Cho High-2018 Mine-0719 ( April 24, 2018)

The instant rent, except for the portion corresponding to the deceased’s share, is presumed to have been donated.

The instant rent, except for the portion equivalent to the deceased’s share, exceeds the amount of income reported or taxed by the deceased, so it is presumed that the deceased was donated the above rent.

Article 45 of the Inheritance Tax and Gift Tax Act (Presumption of Donation of Funds for Acquisition of Property)

Revocation of revocation of disposition imposing gift tax on Gwangju District Court-2018-Gu Partnership-12107

○○ Kim 4

○ Head of tax office

2019.03.07

.03.28

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposing gift tax on the Plaintiffs on October 10, 2017 shall be revoked.

1. Details of the disposition;

A. The Plaintiffs’ father Kim 00 died on December 28, 2015, and the Plaintiffs reported inheritance tax to the Defendant on June 30, 2016.

B. As a result of the Defendant’s investigation of inheritance tax from June 7, 2017 to July 31, 2017, the Plaintiffs and GimB (ASEAN’s ASEAN), and △△△-dong, Dong-dong, △△△-dong, Dong-dong, Dong-dong, 20, and one parcel of land and its ground buildings (hereinafter “instant real estate”) owned by the above deceased, each of the rent of KRW 712,803,024 (hereinafter “the instant rent”) exceeding the deceased’s share (9.15%) out of the rent of KRW 838,750,000 from December 2, 2015 to the deceased’s share (9.15%) was deemed to have been donated from the Plaintiffs before the deceased’s death and the KimAA, and thus, the Plaintiffs were notified of the amount of gift tax to the Plaintiffs on October 16, 2017 (hereinafter “the instant appeal”). However, the Plaintiffs were dismissed on the same date as the deceased’s list.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, Eul evidence Nos. 1 and 4 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiffs' assertion

The Plaintiffs donated the instant real estate from the Deceased on the condition that the Deceased leases the instant real estate and acquires the rent thereof. Therefore, the instant disposition based on the premise that the instant rent reverted to the Plaintiffs and that the Plaintiffs donated it to the Deceased is unlawful.

3. Determination

(a) Relevant statutes;

It is as shown in the attached Form.

B. Relevant legal principles

The burden of proving the existence of the tax-exempt facts is against the tax authority, but if the facts alleged in the facts alleged in light of the empirical rule are revealed in the litigation process, it cannot be deemed an illegal disposition that failed to meet the taxation requirement against the tax-exempt disposition unless it proves such circumstances (see Supreme Court Decision 89Nu6006, Apr. 27, 1990).

C. In the instant case:

1) According to Article 45(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015); Article 34(1)1 of the Enforcement Decree of the same Act, where the reported or taxed income falls short of the acquisition value of the property (However, where the above income amount falls short of the smaller of the amount equivalent to 20/100 of the acquisition value of the property or KRW 200 million), it shall be presumed that the property was donated. The deceased acquired all of KRW 838,750,00 from December 2, 2010 to December 2015, the deceased acquired the rent of this case, 712,803,024, excluding the portion equivalent to the deceased’s share, on the basis of the income amount reported or taxed by the deceased, and thus, the deceased was presumed to have received the above rent.

2) In light of the following circumstances, it is difficult to believe, consistent with the plaintiffs' assertion that the deceased was entitled to lease the real estate of this case, the respective statements of No. 6, No. 8-1 through No. 4, No. 6, and No. 8-7, No. 8-7, No. 8-2, and No. 2, and No. 3, and the overall purport of the arguments and arguments, and there is no other evidence to acknowledge the plaintiffs' assertion.

A) If the details of the change in ownership of the instant real estate are summarized as follows, the deceased was not the first 1/2 equity right holder, and the plaintiffs inherited 1/2 shares of the lowest 1/2 shares on July 25, 2004, and thus, conditional donation cannot be established with respect to the above maximum 00 shares.

B) Since the owner of the real estate has the authority to use and benefit from the real estate, the Plaintiffs also acquired the right to lease the real estate from the time when the registration of share of the instant real estate was completed.

C) On August 11, 2009, after inheritance and donation of the instant real estate, the Plaintiffs and KimA registered the business in relation to the lease business of the instant real estate (Plaintiff KimCC withdraws from July 1, 2016).

D) On the other hand, while the Deceased reported the estimation of the comprehensive income tax corresponding to their respective shares, the Plaintiffs did not have to pay the comprehensive income tax regarding the lease of the instant real estate.

E) The fact that the Plaintiffs are included in the lessor’s lease agreement on October 27, 2014 and November 22, 2015 regarding the instant real estate is inconsistent with the Plaintiffs’ assertion that there is no right to lease the instant real estate.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.