Tax Tribunal 2014Seoul Northern1207 (25 December 2015)

The imposition of 1/2 of the acquisition fund of the real estate of this case on the ground that it was donated by the spouse is unlawful.

The real estate of this case is only the name of the plaintiff on the registry, and in fact, one half of the shares are nominal in trust to the plaintiff, and the disposition that deemed that one half of the acquisition fund was donated from the spouse for no purpose of tax avoidance is unreasonable.

Article 2 (Gift Tax Taxables) of Inheritance Tax and Gift Tax Act

2015Guhap63746 Revocation of Disposition of Imposition of Gift Tax

IsaA

Head of Seocho Tax Office

December 1, 2015

on December 22, 2016

1. On November 13, 2013, the Defendant revoked the imposition of gift tax and additional tax as shown in the attached Form that the Plaintiff rendered.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

"A. On September 8, 2010, the Plaintiff acquired land and buildings with 000,000 to 00,000,000 (hereinafter referred to as "the instant real estate") from Seoul, 00-dong 00 to 000,000,000 won." (B) The Defendant, the spouse, and the Plaintiff, from the her spouse, donated KRW 00,000,000 out of the repayment funds for the instant loan, deemed that the Plaintiff was donated to the Plaintiff on November 15, 2013, and determined and notified the Plaintiff of KRW 00,000,000 in total as gift tax and additional tax (hereinafter referred to as "the instant disposition").

[In the absence of dispute with recognition, evidence 2, 6, 8, and evidence 1 (including paper numbers, hereinafter the same shall apply) and the whole purport of the pleading

3. Whether the instant disposition is lawful

(a)a fact;

(1) On April 24, 2002, the Plaintiff and LB made a joint purchase of land and above-ground buildings such as OO-OO-dong O-dong, Seoul OOO-dong (hereinafter referred to as the "joint-owned real estate of this case") and deposited and managed the lease income on the above real estate into the account in the name of the Plaintiff's sole name (the lease income has been reported to each of its own income; hereinafter referred to as the "lease Income Management Account"), and the process of concluding a sales contract for the instant real estate is as follows.

① On August 20, 2010, the Plaintiff and LB paid KRW 00 million out of the down payment KRW O00,000,000 to the Plaintiff and LB. On August 23, 2010, the Plaintiff paid the remainder down payment KRW O00,000 to the Plaintiff.

② On August 30, 2010, on the ground that the seller of the instant real estate was unpaid, the instant real estate was seized.

③ On September 8, 2010, the Plaintiff concluded a trade agreement under the Plaintiff’s sole name after cancelling the said joint name agreement (the purchase price of KRW 00 million and the remainder payment date were September 28, 2010).

④ On September 10, 2010, the Plaintiff registered its business with respect to the instant real estate leasing business, and filed an application for the instant real estate loan as security on September 15, 2010 (the name of business registration and the debtor under a loan agreement are both the Plaintiff’s sole name). Meanwhile, the said registration of seizure was revoked on September 15, 2010.

⑤ On September 17, 2010, the Plaintiff received the registration of ownership transfer under the Plaintiff’s name with respect to the instant real estate, and paid KRW 00 million out of the remainder to the seller.

④ On September 20, 2010, the Plaintiff paid the remainder of KRW O00,000 to the Plaintiff [the amount of KRW O0,000,000,000,000,000,000,000,000,000,000,0000,0000,000,000,000,000,000,000,000,000,000

3) The details of the income of the plaintiff and his spouse from 2006 to 2010 are as follows (rental income):

and financial income, including, but not limited to, the unit of

Classification

206

2007

208

209

2010

Total

OO

OO

OO

OO

OO

O,OO

Spouse

OO

OO

OO

OO

OO

O,OO

4) At the time of filing a global income tax return for the tax year 2010 to 2013, the Plaintiff reported all the rental income from the instant real estate rental business as its own income.

[In the absence of dispute against the basis of recognition, Gap evidence 3, 10, and evidence 6 and 7, the purport of the whole pleadings.

B. Determination

In light of the following facts and circumstances that can be recognized by adding the purport of the entire pleadings to the above facts, it is difficult to deem that the Plaintiff acquired the real estate of this case by receiving payment from the spouse only when the spouse is deemed to have held title trust, and it is difficult to deem that the Plaintiff acquired the real estate of this case by receiving payment from the spouse. On the contrary, it is insufficient to deem that the Plaintiff acquired the real estate of this case by receiving a partial donation from the spouse merely because the Plaintiff independently completed the registration of ownership transfer, and reported the rental income

① Of the down payment in the instant case, KRW O00,000 was paid in the name of the first husband and wife jointly, and most of the purchase proceeds of the instant real estate was also prepared in the form of money in the Plaintiff’s account for management of rental income in the name of the Plaintiff managing the income of the leasing business jointly owned by the Plaintiff and his spouse. The Plaintiff and his spouse reported and paid income tax on the lease income of the instant joint-owned real estate as their own income, and have also been managed from the lease income management account in the name of the Plaintiff (the Defendant did not impose gift tax on the part that the Plaintiff received and managed the lease income of his spouse in his own account). If the purchase proceeds of the instant real estate were paid from the instant lease income management account, it is natural to view that the Plaintiff and his spouse jointly paid the purchase proceeds rather than deeming that

② In the event that the Plaintiff and the spouse jointly concluded a sales contract for the instant real estate, and paid the down payment, the Plaintiff’s sole name changed to purchase the instant real estate, and concluded a new sales contract and paid the remainder on 12 days thereafter (such payment was made prior to the remainder payment date under the sales contract). The reason for the Plaintiff’s acquisition of the instant real estate appears to be attributable to the fact that the acquisition of the real estate or the return of the down payment may be difficult due to the seizure of the instant real estate conducted at least 10 days after the initial sales contract.

③ In addition, considering that the Plaintiff’s income was more than the spouse from around 2008, and that the Plaintiff and the spouse had income corresponding to the highest section of the income tax rate, there is no special reason for the Plaintiff to solely own the instant real estate upon receiving the purchase price from the spouse.

4. Conclusion

Thus, the plaintiff's claim of this case is justified.

A