There is no ground to believe that married couple owned the real estate in this case as joint ownership.

There is no basis to believe that the couple owned the instant real estate as a partnership, and this disposition is a gift from the spouse.

Article 2 (3) of the Inheritance Tax and Gift Tax Act

2015Guhap52098 Revocation of Disposition of Imposition of Gift Tax

IsaA

00. Head of tax office

July 10, 2015

August 19, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s revocation of the imposition of gift tax of KRW 000,000,000 against the Plaintiff on July 1, 2013.

1. Details of the disposition;

A. The Plaintiff and ParkM’s transfer of ownership

1) On April 30, 2001, the Minister of Construction and Transportation designated and publicly notified 00 - 00 - 00 - 00 - 00 - 00 - as the housing site development area (hereinafter referred to as the “instant project district”) and designated the Korea Land Construction and Transportation as the implementer of the housing site development project and supplied housing site by designating the Korea Land Construction and Transportation as the housing site development project.

2) Accordingly, on December 14, 2001, the Korea Land Corporation approved the housing site development plan by the Minister of Construction and Transportation, and on December 18, 2001, issued a public notice of the development plan that "the Korea Land Corporation grants priority to commercial tender participation only once in supplying developed housing sites to the owners of the land in the project district (the recipient of a claim for land compensation with a total amount of 200 million won or more in lieu of cash compensation) who meet certain requirements among the owners of the land in the project district."

3) From May 2002 to November 2002, the Korea Land Corporation entered into a contract for the purchase of land owned by KimB, PCC, GangwonD, and KimE (hereinafter “GGB”) from KimB and three other parties in the instant project district, and the Korea Land Corporation shall pay some of the purchase price (not less than KRW 00 billion) out of the purchase price as a bond for site compensation instead of paying the purchase price in cash to KimB and three other parties, and then the Korea Land Corporation shall grant only once the priority of participation in commercial land (hereinafter “tender priority”) in supplying the housing site developed by the Korea Land Corporation through competitive bidding.

4) Thereafter, on May 14, 2003, ParkF purchased 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00 from DaD on the same day on the bidding priority from DaD on the commercial land in the instant project zone conducted by the Korea Land Corporation by the Korea Land Corporation, from GaB and 3 other parties, for each of the following changes in the name of the purchaser (hereinafter referred to as 'the agreement') between YB and 3 other parties: (a) to participate in the bidding priority on the commercial land in the instant project zone conducted by the Korea Land Corporation; and (b) to enter into a contract for the sale of the land in the following name between the Korea Land Corporation and the Korea Land Corporation.

5) On June 9, 2004, the Plaintiff purchased each bid priority of ParkF from GaF to 3rd parties KimB from GaF, and the down payment of KRW 000,000,000,000 on the date of the contract, and the balance of KRW 000,000,000,000 shall be paid on June 11, 2004, respectively. In the event that the Plaintiff participates in the name of KimB and three other parties in the instant project zone conducted by the Korea Land Corporation on commercial land in this case and exercises each right of priority and receives the commercial contract after the execution of each bid, each land purchase contract was concluded between GaB and 3 other in the name of KimB and the Korea Land Corporation, and then the bid priority purchase contract was concluded between GaF to cooperate with GaF in a series of procedures changing the name of the purchaser to the Plaintiff (hereinafter referred to as the “priority bid purchase contract in this case”).

6) In the subsequent bidding on the commercial site conducted by the Korea Land Corporation on July 1, 2004, the Plaintiff was awarded each share in the attached list of 00:00 :00 :00 :00 :00 :00 :00 :000 m2000 m2000 m2 (hereinafter “instant land”) by participating in the name of 3 other than KimB and exercising the right of priority for each bid.

7) On July 9, 2004, the Korea Land Corporation: (a) sold the instant land to three and five other parties including HongG, Park HH, HongJ, SongJ, Lee K, and Lee LL (hereinafter referred to as “five other parties”), the remainder of which was awarded a successful bid among the instant land, in total, KRW 00,000,000 for contract deposit; (b) from January 9, 2005 to July 9, 2007, the Korea Land Corporation paid KRW 60,000,000,000 to six months from the date of the contract; and (c) from January 9, 2005 to July 9, 2007, the portion of the instant land to which the Plaintiff applied for the change of the title after the change of ownership was transferred, the Korea Land Corporation (hereinafter referred to as “Korea Land Sales Contract”) and the Korea Land Corporation (hereinafter referred to as “Korea Land Corporation”) made an application for the change of the title of the land in its name without any special reasons.

8) On November 22, 2004, the Plaintiff and ParkM entered into a contract for succession of rights and obligations (hereinafter referred to as “the first contract for succession of rights and obligations”) with the content that “the Plaintiff succeeds to all the rights and obligations of each purchaser of each contract for the purchase of land in Korea of Park HH, Song II, Hong J, Hong J, HongK, and LL between the Plaintiff and 5 other than HongG and the Korea Land Corporation.” The specific content of the above contract and the share ratio between the Plaintiff and ParkM are as follows (Provided, That the share ratio of the Plaintiff and ParkM is indicated as 60.12%, 39.8%, 60%, 40%, and 40% for convenience in the table below).

9) Afterwards, the Plaintiff demanded ParkF to cooperate with the Plaintiff in changing the name of each purchaser pursuant to the contract for the purchase and sale of the land of Korea, KimB and three other parties, according to the contract for the purchase and sale of the land of Korea. However, ParkF claimed that the said contract for the purchase and sale of the land of Korea was rescinded, and did not comply with the Plaintiff’s request.

1005Gahap9611, the Plaintiff filed a lawsuit against KimB, three others, and ParkF on February 1, 2005, against the Seoul Central District Court 2005Gahap9611, which sought the implementation of the procedure for the change of the purchaser’s name pursuant to the bid priority contract. In the above case, on January 19, 2006, "GBB et al." and three others filed a lawsuit against ParkF on January 19, 2006 pursuant to the contract for the change of the purchaser’s name as to each of the shares listed in the separate sheet out of the land of this case, and ParkF, according to the contract for the change of the purchaser’s name, "IF will implement the procedure for the change of the purchaser’s name as to each of the shares listed in the separate sheet (the aggregate of shares listed in the separate sheet)" with the Plaintiff on February 2455 of the land of this case, and the above decision became final and conclusive through the dismissal of the appeal (000Da2629000.

11) After the judgment became final and conclusive, the Plaintiff demanded against the Korea Land Corporation the change of the purchaser’s name to the Plaintiff from KimBB and three other parties in the contract for the purchase of the land of Korea. However, the Korea Land Corporation did not comply with the Plaintiff’s request on the ground that the aforementioned final and conclusive judgment is not against Korea Land Corporation, but against Korea Land Corporation’s purport of strictly prohibiting resale twice to prevent speculation in commercial areas.

12) On March 7, 2007, the Plaintiff filed a lawsuit against the Korea Land Corporation for the implementation of the procedure to change the name of the purchaser, KimB, and three other parties under the Korea Land Corporation’s land purchase contract, to the Plaintiff, or for the Plaintiff’s selective seeking confirmation of the purchaser of the above part. On July 18, 2007, the Plaintiff was sentenced to a judgment ordering the implementation of the procedure to change the purchaser’s name to the Plaintiff, and the above judgment became final and conclusive around that time.

13) On September 14, 2007, when the above judgment became final and conclusive, the Plaintiff entered into a contract on the succession of rights and obligations (hereinafter referred to as “the second contract on the succession of rights and obligations”) with the contents that the Plaintiff succeeds to all rights and obligations as purchaser of the contract on the sale of land for the land of Korea with KimB and three other parties, KimB, and the Korea Land Corporation.

14) The details of the second contract on succession to rights and obligations are as follows. Unlike the first contract on succession to rights and obligations, the share ratio between the Plaintiff and ParkM was 78.95%: 21.05%, respectively (Provided, That in the table below, it is indicated as 79%, 21%, and 21% for convenience).

15) On April 23, 2008, the registration of ownership preservation was completed in the future of the Korea Land Corporation on the instant land. On July 30, 2008, the registration of ownership transfer was completed on July 9, 2004 with respect to each one-half share of the Plaintiff and ParkM on August 11, 2008, when the registration of ownership transfer was completed on July 9, 2004 for each one-half share of the Plaintiff and ParkM on August 11, 2008 (hereinafter “registration of co-ownership correction”).

16) Meanwhile, as of July 30, 2008, the Plaintiff and ParkM share the acquisition fund of the instant land at the final rate of 59.96 (Plaintiffs): 40.4 (M).

B. Disposition of this case

1) On September 15, 201 and October 14, 2011, the director of the Seoul Regional Tax Office conducted a written investigation against the Plaintiff on the source of funds that the Plaintiff acquired on September 15, 2011 from the instant land on two occasions (hereinafter “the instant written investigation”).

2) After that, on November 8, 201, the Plaintiff and ParkM completed the registration of correction (hereinafter referred to as the “registration of correction of the partnership oil of this case”) to correct the registration of the joint ownership of the Plaintiff and ParkM as the joint ownership registration on the ground of the error in filing an application on the instant land.

3) The director of the Seoul Regional Tax Office conducted a tax investigation with respect to the Plaintiff from November 28, 201 to February 5, 2012. The Plaintiff shared the acquisition fund of the instant land at the share ratio of 59.96/100, but completed the registration as to the co-owned share of 59.96/100, more than 910.2/1152.9, the Seoul Regional Tax Office notified the Defendant of the gift tax assessment data by deeming that the Plaintiff received the benefit equivalent to the difference in the share amount of KRW 0,00,000,000, equivalent to the difference in the share.

4) On July 1, 2013, the Defendant imposed gift tax of KRW 000,000 on the Plaintiff.

(hereinafter referred to as "disposition of this case")

5) The Plaintiff was dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on August 23, 2013, but was dismissed on October 28, 2014.

Facts having no dispute over recognition, entry in Gap evidence Nos. 1, 2, 5, 6, 7, 8, 16, 17, and Eul evidence Nos. 1, 2, 5, 6, 7, 17, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff purchased the instant land as a partnership with an agreement to jointly purchase and lease the instant land with ParkM and the instant land. However, due to mistake, the Plaintiff completed the joint ownership registration on the instant land, which was not a joint registration. The Plaintiff did not transfer any tangible and intangible property from ParkM free of charge or increase the Plaintiff’s value of property by means of the contribution to ParkM. Therefore, the instant disposition was erroneous in matters of law that did not meet the taxation requirement of donation.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The burden of proof regarding the taxation requirement in a lawsuit seeking revocation of a tax disposition is against the tax authority, but if it is proved that the taxation requirement is presumed in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the pertinent tax disposition is an unlawful disposition, unless the other party proves that the facts are not eligible for the application of the empirical rule (see, e.g., Supreme Court Decisions 97Nu13894, Jul. 10, 1998; 2002Du6392, Nov. 13, 2002).

(2) As seen earlier, even if the Plaintiff and ParkM purchased the instant land with ParkM, only 59.96% of the acquisition capital, the Plaintiff was the purchaser of shares equivalent to 78.95% of the land in accordance with the second contract for succession to rights and obligations. According to each of the statements stated in subparagraphs B through B, the Plaintiff’s investment ratio between the Plaintiff and ParkM in the same contract (No. 3) made under the name of ParkM on October 15, 2007, immediately after the conclusion of the second contract for succession to rights and obligations, was 79:21, and the profit distribution ratio was 79:21,00,000 won of the Plaintiff’s global income tax, while the Plaintiff’s agent, was attached to the Plaintiff’s application for business registration submitted on October 18, 2007, under the premise that the Plaintiff’s global income tax ratio was 700 billion won of the Plaintiff’s global income tax and the Plaintiff’s share ratio was 700 billion won of the Plaintiff’s global income tax return and its share ratio was 7005.

(3) According to the above facts, it can be presumed that the Plaintiff received benefits equivalent to the difference between the Plaintiff’s share ownership ratio of 78.95% and the Plaintiff’s share ratio of 59.96% in the instant land from ParkM at the time of the second succession of rights and obligations, in light of the empirical rule, and thus, the instant disposition cannot be deemed unlawful unless the Plaintiff proves that each of the facts listed in paragraph (2) above is not subject to the application of the empirical rule recognizing donation.

(4) Therefore, as to whether the facts described in the above (2) cannot be evaluated as eligible for the application of the empirical rule recognizing the donation to the plaintiff by ParkM, the facts that the plaintiff and ParkM completed the registration of correction of the combination of land in this case on November 8, 2011 are as follows. According to the evidence No. 3-1, No. 2, No. 5, and No. 11 through No. 13, a joint agreement (Evidence No. 3-1) prepared on June 2004 in the name of the plaintiff ParkM as of the date of June 1, 2004 and the agreement prepared on July 4, 2007 on the joint business (Evidence No. 3-2) stating that the share of the plaintiff and ParkM was 6:4,00,000 won in total and 5,000,000 won in total and 5,000,000 won in total, and on the premise that the plaintiff and ParkM were 2,500,00,000.

(5) 그러나, 앞서 인정한 사실관계에 변론 전체의 취지를 종합하여 인정할 수 있는 다음 ㉮ 내지 ㉶와 같은 점을 고려하여 보면, 위 (3)항에서 인정한 사실만으로는 위(2)항 기재 각 사실이 박MM의 원고에 대한 증여 사실을 인정하는 경험칙의 적용 대상이 되지 못한다는 것이 입증되었다고 볼 수 없고, 달리 이를 입증할 만한 충분한 증거가 없다.

The registration of correction of the partnership oil of this case was completed after the lapse of more than three years from the date of the completion of the registration of correction of the co-ownership of this case, and the registration was completed after a written investigation was conducted by the plaintiff as to whether the plaintiff was a reason for the disposition of this case.

(b) The Plaintiff asserts that the Plaintiff and ParkM were aware of the fact that the registration was completed not by combining the instant land but by sharing on November 201. However, there is no obvious circumstance to recognize that the registration of co-ownership was completed against the Plaintiff’s will of ParkM or against the Plaintiff’s will. Moreover, it is an exceptional circumstance that the Plaintiff paid the property tax, etc. calculated based on the shares in the above corrective registration for more than three years since the completion of the registration of co-ownership, and was unaware of the contents of the above corrective registration. Furthermore, the Plaintiff and ParkM did not know that their share in the instant land was completed on July 30, 208 with 1/2 shares, and that it was difficult for the Plaintiff to recognize that the share was completed on August 11, 2008 with the Plaintiff’s share ownership, and thus, it would be difficult to find that the Plaintiff’s share was revised by mistake or mistake in the form of M as it would normally be inconsistent with the Plaintiff’s allegation that it would be inconsistent with the Plaintiff’s share ownership.

In order to prevent speculation in commercial land, the Plaintiff and ParkM were unable to transfer shares to meet the real share ratio (6:4) between the Plaintiff and ParkM in principle. However, if the Korea Land Corporation refused to change the purchaser’s name for such reason, the Plaintiff’s filing a lawsuit against Korea Land Corporation seeking change of the purchaser’s name at 00 district court 00Da10000,000, and there was no difference in the possibility of winning the lawsuit between the Plaintiff and the Plaintiff’s filing a lawsuit jointly with the Korea Land Corporation, and there was no difference in the possibility of consultation with the Korea Land Corporation. Accordingly, the Plaintiff would not be able to succeed to the purchaser’s status of 3,00,000,000, after receiving a favorable judgment by filing a lawsuit seeking change of the purchaser’s name with the Korea Land Corporation in accordance with the share ratio, and after completing the registration of ownership transfer from the Korea Land Corporation’s third party to the contract for succession to rights and obligations. Accordingly, it is difficult for the Plaintiff to complete the registration of ownership transfer from the Korea Land Corporation.

The plaintiff prepared a business partnership agreement (No. 3) on October 15, 2007 in the name of the plaintiff and ParkMM to apply for the registration of joint business operators entrusted by the plaintiff and ParkM, and explained that the ratio of shares of the plaintiff and ParkM to the plaintiff and ParkM were 79:21 on the basis of the contract without confirming the accurate share ratio to the plaintiff and ParkM in the name of the plaintiff and ParkM. However, the above business partnership agreement was signed on the basis of the 79:21 on the basis of the 19:21 on the basis of the 79:21 on the basis of the 79:21 on the basis of the 79:20 on the basis of the 79:21 on the 70s on the basis of the 70s on the 70s on the 70s on the 70s on the 70s on the 19s on the 19s on the 20s on the 19s on the 20s on the 19s on the m.

The disposition of this case at the 2009 tax year after the 2009 tax year is due to the fact that the gift was made on September 14, 2007, which is the date of the second contract of succession of rights and obligations. Thus, the plaintiff's financial situation is sufficient at the time of the 2009 tax year cannot be determined in determining the existence of the reason for disposition.

㉳ 원고와 박MM 명의로 2004년 6월과 2007년 7월을 작성일자로 하여 작성된 각 공동사업약정서(갑 제3호증의 1, 2)에는 원고와 박MM의 출자 및 이익분배비율이 6:4로 기재되어 있다. 그러나 원고와 박MM가 위 각 약정서에 관하여 공증을 받거나 이를 과세관청에 과세자료로 제출한 바도 없어 위 각 약정서가 실제로 그 작성일자에 작성되었는지 여부에 의문이 있다. 또한 설령 그렇다 하더라도 원고와 박MM는 2007. 9. 14. 제2차 권리의무승계계약 당시 박MM가 원고에게 위 각 약정서에 따른 기존 지분 비율 40% 중 19% 상당을 증여하기로 하여 제2차 권리의무승계계약에 의하여 그들의 지분 비율을 각각 79% : 21%로 변경하고, 2007. 10. 15.자 동업계약서(을제3호증)에도 위 증여에 따라 변경된 지분을 기재하여 그 지분대로 공동사업자등록신청(을 제2호증)을 한 것으로 보일 뿐이다.

㉴ 원고와 박MM가 이 사건 토지에 관한 출자 및 이익분배 비율이 6 : 4임을 전제로 하여 그간의 소득세 등을 경정・신고한 시점은 이 사건 소송이 계속 중이던 2015. 5. 27.이다.

㉵ 원고와 박MM의 김QQ에 대한 증여도 이 사건 처분에 관하여 조세심판원 심판 절차가 계속 중이던 2014. 5. 1.에 이루어졌다. 또한 이 사건 토지에 관하여 위 증여일로부터 약 8개월도 지나지 않은 단기간 내인 2014. 12. 4. 김QQ으로부터 다시 원고가 대표이사로 재직하고 있는 소외 주식회사 RR 앞으로 2014. 12. 1.자 증여를 원인으로 하는 소유권이전등기가 마쳐졌다. 따라서 김QQ 앞으로 마쳐진 위 소유권이전등기가 과연 진정한 증여 의사에 따른 것인지에 대하여도 의문이 있다.

(6) Therefore, the Plaintiff’s assertion that the instant disposition was unlawful disposition that did not meet the requirements for gift tax imposition is difficult to accept.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.