Daegu District Court 201Guhap1766 (2.02.08)

Cho Jae-chul2010-Gu3959 ( October 31, 2011)

Inasmuch as it is reasonable to deem that there was a financial power to donate, it is presumed that the donation was donated.

In full view of the fact that the reported income of the Plaintiff is insufficient to acquire real estate, that the donor was engaged in business activities, and that the donor sold real estate and did not acquire new real estate, it is reasonable to deem that the donor had the ability to donate the amount to the Plaintiff, and that the donation is presumed to have

2012Nu608 Revocation of Disposition of Imposition of Gift Tax

Section AA

Head of Namgu Tax Office

Daegu District Court Decision 201Guhap1766 Decided February 8, 2012

August 17, 2012

September 7, 2012

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

The Defendant’s imposition disposition of KRW 00 on the Plaintiff on September 3, 2010, and each disposition of KRW 000 on the gift related to the gift as of February 3, 2005, KRW 000 on March 4, 2005, and KRW 000 on the gift as of July 1, 2005 is revoked.

2. Purport of appeal

Of the judgment of the first instance court, the part against the plaintiff falling under each of the following cancellations shall be revoked. The part exceeding KRW 000 of the imposition imposition disposition of KRW 000 on the gift related to the gift as of March 4, 2005 against the plaintiff on September 3, 2010 and the part exceeding KRW 000 of the imposition disposition of KRW 00 on the gift related to the gift as of July 1, 2005 shall be revoked (the plaintiff withdrawn some appeal as at the date of the first instance trial and reduced the purport of the remaining appeal).

1. Details of the disposition;

A. On February 2, 2004, the Plaintiff purchased a building of 000 square meters and 347.2 square meters and 5 floors of its ground reinforced concrete slab bars (hereinafter collectively referred to as “one real estate”), jointly with the Maddong B, and the Maddong 2, Daegu-gu O2, 000, and 858.8 square meters, and completed the registration of ownership transfer with co-ownership as 1/3 each.

B. On November 8, 2004, the Plaintiff purchased 000 m200 m2 and 793 m20 m20 m20 m2 (hereinafter collectively referred to as “second real estate in this case”) in total, and completed the registration of ownership transfer by purchasing 00 m20 m20 m2.

C. On May 31, 2005, the Plaintiff leased the lease deposit amount of KRW 000,000, OOOO apartment 000, 000 (hereinafter “the lease deposit claim”).

D. From April 20, 2010 to May 28, 2010, the director of the Daegu Regional Tax Office recognized that: (a) the Plaintiff’s property was the result of the investigation into the single source of funds; (b) the Plaintiff’s co-ownership share of KRW 000 among the funds for acquiring the first real estate of this case; and (c) KRW 000,000, which is the sum of the funds for acquiring the claim for the lease deposit of this case, and KRW 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00.

[Based on Recognition] The facts without dispute, the entries in Gap evidence 1 through 5 (including household numbers, and hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition of this case, based on the premise that the Plaintiff took over 1/2 of the obligation to refund the rental deposit (hereinafter “the obligation to refund the rental deposit of this case”) against the lessee of the building among the real estate No. 1 of this case, as the Plaintiff acquired the real estate No. 1 of this case in collaboration with JeonB and KoCC in order to share the purchase price, is unlawful. Therefore, the part exceeding KRW 000 of the disposition of imposition of the gift tax related to the gift tax of March 4, 2005 and the part exceeding KRW 00 of the disposition of imposition of the gift tax related to the gift of July 1, 2005, which exceeds KRW 00,000, shall be revoked.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) From March 28, 2001 to May 1, 2004, the Plaintiff was the representative of the II Repair and Manufacturing Business Co., Ltd. (hereinafter referred to as the “II Repair and Manufacturing Business Co., Ltd.), and is conducting a business leasing the instant 1 real estate jointly with BB, the co-owner from February 2, 2004 to May 2, 2004.

(2) From 1998 to 2008, the income reported by the Plaintiff while carrying on the second maintenance business and the real estate rental business listed in the above paragraph (1) are as follows.

(3) As of May 25, 1973, from June 16, 1993, the KJH (Plaintiff’s father) operated “JJ stones” as from May 25, 1973 to June 16, 1993, and operated “II LH Motor Vehicle Maintenance Industry” as of October 28, 1995, and operated until March 2001 after converting into a stock company II (II), and was in office as the president through a director of a Aa Saemaul Fund. Meanwhile, the KJ sold real estate four times from March 1997 to June 2003 and did not acquire any new real estate, and the standard market price of the sale real estate is 00 won in total.

(4) As described in paragraph (2), the Defendant recognized the Plaintiff’s real estate rental income of KRW 000 from 1998 to 2003 and real estate rental income of KRW 000 from 2004 as the source of the funds that the Plaintiff acquired real estate of this case, and the Plaintiff’s real estate rental income of KRW 205 after December 26, 2008 as the source of the funds that the Plaintiff acquired on December 26, 2008 OO-dong 000 O00 000 O-dong 2, Daegu that the Plaintiff acquired on December 26, 2008.

(5) On May 19, 2010, the Plaintiff: (a) 000 won (the amount calculated on the premise that the Plaintiff took over 1/2 of the instant rental deposit obligation; and (b) 000 won as the acquisition fund of the instant 2 real estate; (c) 000 won as the repayment of the instant 2 real estate loan related to the instant 2 real estate; and (d) 000 won as the acquisition fund of the instant lease deposit; and (c) 100 won as the donation fund of the instant lease deposit; and (d) 200 won as the acquisition fund of the instant lease deposit, and submitted to the Defendant a confirmation document (No.

(6) In imposing gift tax on other co-owners of the instant real estate No. 1, the Defendant

① The formerB imposed gift tax on the shortage in financing on the premise that it takes over 1/2 of the instant rental deposit obligation (BB was dissatisfied with the request to the Tax Tribunal on November 17, 2010, and was dismissed on March 11, 201, and did not proceed to the appeal procedure any longer.

(2) As regards the changedCC, gift tax was not levied on the grounds that the source of acquiring funds is recognized as having been operating a pharmacy in Daegu-dong-dong-dong-dong-dong-dong-dong 461-5 to 20 years.

[Based on Recognition] The non-contentious facts, Gap evidence 6, 14, and Eul evidence 3 through 8, and the purport of the whole pleadings

D. Determination

(1) Presumption of donation

(A) Under Article 45(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), and Article 34(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010), it is difficult to recognize that the assets were acquired with self-sufficiency in view of the circumstances such as occupation, age, income and property status, etc. (i) the amount of income already reported or imposed, and (ii) the value of the assets received in return for the disposal of the assets, and (iii) the amount of money used directly for the acquisition of the assets or for the repayment of the debts thereof, is presumed to have been donated to the acquisitor of the assets at the time of the acquisition of the assets, and it is not necessary to prove that the assets were returned to the purchaser of the assets, even if there is no other apparent proof or presumption of the assets from the spouse’s account.

(B) As seen earlier, it is reasonable to deem that the Plaintiff reported from 198 to 2004 does not have the capability to acquire the instant real estate and the instant real estate, and that he was engaged in business activities from May 25, 197 to March 2001, and that he sold real estate equivalent to KRW 000 and did not acquire new real estate from March 25, 1997 to June 2003, and that he had the financial capability to donate the instant issue amount to the Plaintiff without any special property. Accordingly, the Plaintiff is presumed to have donated the instant issue amount from Hah to the Plaintiff. Accordingly, the Plaintiff must prove the source of property acquisition fund, separate from the funds assumed to reverse the said presumption, and prove that the funds were used as the acquisition fund of the pertinent property.

(2) Whether to accept the full amount of the instant rental deposit liability

(A) In light of the facts found in Section A of this case and the following circumstances known by the evidence mentioned above, and there is no evidence to support the plaintiff's assertion as to Gap evidence No. 11 (hereinafter referred to as "the Agreement") and evidence No. 23 and No. 24, the testimony of the witness of the first instance trialCC, and the testimony of the witness of the second instance trial witness of the first instance trial, and there is no evidence to support the plaintiff's assertion.

① On May 19, 2010, the Plaintiff prepared a written confirmation (No. 8) stating that the acquisition fund of the instant real estate No. 1 was received from HaH, which was calculated on the premise that the Plaintiff took over 1/2 of the obligation of the instant rental deposit, and submitted it to the Defendant.

② The Plaintiff’s motherB also paid gift tax related to the acquisition fund of the first real estate in this case calculated on the premise that the formerB bears 1/2 of the instant rental deposit obligation.

③ Of the instant security deposit, Samsung C&T and the instant security deposit have increased from KRW 000 to KRW 000 again, the reduced amount has been reduced to KRW 000, and the reduced amount has been reduced to KRW 000 upon borrowing KRW 000 in the Plaintiff’s name at the Seongbuk-dong Branch of Seongbuk Agricultural Cooperatives on September 27, 2007, and repaid the loan principal in full by dividing the loan principal into KRW 000 on September 28, 2007 and KRW 00 on June 10, 2008. In light of the Plaintiff’s revenue and property status, the Plaintiff failed to present its source even though the above repayment amount was considerably large.

④ After jointly registering the business of the real estate lease of 1st real estate, the Plaintiff, the formerB, and the formerCC reported each of 1/3 of the rental income to the Defendant as one of its own income.

⑤ 원고가 이 사건 제1부동산을 매수한 후 갱신 또는 신규 체결한 각 임대차계약서 상의 임대인이 원고 단독 명의로 기재된 것도 있으나，임대보증금 000원인 QQ정형외과 임대차계약서를 포함하여 상당수의 임대차계약서(갑 제16호증의 2， 3， 5， 7， 8， 10， 11， 갑 제25호증의 1， 2， 3)의 임대인란에 원고 외 2인이， 임대인 주민등록번호란에 위 부동산임대 사업자등록번호가 각 기재되어 있다.

6. The witness testified that the RR, in order to relieve the other co-owners of the land or to reduce the circulation of the land subject to seal, he/she prepared a lease agreement with the lessor who believed the Plaintiff and signed the lease agreement with the Plaintiff as the lessor.

7) The resident registration number of the amendedCC stipulated in the instant agreement is different from the actual ones, and the content appears to have been agreed in advance before the sales contract was concluded, and the date of preparation is later than February 1, 2004, which is the date of the sales contract of the first real estate.

(3) Therefore, the instant disposition based on the premise that the Plaintiff took over 1/2 of the instant security deposit obligation is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

Then, the judgment of the first instance that dismissed the plaintiff's claim of this case is just and the plaintiff's appeal is justified.

Since there is no other way, it shall be dismissed, and it is so decided as per Disposition.