Early High Court Decision 2016J 3231 ( December 30, 2016)

Whether the retroactive effect of the division of the inherited property is recognized

In light of the fact that it is reasonable to view that other inheritors donated the gift tax to the Plaintiff, the portion exceeding statutory inheritance shares out of the proceeds of the sale of the instant trust property is not erroneous in imposing gift tax on the Plaintiff.

Article 31 of the Inheritance Tax and Gift Tax Act

The revocation of revocation of the imposition of gift tax by Suwon District Court 2017Guhap6263

O KimO

O Head of tax office

2, 2017.08

2017.12

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of each gift tax on April 5, 2016 on the Plaintiff shall be revoked.

1. Details of the disposition;

A. On November 20, 1980, Dong Kima purchased 00,000 Dong 00,000 Dong 756-6, 986m2 (hereinafter “instant land”) and buildings on its ground. On August 5, 1982, Dong Kima completed the registration of ownership transfer under the name of Dong Kima with respect to the above land and buildings on August 5, 1982, and registered the title transfer for the remaining one-half shares with respect to the other one-half shares under title trust with Dong Kim Ss (hereinafter “the shares of this case”), and 1/2 shares registered under the name of deceased Kim Ss among the instant land, and hereinafter “the shares of this case”).

B. The deceased Kima died on May 31, 1993, and the heir had a grhm with the plaintiff, Kimd, Kimff and his spouse's heart (hereinafter "the heir of this case").

C. On Nov. 30, 1993, the Plaintiff and Centralg completed the registration of transfer of ownership of one-half of shares in the name of Kima, among the instant land and its above-ground buildings, on May 31, 1993, for inheritance by division as of May 31, 1993.

D. On July 27, 201, the Plaintiff, gggs, and Kims entered into a sales contract with the Plaintiff (hereinafter “instant church”) on condition that the instant land is demolished, on condition that the instant land will be sold for 11.5 billion won in total, and on April 2, 2013, the registration of ownership transfer was completed for the instant land in the future of the instant church.

E. According to the above sales contract, the Plaintiff received from the instant church the down payment of KRW 1150 million on July 27, 201, and KRW 4.6 billion on October 31, 201, the intermediate payment of KRW 4.6 billion on April 2, 201, and KRW 5.75 billion on April 2, 2013, respectively. On June 28, 2013, the Plaintiff reported the transfer value of each of the shares in the instant land to the Defendant as KRW 2.875 million (Plaintiff, the heartg), and KRW 5.7 billion (Ss) on June 28, 2013, respectively.

F. As a result of the hhhhh National Tax Service’s investigation into the source of funds with respect to the Plaintiff during the period from October 13, 2015 to December 31, 2015, the Plaintiff was notified on January 5, 2016, that the amount equivalent to the statutory share of the instant trust among the above transfer proceeds should be deemed to have been donated to the Plaintiff by the heir other than the Plaintiff, on the ground that the amount equivalent to the statutory share of the instant trust among the transfer proceeds should be imposed on the Plaintiff on the following grounds: (a) there was no agreement on division of inherited property among the heirs of the deceased Kima; and (b) the heir did not have any joint inheritance according to the statutory share of inheritance; and (c) even if the heir received the transfer proceeds as the transfer proceeds, the amount of KRW 4.381 billion,000,000,000,000,000,000 won, which was paid to the Plaintiff.

G. On April 5, 2016, the Defendant notified the Plaintiff of the result of the tax investigation (including additional tax) by the Commissioner of the National Tax Service, imposed on the Plaintiff the gift tax of KRW 1,384,203,970 (hereinafter “instant disposition”).

H. The Plaintiff sought revocation of the instant disposition and filed an appeal with the Tax Tribunal, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on December 29, 2016.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3 (including branch numbers, hereinafter the same shall apply), Eul evidence Nos. 2 and 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

At the time of the death of the deceased Kima, the instant inheritors agreed that the Plaintiff shall independently inherit the entire land of this case by consulting on the division of inherited property as well as the shares of the instant trust, as well as the shares of the instant deceased, and the Plaintiff has paid property tax on the entire land of this case after the commencement of the inheritance.

Therefore, the instant disposition, based on the premise that the deceased Kima’s heir did not reach an agreement on the division of the inherited property with respect to the instant trust shares, is unlawful.

B. Determination

1) At the time of the death of the deceased Kima, there exists an agreement on the division of inherited property with respect to the instant trust shares.

Whether or not it was

A) Facts of recognition, Gap evidence No. 1, Eul evidence No. 1, and the purport of the whole pleadings as seen earlier

According to the above, it can be acknowledged that the deceased Kima died and the registration of transfer of ownership of 1/4 shares in the name of the plaintiff and the bodyg for the deceased's shares was completed, and that the registration of transfer of ownership of the trust shares in this case was completed immediately in the future of the church in this case from Kim S on April 2, 2013 from Kims. When the plaintiff was investigated from the hhhhhhhh National Tax Service, he did not report the trust shares in this case to the hhhhhhhh National Tax Service without including the value of the inherited property, and it can be known that there was no division of the trust shares in this case at the time of the commencement of inheritance, after confirming the changes in ownership of the certified copy of the registry, the transfer price of the trust shares in this case was to be reverted to the plaintiff in full in consultation with the heir.

According to the above facts, as long as the trust shares of this case were not supported by the report on the tax base of inherited property at the time of the death of the deceased Kima, it is difficult to deem that there was an agreement on division of inherited property, which shall be owned solely by the plaintiff, as long as the trust shares of this case was not supported by the report on the tax base of inherited property, and in the case of the shares of the deceased of this case, since the plaintiff and the heartg completed the registration by dividing them into 1/4 shares of the deceased of this case, it is difficult to deem that the heir of this case made an agreement on division of inherited property, which the plaintiff and the heir of this case should own solely as to the shares of this case. (B) The statement in the evidence No. 5 of this case was made by the heir of this case around January 2016, which was around the time when the results of investigation by the hhhhhhhhh National Tax Service were notified, and it is difficult to believe that the heir of this case agreed on division of inherited property as alleged by the plaintiff.

2) Whether the Plaintiff is liable for gift tax

As to the instant trust share, insofar as there was no agreement on division of inherited property among the instant inheritors, the instant inheritors acquire ownership of the instant trust share in accordance with the statutory share in the inherited portion.

In addition, since the transfer proceeds accrued from the sale and purchase of the instant trust shares to the Plaintiff, it is reasonable to view that the remaining inheritors, other than the Plaintiff, have donated the transfer proceeds corresponding to each of the pertinent statutory shares of the instant trust shares to the Plaintiff, among the inheritors of the instant case.

Therefore, the Plaintiff bears gift tax on the date on which the instant church paid money to the Plaintiff as the transfer price for the instant trust shares. The amount of gift tax is as shown in the attached Table (not disputing the Plaintiff regarding the gift tax amount).

3. Conclusion

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