early 209 Heavy2147 (29. 2010.06.29)

Donation of the value of a commercial building from her husband

Since her husband re-transfers the commercial building which he/she held in title to his/her female to the Plaintiff, his/her spouse, the Plaintiff is presumed to have donated the value of the commercial building from his/her spouse, and the imposition of gift tax, such as the amount of loan secured by the commercial building, is lawful.

Article 44 of the Inheritance Tax and Gift Tax Act

2010Guhap13266 Revocation of Disposition of Imposition of Gift Tax

Maximum XX

O Head of tax office

May 18, 2011

July 13, 2011

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The Defendant’s disposition of imposition of KRW 214,920,000 on January 1, 2009 against the Plaintiff was revoked.

1. Details of the disposition;

A. The Plaintiff’s husband, KimB, her husband, reported and paid KRW 234,612,353 of the transfer income tax on the ground that he/she transferred the total of 7 stores, such as Nos. 101, 102, 309, and 313 (hereinafter referred to as “instant store”) from among the commercial buildings of XX 140, 140, 200, a total of 3,800,000, among the commercial buildings of XX 140, 200, a total of 7 commercial stores (hereinafter referred to as “instant commercial buildings”).

B. On May 4, 2006, KimB prepared a sales contract stating that the Plaintiff shall sell the instant commercial building to the Plaintiff KRW 3,800,000,000, between the Plaintiff and the Plaintiff. On May 17, 2006, KimB transferred the said commercial building to the Plaintiff.

C. The defendant judged that KimA transferred the commercial building of this case to KimB because it is merely a title trust, and that KimA directly transferred the commercial building of this case to the plaintiff, and presumed that the plaintiff was donated the commercial building of this case from KimA pursuant to Article 44 of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007, hereinafter "Gift Tax Act"). On January 1, 2009, the defendant imposed the tax amount of KRW 214,920,000 on the plaintiff (hereinafter "the disposition of this case"). The calculation of the tax amount is as follows.

(The following table omitted)

D. On April 20, 2009, the Plaintiff appealed against the instant disposition, and filed a request for a trial with the Tax Tribunal. However, on June 29, 2010, the Tax Tribunal rendered a decision to dismiss the said request for a trial on the grounds that the period for request expires and is unlawful.

[Reasons for Recognition] Facts without dispute Gap's 1.2 evidence, Eul's 2 to 5 evidence (including the virtual number for additional evidence) and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

The defendant asserts that the lawsuit in this case was unlawful since the plaintiff filed a request with the Tax Tribunal on April 20, 2009 on the 90th day after the notice of tax payment of the disposition in this case was served on January 9, 2009 and the period of appeal under Article 68 of the Framework Act on National Taxes was 90 days past the period of appeal under Article 68 of the Framework Act on National Taxes.

In a case where a postal item is sent by means of registration, barring any special circumstance, it shall be deemed that the postal item was delivered to an addressee at that time, barring any special circumstance. However, in a case where an addressee or his/her family does not actually reside in the resident's domicile and only establishes a move-in report, it is difficult to deem that the resident of the resident's domicile was delegated the right to receive the delivery of the postal item only to the resident of the resident's domicile, and where the recipient does not actually reside in the resident's domicile,

In addition, if the recipient or his/her family does not actually reside in the place of resident registration and it is difficult to deem that he/she delegated the right to receive service to the resident of the registered domicile, it cannot be deemed that a notice sent by registered mail was delivered to the taxpayer (see, e.g., Supreme Court Decision 97Nu8977, Feb. 13, 1998).

In light of the following facts: Gap's 1, 5, and 8 evidence Nos. 1, 2, and 1, 6, and 8 (number 2) and the witness's testimony, the notice of tax payment of this case was sent to OOdong 698-2, 502, and 100, and the defendant was sent to 200,000,000,0000,000,000,000 1,000,000,0000,000,0000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000,00.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

KimB received 3,800,000,000 won from KimB and transferred the commercial building of this case. KimB paid 2,500,000,000 won from the commercial building of this case and 600,000,000 won from the commercial building of this case as collateral, and 700,000,000 won from the commercial building of this case. The Plaintiff provided the commercial building of this case as collateral and paid 1,60,000,000 won among them to KimB, and the remainder of 2,50,000,000,000 won from the commercial building of this case was repaid by KimB, and therefore, it cannot be deemed that KimB and KimB were not in a title trust relationship with the commercial building of this case and that the Plaintiff received the donation of this case from KimB.

In addition, since the transfer income tax borne by KimA due to the transfer of the commercial building of this case is larger than the amount of KRW 214,920,00,00, which is the amount of gift tax on the disposition of this case, as the amount of gift tax on the disposition of this case exceeds the amount of KRW 234,612,353, the presumption of donation under the main sentence of Article 44

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

(1) Comprehensively taking account of the overall purport of the arguments in the following: (a) Nos. 9, 10, 3, and 4, the KimB's transfer of KimB's funds to the owner of the commercial building of this case: (b) Han Bank's loans of this case to be offered as collateral for the acquisition of the commercial building of this case; (c) the remaining amount of KRW 1,400,000,000 to be deposited into the account of KimB's account; and (d) the amount of KRW 1,100,000,000 to be deposited into the account of △△△ Construction Co., Ltd. which constructed the commercial building of this case; and (d) the amount of KRW 60,00,000,000, excluding the amount of KRW 255,000,000, excluding the amount of KRW 00,000, excluding the amount of KRW 70,000, excluding the amount of KRW 00,07,000.

Therefore, since KimA transferred the instant commercial building, which was trusted to KimB, to the Plaintiff, his spouse, it is presumed that the Plaintiff was donated the value of the instant commercial building at the time of transfer pursuant to Article 44(1) of the Inheritance Tax and Gift Tax Act.

However, Article 44(3) of the Gift Tax Act explicitly recognizes that the Plaintiff received and transferred the same price to his spouse, etc., and Article 33(3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20621 of Feb. 22, 2008) provides that Article 44(1) of the Gift Tax Act shall not apply to the case where the Plaintiff received and paid the same price. Accordingly, according to each of the above evidence, the Plaintiff received a loan of KRW 4,100,000 from the Fisheries Cooperatives as collateral of the commercial building of this case from May 17, 2006, whichever was then deposited 50,000,000 from KimB's account on the same day, and the remaining amount of the loan of KRW 1,100,000,000 was withdrawn from the Plaintiff's account and deposited 1,000,0000,000,000,000 from the commercial building loan of this case to be used as collateral.

Therefore, the disposition of this case, which calculated gift tax of KRW 1,00,000,00,000 as the value of donated property of KRW 4.1,00,000,000 as the amount of loan secured by the commercial building of this case and KRW 2,50,000,000, excluding the total amount of the secured debt of the commercial building of this case and the amount of KRW 600,000,000,000, excluding the amount of KRW 600,000,000, is lawful.

(2) As seen earlier, since the instant disposition is based on Article 44(1) of the Gift Tax Act, the Plaintiff’s assertion based on the premise that the instant disposition was based on the main sentence of Article 44(2) of the same Act is without merit.

4. Conclusion

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