Seoul Administrative Court-2015-Gu 53213 ( December 11, 2015)

It is reasonable to deem that the spouse received a donation of real estate acquisition fund from the spouse.

It is reasonable to deem that the Plaintiff and the Plaintiff’s spouse jointly do not seem to have operated the business, and that the spouse did not present a reasonable ground to believe that the Plaintiff was donated the acquisition fund by the spouse.

Article 45 of the Inheritance Tax and Gift Tax Act and Article 34 of the Enforcement Decree thereof.

2016Nu31571 Revocation of Disposition of Imposition of Gift Tax

LAA

BB Director of the Tax Office

September 9, 2016

October 7, 2016

1. The plaintiff's appeal is dismissed.

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

Cheong-gu and purport of appeal

The judgment of the first instance court shall be revoked. Each disposition of imposition of KRW 00,000,000 on January 7, 2014 by the defendant against the plaintiff (including additional taxes) and KRW 00,000,000 on gift tax (including additional taxes) on the year 2012 shall be revoked.

1. Details of the disposition;

The reasoning of the judgment of the court of first instance is the same as the reasoning of the judgment of the court of first instance, except for adding the following matters among the grounds of the judgment of the court of first instance. Thus, it is accepted by Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of

① In Chapter 3, Paragraph 16, ".......", the following is added: "Although the security deposit for 1/2 of the Plaintiff's share in the registration of the establishment of chonsegwon on the instant 2 real estate was paid out of the funds of HongD, this is merely trusted in the name of the Plaintiff, and RedD cannot be deemed to have donated the security deposit to the Plaintiff."

(2) On the 6th page, the following shall be added:

“3) Determination as to the Plaintiff’s conjunctive assertion on the instant 2 real estate

The burden of proof as to the existence of a taxation requirement must be proved by the circumstances in which the other party is presumed to have not been subject to the application of the empirical rule if it is revealed that the other party is taxable in light of the empirical rule. If the real estate acquired by one spouse under the name of the other spouse, who is not the nominal owner, is presumed to have been donated the acquisition fund from the spouse, as the source of the acquisition fund of the real estate concerned is presumed to be the unique property of the nominal owner, so if it is apparent that the other spouse, who is not the nominal owner, is not the nominal owner, the nominal owner may be presumed to have been donated the acquisition fund from the spouse. In such a case, the real estate concerned cannot be deemed to have been donated the acquisition fund because it is not the unique property of the nominal owner, but the other spouse under the title trust from the other spouse. In addition, in order to reverse the "Presumption of a special property" under Article 830(1) of the Civil Act, the taxpayer shall prove that the other spouse actually assumed the price of the real estate concerned and acquired it to possess it in substance by the other spouse.

In light of the above legal principles, although the real estate of this case, for which the registration of the establishment of chonsegwon was completed with respect to 1/2 shares in the Plaintiff’s name, is a house living together with the Plaintiff and RedD Husband and wife, the Plaintiff added the above argument to the first instance court and did not have made such argument until this time, and HongD did not present any reasonable grounds to trust the Plaintiff with the Plaintiff as to 1/2 shares out of the registration of the establishment of chonsegwon. As seen above, in addition to the registration of the right to lease on a deposit basis as seen above, HongD did not have any reasonable ground for trusting the Plaintiff with the Plaintiff, taking into account the following facts: (a) 1/2 shares of the real estate which it acquired in the name of the Plaintiff two times in the same time as the registration of the establishment of the right to lease on a deposit basis; (b) Do has given the funds corresponding to each share in the registration of the right to lease on a deposit basis on the first/2 shares in the registration of the right to lease on a deposit basis."

2. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and the plaintiff's appeal shall be dismissed as it is without merit. It is so decided as per Disposition.