2015. Review 8 ( January 15, 2015)

The real estate of this case was acquired as payment in kind of loan and then donated to the plaintiff.

The disposition of this case is not unlawful, since it is not sufficiently proven that the plaintiff acquired the real estate of this case as a payment in kind of loan to the maximum 00, and it can be presumed that it was donated to the plaintiff. On the other hand, it cannot be viewed that the disposition of this case is unlawful.

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

Articles 2(3) and (3) of the former Inheritance Tax and Gift Tax Act

Revocation of Disposition Imposing Gift Tax

Yellow 00

Head of Dong Daegu Tax Office

National Rotations

September 15, 2015

October 20, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 00,000,000 and penalty tax of KRW 00,000,000 against the Plaintiff on November 11, 2013 shall be revoked.

1. Details of the disposition;

A. On June 8, 2009, the Plaintiff completed the registration of ownership transfer with respect to the instant real estate on August 4, 2009, on the ground of a sales contract (the sale price of KRW 00 million; hereinafter “instant sales contract”) concluded with respect to 00,000,000 square meters in Gyeongnam-gun, 00,000,000,000 and 149-22,000,000 square meters (hereinafter “the instant real estate”).

B. As a result of the Plaintiff’s tax investigation on Yellow A, his father, the Daegu regional tax office confirmed that the instant real estate was acquired under the Plaintiff’s name at the request of the obligor in the process of receiving payment in lieu of the Plaintiff’s real estate in return for payment, which was created by Yellow A as a means of securing claims for loan, and notified the Defendant of the determination as a gift. On November 13, 2013, the Defendant decided and notified the Plaintiff of KRW 00,000 and additional tax KRW 00,000,000 (hereinafter “instant disposition”).

C. On March 4, 2014, the Plaintiff appealed and filed a request for review to the Board of Audit and Inspection on March 4, 2014, but was dismissed by the Board of Audit and Inspection on January 22, 2015.

Facts without any dispute, Gap's 1, 2, Eul's 1 to 4, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, out of the loans from 00 bank, 130 million won, 00 million won, 00 00 - 8800 - 2000 - 1000 - 203 - 40 million - 00 - 00 - 00 - 00 - 00 - 00 - 47-18 - 47-18 YA loaned to YA who operates a corporate bond business, such as 00 million won, in return for the waiver of the right of retention for the said loans, and he was repaid the instant real estate as a substitute for the Plaintiff, and the instant real estate was ultimately acquired with the Plaintiff’s funds. Accordingly, the instant disposition based on the premise that the Plaintiff received the gift of the instant real estate from the Defendant is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) On May 13, 2008, Park 00 acquired two lots of forest land including 331 square meters as seen earlier from May 13, 2008, including the instant real estate and each week 1), KRW 100,000,000,000,000. The instant real estate was provided as security for the obligation of KRW 000,000,000,000 borrowed from YellowA. As to the instant real estate on December 2, 2008, a collateral security was established where the debtor is maximum 00,000, with the creditor as a female-presidential.

2) Meanwhile, on August 4, 2009, Park 00, 00 and YA borrowed 00 million won from YB from YB, but it is judged that it was unable to repay it for six months and there was no ability to repay it. Thus, if the ownership of the instant real estate is transferred to YB, the obligation to pay the principal and interest on the obligation against YB ceases to exist if the ownership of the instant real estate is transferred to YB.

3) In the course of the tax investigation by the Daegu Regional Tax Office, the Plaintiff did not have any 00 marbling, a seller in relation to the instant sales contract, nor did he/she know the accurate sales price, nor signed by the Yellow Amar in relation to the sales contract;

“The Plaintiff purchased the instant real estate as the deposit for lease on a deposit basis, which was financed by the YellowA on February 19, 2009. At that time, the Plaintiff stated to the effect that it did not talk about the acquisition of real estate at that time.” On the other hand, around April 25, 2013, the Plaintiff borrowed KRW 00 million from the YellowA on or around April 25, 2007, but the Plaintiff did not have the ability to repay the borrowed amount, and it did not exceed the ownership of the instant real estate, which was offered as security on August 4, 2009, but did not know who the purchaser was at that time, and there was no fact of receiving the sales amount from the YellowA and the Plaintiff in relation to the transfer of ownership.”

4) On July 28, 2006, the Plaintiff obtained a house allotment loan from the bank on the same day, and deposited KRW 000 million in the Plaintiff’s account (Account Number: 002-13-00000) on the same day, and deposited KRW 00 million out of August 4, 2006, and deposited KRW 00 million in another 00 bank account (Account Number: 00-11-0000-8) of the Plaintiff on the same day. On the same day, the Plaintiff deposited KRW 00 million in another 00 bank account (Account Number: 02-11-0000-8) of the Plaintiff on September 4, 2006.

5) On January 9, 2008, the Plaintiff and Park 00 prepared a letter of agreement and a letter of waiver of the right of retention that “the Plaintiff received KRW 00 million from Park 00,000,000 from 00,000,0000, and waiver of the right of retention as to the makingup of 00 Dong Dong 47-180 building materials.” The Plaintiff’s 00 bank accounts (Account Number: 002-13-00000) deposited KRW 00,000 on January 10, 2008. The Plaintiff deposited KRW 00,000 on January 16, 2008.

Facts that there is no dispute over recognition, Gap 3, 4 (including paper numbers; hereinafter the same shall apply), Eul 5 through 8, and the purport of the whole pleadings.

D. Determination

1) Although the tax authority bears the burden of proving the existence of a taxation requirement fact, it cannot be deemed an illegal disposition that failed to meet the taxation requirement against the tax imposition disposition unless it proves such circumstances in the process of litigation, unless the alleged fact of taxation requirement in light of the empirical rule is revealed in the process of litigation (see, e.g., Supreme Court Decision 89Nu6006, Apr. 27, 1990).

2) The plaintiff's assertion that the above facts were revealed by considering the following circumstances, i.e., lending KRW 00,000,000 to the maximum amount of KRW 00,000,000,000 as collateral, the real estate in this case can be presumed to have been acquired as payment in kind, and the plaintiff's name can be presumed to have been registered in the future. ② The plaintiff's sale price is not known, and the contract's signature is not known, and it was stated that the purchaser of the real estate in this case was not aware of the amount of KRW 00,000,000,000,000,000,000,000,000,000,000 won was not proved to have been acquired as collateral, and there was no objective evidence that the plaintiff received 00,000,000,000,000,000,00 won from each of the above real estate in this case's loan out of KRW 8,00,00,0,0,00,0,0,0,00.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.