Whether donation constitutes a disguised transfer of gift

In light of the fact that the donor and the donee did not know each other, and the fact that it appears to have prepared the gift contract formally to avoid capital gains tax burden, it is judged that the transfer is not a gift.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 54,046,840 against the Plaintiff on January 14, 2009 shall be revoked.

1. Details of the disposition;

A. On April 15, 1983, the Plaintiff purchased each real estate listed in the separate sheet (hereinafter referred to as "each real estate of this case") and completed the registration of ownership transfer, and completed the registration of ownership transfer, on April 9, 2007, completed the registration of ownership transfer for each of the real estate of this case (hereinafter referred to as "the registration of ownership transfer of this case").

B. At the time, each of the instant real estate was established by the National Agricultural Cooperative Federation of Korea (hereinafter “CF”), the debtor, the maximum BB, and the maximum debt amount of KRW 360 million (hereinafter “the instant mortgage”). However, the registration of change of the right to collateral security, which changed the debtor to AA due to the “number of contracting parties on the same day as the date of the registration of change of ownership,” was completed.

C. StandingA reported and paid KRW 2058,00,000 to the Defendant, calculated by deducting the amount of KRW 300,000,000,000 from the gift value of each real estate of this case assessed as the officially assessed value, the amount of KRW 316,00,000,000, which is calculated by the

D. However, as a result of the tax investigation conducted thereafter, the director of the Namyang District Tax Office having jurisdiction over the residence of the A, determined that the actual cause for the registration of the transfer of ownership of this case constitutes a transaction not a gift but a gift tax paid by the A.

E. Accordingly, on January 14, 2009, the Defendant, the head of the tax office having jurisdiction over the Plaintiff’s residence, recognized that the amount of KRW 300 million of the secured debt of the instant right to collateral acquired by the Plaintiff as the transfer value, and as the data at the time of purchase in 1983 cannot be confirmed, the amount of KRW 172,712,773 calculated at the conversion value as the acquisition value, respectively, and accordingly, imposed capital gains tax of KRW 54,046,840 (hereinafter “instant disposition”).

F. On February 3, 2009, the Plaintiff appealed and filed a request for review with the Commissioner of the National Tax Service on February 3, 2009, but the decision of dismissal was rendered on March 10, 2009.

[Ground of recognition] Facts without dispute, Gap 1 and 2 evidence, Gap 3's evidence 1 to 4, Eul 1, 2 and 7's evidence, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

O The Plaintiff received a proposal from EE to receive the gift of each of the instant real estate under the condition that he/she takes over the secured obligation of the instant mortgage from EE, while the Plaintiff had low utilization value of each of the instant real estate was spent with a large amount of expenses, such as taxes, etc., and the disposal of the instant real estate was established for the least B, the Plaintiff completed the registration of transfer of ownership after concluding a donation agreement with EE, which was introduced by EE.

C) Therefore, the reason for the registration of transfer of ownership of this case is not only the actual donation, but also the debt he assumed is the most BB, and it is not the plaintiff who is the donor, and thus, it cannot be deemed as the "cost transfer by the gift by the onerous donation" under the latter part of Article 88 (1) of the Income Tax Act. However, it is unlawful for the defendant to consider it as the transfer for value and to take the disposition of this

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts may be acknowledged if there is no dispute between the parties, or if Gap evidence 3-1 to 4, Gap evidence 4-2, Eul evidence 2-7, and the testimony of the witness A in full view of the whole purport of the pleadings, it may be acknowledged, and contrary to the above, the statements of No. 5-1 to No. 6 and the testimony of new witnessCC are likely to be trusted, and there is no other counter-proof.

(1) On April 9, 2007, in accordance with the proposal of EE, which had been known to the general public, the AA and WhiteD entered into an investment contract with EE to the effect that “E invests KRW 90,000,000,000,000,000, plus KRW 30,000,000,00,000,000,000 from the date of investment, after purchasing each of the of the of the of the of the of the of the of the of the instant real property, shall be sold immediately and redeemed within 10,000,000, and the registration of ownership transfer for each of the of the instant real property as security for the investment amount shall be completed in the name of EE, and EE shall enter into an implementation agreement and at the same time transfer ownership to E.

(2) Meanwhile, on the same day, A.I.D. entered into a joint investment agreement with A.I.D. stating that “Where A.I.D and 0DD finally acquire ownership of each of the instant real estate because A.I.D. failed to perform an investment contract, A.I.D. shall own one half share and dispose of each of the instant real estate to another in mutual agreement.”

(3) On April 9, 2007, EE prepares a gift agreement with the Plaintiff stating that “A will prepare a contract in the form of donation because it will not impose gift tax on each real estate of KRW 300 million as collateral obligation is established.” On the other hand, on April 9, 2007, the Plaintiff prepared a gift agreement with the Plaintiff that “the Plaintiff will donate each real estate of this case to A, but will take over the collateral obligation of this case in full,” and then completed the registration of the transfer of ownership of this case in the name of LAA.

(4) At the time of acquisition of each of the instant real property, AE paid KRW 30,00,000,000,000 to EE under the name of acquisition tax, registration tax, and brokerage fee. On April 9, 2007, NA completed the registration of change of the right to collateral security, changing the obligor of the instant right to collateral security from B to A, and the maximum debt amount from 360,000,000 to 288,000,000,000,000 won, from 3.0,000 won.

(5) However, the EE did not pay the agreed amount because it did not resell each of the instant real estate by the time limit agreed in the investment contract, and on April 26, 2007, it completed the provisional registration of the right to demand partial transfer of ownership based on the purchase promise.

(6) On April 2007, EE became aware of the Plaintiff’s first introduction through FF NewCC, and HA also did not know at all the Plaintiff and BB, the title holder of the right to collateral security, prior to the transaction of each of the instant real estate.

D. Determination

Whether the transfer of a certain asset constitutes a "transfer" under the Income Tax Act shall be determined based on the actual details of the transaction rather than on the name of the transaction or the form, content, etc. of the contract. In other words, the following circumstances revealed through the process of disposal of each real estate of this case and the facts of recognition as seen earlier, i.e., (i) the Plaintiff, the donor and the donee, respectively, entered in the gift contract, and the Plaintiff, as the donee, did not know each other before the transaction of each real estate of this case. Thus, the gift of real estate between such persons is very exceptional in light of the empirical rule, and (ii) the Plaintiff entered into an investment contract to acquire profits from the purchase of each of the real estate of this case with MaE by investing the real estate of this case with MaD, and it is reasonable to deem that there was an agreement between the Plaintiff and MaB on the form, transfer of the real estate of this case with the intention of avoiding the burden of capital gains tax, and thus, it is reasonable to deem that the agreement between the Plaintiff and Ma was actually equivalent to the Plaintiff's obligation of collateral transfer of this case.

3. Conclusion

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