Seocho 208west 1215 ( December 31, 2008)

The legitimacy of the assertion that there is an additional tax credit for gift tax assessment on the acquisition fund of real estate

Although it is argued that the borrowed construction cost and the obligation to be paid in the future should be deducted from the tax base in connection with the new construction of the building, it is not possible to recognize it.

The contents of the decision shall be the same as attached.

Article 45 (Presumption of Donation of Funds, etc. for Acquiring Property)

Article 47 (Taxable Amount of Gift Tax)

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition disposition of gift tax of KRW 497,271,760 on January 2, 2008 against the Plaintiff exceeding KRW 377,086,454 shall be revoked.

1. Circumstances concerning the imposition of gift tax;

가. 원고는 ① 2001. 8. 22. 용인시 @@동 500 @@아파트 208동 1804 분양권(이하 '이 사건 분양권'이라 한다)을 대금 28,500,000원에 매수하였고, ② 2002. 10. 14.경 출천시 서면 ○○리 719-1 외 9필지(이하 '이 사건 각 토지'라 한다)를 320,000,000원에 매수하였으며, ③ 2005. 7. 4. 이 사건 각 토지 지상에 총 공사비 1,859,736,794원을 들여 '★★★연수원'이라는 건물(이하 '이 사건 건물'이라 한다)을 신축하여 소유권보존등기를 마쳤다.

B. As a result of the gift tax investigation on the Plaintiff, the Defendant: ① (a) out of the total amount of KRW 2,208,236,794, the Plaintiff’s spouse, 2,208,236,794, the amount of KRW 500,000,000, which was borrowed from the instant land as collateral to use for the construction cost of the instant building; and (b) as a result, deducted the amount of KRW 1,259,736,794, which was deducted from the amount of KRW 348,50,00,00 from the amount of the loan borrowed from the instant land as collateral for the purpose of using for the construction cost of the instant building; and (c) assessed the amount of KRW 1,259,736,794, which was deducted from the amount of KRW 348,500,00,000, which was deducted from the amount of the land acquired by the spouse’s donated property deduction.

C. On March 19, 2008, the Plaintiff filed an appeal with the Tax Tribunal on March 19, 2008, but was dismissed on December 31, 2008.

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

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In relation to the new construction of the building of this case, the Plaintiff paid KRW 20,000,00 for the construction cost of this case, which is one of the construction business operators, and ② borrowed KRW 200,000,000 from Kim Ho-dong, the Plaintiff, who is the Sindoe Kim, Kim Jong-dong, for the purpose of borrowing KRW 20,000,000,000 for the construction cost as above, the Plaintiff should deduct the Plaintiff from the tax base. Accordingly, the Defendant’s disposition of this case without recognizing it is unlawful

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(i) Details of and burden of proof to the provisions of Article 45(1) of the Act;

A) According to Article 45(1) of the Inheritance Tax and Gift Tax Act and Article 34(1) of the Enforcement Decree of the same Act, in a case where it is difficult to recognize that the property was acquired in the next calendar by considering the occupation, age, income, property status, etc., ① returned or taxed income, ② the value of inherited or donated property, ③ the amount of money or debt received in return for the disposal of the property, ③ the amount of money received in return for the disposal of the property, and the amount of money directly used for the acquisition of the property or the redemption of the obligation is less than the acquisition value of the property, the amount of money acquired in question shall be presumed to be donated to the purchaser of the property at the time of the acquisition of the property, and the person liable for tax payment bears the burden of proving that the donation is not a gift (see Supreme Court Decision 96Nu3272, Feb. 11, 197

B) Comprehensively taking account of the overall purport of the pleadings as to the instant case’s health account, Gap evidence Nos. 2 and Eul evidence No. 2, the Plaintiff may recognize the fact that there was no particular income as the professional account book at the time of donation, and there is no other evidence to deem that there was no other reported or taxed income, or income earned from disposing of the property or inherited, or inherited property. Therefore, the Plaintiff is presumed to have donated the instant right to sell land, land, and building acquisition fund from Kim △-chul, and thus, the Plaintiff has the burden

2) Determination as to the plaintiff's proposal

In full view of the purport of the pleadings, including the statement in the certificate No. 2, the fact finding about the attorney Kim Jong-soo, the following facts: (a) He asserted that B/she has a claim for construction cost of KRW 20,000,000 regarding the building of this case on November 10, 2005, and attached the land of this case on the provisional attachment; and (b) lost the plaintiff on December 7, 2005, after the judgment of the first instance was rendered, he/she refused appeal and withdrawn the provisional attachment; (b) although the above fact finding alone is insufficient to deem that B/L had a separate obligation for construction cost of this case on B/L in addition to the Defendant’s debt of KRW 60,000 as to the building of this case at the time of the acquisition of the building of this case, and there is no other evidence to acknowledge it, the plaintiff’s assertion that B/L obligation for construction cost of this case should be a public bond is without merit.

In addition, in full view of the statements in Eul evidence No. 2 and the purport of the entire argument in the testimony of Kim △-ri, the fact that Kim Jong-ri transferred 130,392,422 won to the construction company in relation to the new construction of the building of this case. However, according to the evidence above, the other party to whom Kim △-ri lent the construction price to the construction company of this case can be acknowledged as follows: ① the other party who was not the plaintiff, Kim △-ri; ② the other party who was not the plaintiff, did not establish a mortgage on the building of this case in relation to the above loan claim; ② the building of this case did not demand the plaintiff to pay the above loan after the sale of the building of this case; ③ Kim △-ri did not include the obligation to Kim △-ri while explaining the construction price obligation to the construction company of this case; and ③ In full view of each of the above facts, it is insufficient to regard the plaintiff directly bears the obligation to the construction company of this case as above, and thus, it cannot be deducted from the tax base.

3. Conclusion

The plaintiff's claim shall be dismissed, and it shall be judged the same as the order.