Plaintiff (Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant)

The superintendent of the tax office

The oral argument of December 1, 2004

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s imposition of KRW 80,435,950 on the Plaintiff as of April 15, 2003 and the imposition of KRW 88,51,190 on the gift tax as of May 1 of the same year shall be revoked.

1. Details of the disposition;

A. On July 24, 2001, Nonparty 1 donated KRW 295,037,321 in cash to the Plaintiff. On March 2, 2002, Nonparty 1 transferred the deposit claim of KRW 510,511,69 (hereinafter “the deposit claim of this case”) to the Plaintiff and notified the fact of transfer around that time.

B. On April 15, 2003, the Defendant imposed KRW 80,435,950 (including additional tax) on the Plaintiff on the ground that the transfer of KRW 510,511,69 of the instant deposit claim made by Nonparty 1 to the Plaintiff constitutes a gift under the Inheritance Tax and Gift Tax Act.

C. After that, according to Article 47(2) of the Inheritance Tax and Gift Tax Act, the Defendant calculated the gift tax amount of KRW 805,511,69,020 by adding up KRW 295,037,321 as of July 24, 2001, and calculated the gift tax amount of KRW 805,549,020. However, the Defendant found that the gift tax amount of KRW 510,51,69 was erroneously calculated. Based on the correction of the gift tax amount of KRW 805,549,020, the Defendant corrected the gift tax amount of KRW 168,947,150, and imposed an additional tax (including additional tax) on KRW 88,51,190, which was omitted on May 1, 2003 (hereinafter “instant disposition”).

[Ground of Recognition] Unstrifed Facts, Gap evidence 1 through 3, 7, 8, Eul evidence 1-1, 2, Eul evidence 2-4, 5, and Eul evidence 3

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The transfer by Nonparty 1 to the Plaintiff of KRW 510,511,69 of the instant deposit claim to the Plaintiff is based on the Seoul Family Court (case number omitted) consolation money and the protocol of mediation of the case for division of property, and it is not based on the performance of trial results and the intention of Nonparty 1 himself/herself. Thus, the transfer of the instant deposit claim does not constitute a gift.

B. Relevant statutes

【The former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003)

Article 2 (Gift Tax Taxables)

(1) In case where, owing to a donation by a third party (excluding a donation becoming effective upon the death of a donor; hereinafter the same shall apply), there exists donated property on the donation date falling under one of the following subparagraphs, gift tax shall be levied, pursuant to this Act, on such donated property

1. Where a person who acquires property by donation from a third party (hereinafter referred to as " donee") is a resident (including a non-profit corporation, the head office or main office of which is located in Korea; hereafter in this paragraph and Articles 54 and 59, the same shall apply), all of the donated property which the resident has donated;

Article 31 (Scope of Donated Property)

(1) Gift property stipulated in the provisions of Article 2 shall include property belonging to the donee, all articles having economic value capable of realizing in money and all de facto or de facto rights having property value.

Article 47 (Taxable Amount of Gift Tax)

(2) Where the aggregate of the value of donated property received from the same person (where the donor is a lineal ascendant, including the spouse of such lineal ascendant) within 10 years before the date of donation concerned is not less than 10 million won, such value shall be added

【Civil Code

Article 839-2 (Claim for Division of Property)

(1) One of the parties who has been divorced by agreement, may claim a division of property against the other party.

Article 843 (Provisions Applied Mutatis Mutandis)

The provisions of Articles 806, 837, 837-2 and 839-2 shall apply mutatis mutandis to the case of judicial divorce.

C. Determination

(1) Facts of recognition

In light of the overall purport of pleading Nos. 1, 5-1, 6-1, 6-1, 7, 10-1, 3, 14, 15, 18, 62 through 6, 11, 12-1, and 9 of the above evidence Nos. 10-1, 6-2, and 10-1, 60 of the above evidence Nos. 10-1, 6-2, and 80 of the above case, the non-party Nos. 2 was transferred to the plaintiff on May 8, 1971, and the non-party Nos. 1, 6-1, 6-2, and the non-party Nos. 1, 1979-1, and the non-party No. 2 were transferred to the plaintiff on Oct. 16, 1979. The plaintiff did not have married with the plaintiff on Feb. 20, 201.

(2) Determination

(A) According to the above facts, the plaintiff filed a lawsuit claiming consolation money and a division of property against the non-party 1 and the non-party 6, the heir of the deceased on the ground that the deceased inherited the deceased's claim for consolation money and the non-party 1 and the non-party 6 for resolution of de facto marital relationship between the deceased for more than 10 years, but the above lawsuit was terminated by voluntary conciliation in the Seoul Family Court (case No. 1 omitted) conciliation case, and then the plaintiff acquired KRW 510,511,69 of the deposit claim of this case from the non-party 1 pursuant to the above conciliation protocol.

However, the issue of whether a gift constitutes a gift under the Inheritance Tax and Gift Tax Act where a property is received or received is not the external form of the receipt or receipt of the property, but rather the purpose of imposing gift tax on the donee is to determine whether there exists a cause for the receipt or receipt of the property between the parties to the receipt or receipt of the property. Accordingly, we examine whether there exists such cause between the Plaintiff, Nonparty 1

(B) As to whether the deceased is liable to pay a division of property or consolation money to the plaintiff, Article 839-2(1) of the Civil Act provides that one of the parties who is entitled to claim a division of property shall be divorced by agreement. Article 843 of the Civil Act provides that the above Article 839-2 shall apply mutatis mutandis to a judicial divorce. In light of the requirements for a de facto marriage and the nature of the right to claim a division of property, the above provision may apply mutatis mutandis or apply mutatis mutandis to a de facto marital relationship. However, such right to claim a division of property may only be recognized if one of the parties who was in a de facto marital relationship terminates a de facto marital relationship before the death of one of the parties, and it shall not be permitted if the de facto marital relationship automatically terminates due to the death of one of the parties. Moreover, the right to claim a consolation money on the ground of an unfair reversal of a de facto marital relationship cannot be acknowledged until the de facto marital relationship is automatically terminated due to one of the parties'

Therefore, in this case where it is evident that even if the plaintiff was in a de facto marital relationship with the deceased, the plaintiff cannot have the right to claim a division of property or the right to claim a consolation money against the deceased (the plaintiff's assertion that the above mediation protocol was based on the plaintiff's right to claim a consolation money or the right to claim a division of property against the deceased cannot be accepted), and even if the plaintiff transferred the claim of this case to the non-party 1 in order to implement the conciliation in the family case case brought by the plaintiff, the plaintiff did not have the right to claim a consolation money or the right to claim a division of property against the deceased, since it is based on the mediation protocol, the plaintiff cannot still have the right to claim a consolation money or the right to claim a division of property against the deceased even after the mediation was completed, and it cannot be viewed that the non-party

Furthermore, there is no evidence to deem that the Plaintiff had a claim corresponding to the deposit claim amount in this case against Nonparty 1 or Nonparty 6.

(B) As such, it is difficult to see that the deceased bears the consolation money and the division of property against the plaintiff. Nonparty 1 and Nonparty 6 cannot be deemed to have borne the debt equivalent to the amount of the deposit claim of this case against the plaintiff. In light of the fact that, although there was no obligation or obligation, a voluntary adjustment is formed by one party to deliver the property to the other party without any obligation, and the transfer of the property would be the result of allowing the court to use it as a means of avoiding gift tax if no gift tax is levied on the same case as the case in which the property was transferred, even if the transfer of the deposit claim of this case was made at the stage of the implementation of the above mediation protocol, it is reasonable to deem that Nonparty 1 and Nonparty 6 donated

Therefore, the disposition of this case is lawful and the plaintiff's assertion disputing it is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed in entirety, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition.

Judge Lee Jong-young (Presiding Judge)