Cho High Court Decision 2010Da3928 ( December 31, 2010)

a donation of real property from South Korea

The obligation to support the mother is a moral, courtesy, and non-property obligation, and it is difficult to view it as a benefit in return for the transfer of ownership and a quid pro quo or a burden of legal performance, and thus, it cannot be recognized that the South-Nam has donated the real estate inherited to the plaintiff, and that it should not be exempted from the acquisition by succession of inherited property.

2011Revocation of revocation of imposition of gift tax, 489

Park XX

O Head of tax office

June 10, 201

July 8, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of gift tax of KRW 24,102,440 against the Plaintiff on August 2, 2010 is revoked.

1. Details of the disposition;

A. The Plaintiff is a 6 South Korean woman born between his father Park Dong-A and her mother KimB, and ParkCC is a son.

B. On September 11, 2003, the Plaintiff agreed to transfer the ownership of 00 m2,000 m2,000 m2,00-5 m2,000 m2,000 m2,000 (hereinafter referred to as “the instant forest”) and 00 m2,000 m2,000 m2,000,000,000,000,000,000 m2,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00,00.

C. On May 11, 2009, the Plaintiff reported the gift tax by deeming the instant land to have been donated to the Defendant. Since it was acquired through the consultation and division of inherited property thereafter, the Plaintiff did not pay gift tax that was reported to be rejected, even though it was not subject to gift tax, which was filed a request for correction by deeming it as not subject to gift tax. Accordingly, on August 2, 2010, the Defendant decided and notified the Plaintiff of KRW 24,102,440 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1, 2, 3, 4, 8 (including each number; hereinafter the same shall apply), Eul 1 to 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

(1) The instant land is not subject to gift tax.

㈎ 즉 원고는 이 사건 토지를 증여받은 바 없고, 이 사건 약정은, 상속재산의 분할협의이거나 어머니 김BB의 부양과 제사수호를 반대급부로 하는 유상양도이다.

㈏ 이 사건 토지는 상속세 및 증여세법 제12조 제3호, 위 법률 시행령 제8조 제3항 제1호, 제2호의 금양임야와 묘토인 농지로서 상속세가 비과세되는 상속재산이므로 이를 승계취득하는 경우에도 비과세되어야 한다.

(2) Even if the instant agreement was a donation, the calculation of the value of donated property was erroneous for the following reasons.

㈎ 김BB의 부양과 제사수호를 부담부로 한 것이므로 증여재산가액 산정에 있어 위 부담의 가액을 공제하여야 한다.

㈏ 원래 상속재산인 이 사건 토지에 대하여 원고가 최초 가졌던 법정상속분은 증여세 과세대상이 아니므로 공제하여야 한다.

(3) The time of appraisal of the value of the instant land was erroneous. In other words, the date of the instant agreement, which is not the date of the Plaintiff’s ownership transfer registration, should be

B. Determination

(1) The Plaintiff’s assertion that this case’s agreement constitutes a consultation on division of inherited property or a transfer with compensation or an onerous donation

According to the above evidence and DB testimony, it is difficult for the Plaintiff to take account of the above fact that ParkB's 10th day of July 1968 that ParkB had been unable to obtain from the above 3rd day of the time of the death of his father, and that the land was inherited and owned solely by his father (However, with respect to the forest of this case, the ownership transfer registration was already made in the name of ParkB on July 25, 1964 at the time of his survival, and the ownership transfer registration was made in the name of ParkB on April 7, 1965 for the land of this case on which the plaintiff had been unable to obtain from his 3rd day of the time of his 1st day of his 1968 after his her death. However, ParkB had not been able to obtain from his 1st day of his 20th day after his her death, his her lab's lab's lab's lab's lab's lab's la.

According to the above facts, ParkCC concluded on September 11, 2003 that she was able to support and safeguard her mother's care who was neglected, and that she was entitled to donate the instant land owned by her own inheritance to the Plaintiff. On the contrary, the above parties to the agreement agreed to cancel the previous agreement division that she had already agreed to inherit as a sole owner of the Plaintiff, or on the premise that she would have transferred or donated the instant land in return for the support and heading of KimB as a return for the support and heading of her KimB, or as a return for the payment of the Plaintiff, the Plaintiff’s assertion that she was a party to the agreement, including ParkCC and the Plaintiff, on the other hand, to whom she had agreed to own the instant land and completed inheritance as a sole ownership of her own possession, was in the position of recommending, urging, etc. the instant agreement with the ParkCC, and the parties to the agreement and the Plaintiff.

(2) Whether it is subject to taxation and whether it is deducted from the value of donated property (the acquisition by succession of inherited property should be exempted, or the Plaintiff’s inherent share should be deducted)

As seen earlier, so long as the instant agreement ought to be considered as a gift, even if the instant land was an inherited property subject to a non-taxation of inheritance tax as a gold-raising forest or a tombto, it cannot be deemed that the inheritance is no longer an inherited property, and thus, the gift tax should not be levied on the instant land, as long as the instant land was acquired by succession through a re-donation (it is not an inherited property even if the donee is a person of an heir). There is no ground to deem that only the portion exceeding the first inheritance portion of the donee’s first inheritance is subject to taxation. Accordingly, there is no assertion that the gift tax should be exempted or that the Plaintiff’s inherent share should be deducted.

(3) The time of appraisal of the land value of this case

Article 60(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) provides that the value of the property on which a gift tax is levied shall be based on the market price as of the date of donation. Article 21(1)3 of the Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010) provides that a gift tax shall be liable to pay taxes when acquiring the property through donation. Article 23(1)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the date of registration shall be the date of acquisition of the donated property.

In light of the above provisions, the land of this case, which requires a registration for the transfer of rights, is the date of acquisition on February 19, 2009, the transfer of ownership is registered under the name of the plaintiff, and thus, the value shall be calculated on the basis of this day, and therefore, the plaintiff's assertion that the value should be calculated on the basis of the date of the agreement of this case

3. Conclusion

Therefore, the instant disposition that the Plaintiff imposed gift tax by deeming that the instant land was donated by ParkCC on February 19, 2009 is lawful. Therefore, the Plaintiff’s claim is dismissed as it is groundless.