In cases where it is difficult to recognize that the property was acquired by his/her own means, it is presumed that the acquisition fund of the property was donated to the purchaser

The burden of proof of the existence of the facts requiring taxation is against the tax authority, but if it is proved that the facts requiring taxation are presumed in light of the empirical rule, the other party must prove the circumstances not subject to the empirical rule.

Article 45 of the former Inheritance Tax and Gift Tax Act

2018-Gu Partnership-63113 Revocation of Disposition of Imposition of Gift Tax

AA

o Head of the tax office

November 8, 2018

December 13, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of gift tax amounting to KRW 67,509,00 on May 8, 2006, and KRW 338,97,810 on June 8, 2006, and KRW 416,267,60 on December 17, 2007 is revoked.

1. Details of the disposition;

A. On April 8, 2006, the Plaintiff purchased the right to sell the instant building at KRW 1,648,00,000,000. Of the purchase price, KRW 1,204,273,679 (hereinafter “the purchase price of the instant building”) paid the purchase price to BB. Moreover, on the premise that the Plaintiff purchased the instant apartment located at KRW 550,000 from BB on December 10, 2007, KRW 550,000,000 from BB on December 17, 2007.

B. The Defendant: (a) deemed that the Plaintiff donated the sales price of the instant apartment and the instant apartment (amounting to KRW 550,00,000) from BB; and (b) imposed KRW 1,182,421,430 on the aggregate of the gift tax as indicated below, as stated in the “amount of notified tax” (hereinafter “the initial disposition”).

C. On May 23, 2017, the Plaintiff was dissatisfied with the initial disposition of this case and filed a request for a trial with the Tax Tribunal. On January 15, 2018, the Tax Tribunal reviewed whether KRW 400 million received as the deposit money for the lease of the building of this case, which was the basis of the initial disposition of this case, belongs to BB, and determined that the tax base and tax amount should be corrected, and that the remainder of the request for a trial is dismissed.

D. Accordingly, by reflecting the purport of the decision of the above Tax Tribunal, the Defendant corrected the original disposition of this case with the following attached Table 2, and imposed gift tax on the Plaintiff (hereinafter “instant disposition”).

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 1 and 2 (if there are additional numbers, including each number; hereinafter the same shall apply), Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. The plaintiff's assertion

A. The plaintiff borrowed the money recorded in the taxable value of gift tax Nos. 1 and 2 of the above table 2 (hereinafter referred to as "the money of this case") to use the right to sell this case from BB for acquiring the right to sell this case. Therefore, the disposition of this case on the premise that the value of the money of this case falls under the gift is illegal.

B. Of KRW 550 million for the acquisition fund of the apartment of this case, KRW 300 million out of the amount of KRW 550 million, the Plaintiff decided to relet the apartment of this case to the seller BB in lieu of the receipt of the lease deposit. As such, separate acquisition fund was not required. Of KRW 250 million, the actual acquisition fund was set off with the Plaintiff’s claim against BB, and the remainder of the purchase price was paid in installments within one year after the purchase with the money, etc. owned by the Plaintiff. Accordingly, the disposition of this case on the premise that the purchase of the apartment of this case constitutes a donation is unlawful.

3. Relevant statutes;

Attached Form 1 is as shown in attached Table 1.

4. Determination

(a) Facts of recognition;

1) BB had established and operated a trade union at the same time (hereinafter referred to as "trade union") on December 16, 2002. BB entered the Plaintiff as an officer of a trade union at the same time around the beginning of 2006.

2) At the time of 2006 where the Plaintiff purchased the instant right to sell, the Plaintiff had worked in a work at a work operated by BB. At the time, the Plaintiff did not have any income other than the annual wage of KRW 27.3 million, and on January 1, 2006, the Plaintiff’s deposit balance at the time of January 1, 2006 was not more than KRW 9 million. Meanwhile, from 1995 to 2005, the Plaintiff worked in * Broadcasting Co., Ltd., * Home shopping, * Home shopping, for about 10 years, and earned income during that period is about KRW 190 million in total, and no other income was reported to the tax office.

3) On April 8, 2006, with respect to the right to sell the instant case with CCC, the Plaintiff paid 120,000,000 won for the total purchase price of KRW 1,648,00,000 on the same day, and the intermediate payment of KRW 480,000 on May 8 of the same year and paid KRW 1,048,000 for the remainder of KRW 1,000 on the same day, and paid KRW 1,000 for the remainder of KRW 202,00,000 on the condition that the Plaintiff succeeds to the loan obligations to the bank that CCC shared.

4) The Plaintiff received the No. 1 No. 1, B, and C, from BB, and paid the purchase price of the instant sales right to CCC, and there is no evidence showing that at the time the Plaintiff and BB made a loan certificate indicating the loan relationship between DD and DD on February 18, 2009. Thereafter, the Plaintiff concluded a lease agreement on the instant building with DD on February 18, 2009, and remitted the lease deposit to BB after receiving KRW 400 million from DD.

5) With respect to the instant apartment, between the Plaintiff and BB, the sales price shall be KRW 550 million, and the down payment shall be KRW 550 million, and the remainder KRW 495 million shall be paid at the time of the contract and paid to the Plaintiff on December 17, 2007, a sales contract (Evidence A 11) was prepared on December 17, 2007. The Plaintiff completed the registration of ownership transfer on the instant apartment on December 17, 2017 with respect to the instant apartment on December 17, 2017.

6) The Plaintiff transferred to the instant apartment on April 11, 201, but transferred to another apartment on October 20, 2014, and transferred to the instant apartment again on July 14, 2015. The occupant card of the instant apartment, drafted on November 3, 2015, entered the Plaintiff as the spouse of BB.

7) The Plaintiff and BB have two children (2010, 2013, 2013), and the Plaintiff and BB were also residing together.

[Reasons for Recognition] Unsatisfy, Gap evidence 7 to 16, 19, 20, Eul evidence 3 to 10

witness BB’s partial testimony, the purport of the whole pleadings

B. Whether the instant disposition is lawful

1) Estimation of donation

According to Article 45(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010); in cases prescribed by Presidential Decree where it is difficult to recognize that the relevant property was acquired with self-sufficiency in view of occupation, age, income, property status, etc., the acquisition fund of the relevant property shall be presumed to have been donated to the purchaser of the relevant property at the time of the acquisition of the relevant property and shall be deemed to have been donated to the purchaser of the relevant property. Meanwhile, if the tax authority bears the burden of proving the existence of the taxation requirement, but the other party has proved the fact that the fact

In the case of this case, the plaintiff purchased the right to sell this case on April 8, 2006 in KRW 1,649,00,000, and did not prepare a loan certificate, etc. even though he received most of the purchase price from BB, the plaintiff and BB have two children and live together with BB. The plaintiff was about the plaintiff's annual income at the time of acquiring the apartment of this case in the amount of KRW 50,000,000 at the market price from BB, and about about KRW 19,00,000,000 in total, and there was no other reported income. Accordingly, it is reasonable to deem that the plaintiff received the issue of this case and the apartment of this case from BB, unless there are special circumstances.

2) Considering the following circumstances that are acknowledged in full view of the facts acknowledged earlier and the purport of the entire arguments as to the Plaintiff’s assertion on the instant money, the evidence submitted by the Plaintiff alone is insufficient to admit the Plaintiff’s assertion that the Plaintiff borrowed the instant money from BB while purchasing the instant sales right, and there is no other evidence to acknowledge it. Rather, the Plaintiff should be deemed to have donated the instant money from BB. Accordingly, this part of the Plaintiff’s assertion is rejected.

① As shown in the Attachment No. 2, the Plaintiff as each letter shall be the Plaintiff, the receiver shall be BB, and the date of the preparation shall be July 28, 2008, each letter from BB to the effect that the Plaintiff borrowed the sale price of this case from BB (hereinafter referred to as “each letter of this case”). However, on July 28, 2008, the date of the preparation is two years from the date of purchase of the sale price of this case, and there is no evidence to support that the Plaintiff’s assertion was actually prepared at the time of purchase of the sale price of this case. In addition, there is no evidence to support the Plaintiff’s assertion that the issue amount of this case is the lender, and in light of the following circumstances, there is no credibility of its content.

② Although BB is the major amount of the instant issue, it did not take measures to preserve claims, such as creating a security right after the Plaintiff completed the registration of ownership transfer, and did not receive interest from the Plaintiff. In light of this, it is difficult to view that the key amount of the instant issue is the amount received as a normal loan for consumption of money.

③ The Plaintiff asserted that BB was merely a partner of BB at the time of the purchase of the instant sales right, and that there was no reason to donate the instant money to the Plaintiff. However, if the Plaintiff asserted, it is difficult to regard the instant money as a loan even in light of the fact that BB did not generally provide a loan certificate at the time of receipt of the instant money, payment of interest, and provision of a security, such as establishment of a collateral security right or a joint and several surety, even though it was not done.

④ 원고는 2006. 6.경 BBB에게 금원을 송금할 당시 "오디오", "아싸오됴쭁"과 같은 별명 또는 애칭을 사용하였고, 원고와 BBB 사이에 2010년에 자녀가 출산한 것에 비추어 볼 때, 이 사건 쟁점 금원 수수 당시부터 원고와 BBB은 단순한 회사동료 이상으로 친밀한 사이였을 것으로 보인다.

⑤ The Plaintiff asserts that the Defendant’s transfer of KRW 400 million as the deposit for the lease of the building of this case to DoD to BB was excluded from the donation amount, and that the Defendant paid the loan amount of KRW 400 million. However, according to the decision of the Tax Tribunal, the Defendant appears to have actively interpreted the purport of Article 31(4) of the Inheritance Tax and Gift Tax Act in favor of the Plaintiff, and that the initial disposition of this case was corrected in favor of the Plaintiff. Therefore, it is difficult to find that the key amount of this case is the loan solely on the ground that the Plaintiff transferred the deposit amount of KRW 400 million as the lease deposit to DoD to BB, as the Plaintiff and BB shared economic interests (in response to the Plaintiff’s assertion, there is sufficient room to deem that the Plaintiff transferred the lease deposit amount of KRW 400 million to B as above).

3) As to the Plaintiff’s assertion on the instant apartment

Considering the following circumstances acknowledged in light of the aforementioned facts and the purport of the entire pleadings, the evidence alone presented by the Plaintiff is insufficient to acknowledge the Plaintiff’s assertion that the Plaintiff actually purchased the instant apartment from BB, and there is no other evidence to acknowledge it, and rather, the Plaintiff should be deemed to have donated the instant apartment from BB. This part of the Plaintiff’s assertion is without merit.

① Matters concerning the method of payment of the purchase price are usually entered in the sales contract as a major matter in the sales contract. The sales contract (Evidence No. 11) submitted by the Plaintiff is not entered in the sales contract (the Plaintiff submitted the above sales contract (Evidence No. 11), but the Plaintiff submitted another sales contract (Evidence No. 7) in which the method of payment as alleged by the Plaintiff was entered in the objection procedure. In addition, the special agreement on the sales contract (Evidence No. 7) seems to be entered in the last additional statement in the sales contract, as alleged by the Plaintiff. In addition, the agreement to pay the purchase price on several occasions within one year is very exceptional.

② Although the Plaintiff alleged that BB leased the instant apartment in KRW 300 million and used it as an office for the relevant work, there is no evidence to prove that BB took any measure, such as establishing a right to lease on a deposit basis, for preserving the said lease deposit, which is a relatively large amount of money.

③ There is no indication that a licensed real estate agent was present differently from ordinary cases in a sales contract or lease contract claimed by the Plaintiff and BB.

④ From March 24, 2006 to April 14, 2010, the Plaintiff remitted KRW 214 million to BB as shown in attached Table 3. BB also remitted KRW 268.9 million to the Plaintiff, as shown in attached Table 4, from April 10, 2006 to September 21, 2009. In light of the details of remittance between the Plaintiff and BB, it is difficult to view the amount transferred to BB by the Plaintiff as the sales price of the instant apartment. Moreover, the Plaintiff asserted that the amount of variable insurance-related money that the Plaintiff had operated at his own fault was partially paid for the said sales price, and did not submit any supporting material.

⑤ In light of the fact that the Plaintiff entered the occupant card of the instant apartment as BB’s spouse and there are two children between the Plaintiff and BB, the Plaintiff does not seem to have sold the instant apartment to the Plaintiff.

5. Conclusion

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