Incheon District Court 201Guhap6183 (27 December 2012)

National Tax Service Review Donation 2011-0018 (201.09.09)

Since it appears to be a real estate title trust, not a gift, the designation of joint and several tax liability is unreasonable.

Since it is confirmed that the land has been involved in the sale, receipt of price, management, and use, and it is deemed that the ownership is held even after the date of registration of ownership transfer, it is reasonable to regard it as real estate title trust, not the gift, and therefore,

Article 2 of the Inheritance Tax and Gift Tax Act

2012Nu32170 Revocation of the designation of a taxpayer

OraA

The director of the North Incheon National Tax Office

Incheon District Court Decision 201Guhap6183 Decided September 27, 2012

August 27, 2013

September 27, 2013

1. Revocation of a judgment of the first instance;

2. On September 16, 2010, the Defendant designated the Plaintiff as a joint and several taxpayer and revoked the notification of the payment of the gift tax for the gift tax for the year 2008 against KimB.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1.Gift tax;

The following facts are acknowledged in full view of the purport of the entire pleadings in Gap evidence Nos. 1, 2, 4, 5, Eul evidence Nos. 1 and 4 (including paper numbers):

[l]

On December 28, 2004, the Plaintiff registered as a real estate sales business, etc., and divided the OO-Gun OCC (hereinafter referred to as “CC”) of 550-11 square meters into 9,848 square meters in CC-ri 550-11 or 550-24.

○ On June 23, 2008, among the aforesaid 14 parcels on June 23, 2008, the registration of ownership transfer was completed due to the sale on June 5, 2008, from the Plaintiff as to the land 550-12 forest land and 724 forest land and 550-13 forest land and 657 forest land and 550-23 forest land and 657 square meters (hereinafter “three parcels”).

○ On June 20, 2008, the Plaintiff: (a) filed a preliminary return of capital gains tax on the transfer of the instant three parcels to KimB to the effect that the said three parcels were transferred to KimB; and (b) paid the capital gains tax amount of KRW 00 calculated accordingly.

[2]

○ On August 2, 2010, the Defendant deemed that the Plaintiff donated the instant three parcels to KimB, and imposed an OOB on KimB the disposition of imposition of the gift tax for the year 2008.

Then, on September 16, 2010, the defendant designated the plaintiff as a joint and several tax obligor and notified the payment of the gift tax (hereinafter referred to as the "disposition of this case").

○ The Plaintiff filed a petition for review with the Commissioner of the National Tax Service on April 12, 201 upon filing an objection against the instant disposition, but was dismissed on September 9, 2011.

2. The plaintiff's assertion

The Plaintiff was in title trust with KimB to make the management and sale procedures of the three parcels of this case more convenient for the Plaintiff, not by donation to KimB, but by emigration to the Republic of Korea. Thus, the instant disposition was unlawful on the ground that the Plaintiff donated the three parcels of this case to KimB.

3. Determination

(a) Donations;

(1) Article 2(3) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) provides that the term "donation" in this Act means a free transfer (including transfer at a remarkably low price) of tangible and intangible property (including transfer at a remarkably low price) to another person, or an increase in the value of another person's property by means of a direct or indirect method, regardless of the title, form, purpose, etc. of such act or transaction.

(2) Therefore, in order to deem that the Plaintiff donated the instant three parcels to KimB, the ownership of the instant three parcels shall be transferred to KimB, and KimB shall hold the right to dispose of the instant three parcels of land or hold profits from the disposition thereof, and such circumstances shall be proved by the Defendant.

B. Three parcels of this case

The facts and the circumstances in light of Gap's evidence Nos. 3, 4, 18 through 24, Eul evidence Nos. 3 and 5 (including paper numbers), and facts which are admitted by considering the whole purport of the pleadings as a whole to the testimony of KimB of the party Kim Jong-B, and the circumstances are as follows:

(1) On December 28, 2004, the Plaintiff registered as a real estate sales business, etc., and divided the land owned by the Plaintiff into 50-11 to 550-24 on April 7, 2005 into CC-ri 550-11 and 550-24, including the three lots of land in this case. The Plaintiff intended to sell the said 14 lots as a site for a electric house, and GangwonD Co., Ltd. sold the said 14 lots on behalf of the Plaintiff. Of the said 14 lots of land, CC-ri 550-14 land was sold to KimE, and CC-ri 550-20 land was sold to GGG, and CC-ri 550-21 land was sold to KimF, respectively.

On June 23, 2008, among the above 14 parcels, the registration of ownership transfer was completed from the plaintiff to KimB, and KimB is the principal of the middle school of the husband Kim H.

As above, in case where the Plaintiff wishes to sell 14 lots as a site for electric source, the fact that the Plaintiff donated 3 lots of this case, which are part of the said 14 lots to KimB, to the KimB shall be deemed to be an exceptional. According to the testimony at the trial of KimB, it is merely merely that the Plaintiff borrowed the name upon his request, as his husband, Kim H-H's relative, and that he did not participate in the disposition of the three lots of this case, or in the receipt and use of the price.

(2) On June 23, 2008, after the registration of ownership transfer was completed from the Plaintiff on June 23, 2008 with respect to the forest land 550-12 forest land among the three parcels of this case, the registration of ownership transfer was completed on July 1, 2008 on June 26, 2008 (OOOO).

As above, there is no evidence to acknowledge that, at the time of the completion of the registration of ownership transfer from KimB, the Plaintiff entered into a sales contract with Lee JJ on behalf of the Plaintiff, and that the down payment was received by the Plaintiff. The remainder of the sales amount was used to repay the secured debt of the right to collateral security established in the future of the Bank before the conclusion of the sales contract, and that KimB received or used the said forest purchase amount.

In light of the fact that there is no evidence to support that the Plaintiff concluded a sales contract and received the payment in the event that the registration of ownership transfer was completed in the KimB-12 forest land from the Plaintiff as above, and that there is no evidence to support the receipt or use of the sale price in the above forest land after the registration of ownership transfer was completed in the KimB-based forest land, KimB-B, while the Plaintiff actually owned the ownership even after the registration of ownership transfer was completed in the KimB-B-based forest land, may be deemed to have been excessive to the owner in the registry

(3) On June 23, 2008, when the registration of ownership transfer was completed from the Plaintiff on June 23, 2008 with respect to the woodland 550-23 forest land among the three parcels of this case, the registration of ownership transfer was completed on January 30, 2009 on the ground of the sale price (OOOO) as of January 30, 2009.

As above, the contract prepared at the time of the completion of the ownership transfer registration from KimB to the largest KK is the name and seal of KimB in the seller column, as well as the name and seal of the plaintiff and his husband Kim HH. Of the purchase price of the forest land above, the OOOH was deposited into the account of KimB in the Republic of Korea of KimB. The passbook of the above account was managed by the plaintiff's husband Kim H. The deposit money deposited on the same day or immediately after the deposit was withdrawn to the plaintiff's creditor, or deposited into the account of the plaintiff's husband Kim H, and there is no evidence to acknowledge that KimB received or used the purchase price of the forest land above.

If the Plaintiff donated the forest land 550-23 forest land to KimB, the Plaintiff and his husband did not have any reason to sign and seal the contract as above. In light of the fact that there is no evidence to recognize that the purchase price of the forest land was deposited in the account managed by the Plaintiff’s husband Kim HH and again deposited the forest land into the account managed by the Plaintiff’s husband Kim HH and that KimB received or used the purchase price of the forest land in question, there is a lot of room to regard the forest land as above as being owned by the Plaintiff even after the ownership transfer registration was completed in the name of KimB, and KimB was not an owner on the register.

(4) On June 23, 2008, with respect to the forest land 550-13 forest land in the instant three parcels, the registration of ownership transfer was completed from the Plaintiff on June 23, 2008, and the Defendant seized the forest land when he imposed a gift tax on KimB on August 2, 2010. KimB did not object to the said disposition or seizure, and there is no evidence to acknowledge that KimB managed and used the forest land.

On the other hand, the Plaintiff obtained permission for the diversion of forest land for the installation of detached houses and access roads with respect to forest land 550-11 before the division, and deposited the LL insurance policy with the Hongcheon-gun Office to guarantee its restoration, but failed to restore it to its original state, and filed a claim for the payment of the above authorization insurance money with the LL insurance company around December 2008. On September 201, 2010, the Plaintiff filed a report on the alteration of the permission for the diversion of forest land with respect to land divided from forest land 50-16, 550-17, 550-18, and 550-24.

As above, there is no evidence to acknowledge that KimB managed and used the said forest land after the completion of the registration of ownership transfer from the plaintiff with respect to the forest land 550-13 forest land, and KimB did not object to the gift tax imposition or the seizure of the said forest land. On the other hand, the forest land 50-13 forest land 550-14 divided fromCC 550-11 is one parcel of land among the land divided into 14 lots of land. In light of the fact that the plaintiff had registered his business through real estate sale business, etc. and intended to sell the said 14 forest land as a site for all the above 14 forest land, the permission for conversion of a mountainous district for part of the said 14 forest land to be permitted and reported to change the use of the said 50-13 forest land for the above 14 forest land, it shall be deemed that there is a lot of room for the plaintiff to regard the 14 forest land as the owner of the land.

(5) On June 23, 2008, the registration of ownership transfer was completed in the name of KimB from the Plaintiff on the third parcel of this case. On June 20, 2008, the Plaintiff declared the scheduled transfer income tax to transfer the third parcel of this case to KimB to the KimB, and paid the capital gains tax OE calculated accordingly. Around December 2008, the Plaintiff submitted to the Hongcheon-gun Office a written vindication that the third parcel of this case was donated to KimB, and the written statement that was written to the effect that the third parcel of this case was donated and the seal of KimB was affixed was submitted to the Hongcheon-gun Office.

With respect to the above written vindication, the Plaintiff: (a) at the Hongcheon-gun Office, deemed the above OOOOOO as the amount reported under-reported; and (b) stated that the Plaintiff submitted a written vindication to KimB that: (c) the Plaintiff was unable to submit any supporting documents proving the payment of the transaction price due to the title trust relationship with KimB; and (d) the Plaintiff was given a donation to KimB. In addition, according to KimB’s testimony at the trial of KimB, he did not know the above written argument; (b) without having known the Plaintiff’s husband Kim H’s H’s husband’s consent, he was only

As seen earlier, there is no evidence to acknowledge the relation between the sale, receipt of the price, management and use of the three parcels of this case, and there is no evidence to acknowledge the relation between KimB, etc., in light of the fact that even after the plaintiff had completed the transfer of ownership, etc. in the name of KimB as to the three parcels of this case, it is reasonable to view that the plaintiff actually owned the ownership and KimB was not the owner on the register, and that the plaintiff's assertion and the testimony of KimB concerning the above written statement and written opinion submitted to the Hongcheon-gun Office is difficult to deem

C. Disposition of this case

In full view of this paper, the Plaintiff cannot be deemed to have donated three parcels of this case to KimB, and there is no other evidence to acknowledge this point.

Therefore, the instant disposition that the Plaintiff designated the Plaintiff as a joint and several tax obligor for the gift tax on KimB on the ground that the Plaintiff donated the instant three parcels to KimB is unlawful.

4. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case will be accepted on the grounds of its reasoning, and since the judgment of the court of first instance is unfair on the grounds of its conclusion, it is so decided as per Disposition by cancelling the judgment of the court of first instance and accepting the plaintiff