Whether the acquisition fund of real estate received by the husband from the husband is deemed a donation

It cannot be deemed that the acquisition time or amount of real estate cannot be recognized as related to the time of acquisition, and the acquisition fund is required for acquisition, and it is determined that the person who actually reverted to the account of the head of the Tong opened before the implementation of the financial real name system

Article 31 of the Inheritance Tax and Gift Tax Act

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing gift tax of KRW 391,267,440 (391,267,480 on March 12, 2007) on the Plaintiff on April 1, 2006 (391,267,480 on the application for purport and cause of the amendment) shall be revoked.

1. Details of the disposition;

가. 원고는 2000. 2.부터 2004. 12.까지 아래 기재 각 부동산(이하 ‵이 사건 각 부동산′이라 한다)을 취득하였다.

No.

Location of Property

Building Use

Area of a square meter;

Sales Price

(unit:,000 won)

Date of acquisition

1

ΟΟ ΟΟ구 ΟΟΟ동 ΟΟΟ ΟΟ아파트

Ο-ΟΟΟΟ

Apartment house

49.98

167,000

February 22, 2000

2

ΟΟ ΟΟ구 ΟΟ동 ΟΟ ΟΟΟΟ아파

트 ΟΟΟ-ΟΟΟ

Apartment house

3.06

219,000

April 12, 2002

3

ΟΟ ΟΟ구 ΟΟ동 ΟΟ ΟΟΟΟ아파

트 ΟΟΟ-ΟΟΟ

Apartment house

41.51

296,000

April 12, 2002

4

ΟΟ ΟΟ구 ΟΟ동 ΟΟΟ-Ο ΟΟ아파트

ΟΟΟ-ΟΟΟΟ

Apartment house

5.80

155,000

April 20, 2002

5

ΟΟ ΟΟ구 ΟΟΟ동 ΟΟ ΟΟ아파트

Ο-ΟΟΟ

Apartment house

49.98

420,000

April 19, 2004

6

ΟΟ ΟΟ구 ΟΟ동 ΟΟ ΟΟΟΟ ΟΟ

Ο Ο-ΟΟΟ

Orace

xel

45.82

177,000

December 20, 2004

7

ΟΟ시 ΟΟ구 ΟΟ동 ΟΟ-Ο ΟΟΟΟ

ΟΟ 점포 Ο층 ΟΟΟ호

Commercial buildings

171.30

1,731,740

December 7, 2004

Total

3,165,740

* The Plaintiff’s share in the above Nos. 7 and commercial buildings is 4/5.

B. From July 20, 2005 to October 5, 2005, the director of the regional tax office of 000 won, subtracting 2,253,012,00 won, which was recognized as the source of funds from 3,165,740 won for acquiring each real estate of this case, was found to have been donated from her husband ○○○○○ (OOOOO), a certified public accountant due to lack of funds to acquire 912,728,000 won, after obtaining confirmation of the fact that the Plaintiff and ○○○ (OOOOO), received a donation from her husband ○○ (OOOOO), and notified the Defendant of this fact as taxation data.

C. The Defendant, based on the taxation data notified as above on April 1, 2006, deemed that the Plaintiff donated KRW 912,728,000 from Gab○ on December 7, 2004 to the Plaintiff, and determined and notified KRW 391,267,440 for the gift tax year 2004 as the taxable amount of gift tax.

D. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on May 9, 2006, but the Commissioner of the National Tax Service dismissed the said request on July 10, 2007.

In the absence of dispute (applicable to recognition), A1, A2, 3--each 1, 2, A53, A53, 61, 65, B1-4, 5-1-4, 6-1-6, 6-1-6, and the purport of the entire pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Pursuant to Article 34(2) of the Inheritance Tax and Gift Tax Act and Article 54 of the Regulations on the Management of Property Tax, where a householder aged 40 or older acquires a house below 400 million won within 10 years prior to the date of acquisition, the presumption of donation shall be excluded. The plaintiff is the householder. The plaintiff's property acquired within 10 years shall be deducted from the presumption of donation. On January 8, 1991, 191, ○○○○○○○○○○ apartment, ○○○○○○○, ○○○○○, ○○○○ apartment, ○○○○, ○○○○, ○○ apartment, ○○○, ○○○, ○○○, ○○○, ○○, 00,000 won, which was acquired on February 22, 200, which constitutes a violation of Article 54 of the Framework Act on National Taxes, and thus, the defendant shall be excluded from the presumption of gift transaction.

(2) From KRW 912,728,00 to KRW 167,00,00, the estimated gift value with respect to the Plaintiff is KRW 745,728,000 if the Plaintiff deducts the estimated gift value of KRW 912,728,00, and the Plaintiff is exempted from disclosing the source of the Plaintiff’

○○○○○○○○○-○○○-○○○-○○○-○○○○-2 and commercial building rent of KRW 38,251,00; KRW 81,756,00; KRW 138,00; KRW 101,527,000; KRW 30,000; KRW 21,775,00; KRW 700; KRW 700; KRW 40; KRW 70; KRW 70; KRW 40; KRW 60; KRW 70; KRW 70; KRW 9; KRW 70; KRW 70; KRW 45,00; KRW 70; KRW 70; KRW 40; KRW 70; and KRW 9; KRW 70; and KRW 47,00; and KRW 8,000; and KRW 8,000; and KRW 47,77,000; and

Furthermore, on April 1, 1952, the Plaintiff operated the above-mentioned friendship and operation, in addition to real estate leasing business, and owned a large number of real estate including apartment houses and housing in ○○ and ○○ regions, etc., with sufficient funds to acquire each of the instant real estate in view of social and economic status, such as the Plaintiff’s occupation, age, income, and property status.

Such details are also proved by each financial transaction passbook submitted by the plaintiff, a certified copy of the building management ledger, a certified copy of the calculation statement, a detailed statement of operation, and a detailed statement of revenue.

Therefore, the Plaintiff shall be deemed to have acquired each of the instant real estate from its own funds.

(3) Therefore, the instant disposition that the Plaintiff deemed to have donated KRW 912,728,00 among the acquisition funds of each of the instant real estate was unlawful.

B. Relevant statutes

Article 31 of the Inheritance Tax and Gift Tax Act

(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.

③ 상속개시후 상속재산에 대하여 등기·등록·명의개서등(이하 ‶등기등″이라 한다)에 의하여 각 상속인의 상속분이 확정되어 등기등이 된 후 그 상속재산에 대하여 공동상속인사 이의 협의에 의한 분할에 의하여 특정상속인이 당초 상속분을 초과하여 취득하는 재산가액은 당해 분할에 의하여 상속분이 감소된 상속인으로부터 증여받은 재산에 포함한다.(단서 생략)

Article 45 of the Inheritance Tax and Gift Tax Act (Presumption of Donation)

(1) Where it is difficult to recognize that a person acquired the relevant property by his/her own means in view of his/her occupation, age, income and property status, etc., as prescribed by Presidential Decree, the funds for acquiring the relevant property shall be presumed to have been donated to the person who acquired the relevant property

(2) Where it is difficult to recognize that a debtor has repaid his/her debts (including partial repayment; hereafter the same shall apply in this paragraph) by his/her own means in view of his/her occupation, age, income, property status, etc., as prescribed by Presidential Decree, the relevant repayment fund shall be presumed to have been donated to the relevant debtor at the time

(3) The provisions of paragraphs (1) and (2) shall not apply to cases where the relevant acquisition fund or repayment fund falls below the amount prescribed by Presidential Decree in consideration of occupation, age, income, property status, etc. and where sufficient vindication exists on the source of the relevant acquisition fund or repayment fund.

Article 47 of the Inheritance Tax and Gift Tax Act

① 증여세과세가액은 증여일 현재 이 법의 규정에 의한 증여재산가액의 합계액[제40조 제1항 제2호, 제41조의3, 제41조의5, 제42조 제4항의 규정에 의한 증여재산(이하 ‶합산배제증여재산″이라 한다)의 가액을 제외한다]에서 당해 증여재산에 담보된 채무(당해증여재산에 관련된 채무 등 대통령령이 정하는 채무를 포함한다)로서 수증자가 인수한 금액을 차감한 금액으로 한다.

(2) Where, within ten years prior to the date of donation concerned, the aggregate of the value of donated property received from the same person (where the donor is a lineal ascendant, including the spouse of such lineal ascendant) is not less than ten million won, such value shall be added to the taxable amount of gift taxes: Provided, That

(3) In the application of the provisions of paragraph (1), with respect to an onerous donation between spouse, or between lineal ascendants and descendants (including the cases presumed to be a donation under Article 44), even if the donee takes over the obligation of the donor, the donee concerned shall be presumed not to have taken over the obligation of the donee: Provided, That this shall not apply in case the amount of the obligation concerned is objectively recognized under the conditions as prescribed by

○ Tax base of the gift tax under Article 55 of the Inheritance Tax and Gift Tax Act and the minimum taxable amount

(1) The tax base of gift tax shall be an amount obtained by subtracting the fees for appraisal of donated property as prescribed by the Presidential Decree from the amount falling under one of

1. In the legal fiction of title trust property under the provisions of Article 45-2, the amount of the relevant title trust property;

2. For the donated property excluding any summing-up, the amount obtained by deducting 30 million won from the donated property concerned.

3. In other cases than subparagraphs 1 and 2, the amount obtained by subtracting the amount under the provisions of Articles 53 and 54 from the taxable amount of gift taxes levied under the provisions of Article 47 (1).

(2) Gift tax shall not be levied when the tax base is less than five hundred thousand won.

Article 34 of the Inheritance Tax and Gift Tax Act: Donation presumption

① 법 제45조 제1항 및 제2항에서 ‶대통령령이 정하는 경우″라 함은 다음 각호의 규정에 의하여 입증된 금액의 합계액이 취득재산의 가액 또는 채무의 상환금액에 미달하는 경우를 말한다. 다만, 입증되지 아니하는 금액이 취득재산의 가액 또는 채무의 상환금액의 100분의 20에 상당하는 금액과 2억원중 적은 금액에 미달하는 경우를 제외한다.

1. The amount of income which has been reported or received the taxation (including the cases of non-taxation or reduction or exemption; hereafter the same shall apply in this Article);

2. The value of inherited or donated property which has been reported or received a taxation;

3. The amount of money or liabilities received in return for the disposal of the properties, and used directly for the acquisition of the properties or the redemption of such obligations;

② 법 제45조 제3항에서 ‶대통령령이 정하는 금액″이라 함은 재산취득일전 또는 채무상환일전 10년 이내에 당해 재산취득자금 또는 당해 채무상환자금의 합계액이 3천만원 이상으로서 연령·세대주·직업·재산상태·사회경제적 지위 등을 참작하여 국세청장이 정하는 금액을 말한다.

Article 54 of the Regulations on the Management of Property Tax: Statistics by type of persons suspected of lack of funding and standards for exclusion from presumption of donation;

(3) If the acquisition amount and redemption value of the relevant property are less than the following standard amount within ten years before the date of property acquisition or within ten years before the date of debt repayment, the provisions of presumption of donation shall not

* Standards for Exclusion from Presumption of Donation (applicable from the part acquired or repaid after January 1, 99)

Classification

Property acquired;

Repayment of Obligations

Limit on Total Amount

Housing:

Other assets:

1.In the case of a household owner:

(a) Those who are thirty years of age or over;

(b) A person who is over forty years of age;

20 million won

40 million won

50 million won

10 million won

50 million won

250 million won

50 million won

However, even if the above amount is below the above amount, if the acquisition fund or repayment fund is objectively confirmed to have been donated to others, it will be subject to gift tax (Provided, That in this case, the tax authority must prove the fact of donation).

3. Determination

(1) As to the assertion that the amount of 167,00,000 won should be deducted from the gift presumption value of the above ○ apartment ○○○○○○○○, ○○○○○, supra.

앞서 인정한 바에 의하면, 이 사건 처분은 피고가 상속세및증여세법 제45조 제1항에 의하여 증여로 추정하여 과세한 것이 아니라 원고가 남편 박○○으로부터 이 사건 각 부동산의 취득자금 중 912,728,000원을 현금증여받았다는 원고 및 박○○의 ‵현금수증확인′ 등 과세근거자료에 터잡아 현실증여로 인정하여 한 것일 뿐이고, 설령 이와 달리 이 사건 처분을 상속세및증여세법 제45조 제1항에 의한 증여추정에 터잡은 것으로 본다고 하더라도 이 사건 각 부동산의 최종 취득일은 2004. 12. 20.인바 그로부터 10년 이내인 부동산 취득금액에 대하여 보면 이 사건 각 부동산의 취득금액만도 3,165,740,000원에 달하여 상속세및증여세법시행령 제34조 제2항, 재산제세사무처리규정 제54조의 규정에 의한 40세 이상의 세대주로서 주택 취득의 경우의 기준금액인 4억원을 훨씬 초과하므로 이와 다른 전제에서 하는 원고의 위 주장은 더 나아가 살펴 볼 것 없이 이유 없다.

(2) Whether the above donation is recognized

According to the statements in Eul evidence Nos. 2 through 4, Eul evidence Nos. 5-1 through 4, Eul evidence Nos. 5-1 through 6-1, and Eul evidence Nos. 6-1 through 6, the plaintiff may recognize the fact that the plaintiff received 912,728,00 won from Park○, and evidence Nos. 8, Gap evidence Nos. 10-1 through 5, Gap evidence Nos. 12, 13-2, Gap evidence Nos. 16 through 18, 21 through 23, Gap evidence Nos. 24-1 through 25, Gap evidence Nos. 26-1 through 4, Gap evidence Nos. 27 through 45, Gap evidence Nos. 46-1, 2, 47 through 50, Gap evidence No. 52, and Gap evidence No. 62 through 64-2, and there is no other evidence subsequent to this.

In other words, (1) ○○○○-1’s own account for 000-1’s own account for 000-1’s own account for 70-1’s own account for 4,560,000 (as of December 31, 2002, the remaining amount of 4,560,000 won was 1’s own account for 70-1’s own account for 4,000-1’s own account for 9’s own account for 4,000,000,000,000,000,000 7’s own account for 0-1’s own account for 9’s own account for 7,000,000,000 won and 9’s own account for 7,000,000 won and 1’s own account for 9,000 won and 1’s own account for 7,000 won.

(3) Sub-decisions

Therefore, the disposition of this case by the defendant against the plaintiff is lawful on the premise that the plaintiff was donated by Park Jong-○, among the acquisition price of each real estate of this case.

4. Conclusion

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