National Tax Service Review Donation 2010-0056 (2010.30)

There is no illegality in calculating the taxable value of apartment property.

Since the apartment was transferred to a lineal descendant, it is presumed that the plaintiff met the requirements for the reversal of the presumption of donation, and the apartment case does not contain any illegality in calculating the taxable value of gift tax, such as that the apartment of this case and the area, location, use and items are identical, and the apartment of this case was traded within three months from the date of transfer.

2010Guhap14375 Revocation of Disposition of Imposition of Gift Tax

The AA

○ Head of tax office

June 23, 201

August 11, 201

1. The plaintiff's claim is dismissed.

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

The imposition of gift tax of KRW 74,133,760 on the Plaintiff on March 8, 2010 shall be revoked.

1. Details of the disposition;

A. On May 27, 2008, Hoaa, the Plaintiff’s attached, completed the registration of ownership transfer in the Plaintiff’s future, with the transaction value of KRW 300,000,000,000 for ○○○○○○ apartment (○○○, ○○-si, ○○○, ○○○, ○○, ○○, ○00,000 (hereinafter referred to as “the apartment of this case”) on the ground of sale as of May 9, 2008.

B. At the time of the above transfer of ownership, the apartment of this case was established with the right to collateral security in the amount of KRW 190,000,000,000 on the debtor Jeong, creditor △△△△△, and maximum debt amount of KRW 240,000 on the apartment of this case. The principal of the debt secured thereby was set at KRW 190,000 (other than the debtor, creditor 120,000,000 on the debt amount of KRW 190,000 on the part of the creditor, but this was also the right to collateral security for damages arising from the failure to perform the

C. The Defendant: (a) deemed that Jeong donated the instant apartment to the Plaintiff; (b) assessed 50,000,000 won, which was the sale price on June 23, 2008, 103, 402, the same as the instant apartment, at the time of the donation of the instant apartment; (c) calculated the amount of KRW 360,000,000, which was calculated by deducting the collateral security debt 190,000,000, which was secured as the instant apartment, as the taxable amount of gift tax; and (d) notified the Plaintiff of KRW 74,13,760, which was the gift tax for the year 2008 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed a request for review with the Commissioner of the National Tax Service on June 10, 2010, but the decision of dismissal was rendered on August 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 2, 7 through 9, the purport of the whole theory of change

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Grounds for reversal of the presumption of gift

The plaintiff purchased the apartment house of this case from 149,700,000 won, and then acquired the collateral security debt of 190,000,000 won, which is secured as the apartment of this case, and disposed of 100,000,000 Do-dong, Do-dong, Do-dong, Do-dong, Do-dong, Do-dong, Do-dong, Do-dong, Do-dong, Do-dong, Do-dong, Do-dong, and paid KRW 110,00,00 in total among the purchase price of the apartment of this case and interest on the above collateral security debt of Do-dong, and paid KRW 149,70,000 in total. In other words, since it was proved that the plaintiff had been paid for the acquisition of the apartment of this case, the above transaction cannot be presumed as a donation any more.

(2) Illegal assertion regarding the calculation of taxable amount of gift taxes

Even if it is considered as a donation of domestic affairs, the calculation of the taxable amount of gift taxes was erroneous for the following reasons. ① First, the market price of the apartment in the sale case of apartment was higher than the average market price of the apartment in the same complex as the apartment in the instant apartment, so it cannot be deemed as the market price at the time of donation of the instant apartment. ② The average sale price of the instant apartment not only the debt amount of KRW 190,000,000, but also the amount of gift taxes should be calculated by deducting not only the debt amount of KRW 110,000,000, which the Plaintiff

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) As to the reversal of the presumption of gift

Article 44(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter the same shall apply) provides that "property transferred to his/her spouse, or lineal ascendants or descendants (hereafter referred to as "spouse, etc." in this Article) shall be presumed to have been donated to his/her spouse, etc. at the time of transfer of the property by the transferor, etc., and Paragraph (3) of the same Article provides that "Where it is evident that he/she has received and transferred the property to his/her spouse, etc., and where it is prescribed by Presidential Decree, Paragraph (1) shall not apply." Article 33(3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010; hereinafter the same shall apply) provides that "Where it is proved that he/she has paid the price by disposing of the property in order to acquire the property".

In light of the contents of such laws and regulations, it is presumed that the Plaintiff was donated to the Plaintiff, who is a lineal descendant, and that the Plaintiff was paid the price for the disposal of the apartment owned by the Plaintiff for the acquisition of the apartment in this case in order to reverse such presumption.

Comprehensively taking account of the overall purport of the pleadings in the evidence Nos. 4 and 5, the Plaintiff sold 256,000,000 Won to HaB on May 19, 2009 (the condition that he succeeds to 105,000,000 won) and the down payment of 20,000,000 won for the same day from HaB on the same day, and the intermediate payment of 60,000,000 won on June 22, 2009, and the remainder of 71,000,000,000 won on July 17, 2009, and the fact that the Plaintiff deposited 20,000,000 won on each of the above transfers, with the deposit money of 60,000,000 won, 60,000,709,709,000 won.

However, the following circumstances are acknowledged based on the statements in Eul's evidence Nos. 3 and 6 and the evidence mentioned above, namely, ① the contract deposit amount of KRW 30,00,000 prepared between Jung and the plaintiff on May 9, 2008 shall be paid on the date of the contract, the remainder of KRW 270,000,000 on the date of the contract, and the remainder of the payment shall be paid on May 27, 2008. However, each payment date has not been made at all, and there is no content related to the disposal of △ apartment in the payment, ② the purchase price of KRW 300,00,000 on the above contract, and the average market price of the apartment in the apartment complex in this case claimed by the plaintiff is much less than the average market price of the apartment complex in this case, ③ The Plaintiff disposed of the △ apartment and paid KRW 149,700,00 to Jung,00 after the acquisition date of the apartment complex in this case, and there is no evidence to acknowledge the payment for the period of KRW 5000.

Ultimately, the plaintiff's assertion on a different premise cannot be accepted, since it cannot be deemed that it satisfies the requirements to reverse the presumption of donation under Article 44 (1) of the Inheritance Tax and Gift Tax Act and Article 33 (3) of the Enforcement Decree of the same Act.

(2) As to the unlawful assertion regarding the calculation of taxable amount of gift taxes

(A) First, we examine whether there was an error in calculating the market price at the time of donation of the apartment in this case.

Article 60 (1) of the Inheritance Tax and Gift Tax Act provides that "the value of property on which inheritance tax or gift tax is levied under this Act shall be the market value as of the date of commencing the inheritance or the date of donation (hereinafter referred to as the "date of appraisal"), Paragraph (2) provides that "the market value under the provisions of paragraph (1) shall be the value which is generally recognized as normal in cases of free transactions between many and unspecified persons, and shall include the amount which is recognized as the market value under the conditions as prescribed by the Presidential Decree, such as the expropriation and public sale price and appraisal price," and Paragraph (1) of Article 49 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "Article 60 (2) of the Act is recognized as the market value under the conditions as prescribed by the Presidential Decree, such as expropriation and public sale price and appraisal price, etc." shall be six months before and after the date of appraisal (three months in cases of donated property; hereafter the same shall apply in this paragraph) or public sale (hereafter referred to as "sale, etc." in this paragraph) and it provides that "the value of the property concerned is identical or similar property" in paragraph (16):

However, the fact that the apartment of this case was traded in 50,00,000 won on June 23, 2008 is as shown in the above disposition circumstances. According to the above evidence, the apartment of this case is located in the same Dong as the apartment of this case and its size (186.78m2), direction, structure, etc. are the same as the apartment of this case. The apartment of this case is about 4th and 10th, and the apartment of this case is not secured a view right compared to the apartment of this case, and its standard market price is lower than the apartment of this case. In light of the above facts in light of the above legal provisions, it is reasonable to view the above apartment of this case as the property of this case under Article 49 (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and it is reasonable to view that the above apartment of this case is identical to the property of this case, and there is no violation of the law as to the sale price of this case within three months from the transfer date of the apartment of this case under Article 49 (1) of this Decree.

(B) Furthermore, in calculating the taxable amount of gift taxes, the Plaintiff’s assertion that, other than the amount of KRW 190,000,000, the amount of KRW 110,000,000 that the Plaintiff paid to Jeong should be deducted from the amount of KRW 110,000 that the Plaintiff received, is difficult to deem that the amount of KRW 147,00,000 that the said amount of KRW 110,000 that was paid to Jeong was paid in return for the transfer of the apartment in this case, and there is no other legal basis to deduct the amount of KRW 147,00,00 that was paid in return for the transfer of the apartment in this case (the above amount of KRW 147,00,00 that was used for the repayment of the debt with the right to collateral security that the Plaintiff acquired.)

(C) Therefore, the defendant cannot be deemed to have any error in calculating the taxable amount of gift taxes, and the plaintiff's assertion against this 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.