It is difficult to see that a loan claim has to be substituted for payment of purchase price.

Considering that the developments leading up to or source of the money deposited in the account of community credit cooperatives is unclear and the fact that the certificate of remittance and the receipt of the loan alone are not clear, it is difficult to deem that a loan bond has to be substituted for payment of the purchase price.

2013Guhap20019 Revocation of Disposition of Imposition of Gift Tax, etc.

IsaA

Head of Jinju Tax Office

August 13, 2013

September 3, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Each imposition of the gift tax on October 4, 2012 and the penalty tax on April 1, 2013, imposed by the Defendant on the Plaintiff, shall be revoked.

1. Details of the disposition;

The following facts may be recognized by comprehensively taking account of Gap evidence Nos. 12, 16, Eul evidence No. 1-2, Eul evidence No. 2, Eul evidence No. 5-1, Eul evidence No. 5-2, and the overall purport of arguments:

A. On December 30, 201, 201, with respect to a building of 107-22 square meters and its second floor (hereinafter the building in this case, including the above site and building) owned by the Plaintiff, OB, OB, OB, 107-22 site, 105.6 square meters and its second floor (hereinafter the building in this case, and including the above site and building, the ownership transfer registration based on the sale on the same date was made from BB in the Plaintiff’s future, and this BB reported the transfer income to the Defendant on February 28, 2012 on the ground that the said real estate is exempt from capital gains tax on one house per household.

B. However, the Defendant deemed that this case’s real estate was donated to the Plaintiff on December 30, 201, and on October 4, 2012, the Plaintiff succeeded to the status of the lessor of this case’s real estate from the market value of the instant real estate, deducted from the donation amount the amount of the obligation to return the lease deposit of the Plaintiff, the lessee of the second floor of the instant real estate, and calculated the tax base by applying Article 53 subparag. 2 of the Inheritance Tax and Gift Tax Act (hereinafter “the Inheritance Tax and Gift Tax Act”) that deducts KRW 30,00,000 from the donation amount in the case of receiving the gift from the lineal ascendant, and then calculated the tax base as the Plaintiff on the gift tax by adding the amount of the additional tax on the gift tax and the additional tax on the said gift to the Plaintiff on June 17, 2013, and then imposed the additional tax ex officio revocation of the above disposition, and then imposed the additional tax on each of the Plaintiff on April 1, 2013.

C. On October 5, 2012, the Plaintiff dissatisfied with each of the instant dispositions, filed an appeal with the Tax Tribunal on October 5, 2012, but the Tax Tribunal dismissed the Plaintiff’s claim on December 18, 2012.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

On December 30, 2011, the Plaintiff purchased the instant real estate owned by thisB from thisB in the purchase price, and on December 29, 2011, the Plaintiff agreed that the Plaintiff succeeds to the obligation to pay the leased deposit amount equivalent to the leased deposit amount owned by this B while leasing the first floor of the instant building to thisB on December 29, 2011, and the obligation to pay the remainder of the leased deposit amount to thisB out of the leased deposit amount loaned by the Plaintiff to thisB prior to the conclusion of the sales contract, and paid all the purchase price.

Therefore, each of the dispositions of this case on the premise that the Plaintiff did not pay the purchase price to the BB and received the gift of this case must be revoked as it is unlawful.

B. Relevant statutes

m. Inheritance Tax and Gift Tax Act

Article 44 (Presumption of Donation of Property Transferred to Spouse, etc.)

(1) Property transferred to a spouse, or a lineal ascendant or descendant (hereafter in this Article, referred to as "spouse, etc.") shall be presumed to have been donated by his/her spouse, etc. when the transferor transfers the property, and shall be deemed to be the value

(3) Paragraphs (1) and (2) shall not apply where the relevant property falls under any of the following subparagraphs:

5. Cases prescribed by Presidential Decree where the transfer is clearly acknowledged to be made to his/her spouse, etc.

【Enforcement Decree of the Inheritance Tax and Gift Tax Act

Article 33 (Presumption of Donation of Property Transferred to Spouse, etc.)

(3) "Cases prescribed by Presidential Decree" in Article 44 (3) 5 of the Act means any of the following cases:

1. Where properties are exchanged for each other, which require registration or enrollment in the transfer or exercise of rights;

2. Where it is proved that the payment of the income amount which has already been taxed (including the cases of non-taxation or reduction) or reported, or the price of inheritance and inheritance properties has already been made, for the acquisition of the relevant properties.

3. Where it is proved that he has paid the price for the disposal of the owned properties for the purpose of acquiring such properties; and

C. Determination

1) Article 44(1) of the Inheritance Tax and Gift Tax Act provides that the value of the property transferred to his spouse, or lineal ascendants and descendants (hereafter in this Article, referred to as the “spouse, etc.”) shall be presumed to have been donated to his spouse, etc. at the time of the transferor’s transfer of the property: Provided, That Article 44(3) of the same Act and Article 33(3) of the Enforcement Decree of the same Act provide that where it is obviously acknowledged that the transferor has transferred the property in return for the payment to his spouse, etc., and where the transferor exchanges the property which requires registration or enrollment in the transfer or exercise of rights, and it is proved that the payment has been made at the income amount (including cases where taxes have been non-taxable or exempted) or the value of inherited and gift property already taxed or reported for

In this case, as long as the Plaintiff’s lineal ascendant and descendant transferred the instant real estate to the Plaintiff, it is presumed that the donation was made, and as to the transfer of the instant real estate by the Plaintiff to the Plaintiff, the Plaintiff bears the burden of proof.

2) We examine the assertion that the Plaintiff replaced the KRW OO of the lease deposit that should be leased the 1st floor of the instant building to thisB and received from thisB as part of the purchase price of the instant case.

As shown in the Plaintiff’s assertion, there are evidence Nos. 6 (Real Estate Lease Contract), and the above lease contract concluded on December 29, 201 that the Plaintiff agreed to lease the building Nos. 6 (Real Estate Lease Contract) and the first floor of the building of this case as the OO of the lease deposit.

However, according to the evidence No. 1-2, No. 2 and No. 4, B, while reporting the transfer income tax incurred from the sale of the instant real estate to the Plaintiff on February 28, 2012, this B attached the lease agreement dated Dec. 19, 201, which was concluded with the Plaintiff, on January 2, 2008, concluded with the Plaintiff on December 19, 201. The lease agreement dated Dec. 19, 201 entered into between the Plaintiff and the Plaintiff on December 19, 2011 with the Plaintiff on December 19, 201, it is questionable that the Plaintiff leased the instant building 1st floor to this B, with the Plaintiff’s KRW 10,00,000,000,000,000,0000,0000,0000,0000,000,0000,000.

In full view of these circumstances, Gap evidence No. 6 is difficult to believe and there is no other evidence to prove the plaintiff's assertion. Therefore, this part of the plaintiff's assertion is without merit.

3) Next, we examine the assertion that the Plaintiff replaced the OOB leased to thisB as part of the sales price of this case.

A) Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 1, 2, 4, and 8, the purport of the argument is as follows: ① A total amount of OOO was transferred from September 27, 2007 to February 3, 2009 to the account in the name of the plaintiff, until December 3, 2009; ② OOOO was deposited to the account in the name of the plaintiff as a regular deposit on May 11, 2010; ② OOOO was deposited to the account in the name of the plaintiff; and on the same day, the maturity on June 10, 2011, after deducting taxes, such as income tax, from the total amount of OOOOO won to the account in the name of the bank in this B; ③ the Plaintiff and this BB was transferred to the account in the name of the bank in this case; and ③ the Plaintiff and this BB made up for 10% of the total amount of 10% of the loan from the plaintiff No. 210. 6. 10.

B) However, according to the Plaintiff’s 1984 employment at a company operated by this BB from 2008 to 2011, it is difficult to view that the Plaintiff’s monthly average income amount was a child of this BB, and that there was an earned income of the Plaintiff in the total amount of OB (2008 OO, 209: OO, 2009: OOO, 2010: OOO, 2010: OOO, 2011; OOO201). However, even if so, it is difficult to view that the Plaintiff’s monthly income amount was a leased deposit against OB from 208 to 201, it is hard to view that there was no clear evidence to acknowledge the Plaintiff’s transfer of the claim to OB to this part of this year, and that there was no evidence to acknowledge that OB was made out of the loan borrowed from O201.

3. Conclusion

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