Cho High Court Decision 201Do2370 ( December 07, 2011)

It is reasonable to deem that there was an intention to settle ex post facto in paying building acquisition funds.

In light of the fact that the Tax Tribunal has an intention to settle after the payment of the building acquisition fund, it is reasonable to deem that there was an intention to settle after the payment of the building acquisition fund, and the presumption of donation will be reversed.

2012Revocation of revocation of disposition imposing gift tax

XX

Head of the tax office;

November 9, 2012

December 14, 2012

1. The Defendant’s disposition of imposing gift tax of KRW 000 (including additional tax) against the Plaintiff on January 4, 2011 shall be 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, 2006, the Plaintiff purchased the instant building from the NewA on June 24, 2006 and succeeded to KRW 000,00,00,000 of the financial debt of the NewAA on the same day, set off against the security deposit claim of KRW 115-14, and paid the remainder from the bank account under the name of the Plaintiff, the spouse, at KRW 00 on June 8, 2006, and KRW 00 on June 9, 2006, respectively.

C. On January 4, 2011, the Defendant respectively imposed and notified the Plaintiff of KRW 000 on the gift tax on the gift of June 9, 2006 and KRW 000 on the gift of June 16, 201, on the ground that the Defendant received the gift from RedB on June 9, 2006 and on the gift of June 16, 200.

D. The Plaintiff filed an objection on March 14, 201, but received a decision of dismissal from the director of the Seoul Regional Tax Office on April 15, 2011, and filed an appeal on July 1, 201. On December 7, 2011, the Tax Tribunal rendered a decision to rectify the tax base and tax amount calculated by subtracting the Plaintiff from the value of the gift, and to dismiss the remainder of the appeal on December 1, 201, on May 28, 2003, “the payment was made by subrogation of RedB” with the Plaintiff on December 7, 2011.

"The defendant revoked KRW 000 on June 14, 201, and corrected KRW 000 out of KRW 000 on the gift tax on the gift of June 16, 2006 on June 16, 2006 (i.e., KRW 000 (= KRW 000 - KRW 000, KRW 100, and KRW 100; hereinafter referred to as the "the disposition in this case")," / [based on recognition] 1, 2, 7, 4, 5, and 6 (including a serial number), and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Of the donation amount of June 16, 2006, the amount of KRW 000 which was not deducted from the value of donated property (i.e., the donation amount of KRW 000 on June 9, 2006 + KRW 000 on the donation amount of KRW 000 on June 16, 200 + the subrogated repayment amount of KRW 00 on the loan amount of KRW 00 on the gift amount) was leased from RedB. Thus, the disposition of this case

(b) relevant statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) The burden of proving the existence of a taxation requirement fact is against the tax authority, but if it is revealed that the other party is presumed to have a taxation requirement fact in light of the empirical rule, the other party should prove the circumstances that are not subject to the application of the empirical rule. If, under Article 830(1) of the Civil Act, real estate acquired by one of the married couple in the marriage is presumed to be the special property of the nominal owner, and if it is apparent that the other spouse is not the nominal owner, then the nominal owner may be presumed to have donated the acquisition fund

(2) It is clear that the Plaintiff, in acquiring the instant building under one’s own name, the source of part of the acquisition fund was the account in the name of HongB, the spouse, and thus, it is presumed that the acquisition fund was donated in accordance with the above legal doctrine.

However, according to the facts stated in Gap's Evidence Nos. 3 through 6 (including the serial number), Nos. 8 through 11, Eul's Evidence Nos. 1, 2, and 3, the plaintiff paid 00 won for automobile purchase on May 28, 200, 15, 000 won for first apartment, and 00 won for second intermediate payment on May 28, 2010, 200 won for the plaintiff's 200 won for the remaining 7 years old 20 years old 7 years old 20 won for the plaintiff's 6 years old 7 years old 200 won for the plaintiff's 6 years old 2's old 6 years old 200 won for the plaintiff's old 2's old 6 years old 20 years old 200 won for the plaintiff's old 2's old 6 years old 3 years old 20.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.