In the case of presumption of gift, the exclusion period of national tax should be 15 years at the time of declaration because it falls under the subject of gift tax.

Therefore, it is difficult to find that the Plaintiff acquired an asset with no prima facie proof from its own funds, and it is reasonable to presume that the acquired asset was donated under Article 45(1) of the former Inheritance Tax and Gift Tax Act.

Article 26-2 of the former Framework Act on National Taxes (Period for Excluding Imposition of National Taxes)

Article 44 of the former Inheritance Tax and Gift Tax Act

2017Guhap103237 Revocation of Disposition of Imposition of Gift Tax

】 】

○ Head of tax office

March 7, 2018

March 28, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 28,539,780 (including additional taxes) of gift tax on June 7, 2004 that the Plaintiff rendered on October 10, 2016 and KRW 249,572,580 (including additional taxes) of gift tax on May 31, 2005 shall be revoked.

.

1. In the case of disposition:

A. On June 7, 2004, the Plaintiff acquired 59.5 square meters of Seoul Jongno-gu Housing and 111.1 square meters of housing site (hereinafter “1 real estate of this case”) from mother Aaa on the grounds of sale, and on May 31, 2005, the Plaintiff jointly acquired 64.03 square meters of the building in Jongno-gu Seoul Jongno-gu, Jongno-gu, Seoul and 12.3 square meters of land (hereinafter “2 real estate of this case”) and 1/3 shares, respectively.

B. The Seoul regional tax office: (a) from July 19, 2016 to August 27, 2016, the Plaintiff’s real estate transaction for the real estate transaction.

After conducting a tax investigation into the capital source, the acquisition of the first real estate of this case shall be subject to the old inheritance.

By applying Article 44(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act"), the Plaintiff is presumed to have been donated to Maa on June 7, 2004. The Plaintiff’s acquisition of shares 1/3 of the second real estate in this case by applying Article 45(1) of the former Inheritance Tax and Gift Tax Act, for which the source of funds has not been proven on May 31, 2005.

475,496,450 won shall be presumed to have been donated to determine the gift tax base and a Tong to the defendant.

I explained.

C. The Defendant: (a) on October 10, 2016, KRW 28,539,780 of the gift tax on June 7, 2004 (including additional taxes);

On May 31, 2005, the gift tax amount of KRW 249,572,580 (including additional taxes) shall be calculated and notified accordingly.

The disposition of this case (hereinafter referred to as the "disposition of this case").

D. The Plaintiff is dissatisfied with the instant disposition on January 19, 2017 and filed a request for examination with the Commissioner of the National Tax Service.

However, it was dismissed on March 9, 2017.

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

2. The legality of the instant disposition

A. The plaintiff's assertion

1) The former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006; hereinafter the same shall apply)

Article 26-2 (1) 4 (b) of the Framework Act on National Taxes) Article 26-2 (1) of the Inheritance Tax and Gift Tax Act

If the report is not filed under Article 68, the exclusion period of imposition shall be 15 years.

In the case of this case, it is merely a presumption of gift, not an actual donation, and it is merely the original source.

C. Since the duty to report the taxable value and the tax base of gift tax cannot be deemed to exist, the above provision shall apply.

(15) The exclusion period of imposition by 15 years shall not be applicable and the exclusion period of imposition by 10 years shall be applicable.

The disposition of this case, however, was made after the expiration of the exclusion period for imposition of 10 years.

2.2

2) On June 7, 2004, on condition that the Plaintiff worked in the gg restaurant operated by Maa for more than five years, it cannot be deemed that the Plaintiff acquired the instant real estate without any consideration. Therefore, the Plaintiff’s imposition of gift tax by applying the provision on presumption of donation under Article 44(1) of the former Inheritance Tax and Gift Tax Act solely on the ground that the instant real estate was transferred to the Plaintiff.

3) From around 1991, the Plaintiff was living in hh and k, etc. and paid a certain amount of wages.

The plaintiff's occupation, income, because there was income received through shares, deposits, installment savings, etc., and thus the plaintiff's occupation, income, etc.

In light of the above, it is difficult to deem that there is no financial capability to acquire the second real estate of this case.

Therefore, the disposition imposing gift tax by applying the gift presumption provision under Article 45(1) of the former Inheritance Tax and Gift Tax Act is unlawful.

B. Determination

1) As to whether the exclusion period of imposition of 15 years is applicable

A) According to the main sentence of Article 26-2(1)4 (b) of the former Framework Act on National Taxes, a gift tax may not be imposed after the expiration of ten years from the date on which it is assessable. However, if a taxpayer fails to file a return under Article 68 of the Inheritance Tax and Gift Tax Act, it may not be imposed after 15 years from the date on which it is assessable. According to the main sentence of Article 12-3(1)1 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19893, Feb. 28, 2007), when a return of tax base and amount of national tax is filed, the following day of the deadline for filing the return or the deadline for filing the return shall be the initial date for exclusion of imposition of national taxes. In this context, it is reasonable to deem that not only a person who received a gift under an agreement between the parties, but also a person who is deemed to have been donated under the relevant Act or subordinate statutes, or a person who is presumed to have obligation to report a gift with the Plaintiff and the Plaintiff.

(1) The concept of donation under the Inheritance Tax and Gift Tax Act includes not only general donation but also deemed donation or presumption. Thus, a person who is presumed donation shall be treated the same as a donee under the Inheritance Tax and Gift Tax Act. According to the main text of Article 68(1) and the main text of Article 4(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9269 of Dec. 26, 2008), a donee liable to pay the gift tax must report the taxable value and tax base of the gift to the head of the district tax office having jurisdiction

(2) The Inheritance Tax and Gift Tax Act provides for any provision on the case where the obligation to report the gift tax is not imposed.

In addition, if there is no reporting deadline due to the lack of reporting obligation in the case of the presumption of gift, in the case of the presumption of gift, there is a problem that the exclusion period does not run because the starting point of the exclusion period under the law is nonexistent in the imposition of gift tax.

(3) Whether his act is subject to gift tax even in the case of the presumption of gift

Therefore, it is not possible to expect to recognize and report it by itself.

It is difficult to see that it is.

B) Therefore, even in a case where a gift is presumed, the taxable value and tax base of the gift are new.

Inasmuch as the Plaintiff did not submit a gift tax return, a gift tax imposition system is imposed.

Each gift tax on the plaintiff shall be imposed within the exclusion period. Accordingly, each gift tax shall be imposed within the exclusion period.

Therefore, this part of the plaintiff's assertion is without merit.

2) As to the disposition imposing gift tax of 28,539,780 won (including additional tax) on June 7, 2004

A) Article 44(1) and (3)5 of the former Inheritance Tax and Gift Tax Act; Article 33(3) of the Enforcement Decree of the same Act

According to the subsection (amended by Presidential Decree No. 22042, Feb. 18, 2010), a lineal ascendant is a lineal ascendant.

Property transferred to a lineal ascendant or descendant shall be presumed to have been donated to the transferee and shall be deemed to have been donated.

The property owned shall be disposed of by paying the price of the property at its price or for the acquisition of the property.

(2) If the payment of the price is proved to have been made, the price shall be transferred from the lineal descendant.

the presumption of gift shall not apply to cases where it is obviously deemed to be a gift.

B) On June 7, 2004, the Plaintiff’s transfer of the instant title 1 from Maa does not conflict between the parties. The Plaintiff asserts that the terms and conditions of the Plaintiff’s work at gg restaurant operated by Maa for five years are transfer consideration. However, this is very exceptional terms and conditions that cannot be found in the real estate sale contract, and that it is difficult to recognize that the Plaintiff’s work at ggg restaurant for five years because it is difficult to compute this as monetary value, and that it is difficult to recognize that the Plaintiff’s gift was paid for the instant title 1 real estate. ② The Plaintiff’s transfer of apartment house from her parents and payment of the parents’ living expenses on behalf of her parents, it is difficult to deem that it is a gift gift in this case is difficult to recognize the presumption of donation in this case, in light of the foregoing Supreme Court Decision 2014Du9752 Decided 15, 2014, and there is no additional tax on the presumption that the Plaintiff paid the Plaintiff’s living expenses or the gift 20.

Since the imposition disposition is legitimate, the plaintiff's above assertion is without merit.

3) As to the disposition imposing gift tax of 249,572,580 won (including additional tax) on May 31, 2005

A) Relevant legal principles

(1) Article 45(1) of the former Inheritance Tax and Gift Tax Act appears to be an occupation, age, income, property status, etc.

Where it is difficult to recognize that the properties were acquired with their own funds, as prescribed by Presidential Decree.

acquisition of the property at the time of acquisition of the property by the person who acquired the property; and

It is presumed to be the value of the property of the person who acquired the property, which shall be considered as the value of the property.

tax authorities, reflecting the social phenomenon in which donations are closely made in relation to their families, etc.;

The provisions to achieve equity in taxation by facilitating the imposition of taxes.

(2) The fact of gift of property, which is a requirement for imposing gift tax, is proved by the tax authority.

such transactions as purchase of real estate by a person with a specific occupation and with a reasonable refluence;

, if the source of part of the fund is not clearly indicated, there is no proof

such funds shall not be presumed to have been donated from the spouse or lineal ascendant, but it shall not be presumed to have been donated.

(1) In cases where a person who does not have any special occupation or property fails to prove the source of funds of the pertinent property, and where his/her lineal ascendant, etc. is able to donate the pertinent property, it may be presumed that he/she received a donation from the person who is able to give the said property (see, e.g., Supreme Court Decision 83Nu710, Mar. 27, 1984). This also applies to cases where it is objectively obvious that the degree of income or other property status is extremely low compared to the value of the pertinent property, and it is impossible to provide the said property due to its income or re-acquisition of the said property (see, e.g., Supreme Court Decision 90Nu6071, Oct. 26, 190). In order to estimate donation, the tax authority should prove that the said property was donated to the donor by proving that there was no certain occupation or income as well as that of the said property (see, e.g., Supreme Court Decision 2008Du19848, Jul. 19, 208, 2098).

B) the facts of recognition

(1) On May 31, 2005, the Plaintiff jointly acquired the instant 2 real estate in total at KRW 1.886 billion in total, together with Maaa and Female CC on May 31, 2005.

(2) around August 2016, the Plaintiff collected funds and ggg that had been living in the workplace since 1991 at the time when the Seoul Regional Tax Office was investigated into the source of funding for the purchase of the said real estate.

approximately 62,900,000 of the purchase price equivalent to one-third shares as bonus received in 2004.

I explained that only won was paid.

(3) From 191 to 2004, the sum of the total earned income confirmed through the certificate of income is KRW 154,776,980, which was paid by the Plaintiff to work in Hh,m, and kk. Meanwhile, according to the income certificate, gg is confirmed to have received the said amount of KRW 8,400,000, which was paid after the purchase of the said real estate.

(4) The Plaintiff’s mothera opened and operated a Korean-style restaurant in Jongno-gu Seoul in 1986 from 1986 to ever. The details of the report of value-added tax from 2003 to 2005 of the above restaurant are as follows.

(5) The Defendant recognized that the total amount of KRW 154,76,980, which was confirmed by income certificate, out of the purchase price corresponding to the shares of KRW 1/3 of the second real estate in this case, was used to acquire the said real estate. The Defendant imposed a gift tax of KRW 249,572,580 (including additional taxes) on the ground that the remaining KRW 475,496,450 was not proven to be able to obtain payment on the source of the fund, applying the provision on presumption of donation under Article 45(1) of the former Inheritance Tax and Gift Tax

[Ground of recognition] Unsatisfy, Eul evidence 1 to 5 (including branch numbers, if any)

Each entry, the purport of the whole pleadings

C) Specific determination

The above facts of recognition and the purport of the whole pleading can be known.

Comprehensively taking account of the following circumstances, the Plaintiff’s property for which the source of funds was not clearly explained by its own means:

It is difficult to recognize that the acquisition has been made, and the acquisition fund is made under Article 45(1) of the former Inheritance and Gift Tax Act

It is reasonable to presume that the donation was received.

(1) In light of the fact that the Plaintiff’s mother Aa operated a single food restaurant from 1986 to 2005 with the sales revenue of the above restaurant from 2003 to 580 million to 680 million won per annum on the basis of the reported value-added tax amount of value-added tax, the Plaintiff transferred the instant real estate 1 without any particular monetary compensation to the Plaintiff, and the Plaintiff et al. acquired the shares of 1/3 of the instant 2 real estate 1/3 with the Plaintiff et al., it is recognized that there was a re-existent ability to donate an amount equivalent to the amount, the source of which has not been proved by the Plaintiff.

(2) Even if the Plaintiff obtained earned income with a certain occupation from 1991 to 2004, the total amount of the earned income is only 154,776,980 won as seen earlier.

The acquisition value of shares No. 2 real estate 1/3 of the instant case exceeds about four times compared with the Plaintiff’s above earned income.

In an objective manner, it is objectively apparent that the above earned income cannot be acquired, and the plaintiff is the defendant.

specific financing for the remaining money except for the earned income recognized as the source of funds;

The wife was not clearly explained.

(3) The Plaintiff asserts that, in addition to the above wage and salary income, there was a considerable amount of re-sufficiency by obtaining the income tending through stock investment, deposits, installment savings, etc. However, examining the evidence submitted by the Plaintiff as evidence, most of the financial income accrued after acquiring the 1/3 shares of the second real estate in this case, and the financial income accrued at the same time or before it appears to have not been much as shown below. Thus, it is difficult to find that the Plaintiff had a considerable re-payment at the time of acquiring the 1/3 shares of the second real estate in this case.

(4) Meanwhile, the Plaintiff asserted that since the Defendant omitted the amount of retirement allowance income as the fund source, it should be deducted, according to each of the statements in the evidence No. 5-1 and No. 5-2, the Plaintiff received retirement allowance income of 1999,674,890 won, retirement allowance income of 2004, and retirement allowance income of 9,832,000 won, but there is no evidence to acknowledge that the above retirement allowance income of 2/3 of this case was actually used as the fund for the acquisition of shares of 1/3 of the real estate of this case.

shall not be effective.

3. Conclusion

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