Early High Court Decision 201J 2574 ( October 28, 2011)

taxpayer must prove that the acquired property is the property under title trust.

In order to reverse the presumption of gift, the evidence submitted by the Plaintiff alone cannot be deemed as a real estate title trust in the name of the Plaintiff, and there is no other evidence to acknowledge otherwise, in order to clarify the source of the funds for acquisition of a separate property and to prove that the funds were used as the funds for acquisition of the property or that the acquired property

2012 disposition of revocation of imposition of gift tax

XX Kim

The director of the tax office

August 24, 2012

September 28, 2012

1. The plaintiff's claim is dismissed.

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

The imposition disposition of each gift tax on April 4, 201 by the Defendant against the Plaintiff is revoked.

1. Details of the disposition;

A. From January 10, 2003 to July 4, 2008, the Plaintiff acquired land and buildings in the column for "real estate" (hereinafter "real estate in this case", and according to the sequence thereof).

B. The director of the Central Regional Tax Office of China investigated the source of acquisition fund for the instant real estate acquired in the name of the Plaintiff, and notified the Defendant that the Plaintiff and the Plaintiff’s father KimA should levy gift tax on the Plaintiff by using 000 won, the source of which has not been verified, as the source of donation was not disclosed (a total of 000 won of donated property indicated in the details of imposition of gift tax in attached Form 3, 4, and 5, the sum of donated property indicated in the details of imposition of gift tax is the sum of donated property for the instant real estate which

C. Accordingly, on April 4, 201, the Defendant imposed and notified the Plaintiff a total of KRW 000 (including additional taxes) of six gift tax (hereinafter “instant disposition”) as stated in the attached Form No. 1.

D. On July 12, 201, the Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal, but on October 28, 201, the said claim was dismissed.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Gap evidence 7-1, 2, Eul evidence 1-1 through 6, Eul evidence 8-1, 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Although the instant real estate was acquired by the father of the Plaintiff’s arbitrary lending of the name of the Plaintiff, the Defendant did not conduct a field investigation on the Plaintiff and recognized that the Plaintiff received the said real estate from the KimA without having conducted an on-site investigation on the Plaintiff and imposed gift tax.

(2) Even if the Plaintiff received the gift of the instant 6 real estate, the said real estate was acquired by exchanging the Plaintiff’s her mother KimB with the land XX270-6, 270-8, the value of the said real estate is not only KRW 000, but also KRW 000, as the Defendant asserts. Therefore, if the Plaintiff excluded the maximum amount of the secured claim on the right to collateral security from the lease deposit and KRW 000,000, the remaining amount is KRW 000 ( KRW - 0000 - 000), and the amount actually donated by the Plaintiff is KRW 00,000 ( KRW 00 x 40%).

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Relevant legal principles

Article 45(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) provides that “Where it is difficult to recognize that the property was acquired by its own means in view of the occupation, age, income, property status, etc., as prescribed by the Presidential Decree, the acquisition fund of the property shall be presumed to have been donated to the purchaser of the property at the time of the acquisition of the property, and the property shall be deemed to have been donated to the purchaser of the property.” Therefore, in a case where a person who has no occupation or ability to have no ability to prove the source of funds for the acquisition of the property, and where there is any financial ability to donate to the purchaser, such as his lineal ascendant, etc., to reverse such presumption, it shall be presumed that the funds for the acquisition of the property were donated to the purchaser of the property, and it shall be proved that the funds were used as funds for the acquisition of the property, or that the property acquired was trusted property (see, e.g., Supreme Court Decision 94Nu14308, Aug. 1

(2) Whether the title trust is recognized

In full view of the following circumstances as to this case’s health class No. 7’s evidence No. 1, 2, 12, 2, 3’s evidence No. 3’s evidence No. 3-1, 2, 4, and 5, the evidence submitted by the Plaintiff alone cannot be deemed to have been trusted to the Plaintiff’s name, and there is no other evidence to acknowledge this otherwise. Accordingly, the Plaintiff’s assertion on this part is without merit.

① At the time of the tax investigation into the acquisition fund of the instant real estate, the Plaintiff and the father KimA of the Plaintiff failed to clearly state the source of the instant real estate. The Plaintiff was enrolled at XX University from March 199 to January 2006, and the Plaintiff was serving military service from August 3, 2000 to October 2, 2002, and thus, there was no particular income at the time of acquiring the instant real estate.

② Unless there are special circumstances, such as: (a) if a tax authority has received a written confirmation from a person liable to pay tax in the course of conducting a tax investigation that includes a certain fact of taxation, it may not readily deny the value of such written confirmation (see Supreme Court Decision 2006Du8068, Sept. 25, 2008). However, on January 27, 2011, the Plaintiff’s father KimA prepared and submitted to the tax authority a written confirmation (Evidence No. 2) that “I confirm that the real estate acquired by the Plaintiff was not the title trust of the Plaintiff.” Meanwhile, there is no evidence to deem that the said written confirmation was compulsorily signed and sealed contrary to the intention of KimA. Meanwhile, Kim Jong-A submitted a written confirmation to the effect that each of the real estate of this case, including the use of the Plaintiff’s passbook, etc., after the Plaintiff’s death, is difficult to readily deny the value of such evidence.

③ From 2006 to 2010, KimCC, the head of KimCC, the Republic of Korea, acquired 14 real estate from 2006 to 2010 in the form of sale, purchase, or gift of the instant real estate over six times from 2003 to 2010. If KimA simply completes the ownership transfer registration on the sole basis of the above real estate title trust intent, there is no reasonable ground to believe that title trust is made to non-income-free children while taking the risk that gift tax will be imposed. Furthermore, the instant 4 and 6 real estate were registered in the form of co-ownership share shares equally with the Plaintiff and KimCC, and there is no reasonable ground to hold title trust to their children with the same shares.

④ On December 2010, the Plaintiff prepared a “written notice of tax investigation (prior notice), the “right charter of taxpayers,” and the “written confirmation of receipt and confirmation of the duty payer’s right charter, etc. to the effect that the Plaintiff received information about the investigating public officials and confirmed that he was provided with information about the investigation.” On January 201, 201, the Plaintiff did not seem to have erred in the tax investigation procedure, as alleged by the Plaintiff, in light of the fact that the Plaintiff made and submitted a letter of delegation to the father KimA with respect to the tax investigation, such as the withdrawal of funds, etc., the authority to attend or state his opinion, and all other authority related to the request for postponement of the progress of the tax investigation.

(3) The gift value of the sixth real estate of this case

According to the evidence Eul's evidence Nos. 6 and 7, it is recognized that on June 16, 2008, YD was a seller of the real estate of this case, the plaintiff, KimCC, and KimD as a joint purchaser, and the sales contract of KRW 000 was concluded. In addition, as a special agreement, the purchaser agreed to assume the obligation of a bank loan of KRW 000 and the deposit money of KRW 00 was transferred to the plaintiff (40%) in the course of investigation into the plaintiff, etc., and YD transferred the above real estate to the plaintiff (40%) in the course of investigation into the plaintiff, etc., and 00 won after subtracting the above bank loan and deposit money of KRW 00 (0 -00 - 00 - 000) from the sales price of KRW 00. In light of the above facts of recognition, the plaintiff's assertion that the above amount of the real estate of this case was legitimate at the time of the above sales contract is the amount of KRW 600.

3. Conclusion

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