It is not sufficient to prove that there was a loan as well as not only the burden of proving that the loan was repaid.

Since there is no specific assertion or proof as to the timing and amount of recovery, etc., the instant disposition of taxation based on the legal principles of presumption of donation cannot be deemed unlawful.

Article 31 (Scope of Donated Property)

2014Guhap32152 Revocation of Disposition of Imposition of Gift Tax

BB

The director of the Southern Incheon District Office

on October 29, 2015

on 17 July 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposing gift tax of KRW 4,257,00 against the Plaintiff on January 2, 2014 is revoked.

1. Details of the disposition;

A. On February 11, 2009, Nonparty 1, the Plaintiff, transferred KRW 30,000,000 to the Plaintiff, 40,000,000 to KimCC, the Plaintiff’s husband, and 35,000,000 to KimD, the Plaintiff’s husband, by account transfer. On April 14, 201, Nonparty 1 transferred KRW 400,000,000 to the Plaintiff in the same way.

B. On January 2, 2014, the Defendant deemed that ChoA donated the Plaintiff KRW 430,00,000 to the Plaintiff, and rendered a disposition imposing gift tax of KRW 118,305,00 on the Plaintiff.

C. On February 20, 2014, the Plaintiff dissatisfied with the foregoing disposition and filed a request for examination with the Commissioner of the National Tax Service, but was dismissed on May 26, 2014.

D. On May 2, 2014, the Defendant reduced or corrected the gift tax amount of KRW 4,257,000 by reducing KRW 400,000 from the said gift tax base (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2-8, Eul evidence 1, Eul evidence 5-1, 2, Eul evidence 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, the husband of ○○○○-dong 22-2,031 square meters and 22-1 road 50 square meters (hereinafter “each of the instant lands”) jointly purchased each of the instant lands at KRW 256,30,00,000, and KimCC held title trust with 1/2 equity shares. Since the transfer of each of the instant lands to ○○○○ (hereinafter referred to as “former 00, hereinafter referred to as “former 1,060”), ○○, ○○-dong 22-2,031 square meters and 22-1 road hereinafter referred to as “each of the instant lands”), the Plaintiff, the Plaintiff’s husband, was paid KRW 1,060,814,990 after the transfer of each of the instant lands to ○○○ (hereinafter referred to as “instant name”). Even if the transfer was not a title trust, it may be deemed that KimCC leased one half of the purchase price of each of the instant lands to ○○ (hereinafter referred to as “instant”).

Even if deemed as a gift, since the Plaintiff repaid debt 152,694,535 won to the Republic of Korea of the MediationA on behalf of the Plaintiff, such gift shall be deemed as an onerous gift with the assumption of obligation, and the tax base should be calculated by excluding the above-paid amount from the amount deemed as a gift. The instant disposition is unlawful even in this respect.

B. Determination

1) Facts of recognition

A) On April 3, 2003, 2003, the MediationA completed the registration of ownership transfer on each of the instant lands under its own name on the grounds of sale and purchase on March 9, 2003, and on October 28, 2008, transferred each of the instant lands to 00,060,814,990, and received the said purchase price from 00, Korea.

B) The process of reporting, rectifying, and administrative litigation on the transfer income tax on the transfer of each land of this case is as follows.

(1) On December 31, 2008, when filing a preliminary return of capital gains tax on each of the instant lands on the basis of the actual transaction value, the ChoA reported that it purchased each of the instant lands from E and owned them in KRW 650,000,000, and transferred them to 1,060,814,990 on the ground of consultation acquisition.

(2) However, on November 1, 2009, the director of the competent tax office denied the actual transaction price reported by the MediationA and recognized KRW 188,40,00 as being paid to the EE on the financial transaction statement submitted by the MediationA, and notified the MediationA of KRW 278,676,480 for the transfer income tax corresponding to the year 2008 (after that, on October 2010, the amount was reduced to KRW 201,091,540 for the reduction of and exemption from the transfer income tax on farmland).

(3) Accordingly, the conciliationA filed a lawsuit claiming invalidation of the disposition imposing capital gains tax by asserting that the actual acquisition value of each of the instant lands was KRW 512,00,000,000, and that the money not shown in the details of financial transactions was borrowed from the KimCC, and that the said disposition was invalid, but the said court dismissed the claim of the conciliationA on the ground that the said disposition was not a ground for invalidation, even if there is a defect in the said disposition, and the said judgment became final and conclusive on September 14, 2012 through the appellate court (Seoul High Court 2012Nu8399).

C) Meanwhile, the Republic of Korea filed a lawsuit seeking the payment of KRW 152,694,535 on April 14, 2010 between the Plaintiff and the Plaintiff, seeking the revocation of the “Contract of KRW 400,000,000,000, by the Incheon District Court Decision 2010Ga10326, which was the time limit for payment of capital gains tax, until November 30, 2009, and the Republic of Korea paid capital gains tax to the Plaintiff. The Plaintiff did not object to the decision of recommending settlement with the purport that the Plaintiff shall pay the total amount of KRW 152,694,535,00 to the beneficiary. On October 13, 2010, the Republic of Korea paid KRW 152,694,535,535 to the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2-8, Eul evidence 2-4 and the purport of whole pleadings

2) Determination on the first argument

The burden of proof of the existence of the taxation requirement is against the tax authority, but if the facts presumed to have been revealed in the course of litigation in light of the empirical rule, it cannot be deemed an illegal disposition that failed to meet the taxation requirement with respect to the disposition imposing tax unless it proves such circumstances (see, e.g., Supreme Court Decision 89Nu6006, Apr. 27, 1990). As long as the deposit is withdrawn in the name of a donor recognized by the tax authority as a donor and the deposit is made in the name of the taxpayer in the name of the taxpayer, the deposit is presumed to have been donated to the taxpayer. Thus, in special circumstances, such as withdrawal of such deposit and the deposit in the name of the taxpayer is made for other purpose than donation, barring any special circumstance, such as that the deposit is made for such other purpose (see, e.g., Supreme Court Decision 96Nu3272, Feb. 11, 197).

In light of the above legal principles, the Plaintiff is presumed to have received KRW 30,000,000 from the MediationA to the Plaintiff’s account on February 11, 2009. Thus, in light of the above legal principles, the Plaintiff must prove that the Plaintiff received KRW 30,00,000 from the MediationA, and that the flow of the said money was made for other purpose than donation, namely, the disposal price of real estate under title trust, or that it was recovered from the loan.

However, in light of the following circumstances, the presumption of gift cannot be deemed to have been reversed in light of the evidence Nos. 1-1, 2, 2-8, 1-1 through 15, 10, 2-4, 7-1, and 2-2, which can be comprehensively seen in light of the overall purport of the pleadings, and the following circumstances. Accordingly, the Plaintiff’s assertion on a different premise is without merit.

A) At the beginning, ChoA reported that the purchase price of each of the instant lands was KRW 650,00,00,000, along with a sales contract stating that the purchase price was KRW 650,000,000. However, in the process of the on-site investigation by the director of the tax office of the Si interesting, the right EEE selling each of the instant lands to ChoA was unable to present a sales contract and did not memory the sales price. At the time, EE reported the transfer income tax after selling each of the instant lands to Cho, and the sales contract submitted by ChoE was indicated as KRW 77,50,000, the purchase price was stated as KRW 77,50,000, and the amount confirmed as being paid to the rightE on the financial transaction statement submitted by ChoA was merely KRW 188,40,000,000, and ChoA’s actual transaction price was 300,000,000 each of the instant lands, and it was difficult to find that the actual sale price of each of each of this case was 3000,00.

B) In the above Suwon District Court case No. 2011Guhap6296, Suwon District Court stated that the payment of the purchase price was made by borrowing some of the purchase price from KimCC, and the CEF, who participated at the time of the sales contract, was present in the above lawsuit as a witness and testified that he borrowed some of the purchase price from KimCC, and the Plaintiff also submitted a written reply to the effect that the money transferred from the lawsuit for cancellation of the fraudulent act against himself (Seoul District Court 2010Gahap10326) was a money lent to the Plaintiff’s husband and wife. In light of the fact that the Plaintiff made several statements to the same effect as that of the title trust prior to the lawsuit in this case, it is difficult to readily believe that the Plaintiff’s assertion regarding the title trust that was initiated only for the lawsuit in this case was made.

C) According to the copy of each financial institution transaction (Evidence 9-1 through 15 of the evidence A), it may be recognized that the sum of KRW 60,000,000 on February 25, 2013, which was the date when the sales contract between the Mediation and E was concluded between the Mediation and E, and KRW 50,000,000 on March 14, 2013, which was the date of intermediate payment, and KRW 105,00,000 on April 2, 200 on April 2, 2003, the outstanding payment date, was withdrawn or loaned from the account of the Plaintiff, KimCC, and KimD (hereinafter “Plaintiff”). However, there is no evidence to support that the said money was paid to ChoA or EE.

D) Furthermore, even if part of the above money was actually paid to ChoA or EE, according to each of the aforementioned evidence, it appears that the Plaintiff’s side extended part of the purchase price of each of the instant land to ChoA, and it was possible that Cho Jae-si made a mortgage on each of the instant land to set up a mortgage on the instant land and received a loan from Ansan Agricultural Cooperative on October 23, 2006, and made a repayment to the Plaintiff. In this respect, there is no room to deem that the Plaintiff collected part of the loan by receiving KRW 30,00,000 from ChoA, but the Plaintiff failed to assert and prove the specific collection schedule, such as the timing and amount of collection of the loan.

E) As the Plaintiff alleged, if the KimCC was in title trust with 1/2 shares in each of the instant lands, the amount of KRW 782,138,510, which was derived from deducting capital gains tax of KRW 278,676,480 from KRW 1,060,814,990 received from 00, and only KRW 782,138,510, which was 1/2,069,255, was distributed to the Plaintiff. However, the amount of KRW 505,00,00 in excess of the above amount was paid to the Plaintiff. In addition, even if the Plaintiff received the money of KRW 1/2 from 00 on October 28, 200, the amount of KRW 1/2 of the transfer price was not paid to KimCC immediately after 40 months thereafter, and the Plaintiff should have paid KRW 105,00 from the Plaintiff’s title trust with the period of KRW 400,000.

F) As evidence of title trust, the Plaintiff, as a purchaser of each of the instant lands, presented a sales contract (No. A. 2) dated February 25, 2003, the sales price of which is KRW 512,60,000, with the purchase price of KRW 512,600,000. However, the above sales contract does not appear to have a signature or seal of a broker under the above sales contract, and the above sales contract was initially appeared on March 201, and thus its authenticity is doubtful. Therefore, it is insufficient to recognize that the existence of the above sales contract alone purchased each of the instant lands and jointly held title trust with the Mediation Committee.

3) Judgment on the second argument

First, in light of the contents and progress of the lawsuit seeking revocation of fraudulent act as seen earlier, the Plaintiff’s assertion on KRW 400,000,000, excluding the tax base, cannot be a valid argument in this case where only 30,000,000, after reduction or revision, is at issue. In addition, even though there was no circumstance that the A would be considered as an onerous donation at the time of transfer of KRW 30,000 to the Plaintiff on February 11, 2009, the Plaintiff’s assertion on this part cannot be deemed as an onerous donation, based on the circumstance that the subrogation is at the time of transfer of KRW 30,00,000 to the Plaintiff on September 16, 2010, and the nature of the subrogation is at the latest due to the fact that it is a obligation by the court’s decision of recommending settlement made on September 16, 20

3. Conclusion

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