Cho Jae-2012-Seoul Government-3066 ( November 19, 2012)

Since gift tax is deemed to be levied on the basis of evidence, the imposition of gift tax is legitimate.

The imposition of gift tax is legitimate in light of the circumstances of donation of the association member's right to move expenses related to reconstruction, the loan of financial institutions, the part of the association member's right to move, etc.

Article 47 of the Inheritance Tax and Gift Tax Act

2013Revocation of disposition of imposing gift tax, etc.

○ Kim

○ Head of tax office

February 7, 2014

March 21, 2014

1. Of the instant lawsuit, the part requesting revocation of imposition of additional 000 won on gift tax and the part demanding revocation of imposition of additional 000 won on capital gains tax shall be dismissed in entirety.

2. The plaintiff (Appointed)'s remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the plaintiff (appointed party).

Cheong-gu Office

The Defendant’s imposition of KRW 00 (including additional charges) of gift tax against the Plaintiff (Appointed Party; hereinafter “Plaintiff”) on March 16, 2012, and the imposition of KRW 000 (including additional charges) of transfer income tax against the designated parties on January 1, 2014 shall be revoked in entirety.

1. Details of the disposition;

A. ThisA died on March 27, 2010, and the SelectionB was the wife of thisA, the Selected, ECC, ED, EE, and EF were the children of thisA, and the Plaintiff was the wife of thisCC.

B. Around December 30, 2009, on October 22, 2009, thisA transferred to the Plaintiff the right to move into 00 ○○○dong, Seoul (hereinafter referred to as “○○dong”) for KRW 00,07 00,000,000 members of the association (hereinafter referred to as “the right to move into the association members of this case”) for KRW 500,000,000,000,000,000,000 won, on the ground that the said right constitutes one house non-taxable for one household, and made a preliminary return of capital gains tax on the ground that there is

C. As a result of the consolidated investigation of inheritance tax with respect to thisA, the Defendant determined that the Plaintiff donated the right to move into the association of this case from this case on November 3, 2009, the date of succession to the right to move into the association of this case, and determined on March 16, 2012 after calculating the value of the right to move into the association of this case, the amount of KRW 00 million (transfer date: October 29, 2009) as the transfer value of the above ○ apartment 00,000,000,000 won (the transfer date: October 29, 2009) shall be considered as the business example, and determined and notified the Plaintiff of KRW 00,000 (the moving cost and interest thereon, KRW 6,123,945, and KRW 00,000,000, and KRW 00,000,00,000 from the sale price).

D. Meanwhile, in addition to the right to occupy the instant association members, the Defendant confirmed 1/2 shares of the 4th floor above the ground of 00-00 square meters above the instant land (hereinafter “instant building”) as the inherited property of thisA, and determined KRW 000 as transfer income tax by deeming that the right to occupy the instant association members is actually transferred at a cost pursuant to Article 88(1) of the Income Tax Act, and notified the Selection who is the heir of thisA on March 16, 2012. Among them, the amount of tax to be paid by the Selected is KRW 00,000, ECC, EDD, and EE amount to be paid by the Appoint.

E. On April 11, 2012, the Plaintiff and the Appointed, and the Appointed, filed a request for a trial with the Tax Tribunal on June 11, 2012, but was dismissed on November 19, 2012.

F. 1) During the instant lawsuit, the Defendant: (a) deemed a 000 won (=00 won +00 won) and corrected the gift tax amount of KRW 000 on March 16, 2012; (b) revised the disposition imposing the gift tax of KRW 000 (i.e., KRW 000 -00) on the ground that the Plaintiff received the right to move in from the instant association members while taking the right to move in from the instant association members; and (c) revised the disposition imposing the gift tax of KRW 00 on the designated parties on January 1, 2014 (hereinafter referred to as the “disposition imposing the gift tax of this case”); and (d) revised the disposition imposing the transfer income tax of KRW 00 on the increased portion of donation to the designated parties on January 1, 2014 (hereinafter referred to as the “disposition imposing the transfer income tax of this case”); and (e) referred to the “disposition imposing the transfer income tax of this case” and each of the instant disposition imposing the transfer income tax of this case.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 27 through 32 (including each number; hereinafter the same shall apply), Eul evidence Nos. 1, 2, 3, 5, 19, 20, and the purport of the whole pleadings

2. Whether a request for revocation of the disposition imposing additional dues is legitimate.

A. In full view of the facts as seen earlier and the purport of the entire arguments in the evidence evidence Nos. 31, 32, and Nos. 1, 2, 19, and 20, the part of the disposition imposing gift tax (=00 won -00 won) against which the Plaintiff seeks revocation by the lawsuit in this case, and the part of KRW 00 among the disposition imposing transfer income tax of KRW 000 among the disposition imposing transfer income tax of KRW 00 (=00 won -00 won) may be recognized as additional dues.

B. Ex officio, as to the legitimacy of the Plaintiff’s claim for revocation of the disposition imposing additional dues among the instant lawsuit, the additional dues under Article 21 of the National Tax Collection Act are naturally generated under the provisions of law without the final procedure of the tax authority unless national tax is paid by the due date (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005).

Therefore, the Plaintiff’s claim for revocation of imposition of additional 000 won on gift tax among the instant lawsuit and the claim for revocation of imposition of additional 000 won on transfer income tax is unlawful.

3. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) As to the imposition of gift tax of this case

This study suggested that, on the condition that ○○○-dong 00-00 multi-households have multi-household houses located in 00,000 after the Plaintiff died of the Plaintiff and Selected inside and outside of the Republic of Korea, this study proposed that the Plaintiff pay old-age funds every 1 million won each month. The Plaintiff first deposited this account from May 22, 2003 to September 2007, and deposited 100,000 won each month from October 11, 2010 to the account of the designated high-tech from October 2007 to October 11, 2010. In addition, the Plaintiff and Selected transferred 15,000,000 won to this, and caused the Plaintiff to return the old-age deposit to the Lessee who was appointed by the Plaintiff while residing in the above multi-household 02.

Meanwhile, as the above multi-household house was incorporated into the redevelopment district in 2004, thisA allocated 007 002 002 o○○ apartment house, but the down payment did not conclude the sales contract, and it stated that the Plaintiff would sell the right to move into the association member of this case to the Plaintiff. The Plaintiff sold the right to move into the association member of this case to the Plaintiff and demanded this to be transferred under the condition that he would end the transaction with the Plaintiff. The Plaintiff, upon this agreement, purchased the right to move into the association member of this case from this A on February 27, 2007 to this 10 million won and succeeded to the moving expenses from this 300,000 won from this 40,000 won from this 40,000 won from this 10,000 won from this 30,000 won from this 40,000 won from this case’s members of this case’s account, and paid the remainder of this 30,0000,00 won from this case’s account.

Ultimately, the amount borne by the Plaintiff as to the right to move into the cooperative of this case is KRW 76 million each month for six years and six million each month; KRW 00,000,000 paid on behalf of the Plaintiff; KRW 000,000,000,000 paid to the Plaintiff on February 27, 2007; KRW 00,000,000,000,000,000 for the principal and interest on the moving expenses; KRW 5 and the intermediate payment; interest thereon; KRW 00,00,00 for the remainder and interest thereon; KRW 00,000,00 for the balcony extension amount; and KRW 0,00,00,000 for the interest thereon. Therefore, the disposition imposing the gift tax in this case is unlawful under the premise that the Plaintiff either obtained the right to move into the cooperative of this case from November 3, 209 or was not paid with the donation amount.

2) As to the imposition of transfer income tax of this case

이 사건 건물은 등기부상 이AA와 선정자 고BB이 1/2 지분씩 공유하고 있는 것으로 되어 있으나, 이AA는 이 사건 토지를 매수하여 이 사건 건물을 신축하는 과정에서 원고로부터 금원을 지급받고 이 사건 건물 중 1/2 지분을 구두계약으로 이전하였다. 즉, 원고는 이AA에게 학원사업을 하고 싶으니 도와달라고 하면서 이 사건 토지와 그 지상의 한옥을 매수하는 과정부터 건물을 신축하기까지의 모든 자금 융통을 자신이 책임지고 돕겠다고 설득하였고, 이에 이AA는 2004. 4. 26. 김GG으로부터 이 사건 토지와 그 지상의 한옥을 000만 원에 매수하고 계약금 000만 원을 지급하였다. 이후 이AA는 제1차 중도금 000만 원의 지급기일인 2004. 5. 24.이 도래하였으나 자금이 부족하여 이를 지급할 수 없게 되어 계약금을 잃을 위기에 처하였고, 이에 원고는 함HH으로부터 000만 원을 차용하여 매매계약이 해제되는 것을 막았으며, 이AA는 2004. 5. 27. 함HH에게 이자 000만 원을 합한 000만 원을 변제하였다. 원고는 함HH을 학원사업의 동업자로 유치하여 건물신축비용 000원을 빌렸고, 그 결과 이AA는 함HH으로부터 2004. 7. 20., 2004. 7. 30. 각 000만 원을 입금받아 이를 건축업자인 김JJ에게 지급하였으며, 2004. 11. 4. 이 사건 건물이 완공되어 원고는 함HH과 함께 학원사업을 시작하였다. 이 사건 건물에 관하여 소유권보존등기를 마친 후 원고는 2004. 11. 22. 이 사건 건물을 담보로 ○○은행으로부터 000만 원을 대출받으면서 수입인지, 담보수수류 등을 공제한 실수령액 00만 원 중 00만 원을 이AA의 ○○은행 계좌로 입금한 후 이AA의 지시에 따라 즉시 000만 원을 인출하여 그 중 000만 원을 이AA의 ○○은행 계좌로 입금하고, 000만 원은 김JJ에게, 000만 원은 김KK에게, 000만 원은 류LL에게 각 입금하였으며, 나머지 000만 원은 이AA에게 교부하였다. 이AA는 위 000만 원 중 000만 원을 또다른 건축업자인 한MM에게 수고비로, 000만 원을 김JJ에게 수고비로, 000만 원을 설계사 김PP에게 설계비로 각 지급하였다. 원고가 실수령액 000만 원에서 이AA의 계좌로 000만 원을 입금하고 남은 000만 원은 ○○은행에 대한 이자 지급에 사용하였다. 원고와 함HH의 동업관계가 2006. 2. 2. 종료됨에 따라 원고는 이 사건 토지 및 건물을 담보로 하QQ로부터 000원을 차용하여 함HH으로부터 차용한 000원을 변제하였고, 하QQ에게 이자로 매월 000원을 지급하였다. 원고는 2009. 10. 5. 김RR으로부터 000원을 차용하여 하QQ에 대한 차용금 채무를 변제하는 데 사용하였고, 나머지 000만 원은 위 아파트 입주를 위한 취・등록세와 이사비용으로 사용하였다. 이후 2010. 3. 25. 이 사건 건물의 전세보증금 000만 원으로 김RR에 대한 차용금 채무를 변제하였다. 한편, 원고는 이AA의 계좌로 2005. 8. 19. 000만 원, 2005. 8. 20. 000만 원을 각 입금함으로써 이AA로 하여금 류LL로부터 빌린 000만 원을 변제하도록 하였다. 결국 이 사건 토지와 그 지상 한옥을 매수하고 이 사건 건물을 신축하는 과정에서 이AA가 지출한 비용은 매매대금 000원이고, 원고가 지출한 비용은 000원(= 000원 + 000원 + 000원 + 000원)이므로, 이 사건 건물의 1/2 지분은 원고의 소유임이 틀림없다. 따라서 이 사건 건물 중 1/2 지분의 소유자가 이AA임을 전제로 한 이 사건 양도소득세 부과처분은 위법하다.

Even if it is impossible to recognize the 1/2 shares of the building of this case as the Plaintiff, the inheritor is jointly and severally liable for tax payment within the limit of inherited property. The 00 won received from the Plaintiff constitutes the obligation of thisA, and where the inheritor obligated to repay this amount to the Plaintiff makes payment in kind with 1/2 shares in the name of thisA among the buildings of this case, the designated parties shall not inherit the 1/2 shares of the building of this case. Accordingly, the transfer income tax shall be imposed within the limit of inherited property only to the designated parties who succeed to 1/10 shares of 0-0, 000-0, 000-0-0, 000-0-0-0, 1/10 shares of the building of this case from thisA to the extent of inherited property, and the transfer income tax shall not be imposed on this CC, DoD, E, and HaB.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On February 2, 2007, thisA entered into a sales contract with ○○ apartment unit 00,007 Dong 007 Dong 002 (this later registration of ownership was completed by 00 ○○ 00,007 Dong 002 002 002) on February 28, 2007, with ○○ Housing Redevelopment and Improvement Project Association (hereinafter referred to as the “instant association”), SS Co., Ltd. (hereinafter referred to as the “S”), and according to the sales contract (Evidence No. 7), thisA entered the sales contract with 00 won (i.e., the pre-sale amount of KRW 00 - the pre-sale amount of KRW 00,000), and the intermediate payment was later made on June 19, 200 (the expiration date of 00,000,000 won); and the intermediate payment was made on June 19, 2007; and

2) Of the above down payment of KRW 000,000, this sum of the down payment was paid by account transfer to the instant cooperative on February 26, 2007, and KRW 000,000 deposited by thisA from its own account (Account Number:00-00-000-000) on February 28, 2007, by means of account transfer to the instant cooperative. The said KRW 000 was part of the Plaintiff’s transfer to the said ○○ Bank account in the name of this TT, one of the Plaintiff or son, and the remainder down payment of KRW 1 to 400,000,000,000,000,000,0000,000 from the remainder of the intermediate payment, was paid by this account under an automatic loan contract between this and ○ Bank, and the interest was paid from this account.

3) On November 3, 2009, the above sales contract is accompanied by a contract for succession to rights and obligations that thisA transferred the right to move into the Plaintiff by the instant association member. The notice of the payment advance as of November 3, 2009 is indicated as the payment advance amount of KRW 000 (=00 x 00 won x 2 + 000).

On November 3, 2009, the Plaintiff received 000 won, including the moving expenses of 000 won and the subsequent interest thereon, and 000 won.

On November 6, 2009, the Plaintiff transferred to the instant union the remainder of KRW 000 (=00 won x 2) + the remainder of KRW 000 (=00 +00) + the remainder of KRW 000 + the amount of late payment + KRW 000,000, and the amount of options in SS respectively.

5) The SelectionCC borrowed KRW 0 million from ○ Life Insurance Co., Ltd. on June 7, 2002. In addition, the Plaintiff borrowed KRW 0 million from ○○ Bank on April 1, 2011.

6) Meanwhile, thisA entered into a contract with KimG on April 27, 2004 to purchase the instant land and its ground buildings in the form of a purchase price of KRW 000,000,000, and the intermediate payment of KRW 000,000,000, and the remainder of KRW 1/2 of the instant land, respectively, on the date of concluding the contract. The ownership transfer registration was completed on each of the instant land in the name of thisA and the designated parties, and the ownership transfer registration was completed on November 17, 2004 in the name of this Party and the designated parties, respectively. The ownership registration was completed on each of the instant land in the name of the Plaintiff’s husband on September 5, 2012. The ownership transfer registration was completed on each of the instant land in the name of this case and 1/2 shares on each of the instant land in the name of this case, the Plaintiff’s husband on each of the instant land in the name of this case.

7) From the above bank account of thisA to KimJ on July 14, 2004, KRW 00 was transferred from 00 to 00 won on July 20, 2004, deposited on July 29, 2004 to KimJ on July 18, 2004, and deposited KRW 000 again on July 30, 2004 to KimJ on August 18, 2004, transferred KRW 00 to 05, KRW 200 on September 15, 200, KRW 200 on September 205, 200, KRW 200 on September 25, 200, KRW 200 on September 22, 200, KRW 200 on September 20, 205, respectively.

8) On November 22, 2004, the Plaintiff took out a loan of KRW 000 from the ○ Bank, and completed the registration of creation of a mortgage over the Plaintiff and the maximum debt amount of KRW 000 with respect to the instant land and building. On November 22, 2004, the Plaintiff deposited KRW 000, excluding KRW 000,000, out of the remainder after deducting security fees, revenue stamps, etc., out of KRW 000, the remainder after deducting the security fees, etc., out of KRW 00,000. On November 22, 2004, the Plaintiff deposited KRW 00,000 in the account of the ○ Bank (Account Number: 00-00-00-00000). On November 22, 2004, the Plaintiff deposited KRW 00,000 with the ○ Bank in the name of this account.

9) 이 사건 토지 및 건물에 관하여 2006. 2. 2. 채무자 이AA, 근저당권자 하QQ, 채권최고액 000원의 근저당권설정등기가 마쳐졌다가 2009. 12. 9. 해지를 원인으로 말소되었다.

10) The loan certificate was prepared on October 16, 2009 that the Plaintiff borrowed KRW 000 from the Kim R from October 15, 2009 to December 31, 2009, and that the Plaintiff borrowed KRW 000 from the Kim R to the account of the said ○○ Bank (Account Number: 00-00-000-0000), and the Plaintiff transferred KRW 000 on October 16, 2009 to the account of the said ○ Bank.

In this regard, the Plaintiff intentionally inserted 000 won money borrowed from Kim R in the passbook for 15 days in order not to raise the impression of donation at the time of filing a return in the complaint of this case, and argued that the Plaintiff intentionally filed a false report as if he purchased fake evidential data and 000 won with the color.

11) The Plaintiff deposited KRW 00 or KRW 000,000 per month from October 21, 2002 to April 24, 2003, and KRW 000 per month from May 22, 2003 to July 8, 2004, KRW 000 per month from August 6, 2004, and KRW 00 per month from September 8, 2004 to September 10, 207. According to the Plaintiff’s account transaction statement of the above ○○ Bank (Evidence No. 18-2), the Plaintiff transferred KRW 18,00 per month to the selected person and seniorB.

12) On April 10, 2006, the Plaintiff registered the instant building as the place of business and operated the private teaching institute under the trade name called 'UU Boperlow School'. On January 6, 201, the Plaintiff transferred ○○○○○○ 000-0 ○○ 00, and changed its trade name to 'VV 00'. On August 6, 2007, the Plaintiff registered the two floors of the instant building as the place of business and operated the private teaching institute as 'W’. However, on August 6, 2007, the Plaintiff reported 00 won as the key money for lease on a deposit basis of VV PE, and 00 won as the monthly rent, and was deducted as necessary expenses at the time of reporting the global income tax accrued in 2007 through 209.

In addition, on May 1, 2006, the Selection-CC registered the instant building with the trade name " XXnet" as its place of business and closed its business on December 31, 2010. On October 1, 2009, the first floor of the instant building was registered with the trade name "YY Visit Visit" and operated its business such as visiting medical treatment.

On April 10, 2006, thisA reported that the lease deposit of the 'UUUpublic teaching institute' is KRW 000, monthly rent is KRW 000, KRW 000, and KRW 000, monthly rent is KRW 000, and KRW 000.

13) On October 15, 2009, thisA delivered to the Plaintiff a written statement (Evidence 8-2 of the evidence No. 8-2 of the evidence No. 8) that the Plaintiff was liable to pay KRW 000,000, and received KRW 000 from February 16, 2009 to October 15, 2009.

[Reasons for Recognition] Facts without dispute, Gap's statements, Gap's statements, 2, 3, 9, 10, 12, 15 through 18, 36, Eul's statements, 4, 6, 7, 10 through 18, and the purport of the whole pleadings

D. Determination

In light of the following circumstances, it is reasonable to view that the Plaintiff was obligated to pay the capital gains tax of this case within the scope of inherited property unless he renounces inheritance or gives qualified acceptance. Furthermore, the Plaintiff’s assertion that: (a) around February 27, 2007, the Plaintiff purchased the Plaintiff’s right to move into the Plaintiff’s association members of this case, including moving expenses, loans to ○○ Bank; (b) the fourth and fifth intermediate payments; and (c) the options; and (b) the ownership of 1/2 shares in the name of this case among the instant building constitutes inherited property as the ownership of this case, the registered titleholder; and (b) the designated co-inheritors of this case, who are co-inheritors of this case, is liable to pay the capital gains tax of this case within the scope of inherited property, unless he gives up inheritance or gives a qualified acceptance. Furthermore, the Plaintiff’s assertion that the circumstance or evidence presented by the Plaintiff is insufficient to recognize that the Plaintiff moved into the Plaintiff’s association members of this case around February 27, 2007, the Plaintiff purchased the Plaintiff’s right of this case.

① Part of the down payment of the down payment of KRW 000,00, which was paid by the instant association member’s occupancy right, was automatically paid by thisA and the first through fourth intermediate payment between the instant association member and the instant association member’s occupancy right, and the interest on the loans was paid by the instant association member’s occupancy right even after the Plaintiff paid KRW 00,00 to the instant association member’s occupancy right, as the interest on the loans was paid by thisA’s account.

② On November 3, 2009, this agreement was drawn up between thisA and the Plaintiff that “A” transferred the right to move into the instant association members to the Plaintiff.

③ The Plaintiff asserts to the effect that from May 2003 to October 2009, the sum of KRW 000 or KRW 000 per month shall be paid to the A, and around June 7, 2003, the Plaintiff borne KRW 000 on behalf of the EA, and paid KRW 000 to the EA on July 27, 2007, by succeeding to the EA’s marina loan and interest thereon, the Plaintiff has a total amount of KRW 000,000,00,000,000. However, each of the above amounts claimed by the Plaintiff cannot be considered as the amount of onerous donation, since the Plaintiff received the right to move into the instant association from the EA on November 3, 2009, as it did not receive the right to move into the instant association.

In addition, the Plaintiff reported 20 million won and monthly rent of 00 won as 00 won when it operated a private teaching institute in the instant building from April 10, 2006, and the Plaintiff actually deducted 00 won from the global income tax return for 200 to 209. From May 1, 2006, this Plaintiff’s husband did business in the instant building from 00 to 200, and this Plaintiff did not appear to have received 00,000, 000, 000, 000, 000 won and 00,000 won and 00,000 won and 0,00 won and 00,00 won and 00,00 won and 00,00 won and 0,00 won and 00,00 won and 00,00 won and 00,00 won and 00,00 won and 20,00,00 won and 26,00.

④ If, as alleged by the Plaintiff, in the course of purchasing the instant land and the instant building and constructing the instant building, thisA received KRW 000 from the Plaintiff and transferred the instant building shares to the Plaintiff by oral contract, the registration of ownership preservation with respect to the first/2 shares in the instant building would have been completed in the Plaintiff’s name, or even thereafter, it would have been possible to complete the registration of ownership transfer under the Plaintiff’s name. However, in the event of the Plaintiff’s assertion, the registration of ownership preservation (1/2 shares) was completed in the name of a designated person who did not make any contribution to the construction of the instant building (i.e., the Plaintiff and the instant building), and only the registration of ownership preservation (i/2 shares) was completed in the name of a third party who did not make any contribution to the construction of the instant building in the Plaintiff’s assertion, insofar as the ownership transfer registration was not completed in the Plaintiff’s name.

⑤ The written statement and receipts (Evidence 8-2 and 3) issued by thisA to the Plaintiff are merely the fact that thisA bears the Plaintiff’s obligation of KRW 000,000, not the fact that thisA sold the Plaintiff’s right to move into the instant association member, or that one-half of the shares in the instant building are actually owned by the Plaintiff. In addition, as alleged by the Plaintiff, thisA was paid KRW 00,000 from the Plaintiff on February 27, 2007, and sold the right to move into the instant association member, or that one-half shares in the instant building were owned by the Plaintiff, as alleged by the Plaintiff, if the Plaintiff or thisA appears to have sold the right to move into the instant association member, or that such content was written in the written statement, but such content was entirely not written.

(6) Even if the Plaintiff cannot be recognized as the Plaintiff’s 1/2 shares of the instant building, the amount of KRW 000 that the Plaintiff received from the Plaintiff constitutes the obligation of thisA, and where the inheritor obligated to repay the amount of 1/2 shares of the instant building among the instant building, the designated parties would not succeed to 1/2 shares of the instant building. As such, the Plaintiff’s transfer income tax shall be imposed within the limit of the inherited property only on the designated parties who inherit 1/10 shares of 0 shares of 00-0, 000, 000-0-0 condominium 00, 000, 1/10 shares of the instant building from thisA to the extent of the inherited property. The Plaintiff asserts that the transfer income tax shall not be imposed on the designated parties, DaD, EE, and GoB, who were not inherited property from thisA. However, the Plaintiff’s assertion that the Plaintiff received shares of 1/2 shares in the title of this case under the Plaintiff’s name without the Plaintiff’s ownership transfer registration under the Plaintiff’s name.

4. Conclusion

Therefore, the part of the plaintiff's claim to revoke the disposition of imposing additional 000 won on the gift tax and the part of claim to revoke the disposition of imposing additional 000 won on the transfer income tax is unlawful, and all of them are dismissed. The remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition

Related Acts and subordinate statutes

▣ 상속세 및 증여세법(2010. 1. 1. 법률 제9916호로 개정되기 전의 것)

Article 2 (Gift Tax Taxables)

(3) The term "donation" in this Act means a gratuitous transfer (including transfer at a remarkably low price) of any tangible or intangible property, the economic value of which can be calculated, directly or indirectly, to any third person, notwithstanding the name, form, purpose, etc. of such act or transaction, or an increase in the property value of any third person by contribution.

Article 31 (Scope of Donated Property)

(1) Gift property under Article 2 shall include property belonging to the donee, all articles having economic value capable of realizing in money and all de facto or de facto rights having property value.

Article 47 (Taxable Amount of Gift Tax)

(1) The taxable amount of gift taxes shall be the sum of the donated property under the provisions of this Act as of the date of donation [excluding the value of the donated property under the provisions of Articles 40 (1) 2, 41-3, 41-5, and 42 (4) (hereinafter referred to as the " donated property excluded from summing-up] minus the amount acquired by the donee as debts (including debts prescribed by Presidential Decree, such as debts, etc. related to the relevant donated property) secured by the relevant donated

Article 60 (General Rules, etc. of Appraisal)

(1) The value of property on which an inheritance tax or gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as the "date of appraisal"). In such cases, the value appraised by the method of appraisal stipulated in Article 63 (1) 1 (a) and (b) (excluding cases falling under the provisions of Article 63 (2))

(2) The market price under the provisions of paragraph (1) shall be the price which is generally accepted in cases of free trade between many and unspecified persons and which is recognized as the market price under the conditions as prescribed by Presidential Decree.

(3) In the application of paragraph (1), where it is difficult to compute the market price, the price assessed according to the methods prescribed in Articles 61 through 65 shall be based on the type, scale, transaction conditions, etc. of the relevant property

(4) In applying paragraph (1), the value of the donated property added to the value of the inherited property pursuant to Article 13 shall be based on the market price as of the date of donation.

▣ 상속세 및 증여세법 시행령(2010. 2. 18. 대통령령 제21881호로 개정되기 전의 것)

Article 36 (Liability Deducted from Taxable Amount of Gift Tax)

(1) The term “liability prescribed by the Presidential Decree” in Article 47 (1) of the Act means the relevant rental deposit in case where the donor leases the relevant property to another person.

Article 49 (General Principles, etc. of Appraisal)

(1) The term "those recognized as the market price as prescribed by Presidential Decree, such as the expropriation and public sale price and the appraised price, etc. under the conditions as prescribed by Presidential Decree" in Article 60 (2) of the Act means the price confirmed pursuant to one of the following subparagraphs in cases of sale and purchase, appraisal, expropriation, auction (referring to an auction under the Civil Execution Act; hereafter the same shall apply in this paragraph) or public sale (hereafter referred to as "sale, etc." in this paragraph) during a period of not more than six months before and after the evaluation base date (three months in the case of donated property; hereafter the same shall apply in this paragraph): Provided, That even if there are sale, etc. during the period not falling under the evaluation period, if it is deemed that there are no special circumstances of price fluctuation in taking into account the management status, passage of time, changes in surrounding environment, etc. of the company issuing stocks during the period from the evaluation base date to the date falling under any of subparagraphs of paragraph (2), the relevant price of sale

1. If the fact of sale and purchase of the relevant property exists, the transaction price: Provided, That this shall not include cases where the transaction price is deemed objectively unfair from the person with a special relationship as provided in Article 26 (4);

2. In case where there exists the appraisal value assessed by a reliable appraisal institution (hereinafter referred to as an “appraisal institution”) prescribed by Ordinance of the Ministry of Strategy and Finance with respect to the relevant property (excluding the properties prescribed in Article 63 (1) 1 of the Act), the average value of such appraisal value: Provided, That in case where the relevant appraisal value falls short of 80/100 of the value assessed under Articles 61, 62, 64 and 65 of the Act (including the case where it is deemed improper in view of the purpose of appraisal, etc. after going through the appraisal deliberation committee pursuant to Article 56-2 (1) even if it is 80/100 or more), the value of such appraisal value shall be that appraised by requesting another appraisal institution by the head of a tax office (including the head of a tax office, etc.; hereinafter referred to as the “head of a tax office, etc.”), but the same shall not apply to the case where such value is lower than

(a) Values which are not suitable for the payment purpose of inheritance tax and gift tax, such as the assessment of relevant property on the condition that certain conditions are met;

(b) Value of the relevant property not appraised in the original form as of the standard date of appraisal;

3. Where there is an event of expropriation, auction or public auction of the relevant property, the amount of compensation, the amount of auction or public auction: Provided, That in any of the following cases, the amount of the relevant auction or public auction shall be excluded:

(a) Where an heir, donor, donee or a person in a special relationship with him/her (referring to a person in a relationship referred to in any subparagraph of Article 19 (2). In such cases, a stockholder, etc. referred to in Article 19 (2) shall be deemed an heir, etc.) acquires property paid in kind through an auction or public auction;

(b) Where the value (referring to the total amount of face value) of unlisted stocks acquired through an auction or public auction is less than the smaller of the following amounts:

(a) An amount equivalent to 1/100 of the total amount of issued stocks or total amount of investment of the juristic person concerned calculated as the sum of face value;

(2) 300 million won

(c) Where acquired through a free contract, as prescribed by relevant Acts and subordinate statutes, after commencing an auction or public auction;

(2) In applying the provisions of paragraph (1), whether a value under any subparagraph of paragraph (1) falls within six months before or after the standard date of appraisal (three months for donated property), shall be determined on the basis of the dates prescribed in the following subparagraphs, and where the value deemed the market price under the provisions of paragraph (1) is two or more, the value falling under the nearest day before or after the standard date of appraisal

1. The sales contract date for the case of paragraph (1) 1;

2. In cases falling under paragraph (1) 2, the date on which a appraisal report is prepared;

3. In cases falling under paragraph (1) 3, the date when the compensation, auction price or public auction price is determined.

(3) In cases falling under paragraph (1) 2, where the appraised value of an appraisal institution offered by a person liable for duty payment falls short of the standards prescribed by Ordinance of the Ministry of Strategy and Finance, the appraised value of the relevant appraisal institution shall not be deemed the appraised value under

(4) Where the values referred to in each subparagraph of paragraph (1) are included in two or more property values, and each property is not classified, they shall be calculated in proportion to the values appraised in accordance with Articles 61 through 65 of the Act, but where there exist the appraisal values (referring to each appraisal value appraised by the same appraisal institution at the same time) for each property, they shall be calculated in proportion to the appraisal values: Provided, That where the value of the land and a building attached to the land is not classified into the value of other structures, it shall be calculated in proportion

(5) In applying the provisions of paragraph (1), where there is a value falling under any of the subparagraphs of the same paragraph for other assets whose size, location, use and items are identical or similar to the relevant assets, the relevant value shall be deemed the market value under Article 60 (2) of the Act

(6) In evaluating inherited or donated property, the Commissioner of the National Tax Service may determine detailed matters on the evaluation standards, methods, procedures, etc. for each property in order to ensure fairness in evaluation.

▣ 소득세법(2010. 12. 27. 법률 제10408호로 개정되기 전의 것)

§ 88. (Definition of Transfer)

(1) Where a donee takes over any obligation of a donor of an onerous donation (excluding cases falling under the main sentence of Article 47 (3) of the Inheritance Tax and Gift Tax Act), regardless of registration or enrollment on any assets in connection with transfer under Article 4 (1) 3 and this Chapter, such assets shall be actually transferred for price due to sale, exchange, investment in kind in a corporation, etc. In such cases, where a donee takes over any obligation of a donor of an onerous donation, the portion equivalent to the amount of such obligation in the amount of such donation shall be deemed actually transferred for

Article 89 (Non-Taxable Capital Gains)

(1) No capital gains tax (hereinafter referred to as "capital gains tax") shall be levied on the following income:

3. Income generated from transfer of one house for one household prescribed by Presidential Decree (excluding expensive houses the value of which exceeds the standard prescribed by Presidential Decree) and land appurtenant thereto, within the area calculated by multiplying the area of the land on which the building is built by the ratio prescribed by Presidential Decree by the area of each region (hereafter in this Article, referred to as "land annexed

Article 98 (Time of Transfer or Acquisition)

In calculating gains on transfer of assets, the time of acquisition and transfer thereof shall be determined by Presidential Decree.

▣ 소득세법 시행령(2010. 2. 18. 대통령령 제22034호로 개정되기 전의 것)

Article 162 (Time of Transfer or Acquisition)

(1) The time of acquisition and transfer under Article 98 of the Act shall be the date of liquidation of the price of relevant assets (if the transferee agrees to bear the capital gains tax and additional tax of capital gains tax on the transfer of relevant assets, excluding such capital gains tax and additional tax of capital gains tax) except in the following cases:

1. Where the date on which the price is settled is not certain, the date of registration, receipt of registration, or transfer date entered in the register, registry, list, etc.;

2. Date of receipt of the registration entered in the register, register, list, etc. where the transfer of ownership (including the registration and the opening of the name) has been made before the price is settled;

5. For assets acquired by inheritance or donation, the date on which such inheritance commences or donation is received;

▣ 국세기본법

Article 24 (Succession of Tax Liability due to Inheritance)

(1) When inheritance commences, an heir (including testamentary donee; hereinafter the same shall apply) or an administrator of inherited property provided for in Article 1053 of the Civil Act shall be liable to pay national taxes, surcharges, and expenses for disposition on default imposed on or to be paid by the ancestor within the limit of the property acquired by inheritance.

(2) If there are two or more heirs in cases falling under paragraph (1), each heir shall be jointly and severally liable to pay national taxes, additional dues and expenses for disposition on default, which are calculated by dividing national taxes, additional dues and expenses for disposition on default, which are imposed on or are to be paid by such decedents according to the shares of inheritance under Articles 1009, 1010, 1012 and 1013 of the Civil Act, within the limit of the property inherited. In such cases, each heir shall select a representative among them who is to pay national taxes, additional dues and expenses for disposition on default, who

(3) If it is unclear whether an heir exists in cases falling under paragraph (1), any notification, demand and other necessary matters to be paid to the heir shall be done toward the administrator of inherited property.

(4) If it is unclear whether any heir exists and no administrator of inherited property is appointed in cases falling under paragraph (1), the head of a tax office may request the court having jurisdiction over the place where inheritance

(5) Any disposition or procedure taken against an ancestor shall also be effective for a heir or administrator of inherited property who succeeds to a duty to pay tax due to inheritance pursuant to paragraph (1).