Whether the plaintiffs received the gift of real estate

The plaintiff's assertion is without merit since it is reasonable to deem that the plaintiffs had expressed their intent to produce evidence directly or through his/her legal representative at the time of donation, and there is no evidence to assert that the transfer of ownership was null and void.

Article 2 (Gift Tax Taxables) of Inheritance Tax and Gift Tax Act

Article 31 (Scope of Donated Property)

1. All of the plaintiffs' claims are dismissed.

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

The head of ○○ Tax Office’s imposition of KRW 27,018,230 on the Plaintiff ○○○ on April 5, 2006, the imposition of KRW 957,850 on the gift tax on September 4, 2006, and the imposition of KRW 8,086,10 on the gift tax on September 1, 2006 by the head of ○○ Tax Office, respectively, shall be revoked.

1. Details of the disposition;

A. Plaintiff ○○○ is Nonparty ○’s children, and Plaintiff ○○ is Nonparty ○○’s children, who are children of ○○○○.

B. Among each real estate listed in the separate sheet that was owned by Nonparty ○○○ (hereinafter referred to as “each real estate of this case”) on July 27, 2005, the ownership transfer registration under the name of Plaintiff ○○○○ was completed on the ground of the donation made on July 11, 2005 on each of the real estate listed in the separate sheet No. 1 through 8 on July 27, 2005. As to the real estate listed in the separate sheet No. 9 on July 11, 2005, the ownership transfer registration under the name of Plaintiff ○○○ was completed on the ground of the donation made on July 11, 2005. On January 11, 2006, the ownership transfer registration under the name of Plaintiff ○○○ was completed on each of the real estate listed in the separate sheet No. 10 on January 10, 206.

C. The Defendants determined that the Plaintiffs did not report gift tax even when they received gift tax from ○○○○, and assessed each of the instant real estate as the standard market price, and then Defendant ○○○○○○○○○○○○○○○ on April 5, 2006, issued a disposition imposing gift tax of KRW 27,018,230 on the gift of each of the instant real estate listed in the separate sheet 1 to ○○○○○○○○ on September 4, 2006, KRW 957,850 on the gift of the real estate listed in the separate sheet 10 on September 4, 2006, and Defendant ○○○○○○○○ issued a disposition imposing and notifying each of the gift tax of KRW 8,086,10 on the gift of the real estate listed in the separate sheet 9 on September 1, 206 (hereinafter “each of the instant dispositions”).

D. On the other hand, on May 15, 2006, the registration procedure for cancellation of the above transfer of ownership in the name of Plaintiff ○○○ as to each real estate listed in the separate sheet 1 through 6 was completed, and on September 25, 2006, the registration procedure for cancellation of the transfer of ownership in the name of Plaintiff ○○○ as to the real estate listed in the separate sheet 9 was completed.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1 to 3 and 5 evidence (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs asserted that since ○○○○ completed each registration of ownership transfer under the names of the plaintiffs on the ground of donation with respect to each real estate of this case, since ○○○○ did not express an intention of acceptance, the actual act of donation does not exist, each disposition of this case by the defendants under the premise that ○○○○ donated each real estate of this case to the plaintiffs, each disposition of this case by the defendants on the premise that ○○○○○ donated each of the real estate of this case. Even if each of the real estate of this case was made on household affairs, the registration of ownership transfer under the name of the plaintiffs was cancelled according to an agreement between the plaintiffs and ○○○○○, and thus, the disposition of imposing gift

(b) Related statutes;

Article 2 (Gift Tax Taxables)

(1) In case where, owing to a donation by a third party (excluding a donation becoming effective upon the death of a donor; hereinafter the same shall apply), there exists donated property on the donation date falling under one of the following subparagraphs, gift tax shall be levied, pursuant to this Act, on such donated property

1. Where a person to whom property has been donated (hereinafter referred to as " donee") is a resident (including a non-profit corporation, the head office or main office of which is located in Korea; hereafter the same shall apply in this paragraph and Articles 54 and 59), all of the donated property, as a donation, by the

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.

(4) Where the donated property (excluding money) is returned by an agreement between the parties thereto within the report deadline under Article 68, it shall be deemed that the donation had never been made: Provided, That this shall not apply where the tax base and amount of tax were determined pursuant to the provisions of Article 76 before such return.

Article 68 (Reporting of Tax Base of Gift Tax)

(1) Any person liable to pay the gift tax under Article 4 shall, within three months from the date of donation, report the taxable value and tax base of the gift tax under Articles 47 and 55 (1) to the head of the competent tax office having jurisdiction over the place of tax payment under the conditions as prescribed by the Presidential Decree: Provided, That the period for filing a return on the settlement of the gift tax base following the listing of unlisted stocks or the merger of corporations under Articles 41-3 and 4

4. Determination

(1) First of all, as to the plaintiffs' assertion that there is no act of donation of each of the instant real estate, it is difficult for ○○○○○○○○○○○○○○○○○ to directly delegate the registration of ownership to the plaintiffs in accordance with the plaintiffs' assertion, since the title holder is presumed to have acquired ownership by a legitimate cause of registration as well as to the third party. Thus, it is necessary to assert and prove the grounds for invalidation in the dispute. Thus, although ○○○○○○○○○○’s testimony was proved as consistent with the plaintiffs’ assertion, ○○○○○○○○○○○○○○○ may apply for the registration of ownership transfer on behalf of the plaintiffs in the process of transferring the ownership of each of the instant real estate to the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s legal representative on the ground of donation, it cannot be deemed that the above real estate in the list 7 and 8 of the plaintiffs’s legal representatives on the date of donation.

(2) Next, the plaintiffs' assertion that each of the above real estate was returned to the donor in accordance with the agreement after donation, and that the registration of transfer of ownership was cancelled due to the cancellation of agreement after the registration of transfer of ownership was completed in the names of the plaintiffs on the grounds of donation. However, Article 31 (4) of the Inheritance Tax and Gift Tax Act provides that where the property donated after receipt of donation was returned within the reporting period under Article 68 according to the agreement between the parties concerned, the donation shall be deemed not to have existed. Article 68 (1) of the Inheritance Tax and Gift Tax Act provides that the person liable to pay the gift tax shall report the taxable value and tax base of the gift within 3 months from the date of donation. Since the plaintiffs returned each of the above real estate to ○○○○, the donor of each of the above real estate at the time exceeding 3 months from the date of donation, this part of the plaintiffs' assertion is without merit.

5. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.