Early High Court Decision 201J 1467 (No. 29, 2011)

Unlike gift tax and transfer income tax, it cannot be viewed as a double taxation.

It is reasonable to view that the registration of title transfer is a donation because the title trust of real estate is asserted to be a title trust only when it is not proven that the necessity of the title trust of real estate is not demonstrated in the tax investigation and in the administrative appeal procedure, and it is reasonable to view that the registration of title transfer is completed as a donation.

2011Guhap4613 Revocation, etc. of Disposition of Imposition of Gift Tax

KimA

the director of the tax office of Western

October 25, 2012

November 29, 2012

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of imposing gift tax of KRW 000 (including additional tax) against the plaintiff on January 12, 2011 shall be revoked.

1. Details of the disposition;

A. On May 19, 2003, the Plaintiff’s wife-B completed each registration of ownership transfer with respect to 000 Odong, Nam-gu, Incheon (hereinafter referred to as “Odong”), and on June 5, 2003, with respect to 222m2 square meters, the land of the said two lots was merged on June 19, 2003, and the OOdong 000 to 444m2m2 (hereinafter referred to as “the instant land”).

B. On December 19, 2003, HB and KimD (the Plaintiff’s friendship) completed the registration of ownership transfer on each one-half portion of the buildings for accommodation facilities (hereinafter “instant building”) located on the ground of OOdong 000, and KimE completed the registration of ownership transfer on August 2, 2007 with respect to the instant land and buildings (hereinafter “transfered real estate”).

C. On July 13, 2007, the Plaintiff entered into a sales contract between KimE and the Plaintiff on July 13, 2007 with the content that the Plaintiff purchases 4,239 square meters and 362 square meters of 00 square meters of O00,000 O239 square meters of O0,000 OE owned by KimE, and completed the registration of ownership transfer for the instant key real estate on July 13, 2007.

D. On July 13, 2007, the Defendant: (a) concluded an exchange contract with the effect that Kim E-E succeeds to the secured debt of the secured debt of the instant land and building and the instant key real estate owned by Kim E-E-transfer to the Plaintiff by having Kim E-E complete the registration of ownership transfer with respect to the instant key real estate; (b) on the ground that on January 12, 201, the Defendant donated the instant key real estate to the Plaintiff by having the Plaintiff complete the registration of ownership transfer with respect to the instant key real estate, and that on January 12, 2011, the gift tax is imposed (including additional tax) calculated by considering the value of donated property to the Plaintiff as the value of donated property of KRW 1/2 of the instant building as the value of donated property of KRW 00 (including additional tax).

E. On April 8, 2011, the Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal, but was dismissed on June 29, 2011.

[Grounds for Recognition] The whole purport of the arguments, and the non-sovered facts, Gap evidence 1, 2, and 3, and Eul evidence 1 and 3 (including household numbers)

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Since the Plaintiff’s transfer of real estate in this case was the title trust to YB, it does not constitute a donation to the Plaintiff to acquire the instant real estate in exchange for the instant transfer real estate.

(2) The Defendant: (a) disposed of KRW 000 as the sale price in the sales contract on the instant real estate prepared between the Plaintiff and KimE, deeming the pertinent property as the market price of donated property; (b) but, inasmuch as the instant real estate was donated under an exchange contract under which the actual transfer price cannot be confirmed, gift tax should be imposed on the basis of the appraisal price or the publicly assessed individual

(3) It constitutes double taxation to impose gift tax in addition to the transfer income tax on the transfer real estate of this case, which the Plaintiff, as the Plaintiff’s ownership, held in title trust with the relevant real estate and completed the registration of transfer of ownership.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether to determine the first argument or not

In accordance with Article 830(1) of the Civil Act, a real estate acquired by one spouse in the name of the former spouse in the marriage shall be presumed to be the unique property of the latter spouse. If the source of funds to acquire the said real estate has been established by the latter spouse who is not the nominal owner, then the latter spouse may be presumed to have been donated the funds to acquire the said real estate, and in this case, the latter cannot be deemed to have been donated the funds to the latter spouse because the said real estate is not the unique property of the nominal owner, but the latter spouse under a title trust. In addition, in order to reverse the "Presumption of Special Property under Article 830(1) of the Civil Act", the latter spouse shall bear the price for the said real estate and prove that the latter spouse acquired the said real estate in real order to own the said real estate. Therefore, solely on the basis that the latter spouse is the source of funds to purchase the real estate, the presumption of special property under a title trust should not be deemed to have been reversed, and if it is difficult to recognize that the latter spouse actually owns the said real estate through all relevant evidence, 200.

(A) Facts of recognition

1) On April 7, 2003, HB, the Plaintiff’s wife, entered into a sales contract with the State FF to purchase more than 000 square meters of the OF-dong 000 to 222 square meters of the price, and entered into a sales contract with the Nowon-gu on the same day to purchase more than 000 square meters of the OG-dong 000 to 222 square meters of the price, and completed the registration of ownership transfer on May 19, 2003, while on June 5, 2003, the registration of ownership transfer was completed with respect to 00 square meters of the OG-owned land (the land of the above 2 lots was merged on June 19, 2003, and became the land of this case).

2) On December 19, 2003, HB and KimD (Plaintiff’s friendly relationship) were confirmed to have completed the registration of initial ownership relating to each one-half of the instant shares of the instant building on December 19, 2003, and the registration of initial ownership in KimD’s name was confirmed to have been completed by being entrusted by HB under the name of HB in the tax investigation related to the transfer of the instant transferred real estate (hereinafter “tax investigation of this case”).

3) On July 13, 2007, HB transferred the instant transferred real estate to KimE, while KimE succeeds to the secured debt of the right to collateral security against the instant land and building at KRW 000 with respect to the settlement of the price, while HB decided to transfer the instant real estate owned by KimE at KRW 000 with respect to the instant real estate, on the ground that the instant building was deteriorated, it entered into a contract with HB to pay KRW 00 to KimE, and thereafter made KimE complete the registration of ownership transfer directly to the Plaintiff with respect to the instant real estate.

4) On August 2, 2007, KimE completed the registration of ownership transfer for the instant transferred real estate on July 13, 2007, and the Plaintiff entered into a sales contract with KimE on July 13, 2007 with regard to the purchase of the instant transferred real estate at KRW 000,000, and completed the registration of ownership transfer for the instant transferred real estate on August 6, 2007 as to the instant transferred real estate on July 13, 2007.

5) At the time of the instant tax investigation, HB stated that the registration of ownership transfer with respect to the instant key real estate was made in title trust for loan convenience. However, it was confirmed that the Plaintiff acquired the instant key real estate and then disposed of the instant key real estate, such as transfer by installments, etc., was not accepted. On the other hand, the Plaintiff did not claim that the instant transferred real estate is owned by the Plaintiff in the administrative appeals proceeding against the instant disposition, but did not claim that the relevant transferred real estate is owned by the Plaintiff, which is the basis for calculation.

6) At the time HB purchased the instant land from the StateF and LaborG, a considerable portion of the purchase fund was appropriated from the money owned by the Plaintiff, and the Plaintiff was the debtor, and the funds that received the instant transferred real estate as collateral were used as the new construction fund for the instant building.

[Ground of Recognition] The facts without dispute, Gap evidence 1 to 13, Eul evidence 2, and 3 (including household numbers), and the purport of the whole pleadings

(B) Determination

In light of the above facts in light of the legal principles as seen earlier, the fact that the purchase price and new construction fund of the transferred real estate in this case were appropriated to the money owned by the plaintiff or the money borrowed by the plaintiff as the debtor. However, on the sole basis of the above facts, it cannot be deemed that the transfer real estate in this case, which is presumed to have been acquired under the name of the plaintiff and presumed to have been in title trust with the plaintiff, cannot be deemed to have been the real estate in title trust with the plaintiff, and the evidence submitted by the plaintiff alone is insufficient to recognize that there was a need for the plaintiff to transfer the transferred real estate in this case between the plaintiff and the YB, or that there was an intention or need to return the transferred real estate to the plaintiff, and there is no other evidence to acknowledge this otherwise, and rather, in the tax investigation in this case and the administrative appeal procedure in this case, the plaintiff did not assert that the title trust was only in the litigation for cancellation of the disposition in this case, and it is reasonable to conclude that the plaintiff's assertion that the transfer registration was made with respect to the real estate in this case.

(2) Judgment on the second argument

According to the provisions of Article 60(1) and (3), and Article 61(1)1, of the Inheritance Tax and Gift Tax Act (amended by Act No. 916, Jan. 1, 2010; hereinafter the same shall apply), the value of the donated property is 00 won as of the date of donation, and where it is difficult to calculate the market price, it means the value which is normally deemed to have been traded between many and unspecified persons, and 00 won for each of the above real estate at 00 won, and 00 won for the transfer of the transferred real estate at 00,000 won for 00,000 won for 0,000 won for 0,000 won for 0,000 won for 0,000 won for 20,000 won for 0,000 won for 20,000 won for 30,000 won for 0,000 won for 20,000 won for 7,00 won for 3,00.

(3) Judgment on the third argument

As seen earlier, since the instant transfer real estate is owned by BB, the instant disposition imposing gift tax on the Plaintiff, who donated the instant key real estate from B, and the instant disposition imposing gift tax on the Plaintiff is different from the subject of taxation, and the instant disposition cannot be deemed to constitute double taxation. Accordingly, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

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