Seoul Administrative Court 2007Guhap37964 ( April 23, 2008)

In case of onerous donation, debt deduction applies to the case where the donee has exempted the donor from the obligation of the donor.

In case of onerous donation, it shall be determined as at the time of donation in question as to whether the donee's obligation is subject to deduction of the donor's obligation which the donee takes over. However, in case of failure to conclude a contract with the creditor bank until a disposition imposing the gift tax is taken place, it is difficult to deem that

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

Article 47 (Taxable Value of Gift Tax)

Article 36 of the Enforcement Decree of the Inheritance and Gift Tax Act

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The disposition of imposition of gift tax of KRW 21,353,790 against the Plaintiff on August 2, 2006 against the Plaintiff on May 24, 2005, of KRW 2,639,070 as to the gift tax of June 1, 2005, and KRW 20,621,790 as to the gift tax of August 22, 2005 shall be revoked.

1. The reasoning for the court’s explanation concerning the instant case is as stated in Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since the reasoning for the judgment of the first instance is the same as that for the judgment of the court of first instance, except for the following.

2. The Plaintiff asserts that, prior to the disposition of imposition of the gift tax in this case, ○ Bank (hereinafter “○ Bank”)’s consent on the assumption of the obligation in this case, the Plaintiff should recognize the retroactive effect on the assumption of obligation in this case under Article 457 of the Civil Act. However, it is insufficient to recognize that ○ Bank’s consent on the assumption of obligation in this case was obtained prior to the disposition of the gift tax in this case, and there is no other evidence to prove otherwise. Rather, according to the record of evidence No. 22 and the fact-finding on the draft of the branch of the ○ Bank, the Defendant imposed the gift tax in this case on August 2, 2006, and ○ Bank’s consent on November 6, 2006 with respect to the assumption of obligation in this case. Thus, the Plaintiff’s assertion is without merit.

Furthermore, the Plaintiff asserts that the debt amount of this case should be deemed to have been taken over by the Plaintiff pursuant to the proviso of Article 47(3) of the Act because the debt amount of this case constitutes an objectively recognized case as a debt to financial institutions under the proviso of Article 47(3) of the Inheritance Tax and Gift Tax Act (hereinafter “the Act”), and Articles 36(2) and 10(1)1 of the Enforcement Decree of the Act. However, in light of the provisions of Article 47(3) of the Act, Article 47(3) of the Act applies to cases where a donee takes over the obligation of a donor with respect to an onerous donation between his spouse and his lineal ascendants or descendants. In this case, it is interpreted that Article 47(3) of the Act applies to cases where a donee takes over the obligation of a donor with respect to the assumption of the obligation of this case without the consent of the ○○ bank, the donor of this case, and between the Plaintiff and the donee, the donee, is merely an internal acceptance without effect on ○ bank, or a claim against the Plaintiff for discharge of this case.

3. Therefore, the judgment of the court of first instance is justifiable, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.