2012west 4233 ( November 29, 2012)

The plaintiff is a resident who has a domicile in the Republic of Korea and thus it is reasonable to apply gift tax deduction.

In light of the fact that the Plaintiff owns assets based on domestic income, while the Plaintiff appears to reside in the United States for the study of two children, appears to have returned to the Republic of Korea upon the completion of their study, and continued entry except in 2008 and 2010, the Plaintiff shall be deemed to be a domestic resident and shall be subject to the deduction of gift tax spouse.

2013Guhap6473 Revocation of Disposition of Imposition of Gift Tax

KimA

Head of the tax office;

September 13, 2013

October 11, 2013

1. The imposition disposition by the Defendant against the Plaintiff on February 1, 2012 of the gift tax OOO (including additional taxes) shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

"A. On April 19, 201, the Plaintiff: (a) received a donation from the husband ChoB, OOB, OO-gu 23 OO-dong 23 (O-dong 73); (c) an officetel 908; and (d) an apartment building 1102 (hereinafter referred to as "each of the instant real estate"); (b) on the ground that the Plaintiff is a nonresident residing in the United States, and thus, (c) the Defendant was dismissed on February 21, 201, on the ground that the Plaintiff was not subject to the spouse deduction under Article 53 of the Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 2011; hereinafter referred to as the "Inheritance Tax and Gift Tax Act"); and (c) the Plaintiff was dissatisfied with the decision to dismiss the Plaintiff on February 29, 2012.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 5-1, 2, and 6-1, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff is obligated to return home upon completion of the study of two children and live in the United States. Thus, the instant disposition made on a different premise is unlawful. The Plaintiff’s transfer of the Plaintiff’s her husband’s her husband’s her husband’s her husband’s her husband’s her husband’s her husband’s her husband’s her husband

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The plaintiff's nationality

On March 4, 197, the Plaintiff left the Republic of Korea with the United States in order to reside outside the country, and married with ChoBB (the date of marriage declaration is November 18, 1993) around 1989. The Plaintiff acquired the citizenship of the United States on December 8, 1994 and lost the nationality of the Republic of Korea on December 23, 1994. Meanwhile, the Plaintiff died around 2008.

(2) The plaintiff's residence and period of stay

(A) On September 1993, the Plaintiff entered the Republic of Korea with ChoB and resided in Incheon and repeated entry into and departure from the Republic of Korea. On September 11, 2007, the Plaintiff was currently residing in the United States after departure from Korea to back his studies.

(B) The date of entry into and departure from Korea and the number of days of stay in Korea each year are as follows.

See Table 3 of the Court Decision

(3) The nationality of the child;

(A) South-North EE

On January 24, 1991, ChoE was born in California, California, California, and lost the nationality of the Republic of Korea. ChoE entered and graduated from the U.S. OOOO Midle Schlool on September 8, 2006, and the U.S. OOOOOOOHHH Schlool on September 5, 2007.

(b) South sonF

FF was born at OOO-gu OO-dong 1196 on March 23, 1994, and was registered as CCC4 apartment 1102 with the maximum GG, the mother of KB and KB on June 1, 2007. The CCC 4 apartment 1102 was entered and graduated on September 17, 2007, and on September 9, 2009, the U.S. OOOOOOOHHHH Schlool.

(4) The assets and income of Section B; and

(A) AB owns one underground floor among the commercial buildings located in OO-dong 145-6, OO-dong 145-6, OO-dong.

(B) On March 7, 2007, the operatorB completed the registration of the real estate business, and reported each type of business as the food and accommodation business on February 4, 2009, February 6, 2009, and on September 30, 201, as the real estate business on September 30, 201. The operatorB reported the amount of income as the revenue of the first OOO in January 2009, second OOOO in February 2009, and first OOOO in January 2010.

(5) Plaintiff’s assets and livelihood

(A) The Plaintiff is an apartment leased in the United States (OO$) and owns one vehicle. In addition to each of the instant real estate in Korea, the Plaintiff owns OOO-type 74-1 forest land in OO-type 3,680 square meters.

(B) From April 10, 2007 to May 11, 2011, CB transferred USD 00 to the Plaintiff each month.

[Ground of recognition] The descriptions of Gap evidence Nos. 1 through 4 (including paper numbers), Eul evidence Nos. 3, 4, and 5 (including paper numbers), and the purport of the whole pleadings

D. Determination

(1) Article 53 subparag. 1 of the Inheritance Tax and Gift Tax Act provides that "Where a donee, who is a resident, receives a gift from his/her spouse, an OOO shall be deducted from the taxable value of the gift tax." Meanwhile, Articles 1 and 2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 24710, Feb. 15, 2013) provide that the provisions of the Enforcement Decree of the Income Tax Act shall apply mutatis mutandis to the determination of a resident and a nonresident, "individual who has a resident's domicile in the territory of the Republic of Korea or has a resident's permanent residence for not less than one year" (Article 1-2 subparag. 1 of the Income Tax Act), and the issue of whether a donor is a "individual who has a resident's domicile in the Republic of Korea" shall be determined by comprehensively taking into account the objective facts of his/her living relationship, such as whether a family has a domestic asset, a donee's occupation, whether a donee has a foreign nationality, or whether a foreign nationality exists in Korea.

(2) According to the health team and the above facts of recognition, the Plaintiff lost the U.S. citizenship on December 8, 1994 by acquiring U.S. citizenship, the number of days of stay in Korea in 2010 and the number of days of stay in Korea in 2011 is only 64 days.

"However, the plaintiff and ChoB have been living a normal marriage since they got married in around 1989, and the plaintiff maintains a marriage even after departure from the Republic of Korea on September 11, 2007, and ChoB appears to have earned income from the lease of a commercial building located in OO-Gu OO-dong 145-6, and the plaintiff may be deemed to have a family living together in the Republic of Korea with the plaintiff, considering the fact that the plaintiff depends on the money transferred from ChoB without work in the United States and appropriated the living expenses, E-E, and ChoF's school expenses." Further, while the plaintiff owns assets that serve as the basis for living income in the Republic of Korea, the plaintiff is deemed to have owned only leased apartments or vehicles necessary for living in the United States, the plaintiff appears to have resided in the United States for the study of the two children, and there is no possibility that two children's two children's children live in the Republic of Korea [the plaintiff's mother and 20 years can not be determined to have been residing in the Republic of Korea.]

(3) Therefore, since the Plaintiff constitutes a resident with a domicile in Korea, the instant disposition based on a different premise is unlawful (the Republic of Korea considers a donee as a taxpayer with gift tax, while the United States considers a donor as a taxpayer with gift tax, the Plaintiff is liable to pay gift tax only to the Republic of Korea. Accordingly, the agreement between the Republic of Korea and the United States of America for the avoidance of double taxation and the prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment, which was concluded to prevent double taxation of income tax

Therefore, the claim of this case is reasonable, and it is decided as per Disposition.