National High Court 2008J 0936 (20 June 20, 2008)

It is not a discharge of obligation on the ground that real estate was donated to the establishment of a mortgage;

In the event of receiving a certificate of the establishment of a right to collateral security, the donee is obliged to bear the burden of proving that the donee took over the obligation of collateral security with exemption from liability, or that the donee performed the obligation with his/her own expense. However, in this case, there is no presentation of evidence, and there is no belief that the donee has repaid the obligation.

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

Article 47 (Taxable Amount of Gift Tax)

Article 10 (Method of Verifying Obligations, etc.)

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of gift tax of KRW 22,560,080 against the Plaintiff on March 14, 2008 shall be revoked.

1. Details of the disposition;

A. On April 11, 2006, the Plaintiff, the father of the Plaintiff, donated the Plaintiff’s ○○○○○-dong 627-○○○ apartment 3 Dong 1109 (hereinafter “instant apartment”), and completed the registration of ownership transfer on the same day.

B. On June 1, 2006, the Plaintiff reported gift tax amount of KRW 33,00,000,000 calculated by deducting the loan obligation of KRW 80,000 from the above apartment from the ○○ Bank as collateral for the above apartment from the standard market value of the apartment of this case, to the Defendant, on the taxable value of the gift tax.

C. As of April 11, 2006, the date of donation of the apartment in this case, the Defendant confirmed that 1,309, an apartment in the same area located in the same complex as the apartment in this case, was traded in 163,00,000 won on May 9, 2006, and applied Article 60(1) and (2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act Article 49(1) and (5) of the Inheritance Tax and Gift Tax Act, the Defendant reported 163,00,000 won at the market price of the apartment in this case as of March 14, 2008, denying the deduction of the debt in this case, and determined and notified 22,560,000 won as to the donation of the apartment in this case to the Plaintiff on March 14, 2008 (hereinafter “the disposition in this case”).

D. On March 14, 2008, the Plaintiff filed a request with the Tax Tribunal for a review against the instant disposition. However, the Tax Tribunal dismissed the Plaintiff’s request on June 20, 2008.

[Reasons for Recognition] Evidence Nos. 1 through 3, Evidence No. 15-1, 3, Evidence No. 16, Evidence No. 17, Evidence No. 1-2, Evidence No. 2-1, 2, and 5, and the purport of the whole pleadings

2. Determination

A. The plaintiff's assertion

(1) On May 2006, the time when the price of the instant comparative apartment was sharply increased, it was unlawful to regard the transaction price of the instant comparative apartment as the market price of the instant apartment in light of the following: (a) the time when the price of the instant apartment was sharply increased; (b) the instant apartment as the 11st floor located on the road surface, with the heavy noise and water pressure low; (c) the instant apartment as the first floor was located at the end of the corridor; and (d) the apartment as much more unfavorable conditions than the instant comparative apartment as the instant comparative apartment located on the 3rd floor.

(2) The Plaintiff was donated the instant apartment under the condition that the Plaintiff bears the instant debt, but the Plaintiff fell under the age of 30 and was refused to change the name of the debtor due to the financial regulatory policy on the housing mortgage at the time of the Plaintiff as a person under the age of 30, and was refused to change the name of the debtor due to the financial regulatory policy on the housing mortgage at the time. Since Kim Tae's donation had continued to reside in the instant apartment after July 2007, the Plaintiff was liable for the interest on the above loan under the name of the apartment use price, and the Plaintiff was liable for the interest on the business of the clothing store and the loan interest on the income from the Abane loan since August 207. Thus,

(b) Related statutes;

Article 47 (Taxable Amount of Gift Tax)

Article 10 (Method of Verifying Obligations, etc.)

C. Determination

(1) Whether the market price is calculated unlawful

In light of the purport of the whole pleadings in the evidence Nos. 2-2, 3, 4, 3-2, 3-3, 5-1 through 33 of the evidence Nos. 5, 6-2, and 7, the comparison apartment of this case is an apartment of the same area as the apartment of this case in the same complex as the apartment of this case, with 163,00,000,000, 3-9, and 183,000,000 won on May 12, 2006; the standard market price of the comparison apartment of this case from 183,00,000,000 won on 183,00,000,000 won on 10,000 won on 5,00,000 won on 70,000 won on 5,06,000 won on 7,005,00 won on 160,065,000 won on 2.

살피건대, 이 사건 비교아파트와 이 사건 아파트는 동 및 층수는 다르지만 같은 단지 내 주거용 아파트로서 그 위치가 유사하고, 같은 방향이며, 면적ㆍ용도ㆍ종목이 동일하고, 이 사건 아파트의 증여일 3개월 이내에 매매가 이루어진 것인 점, 위 증여당시와 이 사건 비교아파트 매매당시에 가격에 급격한 변동이 있었던 것으로 보이지 아니하는 점, 이 사건 아파트와 이 사건 비교아파트의 기준시가가 동일한 점, 이 사건 비교아파트가 위치한 1동과 이 사건 아�가 위치한 3동의 주거환경이 다소 차이가 있다 하더라도 그러한 차이가 아파트의 거래가액 형성에 영향을 미칠 만한 정도로는 보이지 않는 점, 달리 이 사건 비교아파트의 매매는 이 사건 아파트의 증여일로부터 3개월 이내에 이루어진 것으로서 이 사건 아파트와 면적ㆍ위치ㆍ용도ㆍ종목이 동일하거나 유사한 아파트의 매매이고, 그 매매가액도 객관적 교환가치를 반영한 정상적인 거래가액으로 보이므로, 피고가 이 사건 비교아파트의 매매가액 163,000,000원을 이 사건 아파트의 시가로 보아 이 사건 처분을 한 것은 상속세 및 증여법 제60조 제1항, 제2항 및 같은 법 시행령 제49조 제1항, 제5항에 따른 것으로서 적법하다고 할 것이므로, 원고의 이 부분 주장은 이유 없다 할 것이다.

B. Whether the debt of this case is deducted

According to Gap evidence 15-3, Gap evidence 17, Eul evidence 17-2, Eul evidence 8-1, Eul evidence 9-1, and Eul evidence 9-1 through 6, the plaintiff stated that "bank loans (○○ bank) shall be borne by donee in accordance with special contract terms," but the plaintiff failed to implement the procedure of changing the debtor's name of the debt of this case from 06.7 to 07.6, 207, 207, 207, 207, 207, 30, 40, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 7, 60, 60, 7, 60, 60, 60, 60, 60, 60, 60, 207, 206, 60, 60, 206, 7, 7, 2006.

On the other hand, in general, in a case where a third party’s real estate was donated to a lineal ascendant with a property on which a right to collateral security has been established, the right to collateral security shall not be deemed as being exempted from a debt, and the value of the property is deducted from the value of the property. In such a case, the donee shall bear the burden of proving that the donee took over or took over the obligation on collateral security or performed the obligation at his/her own expense (see, e.g., Supreme Court Decision 9Du12168, Mar. 24, 200).

As to this case, the Plaintiff is presumed to have not been assumed by the donee pursuant to Article 47(3) of the Inheritance Tax and Gift Tax Act as his lineal descendant. Thus, the Plaintiff must prove that, at the time of donation, the Plaintiff, who is a donee, took over an obligation with immunity, or, if he takes over an obligation with respect to performance acquisition or concurrently, the Plaintiff’s obligation was discharged with his own debt. As seen earlier, even after the completion of the registration of transfer of ownership to the apartment of this case, the Defendant still was Kim Tae-tae, the donor, and the obligation of this case was a obligation obligation under the loan agreement concluded between ○○ Bank and ○○ Bank, which is the obligee of the obligation of this case, and it is difficult for the Plaintiff to legally accept the obligation of this case from the above ○○ Bank without the consent of ○○ Bank, which is the obligee of the obligation of this case. In light of the fact that, at the time of the conclusion of the apartment loan agreement, the Plaintiff still did not have any evidence to acknowledge that the interest of this case was paid to the Plaintiff’s account of this case after deposit.

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.