Whether loan bonds are donated or not

Since some of the loan bonds is confirmed to be a separate loan fund, gift tax should be partially cancelled.

Article 2 (Gift Tax Taxables) of Inheritance Tax and Gift Tax Act

1. The part of the disposition imposing gift tax of KRW 126,00,000 on the Plaintiff on January 10, 2005 exceeds KRW 85,40,000 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 65% is borne by the Plaintiff, and the remainder 35% is borne by the Defendant, respectively.

The imposition disposition of KRW 126,00,000, which the Defendant imposed on the Plaintiff on January 10, 2005 is revoked.

1. Details of the disposition;

원고의 전 남편 ○○○가 2002. 4. 13. 서울 XXX XXXX XX 000-0 대지 376.2㎡(○○○ 소유), 서울 XXX XXXX XX 000-0 대지 476.3㎡(○○○ 아버지 □□□소유)와 그 지상건물 446.94㎡(○○○ 지분 1/2, □□□ 지분 1/2)를, ○○○ 지분 25억 원, □□□ 지분 30억 원 등 합계 55억 원에 주식회사△△△△('△△△△')에 양도하면서, 양도대금 중 자신의 지분에 대한 대가인 25억원의 매매대금채권을 원고에게 양도하고 원고가 ○○○에 대여한 25억 원의 대여금채권과 위 25억 원의 매매대금채권을 상계하기로 합의했는데, 피고는 2005. 1. 10. 원고가 ○○○에게 대여했다고 주장하는 25억 원 중 20억 원은 대여한 것으로 인정하되, 나머지 5억 원 중 3억 원은 ○○○가 원고에게 이미 변제했고, 2억 원은 대여사실이 인정되지 않는다고 판단하여 원고가 ○○○로부터 5억 원을 증여받은 것으로 보아 별지 세액계산표 '이 사건 처분'란 기재와 같이 원고에게 증여세 126,000,000원을 부과하는 "이 사건 처분"을 했다.

[Reasons for Recognition] 1, 2, 1, 6

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) As to the repayment of KRW 300 million

The Defendant acknowledged the fact that ○○○○○○○○○○ KRW 1 billion was leased to ○○○○○○○○○○ on November 26, 2001, while ○○○○○○○ KRW 10 million on November 30, 201, excluding KRW 10 million on January 7, 2002, KRW 10 million on January 18, 2002, KRW 45 billion on the following day, and KRW 50 million on April 23, 2002, and KRW 100 million on the day on which the Plaintiff received a separate request from ○○○○○○○○○○○○○○○○○○ KRW 5 billion on the grounds that the Plaintiff received a separate request from ○○○○○○○○○○○ KRW 1 billion on the day when the Plaintiff received a settlement of KRW 100 million on the said day. However, it was determined that ○○○○ KRW 100 million on the day when the Plaintiff received a settlement.

(2) As to the loan of KRW 200 million

원고는 ○○○와 이혼한 후 ◎◎◎와 재혼하여 생활하던 중 서울 XXX XXX 000-0 XXXX 1호와 지층 3호를 임차하여 ○○○○○, ○○ ○이라는 상호로 2001. 11. 14.경부터 2002. 3. 23.까지 영업을 하다가 그 무렵 위 가게를 양도하고 가게 양도의 대가로 받은 4억 2천만 원을 ◎◎◎ 명의의 통장에 보관하던 중 ○○○에게 4억 원을 빌려주었다가 2002. 1. 11에 1억 원, 2002. 1. 18.에 4,500만 원을 원고 명의의 ○○은행 계좌로 변제받았고, 그 외에 5,500만 원을 추가로 변제받아 2002. 4. 13. 당시 2억 원의 채무가 남게 되었으므로, 2억 원의 대여사실을 인정하지 않고 증여세를 부과한 피고의 이 사건 처분은 위법하다.

(b) Related statutes;

○ Gift Tax Taxables under Article 2 of the Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998, and amended by Act No. 7010 of Dec. 30, 2003)

(1) In case where, owing to a donation by a third party (excluding a donation becoming effective upon the death of a donor; hereinafter the same shall apply), there exists donated property on the donation date falling under one of the following subparagraphs, gift tax shall be levied, pursuant to this Act, on such donated property

1. Where a person who acquires property by donation from a third party (hereinafter referred to as " donee") is a resident (including a non-profit corporation, the head office or main office of which is located in Korea; hereafter the same shall apply in this paragraph and Articles 54 and 59), all the donated property received, as a donation, by the resident;

2. Where a donee is a non-resident (including a non-profit corporation, the head office or main office of which is not located in Korea; hereafter the same shall apply in this Article and Articles 4 (2) and (3), 6 (2) and (3), and 81 (1)): all property donated to a non-resident which is located in Korea.

○ Scope of donated property under Article 31 of the Inheritance Tax and Gift Tax Act

(1) Gift property under Article 2 shall include property belonging to the donee, all articles having economic value capable of realizing in money and all de facto or de facto rights having property value.

C. Determination

(1) First, we examine the existence of a loan claim of KRW 200 million.

In full view of the purport of the Plaintiff’s evidence Nos. 1 and 2, the Plaintiff transferred 400 million won to 00 million won, received KRW 170 million and KRW 170 million premium, transferred 80 million and KRW 400 million, and requested the Plaintiff to submit a copy of the passbook on March 20, 202. However, the Plaintiff’s ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 40 million and KRW 400 million on October 22, 2004, the Plaintiff could not accept the Plaintiff’s allegation that the ○○○○○○○○○○○○○○○○○○○○○○ KRW 200 million and that the Plaintiff did not directly claim that the ○○○○○○○○○○.

(2) We examine whether ○○○ has repaid KRW 300 million.

Comprehensively taking account of the purport of the argument set forth in Gap evidence 1, Eul evidence 2, 4, and 9, the plaintiff lent 00 billion won to ○○○○○○○○○○ 803 and 5 other real estate to ○○○○○○○○ 5 billion as collateral and lent 300 million won to ○○○ 5 billion, and ○○ 200 million won was used as its own housing fund and business fund, ○ 5 billion won was transferred to ○○ 105 billion won on January 7, 2002 (the above KRW 10 billion was transferred to ○○ 5 billion on January 11, 2002, and KRW 205 billion was transferred to ○○ 5 billion on account of ○○ 5 billion on account of ○○ 200 billion on account of the above deposit. Thus, the plaintiff cannot be deemed to have lent 200 billion won on account of the above money transfer to ○ 5 billion won on account of 2000 billion.

On the other hand, comprehensively taking account of the purport of Eul's statement 10-2 and witness's testimony, ○○○○○○○○'s loan of KRW 100 billion to the Plaintiff for the purpose of raising the sales price to be returned to ○○○○○○○○○○○○○○○○ upon request on April 23, 2002. The Plaintiff's loan of KRW 150 million to ○○○○○○○○○○○○○○ KRW 5 billion on the day of its passbook and KRW 150 million on the Plaintiff's loan of KRW 100 million on the same day, and the Plaintiff's loan of KRW 400 billion on April 23, 200 to ○○○○○○○○○○○○○’s loan of KRW 5 billion on the above 100 billion on the account of the fact that the Plaintiff did not have any contact with ○○○○○○○’s loan of KRW 200 billion on the same day.

(3) Therefore, the imposition of KRW 150 million on KRW 300 million (i.e., KRW 10 million on January 7, 2002 + KRW 100 million on January 11, 2002 + KRW 45 million on January 19, 2002) and the imposition of KRW 145 million on the remainder, other than KRW 200 million on which the loan is not recognized, is unlawful.

(4) Furthermore, in light of the legitimate tax amount, the total amount of tax calculated is KRW 85,400,000, as stated in the separate sheet for calculation of tax amount, and the portion exceeding KRW 85,400,000, out of the instant disposition, should be revoked as it is unlawful.

3. Conclusion

Thus, the plaintiff's claim is accepted within the above scope of recognition, and the remainder of the plaintiff's claim is not accepted as it is without merit.

The tax amount calculation table (unit: won)

The Disposition of this case

Justifiable Tax Amount

(1) Taxable value of donated property

500,000,000

355,000,000

(2) Tax bases:

500,000,000

355,000,000

(3) Calculated tax amount.

90,000,000

61,000,000

(4) The final tax amount.

90,000,000

61,000,000

(5) Additional taxes

Impossibility of Report

18,000,000

12,200,000

Good Faith in Payment

18,000,000

12,200,000

guidance.

24,400,000

(6) Total determined tax amount (No.4 + No.5)

126,000,000

85,400,000

(7) Tax amount paid.

Voluntary Tax Amount

Original notified tax amount

126,000,000

guidance.

126,000,000

(8) Amount of tax notified after deduction.

-40,600,000

* Calculation Details

(3) Calculated tax amount.

10,000,000 + (355,000,000 - 100,000,000) ☓ 20% = 61,000,000

(5) Additional taxes

Fidelity in filing a report.

Amount of insufficient report

계산식 : 신고불성실가산세 = 증여세 산출세액 ☓ ------------ ☓ 20%

Determination Tax Base

355,000,000

0

355,000,000

Fidelity in payment.

○ Donation Date: April 13, 2002

○ Time Limit to report gift tax: July 13, 2002

A date when one year has elapsed from the filing deadline: July 13, 2003

○ Date of notice of gift tax: January 1, 2005

○ The number of days elapsed on or after July 14, 2003: 537 days = 170 days = 170 days ( July 14, 2003 - December 31, 2003) + 366 days (2004) + 1 days ( January 1, 2005)

Article 78 (2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002) (amended by Act No. 6780, Dec. 18, 2002) which was applied as of July 14, 2002, when the tax amount to be paid under Article 70, is not paid within the time limit for report, or is paid below the tax amount to be paid under the tax base determined under Article 76, the director of the tax office, etc. shall add to the calculated tax amount the sum of the amounts under each of the following subparagraphs to the unpaid tax amount (in case where an application for annual payment or payment in kind is made under Article 71 or 73, including the tax amount not permitted for such annual payment; hereafter in this paragraph, referred to as the “unpaid tax amount”). In this case, the amount to

1. Where there exists any unpaid tax amount during the period from the day following the due date of return to the day one year: Where the unpaid tax amount is calculated by multiplying the unpaid tax amount by 10/100, and where there is any unpaid tax amount even after the period under subparagraph 1 expires; and 2. Where an unpaid tax amount is calculated by multiplying the unpaid tax amount (where there is any tax amount paid during the period under subparagraph 1, referring to the balance less such tax amount) by the period from the date of voluntary payment or notice, and the amount calculated by multiplying the unpaid tax amount by the rate as determined by the

납부불성실가산세 : 15,927,100(㉠+㉡)이나, 미납부세액의 100분의 20에 상당하는 금액을 한도로 하므로 납부불성실 가산세는 12,200,000(=61,000,000☓0.2)임.

㉠ 61,000,000 ☓ 10% = 6,100,000

㉡ 61,000,000 ☓3/10,000 ☓ 537일 = 9,827,100