early 2013west0621 ( April 28, 2013)

The disposition that deemed that the plaintiffs donated part of the funds to acquire real estate of this case from the father is legitimate.

Although the plaintiffs asserted that the fact that the plaintiffs acquired real estate from their father was not donated to them, the plaintiffs do not recognize the credibility and reliability of their claims.

Article 41 of the Inheritance Tax and Gift Tax Act

2013Guhap178555 Revocation of Disposition of Imposing gift tax

1.PA 2. MaximumB

The director of the tax office.

November 15, 2013

January 10, 2014

1. Each of the plaintiffs' claims is dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

On January 1, 2012, the Defendant revoked each part of the imposition of the gift tax by the Plaintiff LA, which exceeds the OOOO(including additional tax), and ② the imposition of the gift tax by the Plaintiff LB, which exceeds the OOO(including additional tax).

1. Details of the disposition;

A. (1) On February 27, 2010, Plaintiff LA purchased D apartment 202 (hereinafter referred to as “1 apartment”) located in OOO-dong 1-11 OO-dong 1-2 (hereinafter referred to as “OO-dong 1 apartment”) jointly with YA (Plaintiff LA 2/3 shares, Plaintiff LA 1/3 shares, Plaintiff’s spouse).

(2) On April 11, 2008, Plaintiff LB purchased O2 OE apartment Nos. 203 501 (hereinafter referred to as “O2 apartment”) from OOB on April 11, 2008.

B. From August 31, 2011 to November 28, 2011, the director of the Seoul Regional Tax Office determined that: (a) the personal tax integration survey on the maximum FF, the father of the plaintiffs, conducted the investigation on the source of financing (from January 1, 2004 to December 31, 2010) against the plaintiffs; and (b) the "Plaintiff LA was donated by the OOOO out of the acquisition fund of the first apartment, and the Plaintiff B was donated by the OOOOO out of the acquisition fund of the second apartment."

C. On January 1, 2012, the Defendant received the above notification from the director of the Seoul Regional Tax Office, and decided and notified the Plaintiff LA on January 1, 2012, OOO(including additional taxes) and OOB(including additional taxes) of gift tax (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal on June 4, 2012, but was dismissed by the Tax Tribunal on April 5, 2013.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2 (including additional numbers), Eul evidence 1, 2, 15, 16, 17, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(1) Plaintiff LA’s assertion

Plaintiff LA shall prepare and deliver to the highest F, an OOO's Notarial Deed, and pay OO's won on October 31, 201, and on January 26, 2012, Plaintiff LA must cancel the part exceeding the amount of OO's gift tax (including additional tax) among the amount of O's gift tax on Plaintiff LA's maximum amount of O's gift tax (including the amount of tax calculated by deducting the amount of O's gift tax equivalent to O's total amount).

(2) Plaintiff ChoiB’s assertion

On May 23, 2008, the Plaintiff LB borrowed OO members from GG Co., Ltd. (FF is the representative director; hereinafter referred to as the “GGG”), paid OO members, and repaid the remainder OO members to the MF on March 2010.

In addition, inasmuch as Plaintiff LB’s lawsuit for revocation of the gift tax imposition (this court 2010Guhap14787) on February 12, 2009, it was judged that there was no cause for the payment of OOO members, it was appropriated in accordance with the legal principles of statutory appropriation under the Civil Act. Therefore, the portion in excess of the amount of the amount of the gift tax corresponding to OOB among the amount of the gift tax OO members of Plaintiff LB should be revoked.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Business entities operating the Plaintiffs and the largest FF

(A) The business entities operating the Plaintiff LA and UAA are as follows.

See Table 4 see Court Decision 4

(B) The Plaintiff’s most BB business entity is as follows.

See Table 4 see Court Decision 4

(c)The entities operating the least amount of the FF operations are:

See Table 4 see Court Decision 4

(D) From around 2008, FF newly constructed and sold OO-Gu OO-dong 177-12 and JJ apartment (hereinafter referred to as “JJJ”) on two parcels of OO-si O-dong O-dong 177-12.

(마) 최FF은 원고 최BB의 계좌로, 2008. 5. 9. KK빌딩의 임차인인 허LL으로 하여금 임대차보증금 OOOO원을, 2008년경 KK빌딩의 관리인인 김MM으로 하여금 KK빌딩의 임대료를, 2007, 2008년경 강NN, 오PP, 최QQ, 김RR로 하여금 JJJ의 분양대금을 각 송금하게 하였다.

(2) As to the Plaintiff LA

(A) From March 23, 2009 to January 29, 2010, Plaintiff LA and LF lent OOO members in total as operating funds to the reconstruction association established by XX, Inc.

(B) On February 27, 2010, Plaintiff LA and U.S. entered into the following sales contract with respect to SS, AT, ET, EU, EV, EV, W and the first apartment company:

Article 1 (Sales Amount)

The purchase price of the first apartment shall be KRW OO.

Article 2.(Conditions of Prohibition of Sale and Purchase)

1. From March 23, 2009 to January 18, 2010, the buyer or interested person deposits into one bank account (O-O-O-O-O-O-OO-S deposit account) before the remainder payment is made as part of the down payment and intermediate payment under this contract.

Article 4

1. The share ratio of the purchaser of this real estate shall be 2/3 of the plaintiff lowestA, while 1/3 of the purchase shall be the share ratio of the regularCC.

(C) On March 9, 2010, Plaintiff LA and PCC prepared a loan certificate with the largest FF as follows, and obtained the fixed date at the Seoul Central District Court.

OOOO

From March 23, 2009 to March 6, 2010, at the time of the purchase of the house, the plaintiff lowest A and PCC shall repay the loan regularly and as long as the funds are permitted, and at the time of the sale and purchase of the house at present, the plaintiff lowest A and PCC shall confirm that the loan will be repaid immediately.

(D) On May 20, 201, Plaintiff LA sold OO-Gu OO-dong 985-15 Y 401 to OO-O-O-O-O-dong.

(E) On October 31, 201, Plaintiff LA paid to the largest F, OOO on January 26, 201, and OOOO on January 26, 201.

(f) On November 201, 201, Plaintiff LA explained the funding sources as follows in the course of tax investigation.

m. Acquisition property and funds

○ Apartment [including OOOwon (including acquisition tax and OOOwon) on March 12, 2010]

- OOOO members (rent F) of the reserve amount set up on March 23, 2009 (hereinafter referred to as "minimum amount"), March 6, 2010;

(3) As to Plaintiff LB

(A) On April 11, 2008, Plaintiff LB purchased No. 2 apartment units at OOO on April 11, 2008, and completed the registration of ownership transfer on May 23, 2008.

(B) On May 23, 2008, the Plaintiff LB received OOO members from GG, and paid OO members in total to GG from May 30, 2008 to June 17, 2008. On the account of GG, OO members were the maximum amount of provisional payment, and OO members were appropriated as the amount of provisional payment collection.

(C) On March 29, 2010, Plaintiff LB borrowed OO(OO) from Han Bank Co., Ltd., and paid OO(OO) on March 30, 2010, respectively.

(D) On November 201, 201, Plaintiff LB explained the funding sources as follows in the course of the tax investigation.

m. Acquisition property and funds

○ 2 Apartments [including OOOwon (including OOOOwon) on May 28, 2008

(1) The sales contract price for apartment on April 11, 2008 and the OOO of the apartment.

Maximum FF remitted down payment OOOO won, and OOO won of the remitted amount on February 16, 2007

(G) The amount of money remitted on April 11, 2008 (the purchase price of an apartment) and the amount of money remitted on April 25, 2008 (the amount of money withdrawn) is the amount of OOO won.

(2) On May 13, 2008, the Republic of Korea shall have the OOO of the income amount of Z insignias.

(3) The part payments of the sale of apartment on May 13, 2008 OOOE

(4) The remainder of the sale of an apartment on May 29, 2008 OOO

(5) On May 30, 2008, the OOO of the new life insurance proceeds.

6. Loans of Han Bank Co., Ltd. on June 17, 2008 OOO2 (unrepaid)

* Withdrawal of the check including the balance of apartment sale, and payment of the balance was made, and the debt out of the sale price of the apartment owned by the former has been repaid by the Marner passbook.

Total OOOO

(4) Seoul Regional Tax Office on December 27, 201 - See 7 pages of its decision

(5) Relevant litigation

(A) From October 28, 2008 to December 5, 2008, the head of Samsung Tax Office conducted an individual entrepreneur’s consolidated investigation into the Plaintiff’s “ZZ” with respect to the “ZZ” operated by the Plaintiff LB, and notified the Defendant of the taxation data that “the Plaintiff’s most BB and the △△△△△△△ (the Plaintiff’s penalty) received cash donation from the largest FF, including the ZF’s acquisition fund and operating expenses.”

(나) 피고는 2009. 2. 12. 원고 최BB에게 "허▲▲로부터 OO시 OO구 OO동 1264 외 3필지 ▽▽▽프라자 제503호(이하 '상가 503호'라 한다)를 매수하면서 허▲▲의 최FF에 대한 근저당권부 피담보채무 OOOO원을 매매대금의 일부 지급에 갈음하여 최FF으로부터 OOOO원을 수증하였다."라는 이유로 증여세 OOOO원을 부과하였다.

(C) Accordingly, Plaintiff B filed a lawsuit seeking revocation of gift tax imposition on March 26, 2010. However, on July 1, 2010, the Seoul Administrative Court (2010Guhap14787) rendered a dismissal judgment, respectively, and the Seoul High Court (2010Nu24243) rendered a judgment dismissing the appeal on April 29, 201. The foregoing judgment became final and conclusive as the waiver of Plaintiff B’s final appeal on May 26, 2011.

(라) 원고 최BB은 위 소송에서 "허▲▲로부터 상가 503호를 매수하면서 근저당권부 피담보채무 OOOO원을 인수하였고, 2010. 3. 30. 최FF에게 변제하였다."고 주장하면서 아래와 같은 최FF 작성의 2010. 3. 30.자 영수증을 제출하였다.

[Reasons for Recognition] Each entry of Gap evidence Nos. 3 through 12 (including paper numbers), Eul evidence Nos. 3 through 10, 12, 13, 14, 19 through 23 (including paper numbers), and the purport of the whole pleadings

D. Determination

(1) Generally, in a lawsuit seeking the revocation of a tax imposition disposition, the tax requirements should be the burden of proof to the imposing authority. However, if the facts alleged in light of the empirical rule in the specific litigation process are revealed, it cannot be readily concluded that the other party is an unlawful disposition that fails to meet the taxation requirements, unless the other party proves that the facts at issue are not eligible for the application of the empirical rule (see Supreme Court Decision 87Nu811, Dec. 22, 1987). Accordingly, since the fact that the acquisition fund was raised from the highest FF, a third party, is recognized, the circumstances against the Plaintiffs should be asserted and proved.

(2) As to the Plaintiff LA

The fact that Plaintiff LA, on March 9, 2010, prepared and issued a receipt of a loan certified by the last FF, and that he/she remitted the total amount of OO on October 31, 201 and January 26, 2012 is recognized.

① However, in light of the fact that the head of Samsung Tax Office conducted a tax investigation with respect to Plaintiff LB in 2008 and imposed gift tax on Plaintiff LB on February 12, 2009, the lawsuit seeking the revocation of the revocation of the imposition of gift tax was in progress from March 26, 2010 to May 26, 2011, notarial deeds are deemed to have been prepared in preparation for the disposition imposing gift tax, such as Plaintiff LBB, and the time of transfer: ② Plaintiff LA appears to have been leased income, such as the source of public notice, (i) Plaintiff LA appears to have been made (the spouse CC also has business income); (ii) Plaintiff LA was made from August 31, 201 to Plaintiff LB; (iii) Plaintiff 1 was not able to urge Plaintiff LA to perform the tax investigation with respect to the transfer of funds from 200 on October 31, 201; and (iv) Plaintiff 1 was not aware of the form of repayment by account transfer.

Therefore, it is reasonable to view that the authentication of a loan certificate was made in a false way to avoid gift tax in the future, and that the donation of an OOO won was made in a conclusive manner at the time of payment (the taxation claim is established as a matter of course, and the tax claim shall be returned for other reasons after the donation shall not affect the exercise of the tax claim, even if it was returned for other reasons after the donation). Thus, it cannot be deemed that it was unlawful by the remittance of an OOO member made after the donation.

(3) As to Plaintiff LB

The fact that Plaintiff LB used the acquisition fund with OOO from GG, and returned OOOO, and paid OOOO on March 29, 2010 to the largest F, is recognized.

① However, GG’s accounting process: (a) it is difficult to view that the maximum amount of the FGF to be repaid to GG, even if it was appropriated as the provisional payment for the FGF; (b) it is not in accord with the maximum amount of payment for GGG, even if it was paid to the FF for repayment; (c) the Plaintiff’s maximum amount of payment was claimed as the interest for the defective amount of OB but did not provide reasonable explanation; (d) it is difficult to conclude that the Plaintiff’s maximum amount of payment was received from the FF as the total amount of JJ, building rental deposit, and cash donation; (e) it is difficult to conclude that the Plaintiff’s maximum amount of payment was appropriated for the payment of the gift tax, in light of the legal principles as to the Plaintiff’s maximum amount of payment for 200 U.S. gift tax in a lawsuit to impose gift tax on February 12, 209.

Therefore, it is reasonable to view that the OOOE was paid falsely to use it as favorable evidence in a lawsuit seeking the revocation of a disposition imposing gift tax as of February 12, 2009, which was in progress at the time, and that the gift to OOE was paid finally at the time of payment (see Supreme Court Decision 87Nu607, Nov. 10, 1987). Therefore, it cannot be deemed that the payment made after the donation was unlawful.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.