In the event that a spouse trusted real estate to the Plaintiff, the purchase price shall not be deemed to have been donated.

Where a spouse title trust real estate to the Plaintiff, gift tax may not be imposed on the ground that the purchase price was donated.

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

2017Guhap71322 Revocation of Disposition of Imposition of Gift Tax

OO

O Head of tax office

May 9, 2018

June 7, 2018

1. The imposition of the gift tax by the Defendant against the Plaintiff 20O.O.O., and the imposition of the gift tax by the Plaintiff 20O.O.O., the imposition of the gift tax by the Defendant against the Plaintiff 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. From 20O.O.O. to 20O.O.O., the Plaintiff completed the registration of transfer of ownership in the name of the Plaintiff with respect to each real estate listed in paragraphs 1 to 5 of the attached Table (hereinafter collectively referred to as "each of the real estate of this case") as listed in the following table. When individually named, "real estate of this case," "real estate of this case," "real estate of this case," and "real estate of this case," respectively in the order of the Plaintiff.

B. The Defendant presumed that AA, the spouse of the Plaintiff, donated the Plaintiff the total purchase price of each of the instant real estate (i.e., acquisition price + acquisition price + acquisition price + KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW 100,000, less KRW KRW 100,000,000, KRW 200,000,000, KRW 200,000,000,000,000,000,000).

C. The Plaintiff, who is dissatisfied with the instant disposition, filed a request for examination with the Commissioner of the National Tax Service for 20O.O.O.O., but the Commissioner of the National Tax Service dismissed the said request by the Plaintiff.

D. The defendant revoked ex officio the part of 200O.O.O.O. (1) of the disposition of this case, which was pending in the lawsuit of this case, 200O.O. (200O.O.) that was disposed of by 200O.O.O. (2000, which was determined as the actual date of donation, and again imposes O.O. (2) of gift tax for 2000 as the date of donation (hereinafter referred to as "the disposition of this case"). The disposition of this case, which was not revoked ex officio among the disposition of this case (1) of this case, was the disposition of O.O. (2) and the disposition of this case (2) of this case.

[Reasons for Recognition] Facts without dispute, Gap's statements, Gap's statements, Gap's statements, 7, 8, 14, 16, 21, 23, Eul's statements, Eul's 1 through 5 (including each number; hereinafter the same shall apply), and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. Main assertion

AA, the husband of the Plaintiff, was in office as the executive officer of BB Group at the time of acquiring each of the instant real estate. However, due to the circumstances such as commencement of rehabilitation proceedings against BB Group, AA was inevitably responsible for the insolvency management of BB Group, or is likely to receive a request for provision of security, each of the instant real estate in title trust to the Plaintiff, the spouse of the Plaintiff. Accordingly, AA was deemed to have donated money equivalent to the purchase price of each of the instant real estate to the Plaintiff, and thus, the Defendant’s disposition imposing each gift tax on the Plaintiff should be revoked illegally.

B. Preliminary assertion

Even if AA does not own the real estate of this case in title trust to the Plaintiff, the presumption of unique property shall be reversed, and considering the degree of contribution to the Plaintiff’s household labor, etc., the real estate of this case shall be deemed to be co-ownership by the Plaintiff and AA.

3. The legality of disposition.

A. Relevant legal principles

The burden of proof as to the existence of the facts requiring taxation shall be proved by the circumstances in which the other party is presumed to have not been subject to the application of the empirical rule, if the facts alleged to have been presumed to exist in light of the empirical rule, and under Article 830(1) of the Civil Act, real estate acquired by one side of the married couple under the sole name in marriage shall be presumed to have the special property of the nominal owner. Thus, if the source of the fund to acquire the real estate in question is clearly identified to have been the other spouse, not the nominal owner, then the nominal owner may be deemed to have received a donation of the fund to acquire the real estate in question from the spouse. In this case, the fact that the real estate in question cannot be deemed to have been donated

In order to reverse "the presumption of a superior property" under Article 830 (1) of the Civil Code, the other spouse shall be the other spouse.

In fact, the burden of proving that the real estate was acquired in order to actually own the real estate by itself. As such, the mere fact that the other spouse is the source of the purchase fund does not necessarily mean that the presumption of an unconditional property was reversed and a title trust was made with respect to the real estate concerned. In full view of all the circumstances revealed through the relevant evidence, whether the other spouse has paid the price for the real possession of the real estate in question individually and specifically (see, e.g., Supreme Court Decision 2006Du8068, Sept. 25, 2008).

B. Determination

Based on the above legal principles, the Plaintiff’s name with respect to each of the instant real estate

The facts that each real estate purchase price of this case has been completed are as acknowledged earlier, and since there is no dispute between the parties that both the purchase price of each real estate of this case was borne by AA, the real estate of this case is the plaintiff's unique property and it is presumed that AA has donated the purchase price of each real estate of this case to the plaintiff. However, in full view of the following facts and circumstances that can be recognized by the purport of the entries and arguments in the evidence Nos. 1, 8 through 12, 17, 22, 24, and 25, the presumption is reversed, and the actual owner of each real estate of this case is AA and AA has a title trust of each real estate of this case to the plaintiff. Accordingly, the defendant's disposition of this case under the premise that AA has donated money equivalent to the purchase price of each real estate of this case to the plaintiff shall be revoked by unlawful means.

(As long as the plaintiff's primary assertion is accepted, no further determination shall be made on the conjunctive argument).

1) AA, a lessee of the instant real estate, used the instant real estate as the place of business, and deposited the instant real estate into the AAA’s account each month by indicating that the depositee with respect to the instant real estate was DD), EE, the lessee of the instant real estate, EE, and FF, the lessee of the instant real estate, respectively.

2) AA paid the property tax and general income tax imposed on each of the instant real estate, and the value-added tax on the registration of rental business operators with the Plaintiff’s name was paid by AA.

3) GG and HH concluded a sales contract to purchase real estate of this case 20O.O.O.O.O.O. (3). GG deposited KRW 00 out of the purchase price into the Plaintiff’s savings bank account on the same day, and the 20O.O.O.O. again transferred the Plaintiff’s mutual savings account to the Plaintiff’s collective investment securities account. The Plaintiff’s mutual savings account was terminated 20O.O.O.O.O.O.O., and transferred KRW 00 out of the principal and interest on termination to the Plaintiff’s collective investment securities account. Meanwhile, AA purchased the real estate of this case 20O.O.O. III and JJ from JJ to purchase the real estate of this case (hereinafter “real estate of this case”) and some remainder of the purchase price was paid out of the purchase price to the Plaintiff’s 20O.O.O.O.60, etc., in light of the agreement that the Plaintiff’s mutual savings account was sold from the Plaintiff’s account.

4) The time when the Plaintiff acquired each of the instant real estate from BB group from around 2000, at which BB group was in liquidity crisis, to around 2000, when AA retired from KR company affiliated to BB group, and in light of the circumstances where AA acquired real estate in its own name before 200O or after 200O.O.O.O.O.O., etc., the Plaintiff’s assertion that AA acquired real estate in the name of the Plaintiff in order to refuse a request for provision of collateral from the side of BB group.

5) AA provided real estate owned by AA as security for tax payment at the time the Plaintiff applied for deferment of collection for the instant disposition (1).

6) The Plaintiff completed the registration of rental business in the name of the Plaintiff with respect to each of the instant real estate

B. The reporting of value-added tax, global income tax, etc. is merely performing the duty of the nominal owner of each real estate of this case as natural.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.