Seoul Administrative Court 2009Guhap48494 ( August 13, 2010)

early 2008west0803 (Law No. 9, 2009)

Since the building was acquired and sold by auction, the imposition of gift tax is illegal.

It is an unlawful disposition of gift tax on the premise that the third party, as the actual owner, donated the amount equivalent to the difference in the purchase price of the building to the plaintiffs.

2010Nu298666 The revocation of disposition imposing gift tax

1.GA2.B3.GCC

○ Head of tax office

1. Supreme Court Decision 2009Guhap48494 Decided August 13, 2010

December 27, 2010

January 20, 201

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s imposition of KRW 89,60,00 on February 1, 2008 against Plaintiff KimA, and the imposition of KRW 17,920,00 on April 8, 2008 against Plaintiff LeeB, and the imposition of KRW 71,680,00 on KRW 71,680,00 on Plaintiff KimCC.

2. Purport of appeal

The judgment of the first instance is revoked, and all of the plaintiffs' claims are dismissed.

1. Circumstances of dispositions;

The court's explanation on this part is the same as "the reasons for the first disposition" of the judgment of the court of first instance. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs asserted that the imposition of each gift tax on a different premise is unlawful, since the owner of the above building was not KimD, but was legally and practically in △△ Industries, and the market price of the above building was not KRW 2,900,000,000, not KRW 2,100,000,000, and thus, the imposition of each gift tax on a different premise is unlawful.

B. Determination

(1) The actual ownership of the building and the bid price for the insurance industry

In light of the following circumstances, in light of each of the evidence mentioned above, Gap evidence Nos. 4, Eul evidence Nos. 8, 9, 10, Eul evidence Nos. 14 through 18, and Eul evidence Nos. 14 through 18, and evidence No. 14 through 18 of the court of first instance, it is difficult to conclude that the insurance industry has agreed to pay only the construction cost by reserving the actual ownership of the above building to KimD, and there is no other evidence to acknowledge otherwise. Rather, it is reasonable to view that the insurance industry, as the owner of the above building awarded a successful bid, has made efforts to directly sell the above building part and again sold it to plaintiff KimA et al. because the financial standing of the company becomes worse. Accordingly, the sale of the insurance industry and the plaintiff KimA et al. with the above agreement constitutes a cause for acquisition of ownership by a new juristic act which is not related to the insurance industry and KimD (However, if the insurance industry recovers the entire construction cost due to the agreement with KimD, it does not impose any of the above part of the building (i.).

① Although the insurance industry completed the construction work of the building in accordance with the construction contract concluded with KimD and the highest F, KimD and the highest FF failed to pay the construction cost properly to the wind that could not sell the above building due to the IMO’s financial crisis. Accordingly, the insurance industry applied for a voluntary auction based on the right to collateral security established on the above part of the building as security of the construction cost claim against KimD and completed the registration of transfer of ownership by winning a successful bid amounting to KRW 2,90,00,000 in the auction procedure.

(2) At the time of the above auction, the claim for the construction price of the insurance industry was about KRW 4,200,000 (including interest in arrears). The insurance industry was to collect the total amount of KRW 1,300,000,000,000 from the largestF, who had been able to pay the unpaid construction price due to a loan, etc. of a financial institution, to be paid in cash. From February 3, 1999 to January 31, 200, the insurance industry collected the total amount of KRW 1,30,000,000, which he had been able to pay the unpaid construction price, from KimD who had no ability to pay the unpaid construction price, to collect the amount of KRW 2,90,000,000, which he had sold the above building by auction and had to recover

(3) However, the above auction procedure is four times, the minimum auction price of which has fallen to KRW 2,808,328,800, and the insurance industry, once after the next sale date, shall be sold to KRW 2,900,000,000. The above part of the building was awarded a successful bid on November 8, 1998 with KimD around November 1, 1998, when the insurance industry is sold the above part of the building, KimD shall pay the construction price by selling the above part of the building and depositing the proceeds in lots, and if the unpaid construction price is not appropriated for the whole amount, KimD shall directly sell or lease the above part of the building and recover the unpaid construction price, and if the insurance industry collects the whole construction price unpaid, KimD or its designated person shall transfer the ownership of the above part of the building.

(4) After that, from the beginning of February 1999, the insurance industry attempted to sell the sales agency team in the fifth floor of the building in question while residing in the fiveth floor of the building in question, but the real estate market has deteriorated, and the sales agency's sales team was removed without all until October 1999, as well as the company's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales agent's sales.

(5) On the other hand, KimD rejected the reason that he is a person with bad credit standing, and instead, with Plaintiff KimA et al., borrowed KRW 2,00,000 from △△ Insurance Co., Ltd. to arrange the △△ industry, and purchased the above building parts from △ Industrial, and completed the registration of ownership transfer for reasons of trust in the future of △△ Trust.

(ii)the relationship between the exercise of the right to use GlaD and the actual ownership of the part of the building;

The defendant asserts that KimD actually owned the above part of the building at the time of the sale in light of the circumstance that KimD leases part of the above part of the building to KRW 100,000,000 on its behalf and pays approximately KRW 200,000,000 out of the unpaid construction cost, etc., even after the insurance industry acquired the ownership of the above part of the building at the time of the sale in question.

(1) However, it is difficult to deem that GimD leased part of the above building on behalf of the insurance industry in violation of the purport of the above agreement with the intention to sell the above building and repay the unpaid construction cost. Rather, it is reasonable to support the fact that the insurance industry is the owner of the above building. ② The repayment of the unpaid construction cost by GimD is one of the methods for acquiring the ownership of the above building that is owned by the insurance industry. ③ The mere fact that GimD used part of the above building without compensation cannot be readily concluded as the actual owner of the above building. Accordingly, the Defendant’s assertion is without merit.

(iii)In the case of a suit

As seen earlier, the insurance industry acquired the ownership of the above building through auction, and then sold it again to the plaintiff KimA, etc. However, the defendant's disposition imposing each gift tax on the plaintiffs on the premise that KimD donated the difference equivalent to the purchase price of the above building to the plaintiffs as the actual owner of the above building.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed. It is so decided as per Disposition.