownership of the married couple (Article 830(2)). Therefore, if one spouse has acquired real estate in his/her own name during the marriage, the property shall be deemed to be the unique property of the nominal couple. However, in principle, if one spouse has acquired it in his/her own name during the marriage, the property shall be deemed to be the special property of the married couple, while our Civil Act adopts the separate marital system, and in accordance with the purport of the current marital property system and the division of property system, there are cases where one spouse can be deemed to be the public property of the married couple regardless of who is the nominal person, and the other spouse may have the co-ownership right to the

However, even if one spouse recognizes the right to share of the property acquired in the name of the other spouse, if the property is real estate, it can only be the object of the division of property when the other spouse reaches the stage of the division of property following the resolution of marriage, and there is no way to recognize or recognize the right to share in the external relationship during the marriage without the registration of change due to the division. However, although the nominal owner may transfer part of the property to the other spouse and make it a shared property, it is presumed that the property transferred under Articles 44 and 45 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201) is a donated property or its acquisition amount is presumed to have been donated. Therefore, it is difficult to exempt the other spouse from the imposition of gift tax on the other spouse.

Therefore, if one of the spouses purchases real estate with funds from the other spouse, the real estate is presumed to be the special property of the nominal owner in the country and externally, but the tax authorities can impose gift tax on the part exceeding the limit of the spouse's deduction because the nominal owner appears to have purchased the real estate in the name of the other spouse after receiving funds from the other spouse.

(B) As seen earlier, the real estate in this case was acquired by KimD as a substitute payment for the above loan claims, and it is difficult to view it as property acquired by the joint efforts during the above marital life, and even if it is viewed as a different factual relationship, there is no problem in the Defendant’s imposition of gift tax. Thus, this part of the Plaintiff’s assertion is without merit (However, if the taxpayer claims and proves that the pertinent real estate cannot be deemed as a donation because it is not a nominal trust, but a nominal trust, of another spouse, not a nominal owner of the pertinent real estate, the presumption of special property is reversed (see, e.g., Supreme Court Decision 2006Nu8068, Sept. 25, 2008). However, in this case, the Plaintiff asserted that the Plaintiff and KimD were the Plaintiff based on the property jointly on the same marital relationship or marital relationship, and that the actual owner of the instant real estate was the Plaintiff, and it is no further examined).

Therefore, the plaintiff's above assertion is without merit.

(3) Whether the Plaintiff should deduct the loan to KimD

According to the overall purport of evidence evidence Nos. 4 through 7, evidence No. 33, and each of the above statements and arguments, it is difficult to see that the above OOE was withdrawn from the deposit passbook under the plaintiff's name on July 12, 2005, OOOE was withdrawn on March 22, 2006, and OOE was withdrawn on March 27, 2006, and that OE was remitted to EOE food on March 27, 2006, respectively, by OOE under the name of the plaintiff's 200.3, it is difficult to view that the above 2OEOE was transferred to OE under the name of the plaintiff's 20.3, and that the above 201 OED was sold under the name of the plaintiff's 1,67.25 OE, and that the above 201 OEEM was sold under the name of the plaintiff.

Therefore, the plaintiff's above assertion is without merit.

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.