Seocho 2017west 4082 ( November 08, 2017)

The loan certificate drawn up between the mother and child shall be rejected if there is a counter-proof of the loan certificate or if there is a reasonable reason to see the content as contrary to objective truth.

In general, it is reasonable to view that a monetary loan contract was concluded and implemented when acquiring a building jointly with a mother and child, and that the above loan contract was merely a formal appearance, and it is reasonable to view that it was given a gift not a monetary loan, although reasonable and reasonable grounds are presented to recognize such fact.

Articles 44 and 47 of the former Inheritance Tax and Gift Tax Act; Articles 10 and 36 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act

2018Guhap2001 Revocation of Disposition of Imposition of Gift Tax

IsaA

O Head of tax office

November 1, 2018

December 13, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 148,520,274 (including additional tax) of the gift tax for the year 2015, which was imposed on the Plaintiff on January 11, 2017, shall be revoked.

1. Details of the disposition;

A. On October 30, 2013, the Plaintiff, the Plaintiff’s spouse RD, and the Plaintiff’s mother KK (hereinafter “the inheritee”) jointly purchased the instant real estate at KRW 2.46 billion from the purchase price to KRW 1460 million from the Seoul BB-dong BB-dong 1463-18 Land and the instant building (hereinafter “instant real estate”). On October 30, 2013, the Plaintiff and SiD were 2/5 shares in the instant real estate, and the inheritee completed the registration of ownership transfer with respect to 1/5 shares.

B. As the decedent died on March 6, 2015 and inheritance commenced, the Plaintiff reported the inheritance tax base on September 30, 2015, and the Plaintiff’s 2/5 shares of the instant real estate (acquisition value 91,800,00).

The court reported the remainder of KRW 613,886,50,000 (= KRW 784,000,000 - KRW 170,113,500) to the Plaintiff of the inheritee and the Sightseeing, on the ground that acquiring KRW 165,00,000 - KRW 170,000,000 - KRW 170,000,000,000 - KRW 170,113,500,00, hereinafter referred to as “the issues of this case”) was that the inheritee borrowed KRW 78,40,00 from the inheritee, and repaid KRW 170,113,50 among them before the commencement of the inheritance.

C. On January 11, 2017, the Defendant deemed that the decedent donated the instant key amount to the Plaintiff, and determined and notified the Plaintiff of KRW 148,520,270 (including additional taxes) of the gift tax in 2015 (hereinafter “instant disposition”).

D. The Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal, but was dismissed on November 8, 2017.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 4, Eul evidence 1 and 2, all pleadings

Purport

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The decedent lent the key amount of this case to the Plaintiff. That is, at the time of the acquisition of the instant real estate, the decedent was the end cancer, and the Plaintiff’s father Lee GG was the hHdong building owned by the decedent for the purpose of securing cash for medical expenses, etc., the decedent leased the decedent’s acquisition fund to the Plaintiff’s husband and wife, and the Plaintiff’s husband and wife acquired the instant real estate jointly with the Plaintiff’s husband and wife, but the Plaintiff’s husband and wife paid the decedent KRW 10 million each month to this G, and thereafter, the decedent’s payment of living expenses, hospital expenses, and nursing expenses was proposed. Accordingly, the Plaintiff’s husband and wife borrowed KRW 784 million from the inheritee to acquire the instant real estate share of KRW 170,113,501 each month, and repaid KRW 170,000 per month to the inheritee, and the amount of the decedent’s claim against the Plaintiff’s husband and wife was paid to the Plaintiff under the agreement to the Plaintiff’s heir at the time of this case.

2) Even if the instant key amount cannot be viewed as a lending, it constitutes an onerous donation received under the condition of supporting the parents of old age with no income, and thus, 118,593,000 won paid to thisG pursuant to Article 47 of the Inheritance Tax and Gift Tax Act should be deducted from the value of donated property.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On April 30, 2013, the decedent sold the land and building located in HL-dong 338-22, HH-dong 338-22, which he/she owns at KRW 1.9 billion, and on October 12, 2013, the decedent acquired the instant real estate jointly with the Plaintiff and DD.

2) The Plaintiff explained to the tax authority that the acquisition fund of the instant real estate was as follows.

Date

Details of payment

Origin

Amount (won)

October 12, 2013

Contract Deposit, part payments

492,000,000

oly 30, 2013

Balance

Succession Deposit

165,000,000

City DD Loans (one Bank)

975,000,000

Plaintiff, DoD Loans

(The inheritee)

784,000,000

(including the key amount of the instant case)

4,000,000

Total

2,460,000,000

3) With respect to the amount of the instant issue, as of October 30, 2013 between the inheritee and the Plaintiff’s husband and wife, the following loan certificate (Evidence A2) was prepared. On November 1, 2013, after this frame, a copy of the certificate of personal seal impression of the Plaintiff, the husband and wife issued by the head of Seocho-gu Seoul J branch office and the inheritee was attached.

The certificate of borrowed money

1. Daily gold: Liveering million won (84,000,000);

The above amounts shall be borrowed and agreed as follows:

2. Date of repayment: By the date of full payment;

3. Interest: non-existent;

4. Method of payment: The repayment of principal shall be made with the thickness of creditor UK in the amount of ten million won per month.

(b)

8. Matters concerning special agreement;

Where there is anything wrong with the obligee’s personal body during the repayment of the above claim, the above claim shall belong to the obligee’s spouse, and the obligor shall continue to pay to the assignee’s heir.

Creditor: UnitedK

Obligor: Plaintiff, SiDD

3) Upon the death of the decedent on March 6, 2015, the Plaintiff succeeded to the foregoing loan claims against the decedent on the premise that there is a loan claim equivalent to the key amount of the instant case against the Plaintiff and Si Do Do Do D, the Plaintiff’s father and G succeeded to the said loan claims by equally dividing the deposit balance of the decedent’s bank account, and the Plaintiff filed an inheritance tax return by inheritance of the shares of the decedent’s instant real estate.

An inheritor

Relation

Year of birth

Value (cost)

Inheritance Shares

GG

Spouse

1930

613,886,500

54.68%

EthioH

Children

1957

2,869,281

2.03%

Lee J-Hy

Children

1960

2,869,281

2.03%

Hyek

Children

1965

2,869,281

2.03%

Children

1967

40,269,582

39.23%

4) The details of the return on global income tax from 2010 to 2015 of the Plaintiff and SiD are as follows.

1) The Plaintiff, in the preparatory document dated October 25, 2018, corrected that the sum of the amount transferred by the Plaintiff’s husband and wife to the inheritee after the Plaintiff’s acquisition of the instant real estate was KRW 168,952,917. However, the instant disposition was made by deducting the amount of KRW 170,113,500 from the said amount of KRW 784,000,000, which is larger than the said amount, as the value of donated property, and thus, the amount of the instant issue was set at KRW 170,113,50.

Year

Types

Drawee

Amount of income (income)

D. D

2011

Labor

AAAA Corporation

87,078,368

-

2012

Labor

AAAA Corporation

94,459,421

-

2013

Labor

AAAA Corporation

94,169,873

-

Projects

Lease

1,773,908

1,773,908

2014

Labor

AAAA Corporation

92,016,173

-

Projects

Lease

8,697,648

8,697,648

2015

Labor

AAAA Corporation

94,113,062

-

Projects

Lease

8,896,584

8,896,585

[Ground of recognition] Facts without dispute, Gap evidence 2 through 4, 6 through 8, Eul evidence 1, 3 and 4 (including each number), the purport of the whole pleadings

D. Determination

1) Whether the key issue amount of the instant case is a gift or a loan

A) Article 44(1) of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”) provides that the transferor’s property transferred to his/her spouse, or lineal ascendants and descendants (hereinafter “spouse, etc.”) shall be presumed to have been donated to his/her spouse, etc. at the time of transfer of the property, and Article 44(3)5 of the Inheritance Tax and Gift Tax Act provides that Article 44(1) of the Inheritance Tax and Gift Tax Act shall not apply to cases where it is clearly acknowledged that the transferor’s property was transferred to his/her spouse, etc. at the time of transfer, and where it falls under any of the subparagraphs of Article 33(3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, where it is evident that the transferor’s spouse, etc.

In addition, even if the document is a disposition document proved to be genuine, its probative value may be rejected where there is a counter-proof or where there is a reasonable ground to deem the content stated in the document as contrary to the objective truth (see, e.g., Supreme Court Decisions 95Nu3398, Oct. 13, 1995; 2005Du7174, Jun. 28, 2007).

B) Since the acquisition of a building jointly between her mother and her mother cannot be deemed as a general case where a monetary loan contract is concluded and implemented, in order to recognize such fact, reasonable and reasonable grounds should be presented for the recognition of such fact. In full view of the aforementioned facts and the aforementioned evidence, each of the entries in B and B and 14 (including each number), and the overall purport of the pleadings, the following circumstances are revealed. In full view of the following circumstances, most of the loan certificate prepared between the inheritee and the Plaintiff’s husband and the Plaintiff’s husband and wife and the details of transfer of money to the Plaintiff’s husband and wife are merely merely a formal appearance to see that there exists a loan for consumption between the Plaintiff’s husband and the inheritee, and it is reasonable to deem that the Plaintiff received the donation of this case from the inheritee. Therefore, this part of the Plaintiff’s assertion is without merit.

① The loan certificate drawn up between the Plaintiff’s husband and wife and the inheritee states that the principal shall be repaid in 10 million won per month without due date and interest. However, if the loan certificate drawn up between the Plaintiff’s husband and wife is repaid in 10 million won per month, six years and five months to repay the principal in full. Even according to the Plaintiff’s assertion, the inheritee was the end cancer, and the Plaintiff’s father who decided to inherit the above claim at the time of the death of the inheritee was also the one with severe dementia (i.e., e., e., e., gG’s property cannot be managed, and the Plaintiff’s husband and wife is highly likely to substantially manage the property of GG). As such, it is difficult to accept that the loan agreement, the realization of the claim, or the

② From the time of the Plaintiff’s acquisition of the instant real estate to the time of the inheritee’s death, the Plaintiff’s husband and wife transferred KRW 168,952,917 to the deposit account under the name of the inheritee’s husband and wife. From 2011 to 2015, the annual tax revenue of the Plaintiff’s husband and wife accrued before and after KRW 100 million. However, the Plaintiff’s annual tax revenue from 2013 to 2013 (Evidence No. 13) revealed the fact that the Plaintiff spent KRW 43,169,27 in total, with premium, medical expenses, credit card use. This fact is that the Plaintiff is raising middle and high school students while residing in the JJdong-dong, Seoul BB-gu, and the Plaintiff is also obligated to pay principal and interest on the bank loans that were granted at the time of the instant real estate acquisition. In addition, the Plaintiff’s annual revenue appears to be more sufficient to have been repaid each month before and after 2013.

③ On May 23, 2013, an account opened in the name of the decedent (Account Number 05****-04-167**) was deposited in cash each time on May 30, 2013, with the amount of KRW 20 million on the same day, and KRW 80 million on May 30, 2013 after the same day. Since then, from the said account to September 26, 2013, the cash withdrawal of an automatic cash withdrawal (AT) was repeated more than 4-5 times a day at intervals of approximately 90,000,000 won, and the balance of KRW 90,000 was 70,000 from the Plaintiff on October 17, 2013, and 201, 2001.

On May 23, 2013, the opening date of the above account, was the remainder of the real estate sold by the decedent HH Dong in Seoul LL-gu, and all transactions, such as ATM cash withdrawal, were conducted at the JJ point from the opening date of the account, and the JJ point of KK bank was seven minutes away from the apartment in which the Plaintiff resides. However, at the time, the decedent was living in Seoul LL-gu LL-dong, and the Plaintiff’s leakage and beneficiary were living in Seoul SSSdong (H, EW) or Seoul MM-dong (EM-dong). In light of this, there is a strong doubt that the Plaintiff’s husband prepared cash using the above account in the name of the decedent and repaid the money to the decedent.

④ From among the funds transferred by the Plaintiff couple to the inheritee or to GG, it seems that the details borne by the Plaintiff couple actually exist. However, it is reasonable to view that the Plaintiff couple paid for the purpose of fostering parents, who acquired most active property of the inheritee by obtaining real estate acquisition funds or succeeding to the inheritee’s real estate shares.

⑤ The Plaintiff asserts that there exists a precedent of the Supreme Court that recognized the Plaintiff’s husband and wife as real estate transaction, not gifting such transaction, by jointly acquiring a certain amount of money from the Plaintiff’s husband and wife, making the principal repaid each month so that the Plaintiff’s husband and wife would use it for the nursing or living expenses of his father. However, the Supreme Court Decision 2014Du9752 Decided October 15, 2014 required by the Plaintiff for the following reasons: (a) there was an exceptional case concerning the Plaintiff’s need to be transferred to the Plaintiff’s husband and wife in order to prevent his/her parent’s housing from going beyond others due to auction, etc.; (b) there was rent income for a multi-year period for the inheritee; (c) there was no inheritance obligation; and (d) it is difficult to recognize the substance of a loan for consumption due to the questions, etc. on the source of funds transferred to the decedent or thisG, and it is inappropriate to invoke the facts differently.

2) Whether to deduct the donated property

Article 47 (1) of the Inheritance Tax and Gift Tax Act shall be the total amount of the donated property as of the date of donation minus the amount taken over by the donee as debts (including debts prescribed by Presidential Decree, such as debts related to the donated property) secured by the donated property from the total amount of the donated property as of the date of donation; however, in cases of onerous donation between spouse or between lineal ascendants or descendants (including cases presumed to be a donation pursuant to Article 44), the amount of debts shall be the donee even if the donee

The presumption that the amount of debt is not accepted by the State or a local government is objectively recognized as an obligation, etc. In addition, Article 47 (1) of the same Act means a security deposit where a donor leases the relevant property to another person (Article 36 (1) of the Enforcement Decree of the same Act), and Article 47 (3) of the same Act in the proviso to Article 47 (3) of the same Act means where a donor objectively recognized as an obligation, etc. to the State, a local government, or a financial company, etc., as prescribed by Presidential Decree, means a case where the amount of debt to the State, a local government, or a financial company, etc. is proved by a document verifying that it is an obligation to the institution, a document verifying that it is an obligation to the other person, a certificate of creditor, or a document verifying the establishment of security and payment of interest, etc. (Articles 36 (2) and 10 (1) of the Enforcement Decree

In light of the language and text of the above law, the obligation which can be deducted from the donated property at the time of onerous donation refers to the obligation of the donor secured by the donated property or the obligation which the donee takes over as a security deposit obligation. Since it is apparent that the Plaintiff did not meet these requirements, this part of the Plaintiff’s assertion is without merit.

3) Sub-decisions

Therefore, the disposition of this case, which took place by deeming the issue amount of this case as a gift to the deceased to be a gift to the deceased, is legitimate. The plaintiff's assertion disputing this is without merit

3. Conclusion

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