The person acquiring the instant real estate cannot be deemed to have been donated to her husband.

The amount of acquiring real estate of this case is presumed to have been donated to the husband, and the evidence submitted by the Plaintiff alone is insufficient to recognize it as having been borrowed from the husband, and there is no other evidence to recognize it otherwise.

Article 2 of the Inheritance Tax and Gift Tax Act: Estimated donation of funds for acquiring property under Article 45 of the Inheritance Tax and Gift Tax Act

2018Guhap50307 Revocation of Disposition of Imposition of Gift Tax

AA

AA Head of the Tax Office

November 22, 2018

1. All of the plaintiff's claims are dismissed.

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

1. Details of the disposition;

(a) On September 24, 2013, the Plaintiff: (1) purchased KRW 2,585,00,00,00, including acquisition incidental expenses; (2) on September 24, 2013, Seoul**************** apartment******* (hereinafter referred to as the “instant apartment”); completed the registration of ownership transfer on November 11, 2013; and (2) on March 25, 2000, u u u u u ****** *9 (hereinafter referred to as the “building in this case”; and (c) purchased 20,84,084, 140 won, including the acquisition incidental expenses; and completed the registration of ownership transfer with respect to Plaintiff’s shares on March 10, 2014, 10/A109.

B.**** The Commissioner of the National Tax Service conducted an investigation into the source of funds against the Plaintiff from October 26, 2016 to January 26, 2017, and notified the Defendant of the taxation data by deeming that the Plaintiff acquired the 71/100 shares of the instant apartment and the instant building from October 26, 2016, and the Plaintiff acquired the 71/100 shares of the instant apartment and the instant building and notified the Defendant of the taxation data by deeming that the sum of the acquisition funds of KRW 4,924,688,570 was donated from AA as stated in each of the following:

Accordingly, on March 2, 2017, the defendant decided and notified gift tax to the plaintiff as stated in the following table notice tax (including additional tax) (the same as stated in the attached Form) (hereinafter referred to as "each disposition of this case").

1) The amount stated in the corresponding column of the Plaintiff’s share (71%) in the instant building is the amount calculated by calculating 71% of the amount paid to the seller on the pertinent day.

2) Total acquisition amount is 20,848,084,140 71%.

C. The Plaintiff, who was dissatisfied with each of the dispositions of this case, filed an appeal with the Tax Tribunal on May 25, 2017, but was dismissed on October 11, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1-2 to 5-3, Eul evidence 1-1 to 7, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The Plaintiff borrowed the key amount of the instant case from AA to be used in acquiring each of the instant real estates.

Since AA had been responsible for a large amount of loans from the end of 2013, there is no reason to donate the acquisition fund of each of the instant real estate to the Plaintiff. The Plaintiff was liable for KRW 860 million in its name when acquiring the instant real estate under the name of AA*** Gu*** at the time of acquiring the instant real estate. The amount equivalent to the above amount out of the borrowed money from AA when acquiring each of the instant real estate, should be deemed to have been settled with repayment from AA.

The Plaintiff intended to repay the money borrowed from AA with the proceeds from the sale of each of the instant real estate. However, the sales price was made immediately before the sale of the instant apartment, and most of the sales price was to be used for the payment of large amount of gift taxes, and thus, the repayment of the borrowed money for the acquisition of the instant apartment is delayed. The borrowed money for the acquisition of the instant building was partially repaid in the manner that the total amount of the leased income from the instant building belongs to AA, and the remainder was repaid as the sales price of the instant building in order to avoid the misunderstanding of re-donation, but the Plaintiff and the Plaintiff kept in their accounts in each share of shares the remainder other than the loans of financial institutions, rental deposits, and all sales costs of the instant apartment.

(b) Fact of recognition;

1) The Plaintiff’s husband AA is the representative of the Seoul*****3, 1st (*3A, 20-2, and BB building) and BB (BB) corporation (hereinafter “BBB”) with the same purpose located in the same place asCC (hereinafter “CC”) andCC, which is located in a computer manufacturing and sales business located in Seoul*** *3, 1st (20-2, and BB building).

In addition to the operation of the above company, AAA owned Dodd and Seoul**Gu Dod and * Gu ** Gu *3 as the owner of the BB building located in Seoul** Gu ** Gu ** Gu *6-18 on July 28, 2013 and registered the trade name as 'Dodd' on October 14, 2013 ** Gu *** * Gu * * * *3 as the location of the building outside 29-2 and the trade name as 'BB building'. In addition to the operation of the above company, AA had registered each real estate rental business and carried on real estate rental business.

2) In order to raise the acquisition fund of the instant apartment, the Plaintiff provided the instant apartment as collateral and borrowed KRW 775 million from the EE bank with the debtor as the Plaintiff himself/herself, and received KRW 100 million from the FF of the Plaintiff. The Plaintiff’s husband received KRW 1.3 billion from the Plaintiff’s husband on November 11, 2013. The key amount is the amount transferred from the GG bank account in the name of BBB to the GG bank account in the name of AA on November 7, 2013. The amount is KRW 1.3 billion out of the KRW 1.6 billion transferred from the GG bank account in the name of BB to the GG bank account in the name of the Plaintiff on November 11, 2013.

3) On September 3, 2010, AA acquired the instant building (hereinafter referred to as “HH real estate”) on September 3, 2010, ***,93,97,98-67 real estate (hereinafter referred to as “HH real estate”), but sold 3.45 billion won to JJ on March 20, 2014, and around that time the Plaintiff and AAA acquired the instant building.

The details of the acquisition fund of the building of this case are as follows, and KRW 3,624,688,570,000,000,000,000 paid by the Defendant to the Plaintiff when taking each of the dispositions of this case, calculated by subtracting approximately KRW 967,000,000,000 from the total amount of the acquisition fund of the building of this case to be borne by the Plaintiff as shown below, KRW 967,000,000,000,000,000,000 equivalent to KRW 29,100,000,000,000,000,000, paid by the representative director, who is in excess of the shares of the building of this case, as seen in the table below, accounts for a larger portion of KRW 2,577,00,00,00 paid by the CC and KRW 1,58,000,00,00 paid by J.

4) On March 26, 2014, the Plaintiff and AA reported the LL bank account in the name of the Plaintiff (***-89**********; hereinafter referred to as the “instant account”) and AA in the name of the Plaintiff as the business account of the KR building on the location of the instant building and the trade name of the instant building as 'K building’. On July 3, 2014, the Plaintiff and AA reported the LL bank account in the name of the Plaintiff as the business account of the KR building.

5) The instant account was used as the management account of the rent of the instant building, while it was also used in the transaction with the DD account of AA, BB building account,CC account, and BB account (hereinafter “AAA account”).

4) According to the evidence Nos. 14 and 7, the above amount consists of KRW 50,00,000,000,000 for the Plaintiff’s loan, KRW 13.2 billion for the instant building, KRW 10,58,000,000 for loans granted and borrowed by the Defendant, which is a collateral security right, a debtor, a mortgagee, a stock-mortgage company, MMMM bank, and KRW 60,000 for AA loan. Of these, the amount determined by the Defendant as the Plaintiff’s creation amount is the amount equivalent to the Plaintiff’s share in the instant building, which is the sum of KRW 58,00,000 for loans under the Plaintiff’s name and KRW 58,000,000 for loans granted as security and extended under the name of AA.

6) On April 3, 2017, the Plaintiff sold the instant apartment at KRW 3.1 billion, and used the proceeds from the sale to lend to financial institutions, to repay the amount borrowed fromCC for the payment of the instant gift tax, to pay brokerage commission and transfer tax, and to use approximately KRW 80 million for the Plaintiff.

7) On April 2, 2018, the Plaintiff and AAA sold the instant building to NNB at KRW 26 billion, and around KRW 4.466 million out of the proceeds from the sale, succeeded to the obligation to deposit, repaid the loans to financial institutions, brokerage commission, and the amount borrowed fromCC for the payment of the instant gift tax, and thereafter, currently held approximately KRW 7 billion in the account in the name of the Plaintiff and AAA in accordance with the share ratio in the instant building.

[Ground of recognition] Facts without dispute, Gap evidence 7 through 14, 16 through 23, Eul evidence 2 through 7 (including each number), the purport of the whole pleadings

C. Determination

1) The burden of proving the existence of a taxation requirement fact is against the tax authority, but if it is revealed that the other party is presumed to have a taxation requirement fact in light of the empirical rule, the circumstances must be proven that the other party is not subject to the application of the empirical rule. Pursuant to Article 830(1) of the Civil Act, real estate acquired in the name of the married couple is presumed to be the special property of the nominal owner. However, if one spouse bears a substantial consideration, such as the other spouse bears the whole or part of the funds to acquire the property in the name of the married couple, the presumption of the special property may be reversed and the other spouse may own the property or be deemed to jointly own the property. In such a case, it may be deemed that the nominal owner of the property has established the explicit or implied title trust relationship with respect to the property or shares (see, e.g., Supreme Court Decision 2006Da79704, Apr. 26, 2007). Meanwhile, it is reasonable to deem that the other spouse bears the actual cost of acquisition, but the other spouse still owns the funds.

2) In light of the above legal principles, as seen earlier, when the Plaintiff acquired 71/100 shares in the instant apartment and the instant apartment and the instant building, it is presumed that the Plaintiff received the instant amount from AA as a donation from the Plaintiff, and as seen below, it is insufficient to recognize that the Plaintiff borrowed the instant amount from AA solely based on the evidence submitted by the Plaintiff and the facts recognized accordingly, and it is difficult to accept the Plaintiff’s assertion that the instant amount was borrowed from the said AA, on the grounds that there is no other evidence to acknowledge otherwise.

① Even according to the Plaintiff’s assertion, AA expressed its intent to purchase the instant apartment in the name of the Plaintiff solely or to register the Plaintiff’s share in the instant apartment building with the expression of the difficulty and trust of the Plaintiff, who is the wife. The Plaintiff also had a sales contract and ownership transfer registration with respect to the instant apartment and the instant building by respecting the husband’s intent. If the husband had the Plaintiff complete the registration under the name of the wife by using the expression of the difficulty and trust in the wife with respect to the wife’s acquisition of real estate, then if the husband had the husband complete the registration under the name of the wife, this would be more consistent with the interpretation of the intent and rule of experience of the parties.

② The Plaintiff asserts that: (a) AA bears a loan worth KRW 4.1 billion at the end of 2013; and (b) bears a loan worth KRW 11.7 billion at the end of 2014; and (c) there is no motive or reason to donate the amount of the instant issue to the Plaintiff.

갑 제5 내지 10, 15호증의 각 기재에 의하면, AAA이 2013년 말경 HHH 부동산을 취득하면서 OO은행에 위 부동산을 담보로 제공하고 대출받은 17억 원의 대출금채무 및 CCCC에 대한 2,417,041,507원의 가지급금채무를 각 부담하고 있었고, 이 사건 빌딩을 취득하면서 MMMM은행에 위 빌딩을 담보로 제공하고 대출받은 대출금채무 약 30억 3,300만 원(≒ 104억 5,800만 원 × 29/100, 각주 4 참조)과 2014년 말 기준 CCCC에 대하여 8,083,515,493원의 가지급금채무를 각 부담하고 있었던 사실을 알 수 있다. 그러나 앞서 인정한 사실 및 변론 전체의 취지를 종합하면 AAA은 CCCC의 가지급금과 은행 대출금 등을 이용하여 부동산을 취득하거나 매각하면서 시세차익 내지 임대수익을 얻고 그 매각대금과 시세차익으로 기존의 대출금 등을 변제하는 방식의 거래를 해 왔던 것으로 보이고, 앞서 본 바와 같이 이 사건 빌딩 외에 두 개의 주식회사와 DDD, BBB빌딩을 취득하여 부동산임대업을 영위하는 등 상당한 자금을 운용하고 있는 것으로 보이는 점을 더하여 보면, AAA이 그 주장과 같은 채무를 부담하고 있었다는 사정만으로 원고에게 증여할 동기나 이유가 없었다고 보이지 않는다.

③ There is no objective material to deem that the Plaintiff and AA have determined the principal, interest, and period of reimbursement. Although there is no ordinary monetary loan agreement, the principal, interest, and the term of reimbursement between the couple, or the Plaintiff and AAA are married couple and it cannot be ruled out that the Plaintiff would have overall control over the flow of funds ex post facto as a joint proprietor of the real estate rental business concerning the instant building, the possibility that the Plaintiff would not participate in the management of the revenue of the instant building, as seen below, there is no material to support that the Plaintiff would not have any involvement in the management of the revenue of the instant building, and there is no other evidence to support that the Plaintiff was performing his own act of generating income to the extent that the Plaintiff would settle the monetary relationship between the Plaintiff and AAA. The Plaintiff only calculates the amount to be considered as the amount to be repaid ex post facto while the instant lawsuit is pending, and it cannot be specified

④ The Plaintiff, when acquiring HH real property, bears KRW 860 million. As such, AA sells HH real property and received from the JJ, the equivalent of the above amount, out of the purchase price, is either a claim equivalent to KRW 860,000,000, which the Plaintiff had held against AA, or a claim for reimbursement of KRW 860,000,00,000, out of the purchase price that the Plaintiff and the HH real property received from J as a common property of the Plaintiff and AAJ, is the Plaintiff’s share.

According to the evidence evidence Nos. 8 and 18 (including virtual numbers) of the Plaintiff’s * Investment, O bank account, etc. from May 19, 2010 to September 3, 2010, the fact that KRW 774 million was transferred to AA’s PP bank account and used for the acquisition of HH real estate is recognized. However, according to the purport of each entry and pleading in evidence No. 12 of the evidence No. 12, it can be known that the financial transaction occurred frequently between the Plaintiff and the AA during about three years from June 30, 2010 to October 15, 2013. Thus, it is difficult to view that the facts acknowledged earlier alone alone alone are insufficient to deem that the Plaintiff’s claim against AA exists or that one/2 of the proceeds from the sale of HH real estate is the Plaintiff.

⑤ The Plaintiff asserts that, from May 16, 2014 to April 2, 2018, the sales amounting to KRW 2,713,463,74 of the leased income accrued for four years from May 16, 2014, to April 2, 2018, AAA was fully used, thereby, that the Plaintiff paid KRW 1,926,559,258, which is equivalent to the Plaintiff’s equity (=2,713,463,744 (=total rental income) 7,288,83,83,136 - total rental income - total expenses KRW 4,575,369,392) 】 71%.

According to the overall purport of Gap evidence Nos. 7, 17, and Eul evidence Nos. 11 and the entire pleadings, it can be revealed that the amount deposited from the instant account where the rent of the building of this case is deposited for 4 years as indicated below to the AA’s account is KRW 3,94,659,769, and that the amount deposited from the AA’s account to the instant account is KRW 3,120,582,316, and that the rent of the building of this case is KRW 3,120,582,316, not only the amount of the rent of the building of this case transferred to the AA’s account, but also the details of the Plaintiff’s personal use of the rent corresponding to its shares

According to the above facts, it can be found that AA actually uses the leased income of the building of this case to operate the real estate leasing business of DD and BB building as well as D and BB building. However, the account of this case is not able to distinguish the part related to the loan for consumption and loan between the Plaintiff and AA because the transaction details related to the individual business of D and BB building in addition to the lease income of the building of this case are mixed with the transaction details related to the building of this case. The difference between the amount deposited from the account of this case to the account of AA for four years until the date of acquisition and sale of the building of this case was 824,07,453 won and the amount deposited to the account of this case was 16% (=824,077,453,424,68,570), and it is difficult to view that the Plaintiff, other than the loan revenue of this case, was 100 million won or more, to manage and sell the building of this case.

3) Therefore, each of the dispositions of this case by the Defendant, which the Plaintiff imposed on the gift of the key amount of this case from AA to determine that the Plaintiff purchased 71/100 shares of the apartment of this case and the building of this case, is legitimate.

3. Conclusion

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