Seoul Administrative Court-2018-Gu 50307 ( November 22, 2018)

Although the Plaintiff borrowed the acquisition fund of the instant real estate from his spouse, it cannot be deemed that the instant real estate was in the name of the Plaintiff.

If it is proved that the other party is presumed to have a taxable requirement, it is reasonable to prove the circumstances that are not subject to the application of the empirical rule. In light of the evidence cited in the first instance trial and the facts and circumstances as stated in the first instance trial, it is reasonable to determine that the other party was given a gift from his/her spouse, and it cannot be deemed that the Plaintiff received a title trust or borrowed the key amount

Article 2 (Gift Tax Taxables)

2018Nu7545 Revocation of Disposition of Imposition of Gift Tax

AA

BB Director of the Tax Office

Seoul Administrative Court Decision 2018Guhap50307 Decided November 22, 2018

July 5, 2018

September 27, 2019

1. The defendant's appeal is dismissed.

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

The judgment of the first instance court shall be revoked. The imposition of each gift tax on March 2, 2017 by the Defendant against the Plaintiff shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows: (a) the Plaintiff is specifically emphasized as the grounds for appeal by this Court; and (b) the reasoning for the first instance judgment is as stated in Article 8(2) of the Administrative Litigation Act; and (c) the text of Article 420 of the Civil Procedure Act.

2. Additional determination

A. Summary of the plaintiff's assertion

1) In full view of the characteristics of the marital relationship, the apartment of this case, which is an economic community, was actually used by the plaintiff and the children's living place. At the time of disbursement of the key amount of this case, the ○○○○ (the plaintiff's spouse) had no reason to donate the key amount of this case to the plaintiff under the circumstances where the plaintiff had already been responsible for a large amount of debts. In full view of the fact that ○○○ (the plaintiff's spouse) established a mortgage to secure the debts under the name of the ○○ (the plaintiff's spouse), the procedure for purchase of the building of this case, and the fact that the plaintiff did not participate in it, it is reasonable to view that ○○○ (the plaintiff's spouse) to acquire the apartment of this case's apartment of this case's name "the apartment of this case" or "the share of the plaintiff in this case" (hereinafter referred to as "the plaintiff's share in this case") and "the plaintiff's share in the building of this case" as to the acquisition fund raised by the plaintiff in title trust to the plaintiff.

2) Even if ○○○ (Plaintiff’s spouse) did not deem that the instant real estate was a title trust to the Plaintiff, ○○ (Plaintiff’s spouse) should be deemed to have leased the instant key amount to the Plaintiff.

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B. Determination

1) Relevant legal principles

The burden of proof as to the existence of a taxation requirement should be proved by the circumstances in which the other party is not subject to the application of the empirical rule, if the existence of a taxation requirement is presumed to have been against the tax authority, but it is apparent that the real estate acquired by one spouse under the sole name during marriage is presumed to be the unique property of the nominal owner. Thus, if the source of the fund to acquire the real estate is indicated to be the other spouse, not the nominal owner, then the nominal owner may be presumed to have received a donation of the fund to acquire the real estate from the spouse. In this case, the fact that the real estate in question is not the special property of the nominal owner, but the title trust between one spouse, and is not deemed to have been donated. In order to reverse the "Presumption of a special property" under Article 830(1) of the Civil Act, the taxpayer shall assert and prove that the other spouse actually borne the price of the real estate in question, and thus, the other spouse merely bears the burden of realizing the presumption of special property under the name of the nominal owner, and thus, it should be determined by taking account of all other specific evidence 2010.

2) Determination

In light of the facts and circumstances as indicated in the first instance court’s reasoning, which are acknowledged based on the evidence admitted by the first instance court, and the following circumstances acknowledged based on the overall purport of the statement and pleading No. 46, it is reasonable to determine that the Plaintiff received a donation from ○○○ (the Plaintiff’s spouse). The evidence submitted by the Plaintiff and the facts acknowledged accordingly are insufficient to recognize that ○○○ (the Plaintiff’s spouse) held the title trust to the Plaintiff or lent the instant key amount to the Plaintiff, and there is no other evidence to reverse the recognition of the said donation. Accordingly, the Plaintiff’s assertion is without merit.

○○○○○ (the Plaintiff’s spouse) also created three sons so that they can be able to concentrate on the Plaintiff’s business, .... The Plaintiff raised three sons so that they can be able to concentrate on the Plaintiff’s business. The low-income husband and wife increased the property of the married couple through a fish-free business, and thus, did not have a special interest as to who is the name of the property. The instant building does not have any special intention. The instant building also explains the situation in which the Plaintiff’s name (or the Plaintiff’s share ratio) was made in the name of the Plaintiff (or the Plaintiff’s share ratio) without any special intention.

Based on these circumstances and the circumstances stated in the first instance trial based on the relevant legal principles, examining the payment of the key amount of this case’s issue at the time of acquiring each real estate of this case, and the intent of the Plaintiff and the U.S. ○○○ (Plaintiff’s spouse) before and after the acquisition of each real estate of this case, it is natural to deem that, among each real estate of this case, “○○○ (Plaintiff’s spouse) acquired and actually owned the portion for which ○○ acquired the acquisition fund, and there was any intention or necessity of title trust in the process of acquiring each real estate of this case under the name of the Plaintiff, or that “○○○ (Plaintiff’s spouse) paid the corresponding amount at the intention to receive the corresponding amount after lending the corresponding amount to the Plaintiff.” Rather, it is difficult to view that the U.S.○○○ (Plaintiff’s spouse) was in accord with the intent to donate the key amount of this case to the Plaintiff and use it as the fund for acquiring each real estate of this case.

In light of the fact that ○○○○○○○○○ (spouse)’s living together with the Plaintiff’s children in the instant apartment complex is natural (i.e., “the Plaintiff’s ○○○○○○○”)’s living in the instant apartment complex, and that no rent was received from the Plaintiff, the Plaintiff’s assertion that the Plaintiff cannot be deemed as having registered the instant apartment under its own name with an intention to exercise the substantial sole ownership. However, even if the apartment is owned solely by the Plaintiff, it is natural that the Plaintiff’s her son and her son were living together with her son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s her son’s son’s son’s son’s her son’s son’s loan or her her son’s ○○○.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.