Whether a certain amount should be excluded from the investigation into the source of funds by applying the provision on the presumption of donation of funds acquired by property.

Since the transfer of property between lineal ascendants and descendants constitutes a case in which the value of the relevant property itself is presumed to have been donated, there is no room for application of the presumption of donation of funds for acquisition

In case of transfer to the spouse, etc. under Article 44 of the Inheritance Tax and Gift Tax Act, presumption of donation

Article 45 of the Inheritance Tax and Gift Tax Act (Presumption of Donation of Funds for Property Acquisition)

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 38,454,00 against the plaintiff on October 2, 2006 is revoked (the date of disposition entered in the complaint seems to be written in writing on October 18, 2006).

1. Details of the disposition;

A. On May 6, 2005, the Plaintiff transferred ownership of 103 ○○○-dong, Seoul, ○○○○-21 ○○○○○-do (hereinafter “instant house”) from his father’s ○○-dong, ○○-21, 103 (hereinafter “instant house”).

B. On June 28, 2005, ○○○ declared the transfer income tax base by stating the acquisition value of the instant housing in KRW 350 million and the transfer value as KRW 300 million to the head of Seocho District Tax Office, and filing a return on the tax base of transfer income tax as zero (00 million). The Plaintiff did not file a return on the gift tax base with the Defendant.

C. On October 2, 2006, the Defendant estimated that the Plaintiff was donated to the Plaintiff who is a lineal descendant, pursuant to Article 44 of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”), and issued a disposition of imposition of KRW 29 million calculated by subtracting 30 million from the standard market price of the instant house at the time of transfer the amount of KRW 225 million to the deduction of donated property among lineal ascendants and descendants, which is KRW 30 million, as the standard market price of the instant house at the time of transfer (hereinafter “instant disposition of imposition of KRW 195,00,000 + [10 million + (195,000,000 - KRW 100,000) + KRW 5,800,000 in additional tax for negligent return and KRW 38,654,000 in total, KRW 3854,400 (hereinafter “instant disposition”).

[Reasons for Recognition] Gap evidence Nos. 2, 20, 26, Eul evidence Nos. 1, 3, 4, 5, and 7

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) On April 15, 2005, the Defendant entered into a sales contract for the instant house with Lee ○, and agreed to pay the remainder of KRW 30 million to April 30, 2005 at the time of the contract, and the remainder of KRW 270 million at the time of the contract. On April 30, 2005, the Defendant entered into a sales contract to lease the instant house to this ○○ for a ten-year lease with the remainder of KRW 270 million as the deposit for the deposit for the deposit. As above, the Plaintiff merely paid a reasonable price to this ○○, and did not receive a donation.

(2) The Plaintiff purchased the instant house in KRW 350 million and the difference is less than 300,000,000,000 won, and thus, it does not constitute a low-price acquisition. Nevertheless, the Defendant, as if ○○○ acquired the instant house in KRW 450,00,000, did not constitute a gift tax pursuant to Article 35(1) of the Inheritance Tax and Gift Tax Act and Article 26(1) and (3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, deeming the Plaintiff’s acquisition of the instant house as a gift of profits arising from the low-price acquisition.

(3) The Defendant, pursuant to Article 45(3) of the Inheritance Tax and Gift Tax Act, has excluded KRW 200 million from the fact that the head of the household over 30 years old acquires the instant house. Nevertheless, the acquisition amount of the instant house was conducted by investigating the source of funds for the total amount of KRW 300 million and presumed that the Plaintiff acquired the instant house by gifting KRW 225 million without any grounds.

(4) The instant house constitutes non-taxable donated property on the ground that it constitutes a mixed-water item under Article 46 of the Inheritance Tax and Gift Tax Act and Article 35(4)4 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which is recognized as normally necessary.

B. Relevant statutes

Article 2 (Gift Tax Taxables)

Article 31 (Scope of Donated Property)

Article 44 (Presumption of Donation at Time of Transfer to Spouse, etc.)

Article 33 (Presumption of Donation at Time of Transfer to Spouse, etc.)

(c) Fact of recognition;

(1) On April 30, 2003, ○○ purchased the instant housing in KRW 450 million.

(2) On April 15, 2005, the Plaintiff and Isleap drafted a real estate sales contract (Evidence 2) stating that the Plaintiff purchased the instant housing in KRW 300 million and the down payment of KRW 30 million out of the purchase price shall be KRW 270 million on the contract date, and the remainder shall be paid on April 30, 2005 and the remainder shall be replaced by the deposit deposit.

(3) On April 30, 2005, the Plaintiff and Isaple leased the instant housing by the period of KRW 270 million, and April 30, 2015. The Plaintiff drafted a housing lease agreement (Evidence A (Evidence B, No. 14, No. 2) stating that the date and amount of payment shall be paid in installments on an annual and quarterly basis to ○○○, and that the payment shall be determined by mutual agreement.

(4) On April 15, 2005, the Plaintiff transferred monthly average of KRW 14.8 million to ○○○, including KRW 30 million, KRW 10.2 million on May 10, 2005, KRW 10.2 million on a monthly basis from July 2006 to December 2007.

(5) On May 6, 2005, the Plaintiff received the registration of ownership transfer of the instant housing, and paid KRW 9,717,000 as acquisition tax and registration tax on the same day, and no limited real right is established on the instant housing.

(6) Around February 2006, the Defendant: (a) presumed that the instant house was donated to the Plaintiff pursuant to Article 44 of the Inheritance Tax and Gift Tax Act; (b) thus, if the Plaintiff actually paid the price and acquired it, notified the Plaintiff of the submission of explanatory materials by February 17, 2006.

[Grounds for recognition] Gap's evidence Nos. 2, 12-15, 18-20, 22, 23, Eul's evidence Nos. 2-5, 8-14, and the purport of the whole pleadings

D. Determination

(1) Judgment on the plaintiff's first argument

Article 44(1) of the Inheritance Tax and Gift Tax Act provides that the value of the property transferred to a lineal ascendant or descendant shall be presumed to have been donated to the transferee. As such, the instant house transferred to the Plaintiff, a son, is presumed to be donated property. If the Plaintiff seeks to be exempted from the imposition of gift tax, he/she shall assert and prove the grounds for exclusion from presumption under each subparagraph of Article 44(3)

Article 44 subparagraph 5 of the Inheritance Tax and Gift Tax Act, Article 33 (3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act clearly recognizes the fact that the property is transferred for consideration to a lineal ascendant or descendant, and ① exchanges property which requires a registration or enrollment in a transfer or exercise of the right, ② It is proved that the payment of the price is made for the acquisition of the property concerned, or the amount of income already taxed (including a case where the property is non-taxable or exempted) or reported, or the value of inheritance or inheritance, or the value of the property concerned. ③ The case where it is proved that the payment of the price is made for the acquisition of the property concerned. However, in light of the facts acknowledged earlier and all other circumstances revealed in the argument of this case, it is difficult to recognize that this ○

(A) The Inheritance Tax and Gift Tax Act’s provision on the presumption of gift on the property transferred to the spouse or a lineal ascendant or descendant is intended to prevent the act of abolition between the most close relatives, and it can be arbitrarily created the external transaction terms under the common interest of avoiding tax burden. Thus, whether the pertinent transfer act constitutes a ground for exclusion of gift presumption is an important standard in determining whether the pertinent transfer act has an economic rationality ordinarily made between the general transaction parties who have no relationship with one another.

(B) Around April 2003, this case’s housing was acquired in KRW 450 million, and transferred to the Plaintiff around May 2005, around KRW 300 million. There is no special circumstance, such as a change in the real estate market price at a price reduced by 1/3 of the acquisition price or at a price reduced by 1/3 in only two years.

(C) The content of the sales contract between the Plaintiff and ○○○ is that only the down payment equivalent to 10% of the purchase price of the instant house is received, and the remainder is the deposit for the lease of the instant house, and this ○○ continues to possess and use the instant house for 10 years as a lessee. The lease price of the instant house for which no collateral mortgage is established reaches 90% compared with that of the lease period, and the lease period is ten years after the maturity of the lease, and the refund of the deposit for the purchase price or the deposit for the lease without any change is not a special relationship between lineal ascendants and descendants, but a special relationship between lineal ascendants and descendants, which cannot be found in the ordinary real estate transaction.

(D) By combining a sale and purchase contract and a lease contract, the Plaintiff acquired the instant house in KRW 30 million, and the sum of the years that the Plaintiff would pay KRW 100 million per month to ○○○ for ten years after the lease contract is limited to KRW 120 million. This would result in avoiding capital gains tax burden by disposing of the instant house at a price lower than the acquisition price, and the inheritance tax to be borne by the Plaintiff would also be avoided in advance when the inheritance of the instant house is performed in the future.

(E) According to the statement in Gap evidence No. 9, the plaintiff may recognize the fact that he received insurance money of KRW 40 million at the maturity of post office welfare insurance on February 2, 2004, but there is no evidence that the above money was paid to Lee ○-be with the purchase price of the house of this case. Furthermore, according to the evidence No. 6 and No. 16, the plaintiff was married on May 29, 2004 and transferred on June 14, 2004 to ○○-dong 4 on June 14, 2004, and the above money was used as a deposit for the formation of a new house, and there is no evidence that the plaintiff paid 30 million won to Lee ○-dong with the purchase price of the house of this case as the purchase price of the house of this case on April 15, 2005.

(2) Judgment on the second argument by the Plaintiff

The instant disposition was not imposed by deeming the instant house itself as donated property pursuant to the gift presumption provision for property transfer between lineal ascendants and descendants, but it was not imposed on the difference between the transfer value and the market value, considering that it was the donation of profits from low-price transfer as donated property. Therefore, this part of the allegation is without merit due to misunderstanding the grounds for instant disposition.

(3) Judgment on the plaintiff's third assertion

Article 45 of the Inheritance Tax and Gift Tax Act (Article 45 of the Inheritance Tax and Gift Tax Act), where it is difficult to recognize that the assets were acquired by its own means, it shall be presumed that the funds for acquisition of the relevant assets were donated to the value of donated property, and Article 45 of the same Act provides exceptions thereto, and where it is presumed that the assets were transferred between lineal ascendants and descendants as in this case and the value of the relevant

(4) Judgment on the plaintiff's fourth argument

Since there is no evidence to acknowledge that the housing in this case is a mixed water product and it constitutes money and valuables that are normally necessary, this part of the assertion is without merit.

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.