Seocho 2015 Schedules-2472 ( December 28, 2016)

The time of acquisition of assets through private donation shall be the date the inheritance commences.

Since it is reasonable to see that the father of the plaintiff's father donated the land of this case to the plaintiff, the acquisition time of the land of this case by the plaintiff is the date of commencement of inheritance, which can be viewed as acquiring ownership

Article 98 of the Income Tax Act and Article 162 of the Enforcement Decree of the Income Tax Act

2017Gudan8753 Revocation of Disposition of Imposing capital gains tax

KimA

BB Director of the Tax Office

October 31, 2017

November 28, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 00,000 (the amount stated in the complaint’s claim is clear that it is a clerical error) for the transfer income tax for the year 2010,000,000, which belongs to the Plaintiff on December 16, 2014.

1. Details of the disposition;

A. On September 3, 2010, the registration of transfer was completed on the ground of "the donation on January 6, 1982, 1982" with respect to the land of 1151-2 square meters and 430 square meters prior to the same 1151-3 square meters (hereinafter referred to as the "land of the above two parcels") in the case of the ZZ owned by the father Kim J (the deceased on January 6, 1982, hereinafter referred to as the "the deceased").

B. On September 14, 2011, the Plaintiff completed the registration of ownership transfer with respect to the instant land to KimS, but did not report the transfer income tax.

C. On January 6, 1982, the Defendant converted the acquisition value as of January 1, 1985, which was the date of fictitious acquisition, to the Plaintiff on December 16, 2014, on the ground that the Plaintiff received a private donation from the Deceased, and imposed KRW 00,000,000 on the Plaintiff on December 16, 2014 (hereinafter “instant disposition”).

D. The Plaintiff filed the instant lawsuit following the pre-trial procedure.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was donated the instant land from the Deceased on February 10, 1981. As such, the time of acquisition of the instant land is September 3, 2010 when the registration of the said land was completed. Accordingly, the instant disposition made on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Table related statutes.

C. Determination

1) In calculating gains on transfer of assets, Article 98 of the Income Tax Act provides that "the time of acquisition and time of transfer of the assets shall be the date of liquidation of the price of the assets except in cases prescribed by Presidential Decree, such as where the date of liquidation of the price is unclear." Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 25193, Feb. 21, 2014; hereinafter referred to as "former Enforcement Decree of the Income Tax Act") provides that "the time of acquisition and time of transfer under Article 98 of the Act shall be the date of liquidation of the price of the assets except in cases falling under any of the following subparagraphs."

Each of the above provisions is understood as determining the time of acquisition and transfer of assets in principle at the time of acquisition of ownership in order to exclude taxpayers and uniformly understand taxable income and achieve the fairness of taxation. Thus, even if assets are acquired through testamentary gift or private donation, "the date of commencement of inheritance, which can be deemed as having been actually acquired due to the occurrence of the effect of testamentary gift, etc., unless otherwise provided," is the time of acquisition of assets. However, in light of the fact that the Civil Act recognizes the grounds for revocation of the donation contract as broad compared to the general contract, and in particular, in cases of non-written donation, it is not easy to objectively understand the date of the donation contract, it is reasonable to view that "the date of registration" would become the time of acquisition of assets as "the date of receipt of donation" under Article 162 (1) 5 of the former Enforcement Decree of the Income Tax Act if assets requiring registration prior to the right are acquired through donation (see Supreme Court Decision 2011Du894, Mar. 29, 2012

2) According to Eul evidence Nos. 2, 4, and 5, the plaintiff prepared and submitted to the Z District Court (2009Gadan21132) on Nov. 13, 2009 the plaintiff's title transfer registration procedure against the deceased's heir was implemented on Jan. 6, 1982 after filing a lawsuit against the inheritor's heir's share of inheritance among the land of this case, and was sentenced to a judgment in favor of the above court on Jun. 25, 2010. The above judgment became final and conclusive on Jul. 24, 2010. In the above lawsuit, the deceased's heir, one of the deceased's heir, was to donate the land of this case to the plaintiff on Nov. 12, 2009; the plaintiff's death on Sep. 16, 2010, the plaintiff accepted the ownership transfer registration of the land of this case on the ground of the deceased's death.

Therefore, the disposition of this case by the defendant converted the acquisition price as of January 1, 1985, the date of acquisition of the land in this case, to be seen as January 6, 1982, and the date of acquisition of the land in this case was lawful.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.