In case of onerous donation between a spouse and a lineal ascendant or descendant, it is exceptionally permitted to deduct the amount of debts when objectively proving the fact that a donor takes over debts at the time of receipt as documents.

In the case of onerous donation between the spouse and lineal ascendants and descendants, it is exceptionally permitted to reduce the amount of debts when objectively proved by the documents of each subparagraph of Article 10(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. The debt of this case is an obligation proved by Article 10(1)2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act and the disposition of this case is unlawful.

Article 47 of the Inheritance Tax and Gift Tax Act

The revocation of revocation of the imposition of gift tax by the District Court 2014Guhap2497

Note AA

The head of the East High Tax Office

October 27, 2015

November 24, 2015

1. The Defendant’s disposition of imposition of KRW 11,408,280 against the Plaintiff on December 1, 2013 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On May 14, 201, the Plaintiff entered into a lease agreement with Han-gu, Seoul, 000, and 000,000 apartment units owned by the Plaintiff (hereinafter “the apartment units of this case”) for lease with the lease deposit amount of KRW 70,00,000, and the lease period of the lease from June 25, 2000 to June 25, 2000. The Plaintiff paid KRW 70,000,000 to Han-gu on June 23, 200.

B. After December 4, 2012, Han has donated the instant apartment to the Plaintiff, and on the 6th day of the same month, the ownership transfer registration for the instant apartment was completed in the name of the Plaintiff.

C. On January 31, 2013, the Plaintiff reported the gift tax base to the Defendant on January 31, 2013, assessed the value of donated property as KRW 157,500,000, and reported the amount obtained by deducting the amount from the value of donated property, on the ground that the Plaintiff acquired the total amount of KRW 70,000,000 (hereinafter “instant obligation”) from the obligation to return the deposit for lease deposit to the Plaintiff.

D. The Defendant denied the deduction of KRW 70,00,000 on the ground that the Plaintiff cannot be deemed to have taken over the instant debt, and issued a correction and notification of KRW 11,408,280 to the Plaintiff on December 1, 2013 (hereinafter “instant disposition”). As to this, the Plaintiff filed a request with the Tax Tribunal on February 26, 2014, but the Tax Tribunal dismissed the said request on September 30 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was given the gift of the instant apartment from the HanA and actually acquired the instant debt.

As such, the instant disposition based on the premise that the Plaintiff did not take over the instant debt is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Article 47(1) of the Inheritance Tax and Gift Tax Act provides that the taxable value of donated property as of the date of donation minus the amount acquired by the donee as an obligation secured by the donated property as of the date of donation. For the purpose of Article 47(3) of the same Act, with respect to onerous donation between spouses or between lineal ascendants or descendants, the amount of debts shall be presumed not to have been acquired by the donee even if the donee takes over the obligation of the donor, but this shall not apply where the amount of debts is objectively recognized as prescribed by Presidential Decree, such as an obligation to the State or a local government. Articles 36(2) and 10(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 26069, Feb. 3, 2015; hereinafter the same shall apply) provide that, in principle, the amount of debts owed by the donee between the State, a local government, and a financial institution shall be proved as an obligation owed by the donee to the relevant institution (Article 10(1)1)1)1)1).

2) In light of the above provisions and legal principles, the Plaintiff agreed to lease the apartment of this case from Han on May 14, 201, and paid 70,000,000 won to Han on June 23, 201, the Plaintiff was donated the apartment of this case from Han on December 4, 201, and the Plaintiff decided to take over the obligation to return the deposit amount against the Plaintiff, and there was no evidence to acknowledge that the Plaintiff was returned the amount equivalent to the amount of the debt of this case from Han, and that the Defendant also did not have any financial ability to transfer the debt of this case to Han, separate from the imposition of transfer income tax on the portion equivalent to the debt of this case, since the Defendant was actually transferred the debt of this case to Han on the basis of Article 10 (1) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. The disposition of this case was unlawful on the premise that the obligation of this case was not taken over by Han on December 4, 2012.

3. Conclusion

Therefore, the claim of this case is justified and it is so decided as per Disposition.

Relevant statutes

m. Inheritance Tax and Gift Tax Act

Article 47 (Taxable Value of Gift Tax)

(1) The taxable value of donated property shall be the total amount of the donated property under this Act as of the date of donation [excluding the value of the donated property under subparagraph 3 (b) of Article 32, Articles 40 (1) 2, 41-3, 41-5, 42 (4), and 45-3 (hereinafter referred to as " donated property excluding any summing-up] minus the amount acquired by the donee as debts (including debts prescribed by Presidential Decree, such as debts related to the donated property) secured for the donated property.

(3) In applying paragraph (1), with respect to an onerous donation between spouses or between lineal ascendants and descendants (including cases presumed to be a donation under Article 44), even if a donee takes over the obligation of a donor, the amount of the obligation shall be presumed not to have been taken over by the donee: Provided, That this shall not apply where the amount of obligation is objectively recognized as prescribed by Presidential Decree, such as an obligation to the State or a local

(1) Enforcement Decree of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 26069, Feb. 3, 2015)

Article 10 (Methods, etc. for Verifying Obligations)

(1) "Evidence by a method prescribed by Presidential Decree" in Article 14 (4) of the Act means a debt of the inheritee, which is actually borne by an heir at the time of commencing an inheritance, according to any of the following subparagraphs:

1. Documents confirming that debts owed to the State, local governments and financial institutions are debts owed to such institutions;

2. Debt obligations to persons other than those under subparagraph 1 shall be confirmed by a contract for debt-sharing, documents evidencing a creditor, documents evidencing the establishment of collateral and the payment of interest, etc.

(2) Financial institutions referred to in paragraph (1) 1 and Article 15 (2) of the Act mean financial institutions referred to in subparagraph 1 of Article 2 of the Act on Real Name Financial Transactions and Guarantee of Secrecy.

Article 36 (Liability Deducted from Taxable Value of Gift Tax)

(1) Pursuant to Article 47 (1) of the Act, debts prescribed by Presidential Decree, such as debts related to the donated property, means rental deposit in cases where a donor leases the relevant property to another person.

(2) "Cases recognized objectively as prescribed by Presidential Decree, such as obligations owed to the State or a local government" in the proviso to Article 47 (3) of the Act means cases where certification is made in accordance with any of the subparagraphs of Article 10 (1).