Seoul Administrative Court 2012Guhap317 (20 December 2012)

Cho High Court Decision 201Do0741 ( November 02, 2011)

It is recognized that the land share acquisition fund is donated by the husband.

It is reasonable to view that the co-ownership of share in land with the husband was due to the fact that the husband donated the acquisition fund of 1/2 shares to the Plaintiff who is the husband, and it is difficult to deem that there was an intention or necessity to return the share due to the termination of the title trust after the husband title trust to the Plaintiff.

2012Nu31481 Revocation of Disposition of Imposition of Gift Tax

KimAAAA

The Director of Gangnam District Office

Seoul Administrative Court Decision 2012Guhap317 decided September 20, 2012

May 22, 2013

July 3, 2013

1. The plaintiff's claim that was changed in exchange in this court is dismissed.

2. The plaintiff's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's imposition of KRW 000 of the gift tax belonging to the year 2005, which was made on November 12, 2010, and the imposition of KRW 000 of the gift tax belonging to the year 2005, which was made on November 23, 2012, shall be revoked (the part of the penalty tax was changed in exchange).

1. cite the judgment of the first instance;

"The reasons for the judgment of this court are as follows, and it is like the reasons for the judgment of this court to add the judgment on the plaintiff's argument in the next paragraph, and therefore, Article 8 (2) of the Administrative Litigation Act, and Article 420 of the Civil Procedure Act are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act." "The acquisition value of KRW 000 from DaD (the plaintiff's birth), and KRW 000 from E (the plaintiff's birth), and the acquisition value of KRW 00 from DaD (the birth of the plaintiff), and KRW 00 from E (the plaintiff's birth), from 14 November 201, 201, shall be reduced as follows:

[1] On November 12, 2010, the donor made a total of KRW 000 won imposition of gift tax and penalty tax of KRW 000 on the principal tax of gift tax to the Plaintiff on November 12, 2010.

C. On February 7, 2011, the Plaintiff appealed to the Tax Tribunal, but the Tax Tribunal dismissed the appeal on November 2, 201.

"라. 그 후 피고는 2012. 11. 19. 위 부과처분 중 가산세 부과처분을 직권으로 취소하고， 2012. 11. 23. 가산세의 종류와 산출근거 등을 납세고지서에 적어 가산세 00000원을 다시 부과하였다(이하피고의 2010. 11. 12.자 2005년 귀속 증여세 000원 부과처분과 2012. 11. 23.자 2005년 귀속 증여세 가산세 000원 부과처분을 합하여이 사건 처분'이라고 한다).",○ 2쪽 아래에서 7째 줄 [인정 근거]에 |갑 제14호증， 을 제8， 9호증'을 추가한다.

2. Additional determination

A. Determination on the assertion that the acquisition fund was not donated

The Plaintiff asserts that the acquisition fund for 1/2 of the instant land did not have been donated. However, as seen earlier, the purchase price for the instant land is KRW 000 (No. 4-1), and KRW 1/2 of the instant land is in the name of the Plaintiff, but the Plaintiff did not pay the purchase price, and the Plaintiff also recognized that the FF raised the total acquisition fund for the instant land on the first day of pleading at the court of first instance (including the Plaintiff’s written application for carbon as of February 9, 2012). Accordingly, this part of the Plaintiff’s assertion is difficult to accept.

B. Determination on the assertion that title trust is held

1) The Plaintiff asserts that even in this court, the 1/2 equity interest in the instant land was trusted by the FF to the Plaintiff.

2) The burden of proving the existence of a taxation requirement fact is at the tax authority, but if it is proved that the other party is presumed to have a taxation requirement fact in light of the empirical rule, the other party must prove the circumstances that are not subject to the application of the empirical rule, and since real estate acquired in the name of the other spouse who is not the nominal owner under Article 830(1) of the Civil Act is presumed to be the unique property of the nominal owner, if it is discovered that the other spouse, other than the nominal owner, is the source of the acquisition fund of the real estate in question, then the nominal owner may be presumed to have received a donation of the acquisition fund from the spouse. In such a case, the taxpayer should assert and prove that the acquisition fund cannot be deemed to have been donated because it is not the unique property of the nominal owner, but the title of the real estate in question is nominal by the other spouse (see Supreme Court Decision 2006Du806

3) According to the circumstances and circumstances revealed below in the first instance trial, and the evidence submitted by the Plaintiff alone constituted a group of shares in the instant land 1/2 under the name of the Plaintiff between EF and the Plaintiff, and it is difficult to deem that EF had the intention or necessity to return the instant land due to the termination of title trust. The Plaintiff’s assertion on this part is without merit.

① According to Gap evidence Nos. 3 (including paper numbers, and hereinafter the same shall apply), and one half of the land of this case was changed to the name of the plaintiff, and the debtor was also set up with F, but the mortgage was also set up with the debtor as the plaintiff.

② The share in the instant land was owned by the Plaintiff and the FF, and if there were reasons that the Plaintiff and the FF were not in the name of the FF as alleged by the Plaintiff, it would be common sense that only the name of the Plaintiff, and if not, it would be done in the name of the F. The sharing of the share in the instant land by 1/2 was due to the fact that the FF was a gift of the acquisition fund of 1/2 shares to the Plaintiff, a wife.

③ The Plaintiff asserts that, in order for the FF to raise the land acquisition fund of this case, the interest on the loan under its name was repaid by the FF, and that the 1/2 share of the instant land was trusted in title. However, the instant disposition is premised on the premise that the FF donated the land acquisition fund of this case. As such, the instant disposition is premised on the premise that the FF takes out the loan for raising the land acquisition fund of this case in the name of the FF, and that the FF pays the interest on the loan under the name of the FF. The circumstances asserted by the Plaintiff cannot be grounds for asserting the title trust.

④ According to the evidence evidence Nos. 3 and 13, the F, as a major shareholder of GG Co., Ltd., the major shareholder of GG, the instant land and the instant adjacent land were necessary to establish the company’s office building. This FF is reasonable to deem that, at the time, GG rooftop was constructed, the value of the instant land would have been anticipated to be superior to that of the instant land, and that this FF was donated to the wife with the acquisition fund of 1/2 shares in the instant land using the opportunity.

C. Determination on the assertion that gift tax or gift tax is not based on justifiable grounds

The Plaintiff asserts that, inasmuch as the Defendant notified the donor of gift tax by mistake in this court as D and EE, and the disposition in this case was subsequently revoked ex officio, and there were justifiable grounds for failure to pay gift tax between the initial disposition and the instant disposition, the part on erroneous payment for erroneous payment corresponding thereto is unlawful. However, as seen earlier, the Plaintiff did not report and pay gift tax even after receiving the 1/2 share acquisition fund from OO, and the Plaintiff did not make the instant disposition, and the Defendant did not pay the 1/2 share acquisition fund of the instant land from D and the FF property trusted under the name of E, it cannot be said that there were justifiable grounds for the Plaintiff to pay gift tax or pay gift tax. This part of the Plaintiff’s assertion is without merit.

3. Conclusion

A claim that the plaintiff changed to exchange in this court is dismissed for lack of reason, and the judgment of the first instance is justifiable, and the plaintiff's appeal is dismissed.