Cho Jae-2015 middle 1426 ( December 10, 2015)

The Nonparty is presumed to have donated the instant money to the Plaintiff, a husband, to be used as the purchase price of real estate.

It is insufficient to recognize that the Plaintiff had a loan claim equivalent to the amount of the instant money to the spouse by having the spouse paid the purchase price on behalf of the Plaintiff directly.

Article 2 of the Inheritance Tax and Gift Tax Act

2015-Gu Partnership-6982 Revocation of Disposition of Imposition of Gift Tax

AA

O Head of tax office

2016.03.29

2016.05.03

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The gift tax imposed on the Plaintiff on December 16, 2014 (to be deemed as a clerical error in December 9, 2014) by the Defendant

The imposition of OOO members shall be revoked.

1. Details of the disposition;

A. The plaintiff and BB are married couple.

B. On October 30, 2009, the Plaintiff purchased an O-O O-O 422.1 square meters and above-ground buildings (hereinafter “the instant real estate”) from O-dong, Incheon, and completed the registration of ownership transfer on November 19, 2009. Of the purchase price, O0 million won was directly paid to BB to the seller.

C. The Defendant deemed that BB donated the Plaintiff KRW 000,000 to the Plaintiff, and on December 2, 2014

9. The Plaintiff imposed an OO on the Plaintiff (hereinafter referred to as the “instant disposition”).

D. On February 27, 2015, the Plaintiff dissatisfied with the foregoing disposition, filed an appeal with the Tax Tribunal on February 27, 2015, but dismissed the appeal on December 10, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence 9, 11, 12, Eul evidence 1 through 8 (including branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

Around April 202, the Plaintiff and the Plaintiff (hereinafter referred to as “CC”) purchased O-O land and its ground buildings (hereinafter referred to as “real estate at Silung-si”) from BB at Silung-si (hereinafter referred to as “BC”), the Plaintiff and the Plaintiff leased KRW 00,000,000,000 won to BB as the purchase price. Since then, the Plaintiff acquired a loan claim of KRW 10,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

The burden of proving the existence of a tax-exempt fact is against the tax authority, but if the facts presumed to have been proved in light of the empirical rule are revealed in the course of litigation, it cannot be deemed an illegal disposition that failed to meet the taxation requirement against the tax-exempt disposition unless it proves such circumstances (see, e.g., Supreme Court Decision 89Nu6006, Apr. 27, 1990).

In addition to the purport of the entire arguments in Gap evidence Nos. 1, 2, 10 and Eul evidence Nos. 5, BB purchased real estate at the time of 00,000 O0,000,000 won around April 12, 2002, and the above purchase price was paid at the time of O0,000,000 won on May 20, 2002, O00,000 won, and O0,000,000 won on June 5, 2002. The real estate at the time of O0,000 won was accepted at the Korea Land and Housing Corporation around December 15, 2009, and BB may recognize the fact that it received compensation and paid directly to the seller directly with the purchase price for the real estate purchased by the plaintiff.

According to such recognition, barring any special circumstance, BB is presumed to have donated the Plaintiff, a husband, to use the instant real estate as the purchase price. Therefore, the Plaintiff is obliged to prove that the said money was paid for other reasons, such as the repayment of the loan, not the donation.

However, in light of the facts acknowledged earlier, as well as the following circumstances that can be acknowledged by comprehensively taking account of the overall purport of the pleadings as evidence Nos. 3 through 8, 10, 12, 14, 16, 17, and evidence Nos. 2-2, it is insufficient to recognize that the Plaintiff had a loan claim equivalent to KRW 1 through 10, 13, and 17, which was submitted by the Plaintiff, and that the Plaintiff was paid by BB by directly paying the purchase price of the instant real estate on behalf of the Plaintiff, and there is no other evidence to acknowledge otherwise.

① From February 1, 1994 to November 26, 2008, the Plaintiff was each representative director of the EE Co., Ltd. (hereinafter “EE”) from December 1, 2000 to April 15, 2002.

② On March 20, 2002, the CCC’s minutes of the board of directors held on March 20, 2002, a loan shall be granted to BB for real estate purchase, and the loan funds shall be extended from the bank and some funds shall be raised in consultation with the directors. The loan shall be used as the company warehouse until the construction of a building is newly constructed in a relationship with no warehouse. When the construction of the building is commenced and completed on the relevant land in 2003,

The meeting minutes of the board of directors state that “BB shall pay a certain portion of the principal, interest, and earnings upon lending funds to BB at the time of loan.” In addition, it is difficult for CCC to pay a free interest on real estate purchase funds to BB at the time of loan out of the burden of bank loans. Meanwhile, as of April 10, 2002, “CC borrowed an amount of KRW 00 million from CC and used part of the money as a warehouse until the construction of the leased and warehouse building is newly constructed.” If the next building is newly constructed, it is difficult for the Plaintiff and the BCC to write out a new loan or to pay the loan funds in its name and make it difficult for BB to use the loan funds as a warehouse, taking into account the loan certificate and the date on which the loan was made, as well as the loan certificate and the date on which the loan was made. It is difficult for the BCC to use the loan funds under the name of the Plaintiff and the BCC as a new signature or seal on the loan.

③ BB paid to the seller KRW 00,000,000 on May 20, 2002, and KRW 00,000 on June 5, 2002, as part of the purchase price of real estate at the time of demonstration. From the account in the name of CCC to May 20, 2002, KRW 00,000 was withdrawn as a check on June 5, 2002, and around that time, from the Plaintiff’s account.

AO0 million won was withdrawn in cash. However, there is no financial data that can recognize that the money withdrawn from the account held in the name of the CCC or the Plaintiff was delivered to BB or the seller, and there is no other obvious evidence to acknowledge it otherwise.

④ Around November 2008, the Plaintiff and DDR drafted a business transfer and acquisition contract with the content that the Plaintiff would arrange for the reorganization of the assets and loans that the Plaintiff would transfer to DDR all rights, management and shares of CCC, and that it would have no intention to accept DDR.

However, it is difficult to view that the loan claim was transferred to the Plaintiff even if the CCC had a loan claim against BB, there is no indication that the Plaintiff acquired the loan claim against CCC’s BB, and there is no other evidence to acknowledge it.

⑤ The Plaintiff alleged that the Plaintiff had no means to purchase the real estate at the time of the interesting to BB. However, the BB had no means to purchase the real estate at the time of the interesting. However, in addition to the real estate at the time of the interesting, the BB purchased the construction site at the time of the interesting around 1995, and sold it around 201, and sold the land at the time of the interesting around 1997 and sold it around 2003. Therefore, it is difficult to deem that the BB had no means to purchase the real estate at the time of interesting.

④ Since the right to collateral security was established upon the Plaintiff, CCC, and EE as the obligor after the Plaintiff acquired ownership with respect to the construction section and OE located in the OE-dong, the said OB was highly likely to have made an additional monetary transaction with respect to the said collateral security. Therefore, even if the money withdrawn from the account was delivered to BB at the time when BB purchased the said real estate at the time when BB purchased the real estate at the time of CB, it cannot be immediately deemed that the money was immediately lent to BB as the purchase price for the real estate.

7) The amount of the CCC lending to BB is not shown in the loan account on the balance sheet, and in fact, it was not possible to settle the accounts on the payment of interest or the principal and interest of the lending during the period from 2002 to 7 years from the 2009 when the BB purchased real estate at the time of market interest to the 2009 when the BB directly paid the purchase price of the real estate in this case.

Therefore, the plaintiff's assertion cannot be accepted.

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.