Cho High Court Decision 2009No1888 (Law No. 30, 2009)

No provision on presumption of donation may apply where a person has a certain occupation and ability at the time of property acquisition.

If there is a person who has a substantial re-existence with a certain occupation at the time of acquisition of property, and there is a person who has actually been a considerable income, the provision on presumption of donation cannot be applied even if there is a part of the funds

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

On January 12, 2009, the Defendant revoked each disposition of imposition of gift tax of KRW 598,68,419 on March 29, 2004 against the Plaintiff on July 4, 2002, KRW 172,99,030 on the gift tax of KRW 324,532,40 on the gift of September 18, 2003, and KRW 598,68,419 on the gift of March 29, 2004 against the Plaintiff (the first judgment dismissed the Plaintiff’s claim for revocation of the disposition of imposition of gift tax of KRW 598,68,419 on the gift of March 29, 204, and accepted the remainder of the claim for revocation of the disposition of imposition of gift tax of KRW 598,688,419 on the gift of KRW 100 on the gift of KRW 598,419 on the gift of KRW 100,000. The Defendant appealed only the Plaintiff’s appeal.

2. Purport of appeal

Among the judgment of the first instance, the part against which the plaintiff seeks cancellation below shall be revoked.

The Defendant’s disposition of imposition of gift tax amounting to KRW 598,688,419 on March 29, 2004 against the Plaintiff on January 12, 2009 shall be revoked.

1. Details of the disposition;

A. On April 9, 2004, the Plaintiff acquired a parcel of land (hereinafter “○○ City”) outside 244,000,000,000 won, from 954,000,000 won.

B. On March 29, 2004, the Defendant imposed KRW 598,688,419 on the Plaintiff on January 12, 2009, on the ground that the Plaintiff received KRW 900,000 from the father-A with respect to ○○ City land acquisition funds.

[Reasons for Recognition] Evidence No. 1, Evidence No. 2-1, Evidence No. 2-2, Evidence No. 1-3, Evidence No. 2-3, Evidence No. 3-3, and the purport of the whole pleadings

2. Whether a disposition imposing gift tax is lawful;

A. The plaintiff's assertion

The apartment is leased to thisA and received KRW 900 million as the lease deposit, not the donation.

(b) Fact of recognition;

1) On March 29 of the same year, the Plaintiff purchased ○○ City land in KRW 886,907,00, and paid the remainder amounting to KRW 900 million received from this A on March 29 of the same year.

2) In the course of the tax investigation, the Plaintiff asserted that KRW 900 million was the lease guarantee fee, 467 △△△△△-dong 467 △△△-dong (C) Dong 4904 (hereinafter “the apartment of this case”) that was leased to thisA, and submitted a lease contract made between thisA and thisA as supporting documents. According to the above lease contract, the lease contract date is described respectively as KRW 90 million on March 29, 2004 and the scheduled date of occupancy as of May 15, 2004, but the lease termination date is not specified. The market price of the lease deposit for an apartment of this case, such as the apartment of this case, was approximately KRW 1.1 billion.

3) On December 17, 2002, the Plaintiff completed the registration of ownership transfer with respect to the instant apartment on the same day with respect to the same apartment (C) No. 4402 (hereinafter referred to as “4402”).

ThisA had resided in a house located in △△△△△△△△△△△△△△dong 91, and had resided in the instant apartment from November 4, 2002, and had it resided in the instant apartment from August 30, 2004, as the instant apartment on August 30, 2004, as the head of March 21, 2007, and as the instant apartment on November 3, 2009, respectively, filed a move-in report on resident registration as the instant apartment.

On December 10, 2002, the Plaintiff reported to the △△△ management office that the Plaintiff’s family and KimCC (referred to as “the current status of family members” hereinafter) reside together with the Plaintiff’s family and KimCC. On March 26, 2003, the Plaintiff filed a move-in report as the instant apartment on March 21, 2007, each of the instant apartment units. The Plaintiff submitted a move-in report as to this B and 4402 on November 1, 2002, the real estate name date for this case’s lawsuit, “60,000 won,” “the monthly rent,” “240,000 won,” and “the date of its preparation, September 1, 2002.”

The address of EA and the plaintiff's resident registration injury are currently the apartment of this case.

[Based on the recognition] Evidence No. 3-1, Evidence No. 4-1, Evidence No. 6-1, Evidence No. 2, Evidence No. 7, Evidence No. 1-3, Evidence No. 7-1, and Evidence No. 7-10, and the purport of the whole pleadings

C. Determination

In light of the following circumstances, thisA seems to have been donated to the Plaintiff as it does not appear that this KRW 900,000,000, which was paid to the Plaintiff.

① From November 4, 2002, thisA had already been residing in the apartment of this case, after the passage of that time, entered into a lease agreement with the Plaintiff on March 29, 2004 in which the remainder of the land of ○○ City was paid.

② In the case of a flat-type apartment similar to the instant apartment, the market price of the lease deposit is 1.1 billion won, and the lease deposit of the instant apartment is KRW 900 million, and it was up to the land price at 00 million.

③ Although the scheduled date of occupancy under the lease agreement was on May 15, 2004, thisA paid KRW 900 million in advance on March 29, 2004, and the Plaintiff withdrawn the said money from the recipient of the money and used it as the price for the land at ○○ City.

④ On December 17, 2002, the Plaintiff and LeeB were able to complete the registration of ownership transfer for each of △△ apartment units on December 17, 2002. Nevertheless, it would be easy for the Plaintiff to pay a large amount of monthly rent to thisB, and that the apartment units owned by △△ is leased to △ instead of 4402.

⑤ The domicile of the Plaintiff and thisA’s resident registration injury is currently the apartment of this case.

3. Conclusion

The imposition of gift tax on the part of 2004 is justifiable. The plaintiff's appeal is dismissed.