Whether the mother who had a domicile in the Republic of Korea after departure of the United States is a domestic resident of the United States wage and salary income earner and student at the time of donation.

In the resident registration card, domestic residents, or children who have derived domestic income with domestic address in the Republic of Korea appear permanently, rather than temporary study, and since it is difficult to view that there is a real basis of living in the Republic of Korea to the extent that they are liable for tax payment, it shall not be deemed a resident. Therefore, the case where a domestic resident donated foreign property

Article 2 of the former Inheritance and Gift Tax Act, Article 2 of the Enforcement Decree of the Income Tax Act, Article 21 of the Adjustment of International Taxes Act

2019Nu31954 Revocation of Disposition of Imposition of Gift Tax

HongA et al.1

O Head of tax office

August 13, 2019

October 29, 2019

1. The defendant's appeal is dismissed.

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

The Defendant imposed a gift tax (including penalty tax) of KRW 140,131,040 on Plaintiff H on January 19, 2017.

Disposition, on June 27, 2018, by the Defendant, 139,614,200 won (including additional tax) granted to Plaintiff JJ on June 27, 2018

Each disposition of imposition shall be revoked.

Purport of appeal

The judgment of the first instance shall be revoked.

All of the plaintiffs' claims are dismissed.

(1) The reasoning for the judgment of this court shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, and shall be added to the following Sheet, See See Professor.

She, the Defendant asserts that Plaintiff HH did not leased and resided in the apartment located in the United States, at the time of the acquisition of the instant land, but her mother resided together with LL.

According to the statement in Gap evidence No. 23, although the date of concluding a contract is stipulated as December 30, 2004 on the plaintiff HH's lease agreement, the rent is stated to pay USD 640 per month from January 2, 2004. Thus, the lease contract seems to have been made later than the actual time of lease, and there are no special circumstances to deny its credibility.

According to the evidence No. 11 (HH Tax Return) of Plaintiff HH’s tax return in 2005 to 2007, Plaintiff HH’s domicile was indicated as the same as the LL. However, Plaintiff HH’s assertion that Plaintiff HH’s domicile was recorded in the place of residence in the Republic of Korea, rather than the mixed residence of Plaintiff HH, and Plaintiff HH’s domicile in the middle of her monthly income sharing. Thus, Plaintiff HH’s assertion that Plaintiff’s mother entered his domicile in the domicile of LL in preparation for the error of important documents or contact at the National Tax Service, is acceptable. According to the evidence No. 25, Plaintiff 200 square meters from the LL’s domicile to the working place of Plaintiff HH, as alleged by the Defendant, is difficult to recognize that Plaintiff H had actually resided in the same domicile as that of Plaintiff HL. It is difficult to deem that Plaintiff 2 had no other evidence to acknowledge that Plaintiff H had an occupation-related resident in the Republic of Korea for 10 years or longer.

The Defendant asserts that, according to the Plaintiffs’ family deductions stated in the Plaintiff’s father’s father’s wage and salary income statement (No. 23) and the Plaintiff’s cash donation statement (No. 25) that donated KRW 50 million to the Plaintiffs on March 31, 2017, MM should be deemed as having been living together with the Plaintiffs in the Republic of Korea, according to Plaintiff’s father’s father’s family deduction statement (No. 23) and Plaintiff’s cash donation statement (No. 26).

The above circumstances may be considered in the judgment of resident. However, considering the fact that the plaintiffs left the Republic of Korea at the Green Age and graduated from the school (work, business, admission to school, marriage, etc.) in the United States, the period during which the plaintiffs were staying in the Republic of Korea and staying in a foreign country, and the period during which the plaintiffs are staying in the Republic of Korea, it is difficult to see that the actual living basis of the plaintiffs at the time of the donation of this case exists in the Republic of Korea to the extent that the plaintiffs are liable to pay taxes, and it does not seem that the plaintiffs were living in the Republic of Korea after the donation of this case. Accordingly, at the

Secondly, the defendant asserts that even if the plaintiffs are non-residents under the Inheritance Tax and Gift Tax Act, the source of the funds received by the plaintiffs is the income earned at the domestic place of business and thus the disposition of this case is lawful.

According to the evidence No. 31, LL paid in the form of e.g., e., E., cash withdrawal of the price of the instant land from the U.S. account held by the bank in the U.S. and real estate acquisition to the U.S. entrusted with transaction. The plaintiffs cannot be deemed to have received a donation, and there is no other evidence to acknowledge that the plaintiffs received property in Korea. The defendant asserts that the disposition of this case is justified by the Korea-U.S. Tax Treaty because the plaintiffs are dual residents, and that the LL, a donor, is liable to pay the gift tax in accordance with Article 21 of the International Tax Adjustment Act to the extent that the defendant considers the LL as a resident.

However, as seen earlier, the Plaintiffs cannot be viewed as a domestic resident and cannot be regarded as a dual resident. The court's decision in this case is limited to the legitimacy of the disposition imposing the gift tax in this case against the Plaintiffs, so the above argument by the Defendant cannot be accepted.

x) If so, the plaintiffs' claims will be accepted on the grounds of the judgment of the first instance. Since the judgment of the first instance is consistent with this conclusion, the defendant's appeal is dismissed