Whether the presumption of donation is made where a loan under the name of a spouse has been used as real estate acquisition fund.

It is reasonable to see that it is not a loan made in the name of the spouse, but the spouse becomes the principal debtor and obtains the loan, and then it is used as the purchase price of the real estate.

Article 45 of the Inheritance Tax and Gift Tax Act (Presumption of Donation)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of gift tax of KRW 206,188,487 against the Plaintiff on October 11, 2005 is revoked.

1. Details of the disposition;

A. As between April 10, 2001 and April 28, 2005, the Plaintiff acquired each of the real estate rights and real estate listed in the annexed real estate list (hereinafter “the entire real estate of this case”), and each of the real estate listed in the annexed real estate list Nos. 5, 6 and 7 of the annexed real estate list (hereinafter “the real estate of this case”).

B. From May 12, 2001 to September 28, 2005, the Defendant presumed that the Plaintiff donated KRW 1,238,621,680, etc., a husband, to the Ma○○, etc., and issued the instant disposition imposing gift tax stated in the purport of the claim on the Plaintiff on October 11, 2005.

(i)Total purchase amount of KRW 233,000,000 whose source has not been verified

D. The sum total of KRW 903,00,000 (hereinafter “the instant loan”) used as the sales price of the instant real estate out of the money loaned by the financial institution, which ○○○○, a husband of the Plaintiff, provided the instant real estate as security, and the principal debtor was the principal debtor.

【Damages’s loan used as the purchase price of the entire real estate of this case (18,000,000 interest on the loan borrowed in the name of the Plaintiff)

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 5-1 to 4, Eul evidence 1-1, 2, and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff’s assertion that it is the debtor of the instant loan

In ○○○, the instant loan was extended to the Plaintiff as collateral, but the sum of the Plaintiff’s loans to the Plaintiff’s financial institution was inevitably lent to ○○○○ by her husband’s name beyond the limit, and the said loan was not repaid to ○○○. Thus, it cannot be deemed that the Plaintiff raised the loan, and it was donated to ○○○.

【○○○’s assertion that the entire real estate of this case was entrusted to the Plaintiff.

Preliminaryly, the entire real estate of this case was acquired by YO, who is the husband of the Plaintiff, and title trust to the Plaintiff. Thus, it cannot be said that the Plaintiff acquired the pertinent real estate by donation from YOO, which was the object of the instant disposition.

Article 2(3) of the Inheritance Tax and Gift Tax Act is a disposition subject to retroactive application.

In addition, the defendant applied the provision of Article 2 (3) of the Inheritance Tax and Gift Tax Act (hereafter referred to as "donation" in this Act), which was amended on December 30, 2003 and enforced on January 1, 2004, to another person without compensation (including the case of transferring the tangible or intangible property at a remarkably low price) or to increase another person's property value by direct or indirect means, regardless of the name, form, purpose, etc. of such act or transaction, retroactively to the act of raising the plaintiff's property value.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Whether the Plaintiff is a debtor of the instant loan

In full view of the purport of the arguments in the evidence Nos. 2-1, 2, 3, and 3-1, 2-2, and 5-2 of the evidence Nos. 2-1, 3-2, and 5, the plaintiff registered a real estate rental business as the location of the place of business on October 1, 2002 as well as the income of KRW 4,189,49 for one year. On the other hand, Y○○ operated a real estate brokerage and consulting business in the Yongsan-si area and received approximately KRW 3,00,00 per month average profits from real estate brokerage and consulting business, the plaintiff's loan No. 1 to 300,000,000 won as well as the loan No. 5 of the real estate No. 1 to 300,000,000 won, and the loan No. 1 to 0,000,000 won as interest on real estate No. 6, and the loan No. 1 to the above financial institution was replaced by the plaintiff. 6.

Doz. Whether the instant entire real estate was trusted in trust to the Plaintiff

In light of the fact that all of the instant real estate was acquired in the name of the Plaintiff rather than ○○○, and the relationship between the Plaintiff and Y○○○, and the fact that Y○○○ does not seem to have a clear reason for trusting the said real estate to the Plaintiff, the Plaintiff cannot accept the said assertion on the ground that a considerable portion of the purchase price of real estate was paid in cash or Y○○ as a loan from a financial institution by an obligor, and it is difficult to view that the entire real estate of this case was a title trust to the Plaintiff, and there is no other evidence to view otherwise.

Article 2(3) of the Inheritance Tax and Gift Tax Act applies retroactively

Article 2(1) and Article 45(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003) provides that in a case where it is difficult to recognize that a donee received all donated property from a third party as of the donation date, and that the donee acquired the property by his own means in view of occupation, age, income, property status, etc. as of the donation date, the purchaser of the property shall be presumed to have received a donation from another person at the time of acquiring the property, and there is no difference in the content of the disposition of this case after the amendment of the above Act. In light of the aforementioned circumstances and contents of the disposition of this case, the defendant does not accept the part of the Plaintiff’s acquisition fund of this case, which was in force at the time of the Plaintiff’s acquisition of the entire real property, donated and presumed to have been donated by the Plaintiff to ○ (it is deemed that it was appropriated by the Plaintiff’s income or property, and it does not seem to have been effective on January 1, 2004, 204.

Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.