Seocho 2012west 2218 (O4, 2012.09)

Even if the cause of acquiring real estate was the gift, at least a considerable amount of price was paid.

It is difficult to view that selling real estate is similar to a housing pension that receives monthly old age funds under a pension method rather than a mere donation without any consideration. Even if the cause of acquiring real estate is a donation, it is recognized that at least a considerable amount of consideration has been paid even if the cause of acquiring real estate is a donation, such part should be deducted from the taxable

2012Guhap40728 Revocation of Disposition of Imposition of Gift Tax

DoAA

head of Sung Dong Tax Office

July 5, 2013

July 26, 2013

l. The Defendant’s imposition of gift tax of KRW 000 against the Plaintiff on February 6, 2012 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On June 9, 2010, the Plaintiff completed the registration of transfer of ownership under the Plaintiff’s name on May 24, 2010 with respect to the apartment of Nowon-gu in Seoul Special Metropolitan City (hereinafter “instant real estate”) owned by the mother, YA, and the Defendant assessed it as 00 won and determined and notified the Plaintiff of KRW 00 on February 6, 2012.

(B) On May 2, 2012, the Plaintiff appealed and filed an appeal with the Tax Tribunal on May 2, 2012. On September 4, 2012, the Tax Tribunal rendered a decision that the amount obtained by subtracting KRW 000 from the value of donated property less the amount of KRW 00 from the value of donated property should be deducted from the value of donated property, on the ground that the Plaintiff received 000 from the YA’s debt amount established on the instant real estate from the YA and repaid it.” Accordingly, on September 20, 2012, the Defendant corrected that the Plaintiff would reduce the amount of KRW 00 from 00 to 00 from the gift tax amount (hereinafter “the disposition of imposition of KRW 00 (=00)”).

[Based on Recognition] Facts without any dispute, Gap evidence 4, 8, and 9, and Eul evidence 1 and 2, and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff purchased the instant real estate from YellowA on September 2002 by paying a total of KRW 000 per month for ten years, and the Plaintiff’s disposition of the instant real estate on the premise that it was donated by YellowA. The disposition of the instant real estate was unlawful.

2) Even if the Plaintiff received the instant real estate from YellowA even if it falls under a non-contestable gift, the amount of KRW 000 paid by the Plaintiff to YellowA and the amount paid by the Plaintiff to the creditor who is a creditor of Yellow Capital Co., Ltd. (hereinafter “AAA Capital”) and ParkCC should be deducted from the taxable value of donated property.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The Plaintiff’s father, father of the Plaintiff, purchased the instant real estate on April 24, 1993 and completed the registration of ownership transfer in his name, and thereafter the registration of seizure and provisional seizure was revoked.

2) On September 11, 2002, yellowA, the wife of Hexx, received the registration of ownership transfer for the instant real estate from Hu XX on the ground of donation made on August 30, 2002, and on February 19, 2003, the right to claim the cancellation of the registration of ownership transfer for the reason of revocation of fraudulent act made on February 19, 2003 was cancelled on October 18, 2004 by taking the right to claim the cancellation of the registration of ownership transfer registration as the right to be preserved and the registration of pride was cancelled on the ground of revocation on October 28, 2004. In addition, the registration of attachment was completed on several occasions, and all of the registration of the instant real estate was cancelled on around 205.

3) On January 13, 2009, the Plaintiff completed a provisional registration of the right to claim ownership transfer on the same day, which was based on the promise to sell and purchase the instant real estate. Thereafter, on March 22, 2010, on the instant real estate, the compulsory auction was commenced on March 22, 2010, and the Plaintiff was revoked ex officio the said decision to commence compulsory auction on June 9, 2010, following the registration of ownership transfer as the principal registration was completed on the basis of the said provisional registration.

4) Meanwhile, the Plaintiff deposited the total of KRW 000 per month from October 5, 2007 to March 7, 2012, and KRW 000 in total from September 18, 2012 to January 7, 2013, and most of the above amounts were used for the living costs of HuA and sulfurA.

5) On July 27, 2010 and May 12, 2011, ParkCC, as to the instant real estate, was subjected to a provisional disposition of prohibition of disposal by deeming the right to claim the cancellation of ownership transfer registration due to the revocation of each fraudulent act as a preserved right. The Plaintiff repaid YA’s obligations to YA on May 201, and the Plaintiff repaid YA’s obligations to YA, and each of the above provisional dispositions was released on May 25, 201, and May 24, 2011.

6) Yellow A bears the obligation of KRW 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

7) Meanwhile, the Plaintiff borrowed 00 won from AA bank in 2006, and 000 won from BB bank in 2009, and 000 won from F in 2010, in addition to the amount loaned the instant real estate as collateral.

[Based on Recognition] The non-contentious facts, Gap evidence 1, and 4 through 10 (including each natural disaster) and the purport of the whole pleadings

D. Determination

In light of the following circumstances, it is reasonable to view that the Plaintiff purchased the instant real estate from the YellowA, taking into account the facts as seen earlier and the overall purport of the arguments. Therefore, the instant disposition taken on a different premise is unlawful, and the Plaintiff’s assertion on this part is with merit.

① In view of the fact that the Plaintiff repaid the amount of rmm mortgage debt on the instant real estate and the amount of obligation to ParkA, it appears that sulfurA appears that the amount of obligation was insufficient to repay the said amount, and that it did not have any regular income from the money that the Plaintiff received from the Plaintiff.

② The Plaintiff appears to have a substantial reason to enter into a sales contract with the Plaintiff to purchase the instant real estate, ensure that the Plaintiff’s parents can live in a stable manner and pay money periodically to YellowA, because the Plaintiff’s economic situation was under unstable conditions such as compulsory execution, pressure, and provisional disposition on several occasions.

③ From October 2007, the Plaintiff paid KRW 000 per month at the latest, and this is more than two years prior to the time when the Plaintiff completed provisional registration with respect to the instant real estate, and taking account of the personal debt that the Plaintiff bears during that period, it is difficult to view that the Plaintiff’s continuous payment of money is simply performing the good customs or duty to support his parents, as alleged by the Defendant.

④ There may be room to view that the above transactions are similar to the housing pension paid every month in the form of a monthly old age pension rather than any simple donation without any consideration, and that a house owned is offered as a security, and a lifelong pension is similar to the monthly old age pension.

⑤ Since the Plaintiff’s reason for acquiring the instant real estate is deemed to be a gift, and at least it is recognized that he paid 000 won to the Yellow A, the part should be deducted from the taxable value subject to gift tax. Furthermore, according to the entry in the evidence No. B, the tax base of the instant disposition is 00 won, and if the tax base is less than 00 won from the taxable value subject to gift tax as seen above, it is apparent in calculation, and even in this point, the instant disposition cannot be maintained.

3. Conclusion

Then, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.