National Tax Service Review Income 201-0052

Where it is confirmed as property directly donated, it shall not be presumed as gift.

In order to reverse the presumption of gift, the taxpayer should prove the source of the fund for acquisition of a separate property and prove that the fund was used for the fund for acquisition of the property or that the property acquired by the taxpayer was a property trusted in a title trust, but the gift tax is imposed lawfully, and the portion verified as the property directly donated cannot be presumed as the donation.

2012Guhap1815 Revocation of Disposition of Imposition of Gift Tax

XX Kim

The Director of Gangnam District Office

June 29, 2012

July 13, 2012

1. On May 1, 2011, the Defendant’s imposition of gift tax by the sequence 2 through 7 set forth in the attached Table of Calculation of Tax Amount, against the Plaintiff, each portion exceeding each gift tax column shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 3/4 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The imposition of each gift tax indicated in the notice tax column in the attached Form No. 1 that the Defendant made against the Plaintiff on May 1, 2011 (the date of May 3, 2011 is a clerical error) shall be revoked.

1. Details of the disposition;

A. The director of the Central Regional Tax Office of Jung-si shall examine the source of the acquisition fund of 14 real estate (hereinafter referred to as "each of the real estate in this case") such as Y apartment 106 and 302, which is acquired in the name of the plaintiff, and notify the defendant of the gift tax to the plaintiff on the ground that "the gift tax should be imposed on the plaintiff pursuant to Article 45 (1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the "Inheritance Tax and Gift Tax Act") and Article 34 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22042, Feb. 18, 2010; hereinafter referred to as the "Enforcement Decree of the Inheritance Tax and Gift Tax Act") on the grounds that "the plaintiff is presumed to have been donated 000 won of the acquisition fund of each of the real estate in this case from the father of the plaintiff (the father)", or the defendant.

C. On July 13, 201, the Plaintiff filed a request for review on July 13, 201, and received a decision of dismissal from the Commissioner of the National Tax Service on October 13, 2011.

[Ground of recognition] Each entry of Gap evidence Nos. 1 through 8, 16 (including paper numbers), Eul evidence Nos. 1, 2, and 3 (including paper numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since KimA acquired each of the instant real estate by stealing using the Plaintiff’s name, the instant disposition based on the premise that it was donated was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Details of the survey on KimA

(A) In around 2004, KimA had jointly and severally guaranteed each of its loans owed by OO construction companies (a construction company, the wife KimB held office as the representative director) and new Dong Construction Co., Ltd. (a construction company, the plaintiff held office as the representative director), and became a bad credit holder.

(B) Since then, KimA was unable to conduct a financial transaction, each of the accounts opened in the name of the Plaintiff, South Korea (1978 students), KimCC (1980 students), and Kim DD (1953 students), and conducted financial transactions. At the time of the tax investigation, the Plaintiff prepared a written confirmation that “The Plaintiff opened a total of seven accounts in the name of the Plaintiff, seven accounts in the name of KimCC, seven accounts in the name of KimD, and fifteen accounts in the name of KimD.”

(C) According to the certified copy of the register, the Plaintiff confirmed that each of the instant real estate (except for the second real estate) was purchased from 2006 to 2010, and KimCC purchased 12 real estate (except for the second real estate) from 2003 to 2010. The KimA prepared a written confirmation that “the Plaintiff and KimCC did not title trust each of the said real estate purchased” at the time of the tax investigation.

(D) However, in this court, KimA made a false statement at the time of the tax investigation by making it known to the effect that the title trust would be subject to criminal punishment, but it acquired each of the instant real estate under the Plaintiff’s name, and testified as follows on the process of acquisition.

(E) The remaining price for the sale of real estate 1 was paid 000 won from the account in the name of the KimCC using SAA. The land subject to the exchange of the real estate 13 was 270-6,260 square meters of land in the direction of the Republic of Korea, the head of the Sinsung-si, and Do 270-8 square meters of forest 270-8 square meters of land in the Republic of Korea. The land owned by KimA was subject to the transfer registration under the name of KimG, the spouse of KimA, for the reason of “donation” on April 4, 2006.

On the other hand, on February 24, 2011, the Director of the Central District Tax Office of Busan Metropolitan City, on the grounds that "YaA entrusted the title of 3,390 square meters of woodland 39-1, 390 square meters of woodland 39-1, 39-5 woodland 39-5 woodland 1,274 square meters in Oansan City City Mayor," notified KimA to the person who violated the Act on the Registration of Real Estate under Actual Titleholder's Name.", (2), the plaintiff and KimCC.

(A) The Plaintiff had lived in Korea and the United States from November 11, 1995, when he was in the second grade of high school, and lived in Korea and the United States. The details of entry and departure in 2006, 2008, and 2010 are as follows.

(B) The KimCC resided in the first real estate acquired in the name of the Plaintiff around 2006.

(3) Details of the alteration of rights for each real estate of this case

(A) 1 real estate

(b) 2 real estate

(C) third real estate

(d) 4 real estate

(e) 5 to 8 real estate;

(f) 9 to 12 real estate

(g)Real estate;

(h) real estate 14:

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1, 9 through 15, 17 through 29 (including paper numbers), Eul evidence Nos. 2 through 7 (including paper numbers), part of the witness KimA's testimony, and the purport of the whole pleadings

D. Determination

(1) As to title trust

(A) Article 45(1) of the Inheritance Tax and Gift Tax Act provides that “Where it is difficult to recognize that a person acquired the pertinent property by his own means in view of his occupation, age, income, property status, etc., as prescribed by the Presidential Decree, the acquisition fund of the pertinent property shall be presumed to have been donated to the person who acquired the said property at the time of the acquisition of the said property, and shall be deemed to have been donated to the person who acquired the said property.” Therefore, in a case where a person, who has no occupation or ability, does not have any evidence to prove the source of the fund for acquiring the said property, and has the ability to give a donation to the lineal ascendant, etc., it shall be presumed that the funds for acquiring the said property were donated to the person who acquired the said property, and in order to reverse such presumption, it shall be proved that the said funds were used as the funds for acquiring the said property, or that the property acquired by the said person is a property trusted (see, e.g.

(B) The real estate in this case is owned by the father Kim 2 through 8, 13; the real estate in this case is originally owned by the father Kim 2 through Kim 5; the real estate in this case is not acquired from a third party because the 13th real estate was not acquired by the third party; the real estate in this case was transferred to a third party for the preservation of claims, such as seizure by the creditors; it can be deemed that the transfer registration was made in the name of the plaintiff in this case; the real estate was not made in the way that the plaintiff's real estate was sold in the name of 20 years; the real estate was sold in the name of 20 years after the fact that the real estate was sold in this case's name; the real estate was sold in the name of 10 years after the fact that the real estate was sold in this case's name; and the real estate was sold in the name of 1/3 years after the fact that the real estate was sold in the name of Kim 2 and the real estate was not sold in the name of 13G.

(2) As to the calculation of tax amount

We examine the legality of the ex officio calculation of tax amount.

(A) As to the amount of re-donation donation

Article 47(2) of the Inheritance Tax and Gift Tax Act on the premise that the transfer of ownership has been registered in the name of the Plaintiff as a grandchild in the father KimE of KimA, it is reasonable to deem that KimE donated directly to the Plaintiff. Therefore, in calculating the gift tax on the real estate No. 4, the provisions on aggregate taxation on re-donations under Article 47(2) of the Inheritance Tax and Gift Tax Act cannot be applied, on the premise that the gift was donated by KimA in the calculation of the gift tax on the real estate No. 4, and thus, the amount of KRW 1,2, and 3 real estate donated by the previous KimA may not be added to the taxable amount of gift taxes (the real estate No. 13 is also included in the calculation of the amount of comprehensive taxation, since the property donated by the spouse is also included in the exchange of the real estate owned by KimA’s spouse, so there is no error in the calculation of the amount of property donated by the spouse to the Plaintiff who is a lineal descendant who is not a child. Furthermore, as long as the real estate No. 4 was donated by KimA.

(B) As to gift tax

In calculating the additional tax for unfaithful payment and the additional tax for negligent return, the following errors are committed:

(C) The result of property disposal

If gift tax is determined, it is identical to each gift tax recorded in the tax amount column in the annexed tax calculation table (the details of calculating the amount of tax on each real estate of this case are the same as the details of calculating the amount of tax on each real estate of this case) and each gift tax recorded in the cancelled tax amount column in the annexed tax amount calculation table

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.