Incheon District Court-2017-Gu 74344 ( December 19, 2018)

Examination-Gift-2017-017,0016 ( October 22, 2017)

(As with the judgment of the first instance, it is difficult to regard the transfer of the property as a donation without compensation with the payment of part of the transfer price of the land in this case.

In full view of the facts and circumstances that can be recognized by comprehensively taking account of the facts and the purport of the entire pleadings, the instant disposition is unlawful since it is difficult to view that the competentA paid part of the transfer price of the instant land to “free transfer” because it is difficult to view it as a gift free of charge because it is difficult to view it as a “free transfer of property.”

Article 61 of the Framework Act on National Taxes

Seoul High Court 2018Nu44106 Revocation of Disposition of Imposing Gift Tax

○○, ○○○

○ Head of tax office, ○ Head of tax office

November 26, 2018

December 19, 2018

1. The imposition of gift tax amounting to KRW 58,776,720 (including additional tax) on June 1, 2009 by the director of the district tax office on December 1, 2016, and the imposition of gift tax amounting to KRW 59,372,430 (including additional tax) on June 1, 201 by the director of the district tax office having jurisdiction over the Plaintiff on December 1, 2016 shall be revoked.

2. Of the costs of lawsuit, the part arising between the Plaintiff’s rightB and the Defendant’s lecture chief shall be borne by the director of the Gangseo-gu Tax Office, and the part arising between the Plaintiff’s rightCC and the Defendant’s Southern Tax Office shall be borne by the director

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

(a) The land of Gyeyang-gu, Incheon (hereinafter referred to as the “instant land”) on August 12, 1980

The transfer registration of ownership was completed in the name of AA(the plaintiff's punishment was omitted) due to the reason.

B. Around June 12, 2009, the competentA sold the instant land in KRW 1.1 billion, and paid KRW 24.5 million out of the price to the Plaintiff’s rightCC on June 22, 2009, and KRW 23 billion to the Plaintiff’s rightB on June 30, 2009.

C. Around October 2016, the director of the Central District Tax Office of China issued a notice to the Defendants that “The Republic of Korea transferred the instant land donated to the Defendants by ICO (the Plaintiff and IC; hereinafter “the deceased”) and then donated the money to the Plaintiffs who are the births.” Accordingly, on December 1, 2016, the director of the District Tax Office of Gangseo-gu imposed a gift tax amount of KRW 58,776,720 (including additional tax) on June 1, 2009 on the Plaintiff rightB, and the director of the District Tax Office of Gangnam-do imposed a gift tax of KRW 59,372,430 (including additional tax) on the Plaintiff rightCC on June 209 (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap 1, 3 evidence, Eul 1 to 3 evidence, the purport of the whole pleadings

2. Relevant statutes;

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

3. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

1) It is unlawful to select the Plaintiffs as the subject of tax investigation in the absence of the grounds for selection of the Plaintiffs.

2) The instant land constitutes inherited property, since the deceased’s property was trusted in trust with the competentA. The children, including the Plaintiffs, of the deceased, were the inherited property, and the land and the housing were owned by the competentA, and the proceeds from the sale of the instant land were owned by the competentA, other than the competentA. The Plaintiffs were allocated the proceeds from the sale of the instant land according to the consultation, and thus, the Plaintiffs cannot be said to have received a free donation of the property from the competentA.

(b) Whether selection subject to tax investigation is lawful;

1) According to the purport of the evidence Nos. 3, 9, and 10 and the entire pleadings, the Director of the Central District Office of Middle-Term Regional Tax Office, around July 2016, confirmed the fact that the plaintiffs received part of the proceeds from the sale of the land of this case from the rightA around 2009 and selected the plaintiffs as tax investigation.

2) Article 81-6(3)1 of the former Framework Act on National Taxes (amended by Act No. 15220, Dec. 19, 2017) provides that “Where a taxpayer fails to fulfill his/her duty of tax payment cooperation by filing a return, submitting a certificate of faithful return, preparing and submitting a tax invoice or an invoice, preparing and submitting a payment record, etc.” (Article 81-6(3)1) and “in cases of the items of tax for which the tax base and the amount are determined through the investigation and determination of a tax office, a tax investigation may be conducted to determine the tax base and the

If a person liable to pay gift tax returns a gift, the tax authority’s tax base and tax amount constitutes a tax to be determined (see Articles 68 and 76 of the Inheritance Tax and Gift Tax Act). If a person liable to pay tax fails to report the donation, the Defendant is inevitably able to conduct a tax investigation for the determination of tax base and tax amount for the reasonable exercise of the right to impose taxes. Therefore, it

The plaintiffs' assertion on this part is without merit.

C. Whether it is subject to gift tax

1) Facts of recognition

① On June 26, 1976, the Deceased completed the registration of ownership transfer on the O-O land and its second floor housing (hereinafter referred to as "O-O housing"), on April 29, 1980, 23/192.3 shares of the same O-O land (hereinafter referred to as "O-O land of the same O-O land") among the above 23/192.3 shares (hereinafter referred to as "O-O land of the same O-O land"), and thereafter, he resided in the O-O housing of the same O-O land at that time.

② On August 12, 1980, the instant land had been completed on August 12, 1980.

③ The Republic of Korea, from November 6, 1982 to December 21, 1989, resided in the Bluedong housing, and resided in the Bluedong apartment located in the Bluedong from December 22, 1989 to May 25, 1997. The Deceased died on April 17, 1997. The ICE resided in the Bluedong housing with her mother from May 26, 1997, and her mother was living in the Bluedong housing from May 26, 1997 to the present date even after her mother died.

The amount of the payment date of the eligible recipient;

June 22, 2009 Plaintiff 204,450,000

June 30, 2009 Plaintiff’s rightB 203,000,000

July 30, 2009 ICD 205,292,010

August 25, 2009 EE 202,00,000

④ On June 12, 2009, the rightA sold the instant land in the amount of KRW 1.1 billion (the contract amount of KRW 20 million shall be paid in June 19, 2009; the intermediate payment of KRW 480 million shall be paid in June 19, 2009; and the remainder of KRW 600 million shall be paid in July 30, 2009). The rightA paid the remainder of the instant land to the same household including the Plaintiffs, as follows:

⑤ On August 3, 2009, the registration of transfer of ownership was completed in the name of the competent AA on April 17, 1997 due to the inheritance by consultation and division on April 3, 2009.

④ The letter related to the inherited property of June 12, 2009 (Evidence 6) written between the Plaintiffs and other siblings stated as follows: “The 1.1 billion won payable according to the real estate sales contract concluded on June 12, 2009 shall be the amount calculated by subtracting the transfer cost, etc., from the amount calculated by deducting the share of KRW 50,000,000,000,000,000,000,000 won, from the real estate sales contract concluded on June 12, 2009.”

viii) On January 18, 2018, the KimO (the wife of the Plaintiff’s rightB) was inherited property at the time of the deceased’s death. The instant land was purchased in the name of the head of the Republic of Korea by the deceased. After the deceased’s death, the family members agreed that the instant land had a parent’s right to gather and that the instant land would have divided the remainder of punishment except the rightA. The rightA agreed that the property tax imposed on the instant land would be KRW 40 million in total from each of the instant land, and that the EO (the wife of the rightA) would have agreed that the instant land would have been collected in the name of the head of the Republic of Korea. After the deceased’s death, the EO would have agreed that the instant land would have a parent’s right to gather and that the instant land would have divided the remainder of punishment with the exception of the rightA. Even if the property tax imposed on the instant land.

[Reasons for Recognition] Facts without dispute, Gap 3, 4 evidence, Eul 6, 8, 12 evidence, and the whole pleading

chapter 6

2) Determination

In full view of the following facts and circumstances that can be recognized by comprehensively taking account of the facts and the purport of the entire pleadings, the instant disposition is unlawful because it is difficult to view that the competentA paid part of the purchase price of the instant land to the Plaintiffs living together, as “free of charge,” and it is difficult to view the instant disposition as a gift transferred.

① The instant land is presumed to be owned by the AA, barring any special circumstance, since the ownership transfer registration has been completed in the name of the AA.

In addition, considering the fact that the title of ownership was not changed from August 12, 1980 after the registration of ownership transfer was completed under the name of the competent authorityA until the date the registration of ownership transfer was completed on July 30, 2009, and that the land of this case was not reported as inherited property even at the time the inheritance was reported after the death of the deceased, even if the deceased shared the purchase price of the land of this case and the heir, including the Plaintiff, agreed to divide the purchase price of the land of this case with the remaining form of punishment except the title AA after the deceased’s death, it is difficult to view that the deceased was the intent of the competent authorityA to donate the purchase price of the land of this case or the purchase price thereof, as alleged by the plaintiffs, it is difficult to deem that the deceased trusted the land of this case itself under the title trust to the competent authorityA, as alleged by the plaintiffs.

② The rightA acquired only KRW 50 million, excluding various expenses out of the purchase price of the instant land. On the other hand, the Plaintiffs or other siblings agreed to inherit the said real estate solely by the rightA, even though the real estate is obviously considered inherited property.

The rightA paid most of the purchase price of the instant land to other punishments on or around June 2009, and as such, on August 3, 2009, the time when he distributed the purchase price to punishments, the rightA completed the registration of transfer of ownership based on inheritance in its name on the instant real estate.

However, as at the time of 2009, the officially announced value of the land 114-31, 197,000 square meters per square meter, the total area of the above land (192.3 square meters per square meter) is KRW 378,831,00. As such, as long as the value of the real estate inherited by the authorityA solely exceeds the amount paid to other siblings, it is difficult to understand that the Plaintiffs or other siblings easily renounced the real estate that is inherited property without any consideration.

In full view of the circumstances such as the developments leading up to or the amount of distribution of the purchase price of the instant land and the timing of distribution thereof close to the timing of transfer of ownership of the instant land and the value of the instant land and the amount reverted to each individual, it is reasonable to view that the Plaintiffs received the purchase price of the instant land from the NA in return for the waiver of their respective inheritance shares on the instant real estate, which is inherited property, in return for the waiver of their inheritance shares.

4. Conclusion

It is so decided as per Disposition by the assent of all participating Justices on the ground that the plaintiffs' claims are reasonable.