The Plaintiff’s donation of 300 million won of the transfer price from a joint owner

In the event that 350 million won is excluded from the amount of 1/2 of the transfer proceeds of this case excluding common debts, which is 30 million won, the Plaintiff received and donated 300 million won.

Article 2 of the Inheritance Tax and Gift Tax Act

2016Guhap9706 Revocation of Disposition of Imposition of Gift Tax

OO

O Head of tax office

March 20, 2018

April 3, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The imposition of gift tax of KRW 78,953,70 imposed on the Plaintiff on March 3, 2016 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is the spouse of the network AA, BB is the same as that of the network AA, and CCC is the Plaintiff’s children. The network AA type died of 20O.O.O.O.

B. The Plaintiff, BB, andCC owned each of the instant real estates as listed below (hereinafter referred to as “each of the instant real estates”), and each of the instant real estates was sold to O.O.O.D. for KRW 1,350,000,000 in total of the prices as listed below, and completed the registration of each of the instant real estates onO.O.O.O., 2012.

C. The Plaintiff used 502,585,932 won out of the total purchase price of each of the instant real estate in order to repay the obligor’s collateral security debt amounting to 1st real estate, and used 450,000,000 won in order to repay the obligor’s debt amounting to the Plaintiff, and 50,000,000 won was deposited into the account of BB.

D. The Defendant: (a) considered KRW 370,00,000, the total purchase price of each of the instant real estate as donated property of KRW 101,51,90,000,000 (including additional taxes) with the exception of KRW 502,585,90,000 (the actual repayment amount is KRW 502,585,932) of the portion on debt repayment of the above net AA; and (b) determined that KRW 1,200,00 (including additional taxes) with the exception of KRW 50,00,000, which was received by BB from KRW 1/2 of the shares of BB; and (c) determined that the remainder of KRW 374,00,000, which was reduced in the unit of KRW 374,000,000,000 as donated property (hereinafter “instant disposition”).

E. The Plaintiff filed a request for review with the Commissioner of the National Tax Service, who is dissatisfied with the imposition of gift tax, and the Commissioner of the National Tax Service rendered a decision to rectify the tax base and tax amount by making the gift tax amount of KRW 300,000 to the effect that the gift tax should be additionally excluded from KRW 148,00,000 from the purchase price of each of the instant real estate at KRW 1,350,000,000, which is the sole owner of the CCC. Accordingly, the Defendant issued a decision to reduce the amount of KRW 1,48,00,000 among the imposition of gift tax by the above OO members, and the amount of gift tax of the instant disposition became an OO (including additional tax).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, 12, 13, 15, Eul evidence 1-1, 2, and the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

1) The Plaintiff used KRW 450,000,000, out of the sales price of each of the instant real estate, to repay debts for joint projects between BB and the network AA. As such, the said money should be excluded from the value of donated property.

2) Since the Plaintiff paid KRW 100,000,000 in total to BB by means of checks and cash, etc., the Plaintiff’s additional KRW 50,00,000,000, other than KRW 50,000, which the Defendant recognized, should be excluded from the value of donated property.

B. Determination

(i) 450,000,000 won in debt repayment to the EE Bank shall be excluded from the value of donated property.

The plaintiff's assertion that the plaintiff's assertion

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax shall be borne by the imposing authority. However, if it is revealed that the facts of taxation requirement in light of the empirical rule have been presumed in the course of a specific lawsuit, the other party cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that fails to meet the taxation requirement, unless it proves that the pertinent facts are not eligible for application of the empirical rule (see, e.g., Supreme Court Decision 2006Du6604, Feb. 22, 200

Under the overall purport of Gap evidence Nos. 1, 11, and 13, EE Bank (EE Bank prior to the change of trade name) executed 450,000,000 loans to the plaintiff as security of OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO, and the above money was deposited into the debtor's bank with FF (Plaintiff) EEOOOOOOoooooooooooooooooooooooo, and FF was deposited into the plaintiff's own business chain operated by the plaintiff, and the above loans were fully repaid onOOO.O.O.O., 2012. Thus, barring any special circumstance, it is presumed that the repayment of loans of KRW 450,000,000 is used as the plaintiff's debt, and it is difficult to recognize that the above amount is subject to credit from the value of gift.

In this regard, the Plaintiff jointly received loans from the deceased AA and BB in the name of the Plaintiff while running the real estate business, and thus, the Plaintiff used the loan repayment amount of KRW 450,000,000 among the purchase price of each real estate of this case as the repayment of the above loan amount of KRW 450,00,00 in the purchase price of each real estate of this case, and submitted as evidence the evidence that the above repayment amount should be excluded from the value of donated property.

However, the above evidence alone can be recognized that the Plaintiff was registered as a real estate/rental type of business from 200O.O. to 2010O.O.O.O., and that BB was registered as a real estate/rental type of business from 2002O.O.O. to 2004O.O.O., from 2004 to 200O.O.O.O., from 2004 to 2012O.O., each real estate/lease, and real estate/lease(general house), and that 440,000,000 out of the above loans was deposited as substitute at the same point of O.O.O.E. bank's O.O., and there is no other evidence to prove otherwise.

Therefore, we cannot accept this part of the plaintiff's assertion.

2) Determination as to the assertion that the Plaintiff paid KRW 50,000,000 to BB

The written evidence evidence Nos. 7 through 10 alone is insufficient to acknowledge the Plaintiff’s assertion (The evidence reveals that the Plaintiff transferred KRW 20,000,000 to O.O. BB, 2016. Moreover, there is no other evidence to acknowledge the Plaintiff’s assertion since it was paid after the lapse of 0 years from the date of sale of each real estate of this case). Thus, the Plaintiff’s assertion on this part is rejected.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.