Some of the amounts remitted to the spouse falls under the repayment of existing debts, and the remainder is difficult to be regarded as consolation money.

Even if the plaintiff's spouse's mistake is recognized in the marriage life of the plaintiff's spouse, part of the amount remitted to the plaintiff shall be limited to the motive or instrument donated to the plaintiff, and the remainder shall be excluded from the gift tax because it constitutes repayment for the debt owed to the plaintiff by the plaintiff's spouse.

Article 2 of the Inheritance Tax and Gift Tax Act

2013Guhap57877 Revocation of Disposition of Imposition of Gift Tax

○ ○

BUBE

July 11, 2014

August 22, 2014

1. Of the imposition of each gift tax (including additional tax) by the Defendant against the Plaintiff on August 1, 2012, the imposition of KRW 9,582,30 of the gift tax on April 22, 2010 and the imposition of KRW 53,610,30 of the imposition of KRW 90,259,200 of the gift tax on the gift of May 18, 2010 shall be revoked, respectively.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

SUB-A and each gift tax set forth in paragraph (b) and the Defendant on August 1, 2012 by the Plaintiff

The imposition of KRW 15,832,80 on the gift of March 3, 2011 shall be revoked, respectively.

1. Details of the disposition;

A. DaD, the husband of the Plaintiff, was married with the Plaintiff on December 18, 1985 after the agreement was reached on January 28, 1980 with the DamageF, the former wife.

B. On March 8, 2010, OD sold 4,243 square meters (hereinafter “O○-dong land”) prior to marriage with the Plaintiff at KRW 1.3 billion, prior to 278-5, 000,000,000,000 on April 22, 2010, and transferred KRW 32,000,000,000 on May 18, 201, and KRW 6,00,000 on March 3, 201, to the Plaintiff’s bank account, respectively.

C. On August 1, 2012, the Defendant deemed that the Plaintiff donated the instant remittance from DaD, and determined and notified the Plaintiff of the gift tax (including additional tax; hereinafter the same shall apply) on April 22, 2010, KRW 9,582,300, and KRW 90,259,200, and KRW 60,000,000,000,000,000,000,000,000 for the gift tax on the donation made on March 3, 201 (hereinafter “instant disposition”).

2. The plaintiff's assertion

A. The amount of remittance of this case is received by the Plaintiff for any other cause from DaD as follows, and thus does not constitute a donated property granted without compensation.

1) The Plaintiff and Austria shared 11,00,000,000 won and paid KRW 275,000,000 among the Plaintiff’s share of KRW 41,00,000,000,000,000,000,000,000,000 won for the instant remittance to HH, which took place on January 21, 2006, and took place on January 21, 200. However, the instant remittance included KRW 135,00,000,000 and the interest accrued thereon equivalent to the Plaintiff’s share of KRW 41,00,000,000.

2) The Plaintiff leased and resided △△△ apartment 512, 104, 104, 512, and 104 (hereinafter “△△ apartment”) in Seoul △△-dong, △△△-dong, Seoul, to KRW 200,000,000,000,000,000,000,000,000,000 won.

Therefore, the remittance amount of this case includes the lease deposit voluntarily consumed by DaD as above.

3) From the beginning of marriage, AD continued a fluorous life, added a fluorous or external appearance, thereby causing mental pain to the Plaintiff. At that time, AD promised to pay consolation money, etc. to the Plaintiff on the condition that she maintains a marital life. Of the transferred amount of the instant transfer, the remainder of the money excluding the repayment of the existing debt constitutes the consideration for all such agreements.

B. According to Article 53 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 2011; hereinafter “Inheritance Tax and Gift Tax Act”), where a donee receives a donation from his/her spouse, 600 million won should be deducted from the taxable amount of gift taxes. Nevertheless, the Defendant did not apply the spouse’s gift tax deduction while rendering the instant disposition.

C. Therefore, the instant disposition should be revoked in entirety as it is unlawful.

3. Relevant statutes;

Attached Table 1 "Related Acts and subordinate statutes" shall be as stated in the attached Table 1.

4. Determination

(a) Scope of donated property;

1) need to prove special circumstances

Inasmuch as the fact that a deposit in the name of a person recognized as a donor by the tax authority is withdrawn and deposited in a bank account in the name of a taxpayer is presumed to have been donated to the taxpayer, barring special circumstances, such as withdrawal of such deposit and deposit in the name of a taxpayer, etc., are conducted for other than donation, the need to prove such deposit is the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov. 13, 2001).

2) Determination on the money for the transfer of △ Bank loan

Comprehensively taking account of the overall purport of the arguments in the statement in Gap's 6, 7, 8, and 9-1 through 4, Daddd's purchase of Mad' on January 28, 1995 and completed the registration of ownership transfer under its own name on February 15 of the same year. The plaintiff was donated 1/2 of Mad's co-ownership shares from Mad's Mad' on December 24, 2004 and completed the registration of ownership transfer on the same day. The plaintiff and Mad's transfer of Mad's Mad's 82,00 million won to Had' on January 21, 2006. At the same time, the plaintiff agreed to lease Mad's Had's 200 million won and the claims for the return of Mad's Had's Had's Had's Had's Had' Had' Had's Had'.

According to the above facts, the Plaintiff was only paid KRW 275 million (200 million + cash receipt amount of KRW 75 million) out of KRW 410,000,000,000 for the Plaintiff’s share out of the transfer proceeds of MadD’s Madd’s Mad’s Mad’s Mad’s Mad’s Mad’s Mad’s Mad’s Mad’s Mad’s 135,000,000 won for the remainder of the transfer proceeds to the Plaintiff. Therefore, it is reasonable to view that the amount equivalent to 135,00,000 won out of the remittance amount of this case and its interest for arrears constitutes not donated property granted without compensation, but the amount equivalent

The plaintiff's assertion on this is justified.

3) Determination on the security deposit for the lease of △ apartment

The Plaintiff asserts that DaD voluntarily consumed KRW 200 million out of the lease deposit for △△ apartment with △ apartment. However, DoD received the lease deposit on behalf of the Plaintiff and there is no evidence to prove the fact that DoD received the lease deposit on behalf of the Plaintiff and used it individually, the Plaintiff’s above assertion is without merit.

4) Determination on consolation money or damages

살피건대, 갑 제3, 4, 5, 13호증, 갑 제16 내지 26호증의 각 기재에 변론 전체의 취지를 종합하면, 오DD은 결혼 초기부터 원고와 갈등을 빚어 오던 중 1998. 4. 30. 원고에게 '생활비를 매월 지급하고, 채무를 정리하며, 핸드백, 코트, 구두 등 의류와 장신구를 선물하고, 부엌과 지하실을 수리하며, 해외여행을 다녀오기로 약속하되 이를 위반할 때에는 위약금으로 5억 원을 지급하기로 한다'는 내용의 각서를 작성해 준 사실, 오DD은 2007. 6. 29. 원고에게 결혼생활을 유지하는 것을 조건으로 '친구들AAAAAAAA과의 불미스러운 일이 재발되지 않도록 하고, ○○시 토지 등을 처분할 때에는 반드시 원고와 동행하여 잔금을 원고가 수령하도록 하며, ◍◍ ◍구 ◍◍동 소재 토지 등에 관한 매각대금도 원고가 수령하도록 하고, 오DD의 어머니가 거주하는 서울 ◇◇구 주택에 대해서도 가등기 등을 말소하게 되면 그 처분권을 원고에게 위임하기로 한다'는 내용

The facts that the plaintiff prepared a letter of intent that "DD is aware that it was committed while her staying in Canada, and later, DD completely cut off, does not go to the plaintiff on June 9, 2010 in order to find the peace of home, does not go to the plaintiff, does not go to all the plaintiff's opinion, entrusts all the property to the plaintiff, entrusts the plaintiff with all the property, and live together with life without demanding money as a crime."

The facts that have been drawn up, DNA, and other similar statements to the same effect have been repeatedly drawn up, △△.

It can be recognized that real estate owned by the person, such as loan, ○○ City, has been set up a collateral security, etc. in the name of the plaintiff.

However, even according to the above facts, it is difficult to conclude that DNA entrusted the Plaintiff with the right to dispose of property held by it to maintain a marriage life with the Plaintiff, and the economic benefits therefrom also belong to the Plaintiff. In addition, considering the fact that DNA committed an external appearance, even considering the fact that it still maintains the marriage life of the Plaintiff and OD, it is difficult to deem that the instant remittance amount, excluding the part corresponding to the repayment of the existing obligation, is a consolation money for mental suffering suffered by the Plaintiff and OD, which is much more than KRW 500 million, as it is not subject to gift tax (i.e., gift tax, even if it was recognized by OD, even if it was found that it was only the motive or instrument that partially donated part of the remittance amount of the instant remittance amount, and, therefore, it cannot be deemed that the donated property of the Plaintiff constitutes consolation money or damages).

Therefore, the plaintiff's assertion on this is without merit.

(b) The calculation of justifiable taxes;

Therefore, the remittance amount of this case is presumed to have been transferred to the Plaintiff’s bank account, but among them, 163,682,876 won in the sum of KRW 135,000,000 and interest on delay for 28,682,876 in the transfer amount [the amount of KRW 350,000,000 from January 22, 2006 following the transfer date, to 350,000 won in the annual rate of 5% as stipulated in the Civil Act until April 22, 2010, 13,500 x 0.05 x (4 years + 91/365 days) falls under the amount of KRW 163,682,876 in the aggregate of KRW 300,000 in the Plaintiff’s bank account, 200,0000 in the gift amount of KRW 360,000 shall be excluded from the gift amount of KRW 2816,5061,065,00,000,00,000.

Based on this, when calculating the amount of legitimate gift tax against the plaintiff pursuant to Articles 26, 47, 53 subparag. 1, 56, and 58 of the Inheritance Tax and Gift Tax Act (the same as the disposition of this case) and Article 2 of the attached Table 2 of the Inheritance Tax and Gift Tax Act (the same as the disposition of this case applies to the deduction of 600 million won for spouse donated property), there is no tax amount to be imposed on the donated portion of April 22, 2010, and 53,610,300 won should be imposed on the donated portion of May 18 of the same year. It is reasonable to impose 15,832,800 won as in the disposition of this case for the donated portion of March 3, 2011 as in the same disposition of this case. Accordingly, the imposition disposition of the gift tax amount of 9,582,300 won on April 222, 2010 and the imposition disposition of the gift tax amount of 90,30530 won.

3. Conclusion

The plaintiff's claim is justified within the above scope of recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.