Suwon District Court-2017-Gu Partnership-1453 (Law No. 21, 2018)

Whether the donation should be deemed to have been made to the spouse under the pretext of property division following the divorce in order to avoid the disposition on default.

The main purpose of division of property following divorce is to liquidate and distribute the actual common property acquired by the couple during marriage, and it cannot be deemed as a gratuitous transfer of property. Thus, as long as the divorce is the most divorced, it is not null and void, in principle, it shall not be subject to gift tax.

Article 4 of the Inheritance Tax and Gift Tax Act

2018Nu61644

On June 8, 2014 and June 11, 2014 and the Plaintiff and BBB

'Agreement on Compensation for Damages and Division of Property following the divorce between the two parties, which was prepared on November 2, 2015.

In light of the above, at the time of the deposit of the issue amount of this case, the plaintiff and BB are divorced.

(a) A does not have intention, and a land is separate from the Plaintiff from February 1993 by BB from February 1993.

Property acquired after 2003 is not subject to division of property following divorce, and is not subject to such division.

The key amount is BBBB any money deposited by CCC in connection with the sale and purchase of land

It is withdrawn, which also can not be subject to division of property due to divorce.

B. As to the above argument by the Defendant, the facts as seen earlier and as indicated in Section A1, 14, 15, 16, 17, 19, 20

21, 27, 28, 29 sets of pleadings as a whole on each set of evidence (including a branch number for those with a serial number)

The purpose of comprehensive review is as follows.

According to the foregoing, BB’s KRW 1 billion between KK on June 5, 2014

The plaintiff entered into an agreement on development with the intent to lend, and on the same day, the key amount of the case

Of the issues of this case, KRW 30 million shall be deposited into the account of KK on June 11, 2014.

Of them, KRW 970 million was deposited into the same account. Each entry in Gap evidence Nos. 1, 27, 28, 29

Comprehensively taking account of the overall purport of the pleadings, KK on June 10, 2014, △△△-gun, Do, Do, Do, Do, Do.

With respect to the land 493-3, the right to collateral security of 1.2 billion won in the future of BB

As the establishment registration is completed, a promissory note of KRW 1.2 billion is issued to the Plaintiff on the same day.

that document is prepared, and as above, the right to collateral security created in the future BB

On August 4, 2014, the registration of transfer has been completed in the future of the plaintiff on August 4, 2014, the status of the plaintiff around May 2015

After applying for an auction on land, on October 20, 2015, 1.2 billion from KK on October 20, 2015.

receipt and withdrawal of such auction is recognized. In light of these circumstances, the said auction shall be withdrawn:

BB entered into a contract with KK, but is in relation with KK.

Recognizing that the Plaintiff was a person who actually provided funds, the Plaintiff

It seems that the right to collateral security was exercised. Also, the transfer of collateral security is in the name of the plaintiff who is the actual right

It seems to be a measure to register.

The Plaintiff asserts as follows with respect to the grounds for divorce, namely, BB from May 2010.

By May 2013, 2013, a written statement of this case and 2 billion won for consolation upon divorce to the Plaintiff.

The amount of consolation money 2 billion won, such as the provisional registration of △△ Land and Building was completed;

BB did not comply with the agreement to pay the source and thus was divorced; however, the case was brought by BB.

The value of the issue amount of KRW 1,419,164,453 and 200 million for the value of the land and buildings of △△△, 1.6 billion

In conclusion, the consolation money and the division of property following the agreement divorce on June 8, 2014 shall be completed as a source.

The agreement (hereinafter referred to as "agreement") shall be prepared, and the division of property according to divorce shall be 1.5 billion won;

The agreement to pay consolation money to KRW 100 million in total and KRW 1.6 billion, and divorce to the marriage ceremony of his/her father and wife.

Divorce on October 17, 2015, after the marriage is completed, on November 2, 2015.

As seen earlier, the contents of the letter of this case are as follows.

by agreement between the plaintiff and the BB from May 2010 to May 2013, 2013

under clear condition that BB was divorced upon the Plaintiff through the preparation of the instant notes

The parties agree to pay consolation money of KRW 2 billion and the issues amount of this case and △△

It is recognized that the above building actually fulfilled a substantial part of the above agreement. Gap evidence No. 15

According to each description of the evidence Nos. 1, 2, and 27, BB for land and buildings of △△△, in the future of the plaintiff

On July 10, 2006, before the completion of the registration of transfer of ownership, the right to claim the transfer of ownership in the future.

Provisional registration was completed, and it is recognized that the father's father and wife's father and wife were married on October 17, 2015.

In light of these circumstances, the Plaintiff and BB signed an agreement on June 8, 2014 and signed by them on June 8, 2015.

11.2. The Plaintiff’s above assertion as to the circumstance where the divorce procedure is completed is acceptable.

section 1.

As seen earlier, BB may prepare a written statement of this case and effect divorce against the Plaintiff.

It is recognized that the parties agreed to pay consolation money of 2 billion won. On the other hand, division of property at divorce.

The system is essentially liquidation of common property formed through mutual cooperation during marriage.

The nature, the financial difficulty of the other party, the supporting character of the other party, shall be complementary;

Constitutional Court Order 96HunBa14 delivered on October 30, 1997(see Supreme Court Order 96HunBa14 delivered on October 30, 199)

In light of the above, BB’s written statement of this case and consolation money for divorce to the Plaintiff

The agreement to pay a KRW 2 billion shall be prepared on June 8, 2014, and an agreement shall be prepared on the plaintiff.

Property division of 1.5 billion won, consolation money of 100 million won, and 1.6 billion won in total due to divorce;

Even if agreed, it shall be paid a solatium of KRW 2 billion in the previous and its basic nature.

Divorce, consolation money, and division of property for other purposes, are not significantly different.

It is difficult to see that BB is the most likely to be the case. In addition, since February 1993, BB was living separately with the Plaintiff.

Even if aa acquired land after 2003, such support as the division of property

In light of the nature of the agreement on June 8, 2014, property division of aa land at the time of preparation of the agreement.

It cannot be said that the subject is no longer impossible or not allowed.

The plaintiff asserts as follows with respect to consolation money and division of property. In other words, on June 8, 2014

The net assets of BB at the time of the preparation of the agreement and November 2, 2015, approximately 10.987 billion won at the time of divorce.

Property division among the net assets of BB, the Plaintiff’s net assets amounting to approximately KRW 249 billion.

The subject shall be deemed to be five billion won, and 1.5 billion won, whichever is 30% of them, shall be transferred to the Plaintiff;

It is agreed that the consolation money shall be paid KRW 100 million. Gap, 14, 15, 16, 17, 19, 20,

The plaintiff's assertion that each entry of heading 21 (including number 21) is included.

consistent, the plaintiff and BB filed a marriage report on June 12, 1981 and between them, 1982.

Married, 1984, and the birth of the father and the father and the BB have been married from February 1993.

BB on the other hand, a de facto marital relationship with another woman;

As seen earlier, the property division system at the time of divorce has been maintained.

(b) the nature of the liquidation of the common property formed through mutual cooperation between the parties during the marriage; and

The support nature to the other party in difficult circumstances is complementary to this situation.

In light of the foregoing, on June 8, 2014, between the children of 32 years of age or 30 and the Plaintiff and BBB

Property division 1.5 billion won, consolation money 100 million won, to the extent that it is not reasonable.

It is difficult to see that it is too large or merely a means to avoid taxes.

(d) Evasion of disposition on default;

(1) As seen earlier, the Defendant: (a) KRW 1,419,164,453 of the key issues of the instant case is BB.

The Plaintiff asserts that the disposition on default was made with the intent to avoid the disposition on default.

Party A’s 22, 23, 24, 30 No. 4, and 4

5 The purport of the whole pleadings as to each entry of evidence (including branch numbers)

Comprehensive review is as follows.

As seen earlier, BB (attached Form 1 to 5) in the land Aa (attached Form)

CCC sales a price of KRW 1.24 billion to 1.2 billion on October 8, 2012

CCC is the representative director, and a (attached Form) Nos. 6 through 8 of the land

The contract to sell 4.25 billion won to LLL Co., Ltd. at 4.25 billion won

Done as of October 18, 2012, as of October 18, 2012, according to the evidence A Nos. 22 and 23, BB

CCC on August 16, 2012, prior to the date set by CCC, for a land

The transfer income tax on the transferred land shall be paid by CCC in the presence of BB.

(BB) and CCC as of October 11, 2012

It is recognized that the content of the “written confirmation” includes the content thereof. In light of these circumstances,

On July 5, 2013, BB would avoid the disposition on default of capital gains tax at the time of deposit of the issue amount of this case.

It is doubtful whether it is necessary to consider measures or measures separately.

As seen earlier, CCC 1.4 billion won in the future 1.4 billion won in connection with a transaction of aa land

On July 5, 2013, 2013, the Plaintiff deposited KRW 19 million, and BB deposited the deposited money and deposited by BB.

The key amount of this case deposited KRW 1,419,164,453 in △ account. The evidence Nos. 4 and 5

According to the record, on December 2, 2013 and December 10, 2013, BB on the transfer of a land

for the transfer income tax of 2009 KRW 648 billion for the transfer income tax of 2009, KRW 68 billion for the transfer income tax of 2012

The amount of KRW 359 million is notified, and on April 1, 2016, the transfer income tax for BB accrued in 2012.

It is recognized that approximately KRW 100 billion has been additionally notified. In light of these circumstances, the fact that such additional notice is given:

BB has yet to be at the time of July 5, 2013, when the Plaintiff deposited the issue amount in this case into the Plaintiff’s insurance account.

The transfer income tax has not been notified, and as seen earlier, ‘a two-party statement of performance' and ‘a letter of confirmation' are written.

BB separate measures or means to avoid disposition on default of capital gains tax;

Inasmuch as there is doubt as to whether it is necessary to take such measures, it was deposited into the Plaintiff’s insurance account on July 5, 2013.

It is difficult to conclude that the issue amount was the purpose of evading disposition on capital gains tax in arrears.

As seen earlier, BB Aa land CCC and LL

Done at October 8, 2012 and October 18, 2012. A

According to the statements of Nos. 24-1, 2, and 30, the head of Pyeongtaek-si Tax Office as above.

BB Based on the transfer income tax notified to BB, etc., the BB pursuant to the above contract by September 18, 2014

Attachment of a purchase claim against CCC and LL Co., Ltd. and 2018

2. It is recognized that, until then, approximately KRW 965 billion has been paid out of the capital gains tax.

In light of these circumstances, the key issue amount of this case that BB deposited in the Plaintiff’s insurance account.

In addition, it was not possible to pay the transfer income tax on aa land due to the absence of property.

It is difficult to see it.

Comprehensively taking account of the foregoing written evidence, BB on July 5, 2013, to the Plaintiff’s △ account.

It is recognized that the deposit of the issue amount was for the purpose of evading the disposition on default of capital gains tax.

It is difficult to do so.

On the other hand, when BB deposits the issues of this case into the Plaintiff’s insurance account

If the consolation money and the division of property have been deposited by divorce, it cannot be deemed that the amount is reasonable.

(2) If the transfer income tax is not so excessive as to be paid in advance, the transfer income tax shall be paid in advance

Even if the purpose of disposition on default is to avoid disposition on default, consolation money and division of property

It is not the consolation money and the division of property solely for the purpose of avoiding the disposition on default.

It can not be regarded as simple donation.

4. Conclusion

In full view of the above, KRW 1,419,164,453 of the issue amount of the instant case shall be BB.

It is reasonable to pay consolation money and division of property to the plaintiff according to divorce.

It cannot be said that it is so excessive or merely a means to avoid a tax;

It can not be subject to gift tax. Accordingly, BB cannot be subject to gift tax in this case.

The instant case imposing gift tax on the Plaintiff by deeming that the key amount was donated to the Plaintiff.

Dispositions are illegal.

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case will be accepted for reasons.

The judgment of the first instance court dismissed the plaintiff's claim on the contrary of this conclusion, and thus, the judgment of the first instance.

The plaintiff's claim shall be cancelled and accepted.

AA

BB Director of the Tax Office

Suwon District Court Decision 2017Guhap1453 Decided August 21, 2018

on 019.21 06

oly 23, 2019

1. Revocation of a judgment of the first instance;

The Defendant’s disposition of imposition of gift tax of KRW 271,602,670 against the Plaintiff on April 1, 2016 is revoked. 2. The total cost of the lawsuit is borne by the Defendant.

The same shall apply to the order.

1. Imposition of gift tax;

The following facts are not disputed between the parties, or acknowledged by considering the overall purport of the pleadings as a whole in each entry of Gap evidence of Nos. 1 through 12, 15, 16, and Eul evidence of No. 1 and 2 of No. 1 and 2 of this Act (including the number of pages):

[1]

On June 12, 1981, the Plaintiff and BB reported their marriage, and among them, they were born between the married couple in 1982 and the married couple in 1984. Since February 1993, the Plaintiff and BB moved away from around February 1993, while BB maintained de facto marital relationship with other women.

From May 2010 to May 2013, 2012, BB made six written notes to the Plaintiff. Each written statement contains that BB shall pay the Plaintiff a solatium of KRW 2 billion upon divorce (hereinafter referred to as “each written statement of this case”).

BB deposited KRW 1,419,164,453 in the Plaintiff’s △ account on July 5, 2013, and completed the registration of ownership transfer on August 2, 2013 with respect to the land and building 118-3 land and building in ○○ △-Gun, △△△-gun, △△△-gun, △△△-gun on August 2, 2013 (hereinafter referred to as “instant entry amount”).

[2]

BB entered into a development agreement with KK Agricultural Partnership (hereinafter referred to as "KK") on June 5, 2014 to lend KRW 1 billion, and the Plaintiff deposited KRW 30 million out of the dispute amount in the account of KK.

On June 8, 2014, the Plaintiff and BB drafted the “Agreement on Property Division” following the divorce. The agreement states that BB shall pay the Plaintiff a property division of 1.5 billion won, consolation money of 100 million won, and a total of 1.6 billion won.

On June 11, 2014, the Plaintiff deposited KRW 970 million out of the key amount of the instant case into the account of KK.

BB on September 30, 2015, filed an application for confirmation of divorce between the agreement and the agreement with the Suwon District Court (2015 Gong960), and the Plaintiff and the BB were divorced upon confirmation on November 2, 2015 / [3]

The Defendant identified that BB deposited the key amount in the Plaintiff’s account on July 5, 2013, while conducting a follow-up investigation on the disposition of arrears against BB, and determined that BB made a donation to the Plaintiff for the purpose of evading the disposition of arrears.

Accordingly, on April 1, 2016, the Defendant imposed gift tax of KRW 271,602,670 (including additional tax) on the Plaintiff (hereinafter referred to as “instant disposition”).

2. Summary of the plaintiff's assertion

BB’s key amount of KRW 1,419,164,453 of this case, which was deposited in the Plaintiff’s insurance account on July 5, 2013, was paid consolation money and division of property from BB based on divorce between the Plaintiff and the Plaintiff’s agreement under each of the instant agreements. This is a reasonable amount of consolation money and division of property, and is not a means to avoid BB’s tax.

Therefore, the disposition of this case on which BB imposed gift tax on the Plaintiff by deeming the key amount of this case to be donated to the Plaintiff is unlawful, thereby seeking its revocation.

3. Determination

A. Where a divorce has been established by agreement between the parties intending to resolve the marital relationship with the gift tax and the gift tax Act, the divorce cannot be deemed to have no intention to divorce between the parties, and special circumstances should be acknowledged to deem that the divorce would be null and void as a divorce. Moreover, division of property following divorce shall not be deemed a transfer of property without compensation, insofar as the divorce is deemed null and void as it is the one whose main purpose is to liquidate the actual common property acquired by the husband and wife during the marriage, and thus, it shall not be subject to gift tax in principle, unless the divorce is deemed null and void. Provided, That where there are special circumstances to deem the substance of the divorce as gift due to the fact that it is too excessive to the extent that it cannot be deemed reasonable contrary to the purport of Article 839-2(2) of the Civil Act, and it is merely a means to avoid taxes, such as inheritance tax or gift tax (see Supreme Court Decision 2016Du58901, Sept. 12, 2017).

(1) According to the facts found earlier, BB prepared six of the instant statements to the Plaintiff from May 2010 to May 2013, 2013, and each written statement states that BB shall pay consolation money of KRW 2 billion upon divorce to the Plaintiff. Examining more specifically the contents of each written statement of this case, the following are as follows (each evidence Nos. 2 to 7).

As of May 25, 2010: Each letter of May 25, 2010: BB-owned A. BB-owned BB B-B-B- bb, ci.e., approximately 27,250 square meters (hereinafter referred to as “a land”) within the prompt time, and shall be paid as consolation money for divorce to the Plaintiff. The Plaintiff shall immediately agree upon the receipt of the said money.

As of June 10, 201: Each letter as of June 10, 201: A does not sell and purchase the land, and each letter as of November 2, 201, if the promise is not performed by the end of October, 201, shall be paid in preference to KRW 500 million. Each letter as of November 2, 201: as of November 30, 201, a letter is not made, and if the promise is not performed by May 30, 2012, a letter shall be paid in preference to KRW 500 million. Each letter as of July 24, 2012: (a) each of the following forms: (b) each of the following documents were not made due to the lack of attendance, but comply with the said promise by September 30, 2012; (c) each of the following documents must be given up to KRW 200 billion until March 30, 2013, the Plaintiff shall be free to waive all the rights to each of the land as of the Plaintiff.

On May 30, 2013: Each letter of May 30, 2013: CCC’s lawsuit is pending and thus aa land cannot be transferred to the head. Accordingly, the Plaintiff promises to transfer the land and buildings 118-3 in ○○○○ △△-gun, △△△△△-Gun (hereinafter “△△△△”) in the name of the owner, and to recover KRW 1.419 billion deposited by CCC and to pay the Plaintiff. The Plaintiff must comply with the divorce without any other condition, as the said promise was made.

BB’s payment of consolation money of KRW 2 billion to the Plaintiff according to divorce for about three years, it is confirmed that the payment of consolation money of KRW 2 billion has been repeated by disclosing the specific implementation method according to the progress and change of the relevant situation for three years, and the details thereof are related to the situation before and after.

Meanwhile, according to the above facts of recognition, while the Plaintiff and BB moved separately from February 1993, and while BB maintained a de facto marital relationship with other women, it is difficult to say that the Plaintiff and BB agreed to divorce at around May 201, where the Plaintiff and BB were separated from each other and around 17 years since they left, and they agreed to divorce. In addition, it is difficult to view that BB’s agreement on the payment of consolation money or the division of property for divorce to the Plaintiff, while recognizing the liability for the failure of marital relationship, is an exceptional case.

In light of the above circumstances, it is difficult to conclude that the contents of the written statement of this case are false to disguise divorce or payment of consolation money.

Article 25(1) of the Civil Code No. 1 of the Civil Code No. 1 of the Civil Code No. 1 of the Civil Code No. 1 of the Civil Code No. 2 of the Civil Code No. 2 of the Civil Code No. 1 of the Civil Code No. 2 of the Civil Code No. 2

According to the evidence Nos. 2 and 7 evidence Nos. 1 and 2, it is recognized that the six pieces of this case, each of which BB written from May 2010 to May 2013, 2013, were accompanied by the BBB’s certificate of seal impression issued on the date of its preparation. In light of the period of preparation and the date of issuance, it is difficult to view that the six pieces of this case were prepared en bloc or falsely prepared on a retroactive basis. Each of the six copies of this case, each of which was first prepared on May 25, 2010, stated that BB sold the land owned by BB to the Plaintiff and paid KRW 2 billion for consolation money for divorce to BB. In light of the evidence Nos. 1, 13, 14-1, 2, 3, 16-2, 3, 4, and 26-2, 200 million won, and each of the appraisal values No. 201, B, 2013.

Of the instant notes, each of the instant notes states that BB shall preferentially pay KRW 500,000 to the Plaintiff because no purchase and sale of the land was made on June 10, 2011, and each of the instant notes dated July 24, 2012. In each of the notes dated October 8, 2012, where 200,000 won is not paid until March 30, 2013, the statement states that BB shall transfer the land to the Plaintiff. According to the evidence Nos. 1, 17-1, and 18, in light of the fact that BB continues to sell the land among the land Nos. 1, 5, 200,000,000 won to CCC (attached Form 1,240,000,000 won) to the Plaintiff, the representative director is deemed to have made an effort to sell the land to BCC as the price of KRW 1,500,000,00 to the Plaintiff.

The last written statement of May 30, 2013, which was prepared in each of the instant statements, contains the following: (a) the CCC’s lawsuit was pending in each of the instant statements; (b) the transfer of land A to the Plaintiff is not possible; and (c) the CCC’s transfer of land and buildings instead stated that KRW 1.419 billion should be paid to the Plaintiff after finding out KRW 1.41 billion deposited by the CCC. According to the respective statements of evidence Nos. 1, 15-1, 2, 17-2, 19-1, 2, 19-2, 19-1, 2, 3, and 19-2, 19-2, 19-1, 2, and 19-3, the CCC deposited KRW 1.419,164, 453, and 2013 to the Plaintiff’s account on July 5, 2013; and (d) the Plaintiff’s transfer registration of ownership was made to the Plaintiff’s land and △.

In full view of the foregoing, as seen earlier, BB cannot be deemed to have pretended to pay divorce or consolation money to the Plaintiff from May 2010 to May 2013, 201, and according to the contents of the respective text of this case, the Plaintiff and BB from May 2010 to May 2013 agree to pay consolation money of KRW 2 billion upon divorce to the Plaintiff through the preparation of the instant text of this case, while both the Plaintiff and BB have clearly expressed their intent to divorce. It is recognized that BB actually performed the said agreement with the key amount of this case, △△△△△△△ and building.

C. The key amount of the instant case

(1) As seen earlier, the Defendant: (a) deemed that BB donated to the Plaintiff for the purpose of evading the disposition on default; and (b) rendered the instant disposition imposing gift tax on the Plaintiff.

The Defendant asserts as follows with respect to the instant issues. In other words, in light of the fact that BB entered into a development agreement with KK to lend KRW 1 billion on June 5, 2014 and it was established by himself/herself, the instant issues amount cannot be deemed as consolation money or division of property due to divorce, and BB’s objection to the Plaintiff’s insurance account on July 5, 2013.