National Tax Service Review Donation 2010-0103 (201.03.04)

The acquisition fund shall not be deemed to have been donated by the spouse.

The land was the common property of the couple despite the fact that it was the spouse's sole name, and it is reasonable to deem that the disposal price is the common property of the couple. Therefore, even if the acquisition fund of 1/2 share acquired under the name of the plaintiff was made out of the spouse's account, it is the common property of the plaintiff and the spouse, and it cannot be deemed that the acquisition

2011Revocation of revocation of disposition imposing gift tax, 4191

right XX

O Head of tax office

July 7, 2011

August 18, 2011

1. The Defendant’s disposition imposing gift tax amounting to KRW 890,613,110 on the Plaintiff on September 28, 2010 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 each real estate listed in the separate sheet, the registration of ownership transfer was completed due to the joint ownership of the Plaintiff and his husband, as follows (hereinafter referred to as "each of the above real estate"), and the purchase price was paid from the reorganization of the name of the newA.

(The following table omitted):

B. On September 28, 2010, the Defendant imposed gift tax of KRW 890,613,110 on the Plaintiff on September 28, 2010 on the ground that when the Plaintiff acquired 1/2 shares of each of the instant real estate as above, it was confirmed that the Plaintiff received KRW 2,277,794,30 in total from New York, his spouse, and the acquisition tax and registration tax accordingly, etc. (hereinafter “instant disposition”).

C. On October 21, 2010, the Plaintiff filed a request for review with the Commissioner of the National Tax Service for the instant disposition, but the request was dismissed on March 4, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 12, 13 (including each number), Eul evidence Nos. 1-2, 3, 4, Eul evidence No. 2, Eul evidence No. 3-1, 2, and 3

2. The assertion and judgment

A. The plaintiff's assertion

The Plaintiff purchased each of the instant real property from the purchase price for the sale of the instant land under the name of PAA, and the purchase price for the sale of each of the instant real property under the name of PAA. Therefore, even if the purchase price for each of the instant real property was made out of the accounts under the name of PAA, not the donation, but the common property of the husband from the original date, and thus, the instant disposition based on the premise that the Plaintiff was donated with the acquisition price for shares of 1/2 of each of the instant land from the newA.

B. Determination

1) The following facts are recognized according to the respective entries and the purport of the entire pleadings in Gap evidence Nos. 3, 6, 7, 8, 9, 10, and 11 (including each number):

A) On October 10, 1957, the Plaintiff completed a marriage report with the new A and entered into a marriage life, and operated a hole in the vicinity of the XX elementary school from around 1969 to 1975, together with the PA. At the time, the new AA was also a farmer, but both spouses purchased the XX East land with the collected money on January 20, 1975 and completed the registration of ownership transfer in the name of the PAA.

B) In around 2006, the Plaintiff and New AA sold △△△△, and New AC (hereinafter “△△△△”) the land to KRW 9.3 billion, and paid approximately KRW 2.6 billion out of the remaining sales amount, after paying capital gains tax, etc., to the Agricultural Cooperative Account in the name of the Plaintiff, and approximately KRW 5 billion was deposited into the Agricultural Cooperative Account in the name of the newA.

C) After doing so, △△△ and △△ C alleged that New A was able to sell the said land at a high price without any basis, and that New A was able to sell the said land at a high price, and subsequently lost the claim for damages against New A, Chuncheon District Court Decision 2006Na2158, which was dismissed, and the judgment of the first instance court became final and conclusive on September 11, 2008 as the final appeal was dismissed by △△△△ and C. Meanwhile, at the time of the filing of the lawsuit, △△△△ and C provisionally seized the deposit claim of the said Agricultural Cooperative Account under the name of New A, but the final judgment became final and conclusive as above, the claim for provisional seizure was withdrawn.

D) During the period during which the provisional attachment decision on the above deposit claims in the name of new AA was not made due to the provisional attachment decision, the Plaintiff and new AA acquired, under the Plaintiff’s name, several lots of land in YY market with the money in the said agricultural bank account in the name of the Plaintiff, either solely or jointly with the Plaintiff and new AA.

2) In light of the fact that: (a) the area of the land XX Dong is merely a 3.170 square meters and that the purchase price for the around 1975 that was acquired in the name of the newA was not a large amount; (b) it is reasonable to deem that the land in question was the common property of the Plaintiff and the couple acquired with the money collected by the newA despite the fact that it was the sole name of the newA; and (c) the disposal price was also the common property of the husband and wife. Therefore, even if the acquisition fund of the shares acquired in the name of the Plaintiff out of each of the instant real property was made out of the accounts of the newA, it is the original common property of the Plaintiff and the newA, and thus, it cannot be deemed that the Plaintiff received a donation from the newA.

Therefore, the instant disposition should be revoked as it is unlawful on a different premise.

3. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.