Suwon District Court 201Mo4191 ( October 18, 2011)

National Tax Service Review Donation 2010-0103 (201.03.04)

The acquisition fund shall not be deemed to have been donated by the spouse.

The land was the common property of the couple despite the fact that it was the spouse's sole name, and it is reasonable to deem that the disposal price is the common property of the couple. Therefore, even if the acquisition fund of 1/2 share acquired under the name of the plaintiff was made out of the spouse's account, it is the common property of the plaintiff and the spouse, and it cannot be deemed that the acquisition

2011Nu32821 Revocation of Disposition of Imposition of Gift Tax

right XX

The director of the tax office

Suwon District Court Decision 201Guhap4191 Decided August 18, 2011

March 9, 2012

March 30, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s disposition of imposing gift tax of KRW 000 on the Plaintiff on September 28, 2010 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons for this decision are as follows, except for the dismissal of Article 2-2(b)(2) of the reasoning of the judgment of the court of first instance as follows. Thus, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts in height:

“2) The burden of proof as to the existence of the facts requiring taxation is against the tax authority, but if it is proved that the other party has presumed the facts requiring taxation in light of the empirical rule, the other party should prove the circumstances that are not subject to the empirical rule. Under Article 830(1) of the Civil Act, the real estate acquired in the name of a spouse in the marriage is presumed to be the special property of the nominal owner, and the presumption of such special property is not sufficient to prove that there was cooperation in acquiring the property or there was an assistance in the marriage life, and that there was an actual burden of proof that the other party has acquired the property in order to actually own the property (see, e.g., Supreme Court Decisions 2006Du8068, Sept. 25, 2008; 98Du15177, Dec. 22, 1998).

Based on these legal principles, this case is examined.

The instant disposition is based on the facts that the Plaintiff acquired each of the instant real estate jointly with the husband, and that the acquisition fund was withdrawn from the bank account under the name of the newA. As seen in the above facts finding, the above acquisitor deposited the money that the Plaintiff sold and received to the bank account under the name of the newA. As such, the issue of whether the Plaintiff donated the acquisition fund of the instant real estate from the newA depends on whether the anti-identical land was the co-property of the Plaintiff and the newA.

In light of the following circumstances revealed through the aforementioned facts, i.e., (i) the Plaintiff’s role in operating the Gu hole with the new AB (based on the testimony of the witness B of the first instance court, the Plaintiff was engaged in business at the time from the beginning to late at night while living in the Gu hole only attached thereto, and the new BA can be acknowledged as having caused the Plaintiff to make a hole more than the new BA due to the relationship between the house owner and the new house owner, and the new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house owner’s new house ownership.

Therefore, the money acquired by selling this shall also be deemed as the joint property of the Plaintiff and the newA. As such, the Plaintiff cannot be deemed to have received a donation from the newA on the ground that each of the instant real estate acquisition funds was withdrawn from the bank account under the name of the newA. The instant disposition made on a different premise is unlawful.

3. Conclusion

If so, the plaintiff's claim of this case should be accepted for the reason of the reasons, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed for lack of reason.