It is illegal because the specific contents of the gift, such as the background or amount of receipt, are not included in all, and there is a lack of proof about the taxation requirement.

I have been assisted by the parent of a certain portion of the portion for which the real estate acquisition fund is unclear. It is not sufficient to regard it as taxation data because the detailed content of the donation, such as the source of receipt or amount, is not included in all.

Article 45 of the former Inheritance Tax and Gift Tax Act (Presumption of Donation of Property Acquisition Funds, etc.)

2015Guhap52276 Revocation of Disposition of Imposition of Gift Tax

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○ Head of tax office

March 18, 2016

April 8, 2016

1. The Defendant’s disposition of imposition of gift tax of KRW 80,284,260 against the Plaintiff on August 1, 2014 is revoked. 2. The costs of lawsuit are assessed against the Defendant.

The same shall apply to the order of the Gu office.

1. Details of the disposition;

A. On March 10, 201, the Plaintiff entered into a sales contract with ○○○○○○-dong, ○○○○○○○○-dong, to purchase KRW 111,00,00,000,000,000 for purchase price of KRW 632,000,000,000, and KRW 114,000,000,000. On the same day, the Plaintiff completed the registration of ownership transfer under the name of the Plaintiff (hereinafter referred to as the “instant real estate”), including each of the instant real estate, and individually, “No. 111,” and “No. 14,” respectively.

B. On March 10, 2011, the Plaintiff took out a loan of KRW 367 million from the ○○ Bank (hereinafter “○○ Bank”) as collateral No. 111, and completed the registration of creation of mortgage over KRW 477,71 million with the maximum debt amount as collateral No. 114, and completed the registration of creation of mortgage over KRW 130,000 won with the maximum debt amount of KRW 114,000. The Defendant: (a) conducted an investigation into the source of funds against the Plaintiff; (b) as a result, the Plaintiff was given a donation of KRW 33,30,000,000,000,000, excluding the total amount of the loan of KRW 475,000,000,000,000,000,0000,000,0000,000,000 won; and (c) on August 1, 2014, imposed the Plaintiff.

D. The Plaintiff dissatisfied with the instant disposition and filed an objection on October 7, 2014, but was dismissed on November 7, 2014, and the Plaintiff filed an appeal with the Tax Tribunal on January 12, 2015, but was also dismissed on June 4, 2015.

[Ground of recognition] Unsatisfy, Gap evidence 2, 3, 6 through 8 (including branch numbers, if any; hereinafter the same shall apply), Eul evidence 1 to 4, the result of this court's order to submit financial transaction information to ○ Bank, the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Form.

3. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The Plaintiff’s mother Kim ○ was damaged by investment, etc. in Ma○○○. However, if Ma○○ purchased the instant real estate, etc. and obtained the profit from the sale thereof, he asked Ma○○ to lend the name of a third party to obtain the loan. Accordingly, upon the Plaintiff’s request by Kim○○○, the Plaintiff completed the registration of ownership transfer of the instant real estate under his name. As such, the real owner of the instant real estate is Ma○○ and the Plaintiff is merely the title trustee. As long as the registration of ownership transfer under the Plaintiff’s name becomes null and void due to a title trust agreement, the instant disposition made against the Plaintiff on the premise that the Defendant is the actual owner of the instant

Even if a title trust agreement is not a title trust agreement and the registration of ownership transfer in the Plaintiff’s name is valid, the Plaintiff completed a sales contract by withdrawing the actual purchase price in order to obtain a large amount of loans from a financial institution upon receiving a request from Ma○○○○, and reported it as a transaction amount at the time of transfer of ownership. Therefore, whether gift tax should be imposed on the basis of the real value of the instant real estate, not the amount reported at the time of transfer of ownership, which is entered in the sales contract as the purchase price, and not the amount reported at the time of transfer of ownership. Nevertheless, the Defendant merely calculated the tax base based on KRW 8

B. Determination

1) The Defendant disposed of the instant real estate on the ground that, on the premise that the actual purchase price of the instant real estate was stated as the purchase price in a sales contract made between the Plaintiff and the seller Jung-○○, and that at the time of registration of ownership transfer, the Plaintiff was donated KRW 30 million, excluding the secured loan, out of the acquisition fund, by her mother Kim○○, from her mother.

2) However, in light of the following circumstances acknowledged by comprehensively considering the following circumstances, Gap evidence Nos. 3, 6, and 8, Eul evidence Nos. 2 through 5, the appraiser Park ○○’s appraisal result, and the result of this court’s order to submit financial transaction information to ○○ Bank Co., Ltd., as well as the overall purport of pleadings, it is difficult to readily conclude that KRW 88 billion, which is reported as a transaction amount in the transfer of ownership registration, is the actual purchase price of the real estate of this case. Thus, the evidence submitted by the defendant alone is insufficient to acknowledge the difference between the actual purchase price of the real estate of this case and the Plaintiff’s secured loan amount of KRW 30 million,000,000,000, which is premised thereon, and there is no other evidence to acknowledge otherwise.

① On March 3, 2011, an employee in charge of ○○ Bank in charge of loans from ○○ Bank with the Plaintiff’s real property as collateral, assessed the estimated sale price of KRW 1.05 billion from KRW 1.02 billion to KRW 1.05 billion, and assessed the estimated sale price of KRW 280 million from KRW 200 million to KRW 290 million from KRW 114,000. The sale contract attached to the loan document (it is a sale contract that is not the former owner of the instant real property, but the former owner’s ○○ Company immediately sold the instant real property to the Plaintiff. It appears that the sale price of KRW 1.6 billion was considerably below the estimated sale price of KRW 1.6 billion from KRW 1.6 billion from the loan agreement and the sale price of KRW 1.6 billion from the Plaintiff’s ○○○ Bank’s transfer registration, respectively, and the sale price of KRW 1.61 billion from the loan agreement and the sale price of KRW 3.1.61 billion from the Plaintiff.

② In addition, on February 18, 2011, YO, the former owner, reported that the total trading amount of five real estate including the instant real estate was only KRW 582 million, while completing the registration of transfer of ownership of the total real estate on the ground of a sale contract on February 18, 201. Moreover, on March 10, 201, which was about 20 days thereafter, the transaction value of the instant real estate was KRW 88 billion in the registration of transfer of ownership (i.e., KRW 632 billion + KRW 114 billion). However, on March 10, 201, the Plaintiff’s registration of transfer of ownership on the instant real estate, which was only two cases, was reported as KRW 88 billion (i.e., the transaction value was KRW 632 million + KRW 114 billion + KRW 176 million).

③ Furthermore, according to the appraiser Park Jong-○’s appraisal conducted at the trial, the market value of the instant real estate around March 10, 201 is deemed to be merely KRW 111 billion, KRW 348 million, and KRW 114 per 98 million. This is not significantly below the reported transaction amount in the Plaintiff’s future registration of transfer of ownership.

④ In a case where a person without a certain occupation or income does not have any source of funds to obtain a contribution to the pertinent property, and his lineal ascendant or spouse, etc. has any financial ability to obtain a contribution from the person having the financial capacity to obtain a contribution, it shall be reasonable to presume that the said funds have been received a contribution from the person having the financial capacity. However, in order to presume a contribution as above, the tax authority must prove that the donor has financial capacity to obtain a contribution to the donor, even though the donee did not have any specific occupation or income (see, e.g., Supreme Court Decision 2003Du10732, Apr. 16, 2004). The Plaintiff’s mother who claimed as a donor of the instant real estate by the Defendant does not have any proof of the fact that the Plaintiff’s ○○○, a former nominal owner through the Plaintiff or ○○○, has any financial ability to give a contribution of KRW 330 million, excluding a secured loan on the instant real estate, and there was no evidence that the said amount was actually paid or considerable economic profit.

⑤ The confirmation document prepared by the Plaintiff on May 7, 2014 is prepared at the request of a tax official in the course of the tax investigation, and it is not enough to regard it as taxation data because it does not include any specific content of the donation, such as the source of receipt or amount, and it does not necessarily include any specific content of the donation.

3) Therefore, the instant disposition on the ground that the Plaintiff received a donation of KRW 330 million out of the acquisition fund from her mother Kim○○, in relation to the registration of ownership transfer that was made in the Plaintiff’s future on the grounds of sale and purchase of the instant real estate, shall be revoked as it is unlawful due to lack of evidence of the facts requiring taxation.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.