Gift tax on the acquisition fund of real estate;

Although it is difficult to believe that the real estate acquisition fund was not donated to the husband, but was purchased with the income from the operation of the restaurant, or acquired with the proceeds of division of the public property acquired during marriage, it is difficult to believe.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of gift tax amounting to 608,569,680 won on May 1, 2009, and KRW 185,871,470 on gift tax of 2004, and KRW 300,691.410 on gift tax of 2005 (as gift tax amounting to 134,153,310 on gift tax of 2006 in claim column appears to be a clerical error in the gift tax of 2005, it shall be added to gift tax of 2005) shall be revoked.

1. Details of the disposition;

A. The Plaintiff acquired each real estate, such as the attached Form between 2003 and 2005 (hereinafter “each of the instant real estate”).

B. On May 1, 2009, the Defendant: (a) deemed that the Plaintiff was donated the acquisition fund of each of the instant real estate by Nonparty YA, who is his spouse; and (b) imposed KRW 608,569,680 on the Plaintiff on May 1, 2009, the gift tax of KRW 185,871,470 for the year 2004; and (c) KRW 300,691,41, and KRW 1,095,132,560 for the gift tax of KRW 205 for the year 2005.

C. On June 23, 2009, the plaintiff filed a request for review to revoke the disposition of the case by the Board of Audit and Inspection, but the decision on the request was not made until the time of the institution of the case.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 4, evidence 11, evidence 12-16 through 31, 34, 35, Eul evidence 1-1 to 4, and the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

The acquisition price of each of the instant real property received by the Plaintiff from tinA is not a donation from tinA, but rather a direct refund of the real property acquired by the Plaintiff from tinA during marriage with tinA, which was purchased from the income acquired by running a restaurant and made a settlement with tinA by receiving the sale price of other real property, or the public property acquired by tinA during marriage with the Plaintiff and tinA was divided.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The Plaintiff married on April 10, 1978 with tinA and tinB, which was born by artificial insemination, had no consciousness. Accordingly, the Plaintiff’s entry of tinB, who was born by the artificial insemination, into tinB as a result of genetic identification, was found to have no blood relationship with the Plaintiff.

(2) On January 15, 1980, the Plaintiff operated the restaurant by November 1995, after its business registration was made with the trade name of the Do-dong in Seoul Special Metropolitan City (the change to the Do-dong in Seoul Special Metropolitan City on January 10, 1982) (the name holder of the business was changed to HaA on March 6, 1986).

(3) The Plaintiff’s words Nonparty 1 prepared a confirmation letter that the Plaintiff had been operating the said restaurant, as he borrowed 6 million won from KimD, to the Plaintiff. In addition, Nonparty 1, who is the Plaintiff’s seat, and Nonparty 1, who was employed by the Plaintiff, drafted a confirmation letter that the Plaintiff operated the said restaurant on his own, and tinA did not assist in the said restaurant operation.

(4) Examining the business registration status and real estate acquisition details of the Plaintiff and tinA before June 19, 2003, which commenced the acquisition of each of the instant real estate, as follows.

(5) At the time of the Plaintiff’s acquisition of each of the instant real estate from 2003 to 2005, the real estate in the sequence 2 of Table 3 was sold to the real estate in the table 3 for KRW 2,156,936,00 on June 17, 2003, KRW 10 on April 25, 2005, KRW 180,000, KRW 11 in the table 3 on May 27, 2005, KRW 179,000,000 on May 27, 2005.

(6) The proceeds from the acquisition of each of the instant real property from the proceeds from the sale of real estate in the name of tinA.

[Ground of recognition] A without dispute, Gap evidence 2 through 10, Eul evidence 3 through 6 (including the number of each branch), the purport of the whole pleadings

D. Determination

Since it is recognized that the Plaintiff received the funds for acquiring each real estate of this case from tinA, in order to establish the Plaintiff’s assertion, the source of the funds for acquiring real estate acquired during the marriage of tinA shall be the Plaintiff or the contribution thereof shall be proved.

Meanwhile, the presumption is not reversed solely on the ground that one side of the married couple’s property acquired in his/her own name during marriage is presumed to have been the special property of the nominal owner, and the other side’s cooperation has existed or has contributed to the acquisition of the property. However, where the other party proves that he/she has acquired the property by actually bearing the price of the property, the presumption may be reversed and where the other party bears the price of the said property, and the other party bears the price for the said property may be deemed to have held a title trust with the nominal owner for convenience (see, e.g., Supreme Court Decision 2006Da79704, Apr. 26, 2007). If it is proved that both parties have acquired the property by bearing the price for the said property, it shall be deemed that both parties have co-ownership (see, e.g., Supreme Court Decision 90Da5624, Oct. 23, 190); if one party bears the burden of proving the existence of taxation requirements in light of the empirical rule, it should be presumed that the other spouse has acquired the property under the title.

According to the above facts of recognition on the premise of these legal principles, the Plaintiff appears to operate a restaurant with money from 1981 to 195, and it was not sufficient to recognize that the Plaintiff acquired the property of tin in the name of tin in the name of 100,000 won or by neglecting the income accrued from running the restaurant or part of the revenue. Rather, as seen in Table 1, 2, and 3 of the above facts, it is more real estate acquired in the name of the Plaintiff than tin in the name of 3rd for a period of time until June 19, 203 after the Plaintiff was married to acquire each of the real estate, and since tin acquired the real estate in the name of 9,00 won or more, it is difficult to recognize that tin acquired the real estate in the name of 9,00 won or more, or that tin acquired the real estate in the name of 1,000 won or more, since tin acquired each of the real estate in the name of 3,000 won or more.

3. Conclusion

If so, the plaintiff's claim for objection case is without merit, it shall be dismissed.