A disposition for imposition shall be null and void automatically because the defect is so serious that there is no factual basis for the object of taxation.

It is difficult to view that there are objective circumstances to believe that there is an objective reason to believe that the amount of money created as collateral security was donated from the spouse at the time of sale of real estate.

Article 2 of the Inheritance Tax and Gift Tax Act

2013Guhap10565 Nullification of a disposition of gift tax assessment

1.yangA 2.GovernmentB

CC director of the tax office

August 29, 2013

September 12, 2013

1. On September 1, 2010, the Defendant confirmed that the part exceeding the OOwon in the imposition of gift tax imposed on the Plaintiffs is null and void.

2. The plaintiffs' remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the plaintiffs, and the remainder by the defendants.

On September 1, 2010, the Defendant confirmed that the imposition of the gift tax OOO on the Plaintiffs is null and void (the phrase " September 30, 2010" stated in the complaint appears to be a clerical error in the statement of claim, " September 1, 2010".

1. Details of the disposition;

"A. On July 2, 2007, O29-38 square meters, 497.7 square meters above the land owned by the plaintiff JeongB, and seven residential facilities of the general steel structure reinforced concrete roof (hereinafter "the real estate of this case") in OB to OB, the plaintiff JeongB received the down payment OOOO's debt under the right to collateral security on the real estate of this case after deducting OOOOOO's debt, and received the remainder of the payment on July 2, 2007, 2007, and OOOOOOO's debt return obligation after deducting OOOOOO's debt under the right to collateral security on the real estate of this case, and the remainder of the payment of OOOOO's debt to the other OOOOG's account transfer excluding the remainder of the payment of OOOG cash transfer from the OOOG's account.

C. As a result of the survey on the tracking of the transfer price to Plaintiff JeongB, the director of the regional tax office: (a) transferred OOO won among the transfer price actually received by Plaintiff JeongB to both Plaintiffs; (b) donated OO won in cash; and (c) deducted OOO won in actual debt amount of the right to collateral security established by the Plaintiff YangA as the debtor by deducting OO won from the transfer price; and (b) notified the Defendant of the gift tax assessment data on May 14, 2010.

D. Accordingly, on September 1, 2010, the Defendant: (a) regarded the Plaintiff both as having received a donation of OOB from the Plaintiff JeongB; and (b) imposed OOB on the Plaintiff Jung-B, a joint and several obligor for the payment of the gift tax on September 1, 2010 (hereinafter “instant disposition”).

[Ground of Recognition] The non-satched facts, Gap evidence 1, 2, and Eul evidence 1, 2, and 4 (if available, including several numbers, hereinafter the same shall apply), and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

Of the proceeds of the transfer of the real estate in this case, the amount transferred to the account of the plaintiff Yang-A was returned the money lent to the plaintiff Yang-B, was paid to the company's establishment capital, or was for the repayment of the debtor's joint and several liability, and the amount of the secured debt of the right to collateral security established on the real estate in this case was for the cancellation of the mortgage created by the plaintiff Yang-B as the debtor, and there is no room to regard this part as a donation, and even the amount used for the cancellation of the right to collateral security established by the plaintiff Yang-A as the debtor was not inevitable for the plaintiff Yang-B to make payment for the sale of the movable property in this case, so the disposition in this case is null and void without any significant opportunity to explain that the above OOB had not been made a donation by all the above OO members.

(b) Fact of recognition;

(1) Detailed details of the right to collateral security established on the instant real estate at the time of sale of the instant real estate are as follows.

Beneficiary of the Collateral Security

Maximum debt amount

Date of cancellation of registration;

Grounds for cancellation of registration

JB Bank

EB

OOO

July 2, 2007

The termination of June 29, 2007

EB

OOO

“”

“”

EB

OOO

“”

“”

II Bank

EB

OOO

“”

Termination of July 2, 2007

The two AA

OOO

“”

Partial renunciation of July 2, 2007

The two AA

OOO

“”

“”

The two AA

OOO

“”

“”

(2) In order to cancel each of the above mortgages, the purchaser paid OOO as the repayment of the secured debt at the OO branch of JJ bank, OOOO as the repayment of the secured debt at the OO branch of II bank, and OOO as the repayment of the secured debt at the OO branch of the II bank. On March 18, 2010, the purchaser submitted a confirmation of real estate acquisition to the person in charge of regional tax office.

[Grounds for Recognition] The non-contentious facts, Gap evidence 2, Eul evidence 4, and the whole purport of the pleading

C. Determination

(1) Where any objective circumstance exists to mislead the person to be subject to taxation as to any legal relation or factual relations which are not subject to taxation, and whether it is subject to taxation can only be identified by accurately investigating the facts, and even if the defect is serious, it cannot be said that it would be apparent externally even if it is serious, and thus, it is unlawful to mislead the person to the fact of taxation requirements as above (see, e.g., Supreme Court Decision 2011Du2723, Feb. 23, 2012).

(2) With respect to the portion of the OOO or II bank collateral security obligation deduction amount transferred to the account of the Plaintiff YangA, the fact that the Plaintiff had transferred OOOO won out of the sales price of the instant real estate to the personal account of the Plaintiff YangA is insufficient to recognize that the said amount was not donated to the Plaintiff YangA, and there is no other evidence to acknowledge it.

In addition, the above facts are as follows, i.e., three cases of the right to collateral security established by the second bank with respect to the real estate in this case at the time of the sale of the real estate in this case, where the debtor is an OOO member, and the debtor is an OOB member, the sum of the maximum debt amount of each of the rights to collateral security, the debtor is much more than the debtor, and there is no objective evidence to ascertain whether both the plaintiff and the BB, the debtor, out of the second bank's debt repayment amount of the right to collateral security, have used the amount of each of the rights to collateral security, which is the debtor, as well as each of the rights to collateral security, even if there is no objective evidence to ascertain whether the amount of each of the rights to collateral security, which is the debtor, was used as the amount of each of the rights to collateral security, at the time of the disposition in this case, the part of the rights to collateral security cannot be seen as a donation to the plaintiff at the time of the disposition in this case, and even if some of the rights to collateral security are assessed.

Therefore, the plaintiffs' arguments on this part are without merit.

(3) In other words, in light of the following circumstances revealed by the above facts as to the part of the amount deducted from the amount deducted from the amount deducted from the amount deducted from the amount deducted from the amount deducted from the amount of the J bank collateral security obligation, and in light of the fact that the debtor all three of the collateral security rights established by the J bank with respect to the real estate at the time of sale of the real estate at the time of the sale of the real estate at issue, the total amount of the OOOO paid at the J bank's OOB was used by the debtor for the repayment of the secured amount of each of the above collateral security rights, the debtor's payment for the cancellation of the above each of the collateral security rights. Therefore, it is clear that all of these parts were illegal to calculate the amount of the gift tax by deeming the amount to be the gift amount to be the gift amount to both A and the purchaser's confirmation of the real estate acquisition. Therefore, it is apparent that there is no objective reason to believe that the amount was subject to taxation as to the gift amount.

(4) On the other hand, the tax amount calculated on the basis of the above amount calculated on the basis of the amount of OOO which is the taxable value of the instant disposition by the Defendant, as the taxable value of the gift tax, is the amount of OO which exceeds the amount of OOO of the instant disposition.

1) The sum of the OOO members transferred to the account of the Plaintiff YangA and the II Bank collateral collateral collateral guarantee liabilities is less than the sum of the OOO members and the amount of the OOO members deducted from the taxable value of the Defendant, which shall be governed by this, since the sum of the OO members transferred to the account of the Plaintiff YangA.

3. Conclusion

Then, the plaintiffs' claims of this case are reasonable within the above scope of recognition, and they are accepted, and the remaining claims are dismissed. It is so decided as per Disposition.