Seoul Administrative Court-2013-Gu Partnership-50104 ( November 22, 2013)

Cho Jae-2012-Seoul Government-3918 ( November 29, 2012)

When the ‘right to acquire the ownership of the real estate' has been donated, the time of acquisition of the ownership of the apartment site.

Upon completion of the registration of the entire ownership of real estate, it shall be deemed that the right to acquire ownership of the portion of land, the disposal of which is impossible by law, has been acquired.

Article 4 of the Inheritance Tax and Gift Tax Act (Gift Tax Taxables)

2013Nu53075 Revocation of Disposition of Imposition of Gift Tax

- Appellants

1.A 2.B

1. The head of the Mapo Tax Office;

Seoul Administrative Court Decision 2013Guhap50104 decided November 22, 2013

June 18, 2014

July 23, 2014

1. All appeals by the plaintiffs and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The imposition of the gift tax OOO on August 6, 2012 by the Head of E-Mapo Tax Office against the Plaintiff E-A and the imposition of the transfer income tax OOOOO on August 22, 2012 by the Head of E-Mapo Tax Office against the Plaintiff E-B shall be revoked in entirety.

2. Purport of appeal

A. The plaintiffs

The part against the plaintiffs in the judgment of the court of first instance is revoked. The imposition of the gift tax OOOO on August 6, 2012 by the head of Mapo-gu Tax Office against the plaintiffs in this case and the imposition of the capital gains tax on August 22, 2012 by the head of Mapo-gu Tax Office against the plaintiffs in this case shall be revoked in all.

B. Defendant

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiffs' claim corresponding to the revocation shall be dismissed.

1. Quotation of judgment of the first instance;

This court's reasoning is as follows, except for the addition of the judgment of the plaintiffs and the defendant as to the argument that the plaintiffs and the defendant stressed or re-exploited in this court, and therefore, this court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination

A. Judgment on the plaintiffs' assertion

The plaintiffs asserted that the gift tax and capital gains tax are all unlawful on the premise that this case's real estate is entirely different from this case's gift tax and capital gains tax since "OOOOOO-dong 138 CCC apartment 321 and 506 (hereinafter "the real estate of this case") did not nominal trust with DB, and it is not clear that DB acquired the real estate directly. However, according to the evidence duly adopted by the first instance court, it is sufficient to recognize that this case's real estate of this case was purchased from GaE on October 27, 1997 by this case's purchase to Ga and was made under the name of DB, and it is sufficient to consider that this case's testimony of Kim F, a witness of the first instance court, was made under the name of DD. It is difficult to view this part of the plaintiffs' assertion as being different from the evidence submitted by the plaintiffs in the first instance court."

The Defendant asserts that Article 23(1)1 of the Inheritance Tax and Gift Tax Act (amended by Act No. 10854, Jul. 14, 2011) provides that the time of acquisition of donated property is the date of registration and enrollment of the property that requires registration and enrollment in the transfer or exercise of the right. As such, the time when the Plaintiff acquired the apartment in this case shall be deemed to be the date of April 26, 201, which was completed not only the exclusive ownership but also the registration of the ownership of the site, and therefore, it is lawful to impose gift tax on the OOO as the tax base assessed on the basis of the above time.

However, as duly admitted by the first instance court, the donation made by the Plaintiff AB from the Plaintiff AB is not itself of the instant real estate, but the right to acquire the ownership of the instant real estate that the Plaintiff B had held in title trust with DD. The Plaintiff A shall be deemed to have acquired the right to acquire the ownership of the instant real estate that was held in title trust by the Plaintiff B, as well as the right to acquire the ownership of the portion of the land that cannot be disposed of separately and legally upon completion of the registration of the ownership of the instant real estate, which is objectively verified by the intention of donation. Accordingly, the Defendant’s assertion

3. Conclusion

Therefore, the plaintiffs' claims shall be partially accepted within the scope of recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in this conclusion, it is eventually dismissed in both the plaintiffs' appeal and the defendant's appeal. It is so decided as per Disposition.