Seoul Administrative Court 2015Guhap2611 ( November 27, 2015)

Seocho 2014west 4258 ( November 14, 2014)

The amount of real estate acquired in the name of the child after the father transfers the real estate acquired in the name of the child to the father shall be deemed to be the donation.

(In part of the judgment of the first instance court) bbbba paid 0 billion won to Aa is not subject to Article 36 of the Inheritance Tax and Gift Tax Act, and it is reasonable to deem that aa unilaterally purchased and sold 00 buildings, and that 00 buildings were owned by bbb, and that bbb paid 00 buildings owned by the principal to bba is subject to donation.

Article 2 of the Inheritance Tax and Gift Tax Act

The donation under Article 36 of the Inheritance Tax and Gift Tax Act

2016Nu3032 Revocation of Disposition of Imposing gift tax

EAA foreign1

○○ Head of tax office

Seoul Administrative Court Decision 2015Guhap2611 decided November 27, 2015

on December 22, 2016

on 13, 2016

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The gift tax made by the Defendant against the Plaintiff Ea on December 1, 2013

Imposition of KRW 0,000,000,000 and gift tax on December 13, 2013 against Plaintiff Leeb

The imposition of KRW 0,000,000,000 shall be revoked in all.

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance, except for the case where "208," No. 2, No. 17 of the judgment of the court of first instance as "No. 2008." (No. 2, No. 7, and No. 4, No. 16)". Thus, this part is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The court's explanation about this part of the judgment of the court of first instance (No. 4, 19)

Since the entry is the same as the entry, it shall be quoted by Article 8(2) of the Administrative Litigation Act, the main text of Article 420 of the Civil Procedure Act.

B. Relevant statutes

The court's explanation about this part shall contain the corresponding part (No. 10) of the judgment of the court of first instance.

Since it is the same as this, Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act are cited.

C. Determination

1) As to the first argument

A) under Articles 4(3) and 36 of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”)

In case where a creditor has been exempted from a debt from a creditor or has received a repayment of debt from a third party, the amount equivalent to the profits from such exemption or repayment shall be considered as the value of donated property of the person who has acquired the profits, but when the donee is deemed incapable of paying the gift tax, all or part of the gift tax equivalent thereto shall be exempted

B) On August 2012, 2012, the plaintiffs sold all real estate owned by the plaintiffs and their family members on August 9, 2012, including selling ○ building at KRW 0 billion to ○○○ Mutual Aid Association, and received approximately KRW 00 billion sales price on August 9, 2012. The fact that the plaintiffs Lee Ga returned KRW 00 billion out of KRW 00 billion to ○○ Mutual Aid Association on August 23, 2012, as seen earlier, to ○○ Mutual Aid Association as the price for the repayment of damages. The fact that the plaintiffs Lee b paid KRW 0 billion in the sales price of ○ building to ○○ Building to ○○○ Mutual Aid Association was not disputed between the parties.

However, the facts and evidence mentioned above, and the whole purport of the pleading are as follows.

under the circumstances, i.e., (i) the Plaintiff Ea causes damage reimbursement to the ○○ Mutual Aid Association on August 23, 2012.

The plaintiffs paid 00 billion won to the ○○ Mutual Aid Association, but the above amount is sold to the plaintiffs.

The amount of KRW 00 billion, compared to the amount of KRW 00 billion received, is less than the amount of KRW 00 billion, as well as the time of payment thereof, ○○ Mutual Aid Association’s payment of real estate sales price to the Plaintiffs 14 days after August 9, 2012. Thus, it cannot be readily concluded that the above KRW 00 billion includes KRW 0 billion in the purchase price of ○○ building received from Plaintiff b, and even if so, KRW 00 billion.

Even if the purchase price of ○○ building includes KRW 0 billion, the Plaintiff Lee bb nationwide.

The professor Association expressed its intent to repay the Plaintiff’s debt instead of the Plaintiff’s debt; or

○○○ Mutual-Aid Association received KRW 0 billion from Plaintiff Aa, and there is no evidence to deem that Plaintiff B had recognized the circumstances that Plaintiff AB paid the Plaintiff’s debt on behalf of Plaintiff Aa.

In light of the above facts, ○○ Mutual Aid Association’s debt to Plaintiff A.

(b) the Plaintiff, a third party, has been relieved of or has been paid part of the amount of damage from the Plaintiff Lee b.

there is no other evidence to acknowledge it.

C) Therefore, it cannot be interpreted that the act of Plaintiff Lee b paid KRW 0 billion to Plaintiff Lee a and the case where Article 36 of the Inheritance Tax and Gift Tax Act is applicable. Thus, the Plaintiffs’ prior to this different premise is different.

The above argument is without merit.

2) As to the second argument

A) Evidence Nos. 6, 7, 9, 14, 15, 17, 18, 23, and evidence Nos. 3 through 6, 8, and 12 (provisional number)

According to the overall purport of each statement and argument, ① the donation contract submitted by the plaintiffs to the defendant, the gift tax base return, and the dispatch of the plaintiff Leeb affixed the seal of the plaintiff Leeb on the gift contract submitted by the plaintiffs to the defendant, ② the loan of KRW 00 million from ○○ Bank (hereinafter "○○ Bank") to the plaintiff Leeb (hereinafter "the loan of this case") on April 22, 2008 (hereinafter "the loan of this case") and the registration of establishment of mortgage was completed on April 22, 2008, ③ the plaintiff Leeb was directly issued a certificate of personal seal impression to be used in the loan of this case, ③ the plaintiff Leeb was issued by the investigative agency to become aware of the fact that ○ building was in its name at the time of the above loan contract of this case, ④ the plaintiff Leeb reported himself as the rental business operator of ○○ building and paid all taxes therefrom, ⑤ the plaintiff Leeb paid all taxes.

During the period of operation of the ○○ Mutual-Aid Association, the property owned by the Plaintiffs Ea and their families increased considerably, and the Plaintiffs and their families resided in a high-priced house during the above period, and owned several high-priced automobiles, and the Plaintiff Eb transferred at least KRW 100,000 per year from Plaintiff Eb to Plaintiff Eb while studying in a foreign country; 6. The investigation agency commenced an investigation into the Plaintiffs on July 31, 2012, and executed seizure and search, and then immediately escaped from the Plaintiffs and their families, and 7. Upon the commencement of the investigation as above, Plaintiff Eb sold ○ building to the ○○ Mutual-Aid Association.

B) The facts acknowledged in the aforementioned disposition and the facts of the above recognition, as well as the evidence, as seen earlier; and

In full view of the following circumstances, it is reasonable to view that Plaintiff A unilaterally purchased and sold ○ building, and that ○ building was owned by Plaintiff B, considering the respective descriptions of 16, 24, 26, and 18 Evidence Nos. 18 (including Serial number), and that Plaintiff A unilaterally purchased and sold ○ building, and that ○○ building was owned by Plaintiff B, therefore, this part of the Plaintiffs’ assertion that differs from this premise is without merit.

① Although Plaintiff bB was rendered a final and conclusive verdict of innocence with respect to the embezzlement part relating to ○ building, the main reason for the final and conclusive judgment of innocence is only the fact that Plaintiff bB failed to prove to the extent that there is no reasonable doubt as to whether ○ building was embezzled in collusion with Plaintiff ba, and it is not based on the judgment that ownership of ○○ building was not attributed to Plaintiff bb. Thus, the said judgment of innocence alone cannot be deemed as Plaintiff aa.

② In light of the fact that: (a) Plaintiff bb has exercised significant influence by the ○○ Mutual Aid Association, such as taking charge of the principal duties such as withdrawal and enforcement of funds; (b) committed a crime of fund-raising in collaboration with Plaintiff a; (c) Plaintiff aa and his family members continued to reside in high-class houses, possession of several high-class high-class vehicles, overseas transfers, etc. during the period of operation of the ○○ Mutual Aid Association; and (d) Plaintiff bb appears to have been systematically avoided the investigation of the Plaintiffs’ family members when the prosecution conducted the investigation against the Plaintiffs; and (b) even if Plaintiff b did not compete with Plaintiff a and embezzlement, it is deemed that the act of embezzlement of Plaintiff b was recognized directly or indirectly.

③ The plaintiffs asserted that the plaintiff Leeb had followed the direction of the plaintiff Leeba and did not know about the sales process of the ○ building. However, at the time of the prosecutor's investigation, the plaintiff Leeb made a statement that the plaintiff Leeb was aware of the fact that the plaintiff Leeb had visited the ○ bank at the time of receiving the loan of this case and signed the loan of this case at the time of the prosecutor's investigation, but later, the plaintiff Leeb was aware that the transfer of ownership was completed in his own name at the time of receiving the loan of this case (Evidence No. 18, 24). During the prosecutor's investigation process, the plaintiff Leeb stated that the plaintiff Leeb did not visit the ○ bank at the time of the loan of this case, and that the plaintiff Leeb did not visit the ○○ bank at the time of the investigation process of the prosecutor's investigation, and that he denied embezzlement of the embezzlement of KRW 00 billion on the loan

In the case of Seoul Administrative Court 000Guhap0000, the related case, in light of the facts of embezzlement of KRW 000,000 for the loan of this case and the fact that Plaintiff b visited ○○ Bank at the time of the loan of this case and signed with ○○ Bank (Evidence No. 18 of this case), it is difficult to accept the Plaintiffs’ above assertion.

In addition, even though the purchase price of the building was paid as the fund of the ○○○ Mutual Aid Association, it is difficult to view that Plaintiff BB, who was in charge of major duties such as withdrawal and execution of funds, was unaware of the details of the sales of the ○○ building at the ○○ Mutual Aid Association. Furthermore, in light of the fact that Plaintiff B, at the time of entering into the loan contract with ○○ building as collateral, was directly issued a certificate of his personal seal impression at the time of the conclusion of the loan contract, and at the time of the registration of ownership transfer of the ○○ building was known, Plaintiff B, who was aware of the fact that the sales contract for the ○○ building and the loan contract for the ○○ building as collateral was concluded to which he was a party,

④ The reasons why the Plaintiff purchased real estate in the name of the Plaintiff Leeb or his family under the name of the Plaintiff Leeb.

In this regard, it is argued that the purchase price can be lowered if it is purchased in the name of the individual, and the real property is expected to be returned to the ○○ Mutual Aid Association after acquiring the real property again, but the investigation of the plaintiff Lee-a is conducted

any real estate which the plaintiff a voluntarily returned to the ○○ Mutual Aid Association not later than the commencement of such

○○ building seems to have been owned for about four years by the Plaintiff Leeb. The Plaintiff was the Plaintiff.

If an investigation of thisa has not been initiated, it would have been deemed that ○○ Mutual Aid Association has been returned.

⑤ The Plaintiff’s ○○ Mutual Aid Association’s funds embezzled and takes real estate under the name of his family.

In acquiring, the gift tax shall be paid to the acquisition process of the remaining real estate except ○ building.

under the name of the plaintiff Lee b, who acquired the ○ building under the name of the plaintiff Lee b and received the purchase fund.

The reason why the gift tax has been paid is that the ○ building is finally transferred to the plaintiff Lee bb.

It seems to have been the purpose of the cycle.

The plaintiffs paid gift tax only on ○ building.

It is intended to avoid an investigation into the source of gold and due to the advice of cC, a tax agent, to pay gift tax in advance in order to avoid an excessive comprehensive real estate holding tax to be imposed on the plaintiff Lee a, and in fact, to vest the ownership of ○ building in the plaintiff Lee b.

The plaintiff testified that he had not intended to pay the gift tax first in the Seoul Administrative Court case No. 000Guhap0000, which is the case of the NAC, but the plaintiff testified that he would be able to pay the gift tax first (Evidence A. 16), and ○ building than the gift tax to be paid in the amount of KRW 000,000,000,000.

B. The majority opinion is that there is no more comprehensive real estate holding tax to be imposed in addition, and it is necessary to avoid the investigation into the source of funds only with respect to the ○○ building among 11 real estate.

It is difficult to believe the above assertion in light of the fact that there is no doubt as to whether there was any reason or not.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in its entirety due to the lack of grounds, and the judgment of the court of first instance is so dismissed.

As the conclusion is reasonable, the plaintiffs' appeal is dismissed in its entirety due to the lack of grounds. It is so decided as per Disposition.