National Tax Service Review Donation 2011-0018 (2011.09)

any gift other than real estate title trust.

In light of the fact that land was trusted for the convenience of real estate transactions, it is reasonable to view that the gift was not a title trust in the light of the fact that most of the periods were residing in Korea even after the report of emigration was made, and some land was in

2011Guhap6183 Revocation of revocation of designation as a taxpayer

XX

The director of the North Incheon National Tax Office

September 6, 2012

September 27, 2012

1. The plaintiff's claim is dismissed.

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

The disposition that the Defendant designated and notified the Plaintiff on September 16, 2010 as jointly and severally liable for the gift tax of 000 won belonging to KimA in 2008 shall be revoked.

1. Details of the disposition;

A. On December 28, 2004, the Plaintiff registered its business as real estate sales business, etc., and on April 7, 2005, the Plaintiff divided the Plaintiff’s 550-11 forest land and 9,848 square meters in Hongcheon-gun’s written statement owned by the Plaintiff (hereinafter “Pi”) into x 50-11 forest land and 550-11 through 24-14 land in XX.

B. Of the above 14 parcels of land, the registration of ownership transfer made for sale on June 23, 2008 at KimA-A-be on June 5, 2008 with respect to the 684 square meters of forest land 550-13 square meters of forests and fields 550-23 square meters of forests and fields (hereinafter “each of the instant lands”) 557 square meters of xembri 550-13 square meters of forests and fields among the above 14 parcels of land.

C. On June 20, 2008, the Plaintiff: (a) filed a preliminary return of capital gains tax on the transfer of each of the instant lands to KimA; and (b) paid KRW 000,000 calculated accordingly.

D. On August 2, 2010, the Defendant determined that the Plaintiff donated each of the instant land to KimA, and imposed KRW 000 on KimA for the gift tax attributed to 2008. On September 16, 2010, the Defendant notified the Plaintiff of the designation as a joint obligor and notified the Plaintiff of the payment of the gift tax.

E. Upon receipt of an objection, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service on April 12, 201, but dismissed on September 9, 2011.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 5, Eul evidence Nos. 1 and 4 (including paper numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff was under title trust for the purpose of facilitating the procedures for the management and sale of each of the instant lands during the period of not having donated each of the instant lands to KimA but not residing in Korea due to emigration, and thus, the instant disposition based on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) With respect to the land on three parcels, namely, GATT 550-14, 20, 21, each ownership transfer registration was made in October 2008 in the future of thisB on or around October 2008, and thereafter, in the case of the land XX 550-14, the land was transferred to KimCC, to OCC Korea, and to 550-21 land, respectively, to KimD.

(2) With respect to each of the instant lands, the ownership transfer registration for the land 550-12 XX was completed on July 1, 2008 on the ground of sale (transaction value of 000 won) on June 26, 2008, and with respect to the land 550-23, the ownership transfer registration was completed on the ground of sale (transaction value of 000 won) on the basis of the last day of February 3, 2009.

(3) In the process of transferring the ownership of three parcels of land, namely, GATT 550-14, 20, 20, 21, to KimCC, Co., Ltd., OD Korea, and KimD, and in the process of transferring the ownership of the land of XX 550-23 to the largestF, Y Co., Ltd., Y vicariously performed the sale agency. Of the tax invoices issued by Y Co., Ltd. to receive the payment of the sales agency fee for the land of the said 4 parcels of land, the recipient of the land of XX 50-14, 20, 21 is written as the Plaintiff, while the recipient of the land of XX 550-23 is written as KimA.

(4) The seller column of each sales contract made with respect to the land of the four parcels as described in the above paragraph (3) includes four names, such as the Plaintiff, KimG, head of HH, and KimA. Among them, in relation to the land of the XX 50-14, 20, 21, the Plaintiff, Kim GG, and head HH were affixed a seal only on the side of the name of the Plaintiff, Kim GG, and head HH, and the seal is not affixed on the side of the name of KimA. On the other hand, in relation to the land of the XX 50-23, the name of KimA is affixed.

(5) The purchase price of the land of XXri 550-21 was fully paid to the Plaintiff (However, the portion that was paid for the repayment of the secured loan and the sales agency fee, excluding the portion that was paid in Y under the pretext of the refund of the secured loan and the sales agency fee), and KRW 00 of the purchase price of the land of XX 50-23 was paid to

(6) The Plaintiff reported and paid the transfer income tax on each of the instant lands, and Hongcheon-gun investigated whether the transaction price (00 won) reported by the Plaintiff was false, and at the time of the investigation, the Plaintiff and KimA submitted a statement of report on real estate transactions with the purport that the Plaintiff donated each of the instant land to KimA, a middle school of her husband, KimGG, the Dong of the Plaintiff’s husband, at the same time

(7) The Plaintiff reported emigration on April 12, 2004 and cancelled the Plaintiff’s resident registration for reasons of immigration on July 8, 2004. However, the period during which the Plaintiff stayed abroad from January 27, 2005 to May 11, 2012 is less than 143 days in total, and the period of stay abroad from January 27, 2005 to May 11, 201 was 550-12, and 23 days in Korea respectively.

(8) On June 25, 2010, the Defendant issued a disposition of preservation before the determination of national taxes on the land XX 550-13, and on June 29 of the same month, based on the above disposition of seizure, the registration of seizure was completed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 22, Eul evidence Nos. 2 through 5 (including paper numbers), the purport of the whole pleadings

D. Determination

Article 2 (3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter "the Inheritance Tax and Gift Tax Act") provides that "donation" means a free transfer (including a transfer at a remarkably low price) of any tangible or intangible property to another person (including a transfer at a remarkably low price) by direct or indirect means, or an increase of property values of another person by donation, regardless of the name, form, purpose, etc. of the act or transaction.

In this case, it is reasonable to view that the Plaintiff donated each of the lands of this case to KimA in light of the following circumstances, which can be seen by comprehensively taking account of the health care of whether the Plaintiff’s transfer of each of the lands of this case to KimA constitutes the above “donation” and the evidence and the above facts admitted. Thus, the Plaintiff’s assertion that each of the lands of this case was trusted in title to KimA is without merit.

① The Plaintiff asserted that the instant land in question was trusted in title to KimA for the convenience of real estate transactions by having been developed as a unit of 14 parcels in order to transfer to KimA after having been developed as a unit of 14 parcels in order to sell the land in lots. However, in light of the above circumstances, the Plaintiff does not seem to have a need to title trust each of the instant land even when the Plaintiff took over the burden of capital gains tax upon the Plaintiff’s transfer of each of the instant real estate to KimA after having become a title trust title trust, in view of the following: (a) the Plaintiff specified only the instant land (three parcels) out of the said 14 parcels of land; (b) had resided in most countries after having declared emigration; and (c) had been in Korea on the sales contract date of the instant land at XX50-12 and 23.

② While KimA did not have been involved in the transaction of each of the instant lands before receiving the transfer thereof from the Plaintiff, KimA, as a seller, exercised the right to dispose of each of the instant lands directly by, on the other hand, such as: (a) the seller affixes the seal on the sales contract of the land of XX 50-23; and (b) the sales agent received part of the sales amount; and (c) receiving

③ At the time of investigating whether the transaction price of each of the instant lands was false, the Plaintiff and KimA submitted a vindication that the Plaintiff donated each of the instant lands to KimA.

④ After the Defendant imposed gift tax on KimA on August 2, 2010, the Defendant completed the registration of seizure in accordance with the disposition of preservation and seizure before the determination of national taxes on the land that is registered as KimA owner on June 29, 2010. However, KimA did not dispute the above disposition of imposition or seizure of gift tax.

⑤ The Plaintiff asserts to the effect that, even after the transfer of ownership of each of the instant lands, the Plaintiff manages each of the instant lands as the owner of each of the instant lands, including the restoration of all of the instant mountainous districts and the report on the change of mountainous district conversion. According to the written evidence Nos. 23 and 24 (including the natural disaster) of the Plaintiff, according to the Plaintiff’s respective records, the Plaintiff paid the expenses for vicarious execution, which occurred due to the expiration of the period of permission for mountainous district conversion that the Plaintiff was granted to the land of XX98-15 (including the registration conversion on January 20, 2005 and the land of XX50-16, 17, 18, and 24, as insurance money under the authorization and guarantee insurance contract to which the Plaintiff was admitted, and the fact that the Plaintiff reported the change of mountainous district conversion for each of the instant lands is recognized. However, it is difficult to view that the Plaintiff merely manages each of the instant lands as alleged,

3. Conclusion

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