Seocho 2012west 2306 (Law No. 18, 2012)

It is presumed that the lineal ascendants and descendants have been donated even if they have traded;

Although it is alleged that the apartment sale contract is a legitimate sale between the lineal ascendants and descendants, since the mother and the son are subject to the conclusion and execution of the apartment sale contract, the fact finding should be conducted by strict proof, etc., the taxation based on the presumption of donation is legitimate.

2012Guhap3232 Revocation of Disposition of Imposition of Gift Tax

New AAAA

Head of Seodaemun Tax Office

January 18, 2013

January 25, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition imposing gift tax of KRW 000 on the Plaintiff on February 1, 2012 is revoked.

1. Details of the disposition;

A. On December 5, 2008, the Plaintiff’s mother transferred the ownership of OBB, Seodaemun-gu, Seoul, OO200 OO apartment 000 000 0000 'the apartment of this case' (hereinafter referred to as “the apartment of this case”). The ground for registration in the copy of the register of the above apartment was entered as “sale on November 24, 2008.”

B. As to the transfer of the above ownership, the Defendant deemed that the Plaintiff donated the apartment of this case from AB to AB, and on February 1, 2012, the Plaintiff imposed gift tax of KRW 000 on the Plaintiff on February 1, 2012 (hereinafter “instant disposition”). The Plaintiff asserted for a trial with the Tax Tribunal on April 27, 2012, and the said claim was dismissed on September 18, 2012.

[Grounds for Recognition] The non-contentious facts, Gap evidence 13, 16, 17, and Eul evidence 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

“The Plaintiff’s purchase of the instant apartment from ABB by paying a legitimate purchase price, and does not apply the provision on presumption of gift pursuant to Article 44(3)5 of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as “the Inheritance Tax Act”). Accordingly, the instant disposition based on a different premise is unlawful; (b) relevant statutes.

Paper in the Appendix

(c) Fact of recognition;

1) The business details operated by the Plaintiff and AB are as follows.

(Omission of Details of Projects)

2) On November 24, 2008, the Plaintiff drafted a sales contract (A evidence 1, hereinafter referred to as "the sales contract in this case") that provides that the apartment in this case shall be purchased in KRW 000, the down payment of KRW 000 on the day of the guidance, and the intermediate payment of KRW 000 on November 28, 2008, and the remainder of KRW 000 on December 8, 2008, the Plaintiff shall pay the remainder of KRW 000. The special agreement in this case states that "the actual obligation of KRW 00 out of the maximum amount of the claim established on the above real estate shall be replaced by the intermediate payment on November 28, 2008.

3) The apartment of this case had registered the creation of a mortgage between the maximum debt amount of KRW 000 (principal 000) and the main debt amount of KRW 000,000, and the main debt amount of the EEE Bank, EEEE Bank, EEEB, and the debtor ABB as follows. From the acquisition date of this case, the debtor of each of the above establishment of a mortgage was ABB, and the loan interest was paid from the EE Bank account in the name of ABB.

4) As of December 5, 2008, AB had a total of KRW 000 on the part of H Bank, Korea FF Bank, and GG Bank, including the above debt, as of December 5, 2008.

5) From December 8, 2008 to March 2, 2009, the Plaintiff transferred KRW 000 to HB bank account (Account Number 000) in the name of HB, the sum of KRW 000 to KRW 000 per 55 times, and from November 21, 2008 to February 10, 2009, the Plaintiff transferred KRW 200,000 to another HB bank account (Account Number 00,000 per 16 times on the day or following the day) in the name of HB bank account in the name of AB from November 21, 2008 to February 10, 2009.

6) AB was residing in the instant apartment from October 4, 2001 to April 16, 2012, and the Plaintiff is residing in the Seodaemun-gu Seoul Metropolitan Government OO 000-ro 000.

7) On February 29, 2012, the Plaintiff sold the instant apartment at KRW 00, while entering into a sales contract at KRW 000 on the date of the contract, and KRW 000 on March 29, 2012, and KRW 000 on April 16, 2012, the remainder of KRW 000. The Plaintiff transferred the instant apartment to Ansan, respectively, KRW 00 on February 29, 2012, and KRW 000 on March 29, 2012, and KRW 000 on April 16, 2012.

[Reasons for Recognition] The non-satched Facts, Gap 1 through 4, 7 through 10, 12, 13, 15, 16, and 18, and the purport of the whole pleadings

D. Determination

Article 44(1) of the Inheritance Tax and Gift Tax Act provides that when the transferor transfers the property to his spouse or lineal ascendants and descendants (hereinafter "spouse, etc."), the value of the property shall be presumed to have been donated to his spouse, etc. shall be deemed to have been donated, and Article 44(3)5 of the Inheritance Tax and Gift Tax Act provides that in cases where it is clearly recognized that the spouse, etc. received compensation and transferred it to his spouse, etc. fall under any subparagraph of Article 33(3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, it shall not be applicable to the Plaintiff who bears the burden of proving that the Plaintiff purchased the apartment in this case from his mother, and it is reasonable to assume that the Plaintiff had the burden of proving that the Plaintiff had not made any payment for the apartment in this case under the name of 0 B, and that there is no evidence that the Plaintiff had not made any payment for the apartment in this case under the name of 0, i.e., the purchase and sale contract between her mother and son, and that it should be established by strict evidence.

3. Conclusion

Then, the claim of this case by the plaintiff is dismissed as it is without merit, and it is decided as per Disposition.