Examination Donation 2015-0033 (24. 2015.06.24)

It is not consistent with the tax equity to impose taxes on the basis that there is no substantial economic profit.

The taxation in tax legal relations must be made fairly and equally commensurate with the taxpayer's tax-bearing capacity, and the existence and degree of the tax-bearing capacity should be determined according to the actual income or legal relationship rather than the legal form of the act causing the taxation. Therefore, imposing the tax on a person who has no economic benefits, does not accord with the tax equity.

Article 4 of the Inheritance Tax and Gift Tax Act

Article 31 (Scope of Donated Property)

Gwangju District Court 2015Guhap1229 Revocation of Disposition of Imposing Gift Tax

AA

○ Head of tax office

2, 2016.22

o October 20, 2016

1. The Defendant’s imposition of KRW 29,277,370 against the Plaintiff on January 2, 2015 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. With respect to the ○○○○○○○○-gun, ○○○○○○○○, 55 and four parcels (hereinafter referred to as “each of the instant parcels”) including 666, 77, 888, 199, hereinafter referred to as “each of the instant parcels”), the ownership registration was completed in the following order:

① On May 11, 2006 and July 10, 2007, from BB, the Plaintiff’s money, to the name of the net CCC (hereinafter “the Plaintiff’s husband”), registration under the name of the Plaintiff on the ground of inheritance on July 30, 2009; (2) registration under the name of BB on the ground of gift on April 16, 2010; (3) registration under the name of BB on the ground of gift on April 16, 2010; (4) registration under the name of DD, EEE on the ground of trade on June 8, 2010; and (66) registration under the name of FF (former GGG); and (3) the remaining land under the name of H on the ground of trade on June 24, 2010.

B. On January 2, 2015, the Defendant imposed a gift tax of KRW 43,388,430 on the ground that the gift amount was KRW 184,502,260 on each of the instant land on April 16, 2010, and notified the Plaintiff of the payment of the said gift tax by designating the Plaintiff as a joint and several taxpayer on the same day.

C. On March 24, 2015, the Plaintiff filed an objection with the head of ○○ Tax Office, but was dismissed on April 22, 2015, and filed a request for examination with the Commissioner of the National Tax Service on May 20, 2015, but was dismissed on June 24, 2015.

D. Meanwhile, while the lawsuit in this case is pending, the Defendant changed the gift amount of 00,60,000 won from 102,60,000 to 60,000 won on the surface of ○○○○○○○○○-gun, ○○○○○○, ○○○○○, ○○○○-gun, to KRW 102,60,000, and corrected the gift tax to KRW 29,27,370 (hereinafter referred to

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 7 (including each number if there are separate numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Each of the instant lands was the land donated by the Deceased from BB. Since the Deceased died on May 11, 2009, the CF, who was a pilot, forced the Deceased to return each of the instant lands again, and returned each of the instant lands again. Since CF immediately sold each of the instant lands and received the payment of the purchase price, the actual acquisitor of each of the instant lands is CF. In addition, even though CF entered a higher amount than the actual purchase price in the registry, the Defendant did not confirm the actual purchase price of each of the instant lands, and deemed the sale price recorded in the registry as the gift price. Accordingly, the instant disposition was unlawful in violation of the substance over form principle.

B. Determination

1) In general, taxation in tax legal relations should be made fairly and equally commensurate with the taxpayer’s taxable capacity. The existence and degree of the taxable capacity should be determined according to the actual income or legal relationship rather than the legal form of the cause of taxation. In order to realize this principle, Article 14 of the Framework Act on National Taxes provides for the principle of substantial taxation in order to realize such principle, and Article 18(1) provides that when interpreting and applying tax-related Acts, the taxpayer’s property rights should not be unfairly infringed in light of the equity of taxation and the basic purpose of the pertinent provision.

2) The following facts are acknowledged if the testimony of Gap evidence 5-1, 2-2, witness DD, HH and FF respectively, and the purport of the entire argument is added.

A) Each of the instant lands is the land on which the deceased died on May 11, 2009 and the ownership transfer registration based on inheritance was made under the name of the Plaintiff. CF forced the Plaintiff to return each of the instant lands to the Plaintiff on several occasions as the deceased died.

B) On April 16, 2010, the Plaintiff completed the registration of ownership transfer for each of the instant land under the name of BB.

C) Of each of the instant lands, EEE that purchased each share of 1/2 on ○○○○○○○○○-gun 555 land, and DD purchased all of the transactional activities, including the preparation of a sales contract, with CF, and the sales price was paid directly to CF rather than BB.

D) HH purchased three parcels of each of the instant land (○○○○○○○○, ○○○○○○, 777, 99, and 888) with CF and paid the purchase price directly to CF. In addition, HH stated in this Court that “B was aware that it was in a medical care center at present at the time of the transaction.”

E) Of each of the instant lands, FF, which purchased ○○○○○○-gun ○○○○○○○○ 666, also purchased ○○ 666, was also with CF and the purchase price was paid directly to CF.

F) Meanwhile, BB was the old age of 86 years (1924 years) at the time of selling each of the instant lands.

3) The following circumstances acknowledged by the above facts are as follows: ① (i) CF, who is the purchaser of each land of this case, engaged in transactions with each land of this case, not BB, with CF, with the consent of DD, EE, HH, and F; and (ii) the Plaintiff stated that the purchase price was paid to CF; (iii) the Plaintiff’s coercion to return each land of this case caused donation under the name of BB; and (iii) the registration of ownership transfer for each land of this case was completed under the name of BB; (iv) on April 16, 2010, on which the date on which the registration of ownership transfer for each land of this case was completed; (iv) the Plaintiff’s sale of each land of this case was made; and (iv) the Plaintiff’s sale price was paid in full to CF himself; and thus, it is difficult to view that the Plaintiff’s disposal of each land of this case, which was subject to the imposition of BB, was in violation of the principle of taxation on the ownership of each land of this case.

3. Conclusion

The plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.