Appellate Court 2013west 2109 (2013.06)

The instant real estate does not constitute consolation money that is excluded from gift tax assessment.

The Plaintiff cannot be deemed to have acquired the instant real estate from his spouse under the pretext of consolation money, child rearing expenses, and division of property following the liquidation of de facto marital relationship, and it is reasonable to view that the Plaintiff was donated the instant real estate by his spouse.

2013Guhap27807 Revocation of Disposition of Imposition of Gift Tax

Chapter AA

Director of the District Office

June 27, 2014

July 22, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of gift tax of KRW 000 against the Plaintiff on November 1, 2012 is revoked.

1. Details of the disposition;

A. On July 6, 2010, the Plaintiff completed the registration of ownership transfer from KimA on ① 00,000 - 00 - 00 - 00 - 00 - 00 - 1 - 282.2 - 00 - 00 - 00 - 00 - 03-1 - 4 - 153-1 , ③ 00 -00 - 00 - 00 - 00 - 03-1, 155 - 15 00 - 00 - 00 - 00 - 35 - 35 - 15 - 00 - 00 - 12 00 - 00 - 00 - 00 - 00 00 - 475 - 200 - 250 - 200 -201 -

B. In addition, the Plaintiff purchased from KimA on August 3, 2010, ① 00:0 00 - 00 - 00 - 227-1 - 800 - 00 - 00 - 00 - 00 - 00 - 227-1 - 227-1 -3 00 - 00 - 00 - 00 - 00 - 227-1 - 227 - 227-1 - 227 - 227 - 227 - 227

C. Around September 28, 2010, KimA reported the transfer income tax on the transfer of the instant real estate and did not pay the transfer income tax, and the head of the Seoul Regional Tax Office confirmed, through the tracking investigation, the fact that the purchase price was not actually paid and received in the instant real estate transfer transaction, and notified the Defendant of the facts suspected of donation of the instant real estate.

D. Accordingly, the Defendant deemed that KimA donated the instant real estate to the Plaintiff through a false sales contract and financial transaction, etc., on November 1, 2012, determined and notified the Plaintiff on July 6, 2010, KRW 000 of the gift tax, and KRW 000 of the gift tax on the gift donated on August 3, 2010 (hereinafter “instant disposition”).

E. The Plaintiff appealed and requested a judgment on April 22, 2013, but the Tax Tribunal dismissed the Plaintiff’s request on September 6, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1, 5 evidence, Eul evidence 1 and 2 (including branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, as a Chinese relative born in China in 1981, was employed in a Chinese company operated by KimA in 2002, and was in a de facto marital relationship with KimA. The Plaintiff entered Korea in Korea around 2005 and maintained a de facto marital relationship with KimA around April 2010, and gave birth to KimB between the Plaintiff and KimA. However, the relationship between the Plaintiff and KimA was terminated from around 2009, the Plaintiff decided to liquidate a de facto marital relationship under the agreement with KimA around May 19, 2010, and the Plaintiff and KimA concluded a consolation money and child support contract on July 19, 2010, and accordingly, the Plaintiff acquired the instant real estate under the condition that the Plaintiff was liable for property division from KimA under the pretext of consolation money, child care expenses, and property division. Ultimately, the Plaintiff’s disposal of the instant real estate was not unlawful even if it did not constitute a de facto marital relationship with the Plaintiff and the instant real estate under the premise that the instant real estate was subject to a de facto marital relationship.

(b) Fact of recognition;

(1) The Plaintiff was a Chinese relative born in China in 1981, and was employed in a Chinese company operated by KimA around 2002, and was de facto in a de facto marital relationship with KimA.

(2) On May 2005, the Plaintiff continued to enter the Republic of Korea through the disguised marriage with the KimCC, and maintained the de facto marriage relationship with the KimCC. On December 31, 2009, the Plaintiff, who pretended to maintain a normal marital life with the KimCC, obtained permission for naturalization from the Minister of Justice (the Plaintiff reported the marriage with the KimCC on May 16, 2005, but reported the divorce on September 3, 2010). Meanwhile, on around April 2010, the Plaintiff was given birth of KimB with the KimA, in collusion with the Plaintiff and KimCC, and the Plaintiff was given birth of a child to the Plaintiff and KimCC. As such, in collusion with the Plaintiff, the Plaintiff interfered with the performance of duties regarding naturalization and acquisition of nationality by public officials working at the Ministry of Justice through fraudulent means, and the Plaintiff was falsely recorded in the electronic records information system, which is the same as the original copy of the notarial deed, and the Plaintiff had the said 201 male District Court recorded the same fact as the above 201 electronic records.

(3) At the time of the conclusion of the sales contract between the Plaintiff and KimA on the instant real estate, the divorce lawsuit was pending between KimA and DoD, a spouse under its law. The content of the sales contract regarding the instant real estate concluded between the Plaintiff and KimA is as follows. The KimA did not actually pay the purchase price by again receiving money from the Plaintiff after remitting money to the Plaintiff. Meanwhile, the registration of the establishment of a neighboring real estate established under the name of KimA was revoked, and the establishment of a mortgage was completed again in the name of the Plaintiff.

(4) On July 19, 2010 between the Plaintiff and KimA, a written contract (hereinafter “instant contract”) signed between the Plaintiff and KimA, and the Plaintiff did not stay in Korea from July 18, 2010 to July 28, 2010.

In other words, KimA is called "A" and the plaintiff is called "B".

○ The 00:00 :00 :00 :227-1 attached buildings at 00 :00 :00 :00 :00 / 100 / 227.

○ Since Party A pays consolation money, child support, and compensation to Party B, Party B does not have any problem or legal demand.

○ In the event that “A” demands, “B” will continue to leave KimB, but “B” is to rear KimB, and “B” is not required to request “B” to change his or her husband’s husband.

Since the consolation money sufficient to ○○ and B is paid, Eul does not require it separately.

○ ○ and B are trying to find a part of today, and they are talking and talking with only one another.

○ In the event that KimB wants to report or gold, the head of KimB shall notify in advance and take legal measures against each other in the event of violation.

(5) On October 27, 2010, the following mediation was concluded in the lawsuit of divorce and division of property between KimA and DoD (Seoul High Court 2010Reu1401).

In the lower court, the Doddice is the Plaintiff, and KimA is the Defendant.

Matters to be mediated

○ The Plaintiff and the Defendant are divorced.

○ The Defendant shall be paid KRW 0 million to the Plaintiff as division of property, and among which, if the Defendant withdraws the provisional seizure or release deposit (the Seoul Family Court 2008 businesshap119) deposited by the Seoul Southern District Court 2010Hun-Ba19, and the remainder of the KRW 000 million from the provisional seizure of real estate, the Plaintiff withdraws the portion of the Defendant’s E of the provisional disposition against the Seoul Southern Southern District Court 2010Kahap618 (the land and its ground house) within three days from the date of withdrawal, the Defendant shall pay KRW 00 million within two months from the date of withdrawal, and the remainder of KRW 00 million shall be paid within two months from the date of withdrawal.

○ If the Defendant fails to perform paragraph 2, Paragraph 2 shall be null and void, and the Defendant shall pay 0 billion won to the Plaintiff as division of property, but the amount already paid by the Defendant pursuant to Paragraph 2 shall be deducted from the above KRW 0 billion.

After the fulfillment of both paragraphs 2, the Plaintiff withdraws the part of the obligor Category A and F in the case of provisional injunction against the Seoul Southern District Court 2010Kahap618.

○ The Plaintiff and the Defendant shall not have any further claim regarding the divorce, etc. of this case.

○ The Plaintiff and the Defendant agreed to divorce of this case and division of property.

(6) Meanwhile, the Plaintiff and KimA reported marriage on November 10, 201, but reported divorce on September 7, 201.

(7) On October 4, 2010, GH, the birth of the KimA, deposited KRW 00 million in the account in the name of the Plaintiff in the single bank under the name of the Plaintiff. On August 20, 2012, GH respondeded to the purport that, around October 20, 2012, GH borrowed money from the reply to the details of the payment of the loan to the effect that, around October 2010, she borrowed money without any interest or security and was returned to the Plaintiff on March 201.

(8) On July 13, 201, the Plaintiff entered into a contract with KimG to sell 00:00 Do 000,000 Do 39 m20,000 m2 to 000 m2,000,000,000,000,000 m2,000.

(9) On July 26, 2010, Co., Ltd. III, one of the lessees of the instant real estate, deposited rent into one bank account under the name of KimA until July 26, 2010. On August 25, 2010, September 27, 2010, deposited it into one bank account under the name of the Plaintiff, and on October 25, 2010, deposited it into the said one bank account under the name of KimA again on November 25, 2010.

(10) On January 3, 2011, the occupant card drawn up on January 3, 201 with 000 - 00 - 00 - 00 - 1475 - 1475 - - 00 - 00 - 00 - 1475 'the apartment of this case' (hereinafter referred to as "the apartment of this case") is written by the householder as Kim J, which is the children of the plaintiff, KimBB, and Kim J, and is written by the registered vehicle in Seoul 00 - 00 - 00

(11) On September 5, 2012, the Defendant sent the notice of the result of the tax investigation to the Plaintiff by registered mail to the instant apartment that is the Plaintiff’s domicile, and stated that the recipient is called Ga-A-spouse for registered mail inquiry regarding the said postal item.

(12) On the other hand, the Defendant assessed the instant real estate as KRW 000 according to the Inheritance Tax and Gift Tax Act, and calculated the amount of KRW 000 after deducting KRW 000,000 from the amount of debts for the lower-ranking right secured as the instant real estate and KRW 000 as the value of donated property

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 3, 6 and Eul evidence Nos. 2, 3, 5, 6, 9, 11, 12, 16, 18 and the purport of the whole pleadings

C. Determination

(4) The Plaintiff’s acquisition of the instant real estate under the name of 0,000 won under the title of 10,000 won for the transfer of the instant real estate under the title of 10, and the following circumstances, i.e., the Plaintiff started de facto marriage with 10,000,000 won for the purpose of maintaining de facto marriage with 10,000,000 won for the transfer of the instant real estate under the name of 10,000,000 won. The Plaintiff was given birth to 10,000,000,000 won for the transfer of the instant real estate under the name of 10,000,000 won for the transfer of the instant real estate under the name of 10,000,000 won for 10,000,000 won for the transfer of the instant real estate under the name of 10,000,000 won for 2,000,000 won for the instant real estate.

Therefore, the instant disposition is lawful, and the Plaintiff’s above assertion on a different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.