National Tax Service Review Donation 2009-0351

Since it is confirmed that the land acquisition fund was borrowed, the presumption of gift is illegal.

Since it is confirmed that the land acquisition price was agreed to be leased free of charge for five years under the contract of the gas station business, the gift tax based on the presumption of donation is illegal.

2010Guhap10809 Revocation of Disposition of Imposition of Gift Tax

Republic of Korea

O Head of tax office

August 11, 2011

September 8, 2011

1. The Defendant’s imposition of KRW 24,181,960, including gift tax and additional tax, against the Plaintiff on June 4, 2009 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On February 2, 1996, in relation to the portion of 1/2 out of 00-0 00 1/2 000 of 723 1/2 1996 'the land in question' (hereinafter referred to as 'the land in question' and 'the share of the above 'the share of the land in question')

B. However, as Han did not disclose the source of the acquisition fund of the land of this case, the defendant deemed that the plaintiff donated the acquisition fund of KRW 90,000,000 to Han on January 12, 2002, and imposed and notified the gift tax of KRW 14,00,000 on Han on January 12, 200, and upon the tax amount in arrears, on October 26, 2005, on the ground of the non-property of Han on October 26, 2005.

C. On May 18, 2009, the director of the Central District Tax Office instructed the competent tax office to examine whether the taxpayer is jointly and severally liable for tax payment among the persons who write-off of gift tax, and the defendant, on June 4, 2009, designated the Plaintiff as jointly and severally liable for tax payment of KRW 14,00,000,00 and increased additional charges and KRW 10,181,960 for the amount of delinquent tax and KRW 24,181,960 for increased additional charges and increased additional charges (hereinafter “instant disposition”).

D. On January 26, 2010, the Plaintiff filed a request for review with the Commissioner of the National Tax Service on January 26, 2010 against the instant disposition, but the said request was dismissed on April 26, 2010.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, 5, Eul evidence Nos. 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) When entering into a partnership agreement with ParkB to jointly operate gas stations on the ground of the instant land, Han has borrowed the acquisition fund of the instant land shares from ParkB. Since the Plaintiff was not involved in the father of HanA, the Plaintiff was presumed to have donated the acquisition fund to Han, and the instant disposition to designate the Plaintiff as a joint obligor is unlawful.

(2) Even if not, the Defendant issued a certificate of tax payment to Han on April 6, 2007 that there is no amount in arrears. The instant disposition that took place against the Plaintiff’s trust in reliance on the public opinion statement is contrary to the principle of trust and good faith. In addition, by issuing the above certificate of tax payment, the Defendant exempted HanA’s gift tax. The Defendant’s repayment of debt is a joint and several tax obligor under Article 25-2 of the Framework Act on National Taxes and Article 419 of the Civil Act. Accordingly, the Plaintiff’s obligation to pay gift tax is nonexistent.

(3) Furthermore, although the Defendant suspended the statute of limitations under the Framework Act on National Taxes on the delinquent tax amount against HanA, the Plaintiff did not separately engage in an act of suspending the statute of limitations, and the interruption of the statute of limitations is only the relative effect among the joint and several obligors. Accordingly, the Defendant’s right to collect the tax of this case against the Plaintiff has expired with the lapse of the statute of limitations.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

First, from the issue of whether the presumption of donation of the Plaintiff’s share in the land of this case can be reversed, there is no dispute between the parties as to whether the Plaintiff’s share in the land of this case could not be reversed, and the fact that the Plaintiff’s son did not have sufficient funds at the time of acquiring the share in this case

However, comprehensively taking account of Gap evidence Nos. 2, 6, and 11, and the purport of Gap's testimony at ParkB, ParkB entered into a contract with Han on November 25, 1995 to operate a gas station on the land of this case, and ParkB entered into a contract with one-half of the acquisition price of the land of this case for five years, and ParkB entered into a contract with Han to use the land of this case for the above 1/2 of the acquisition price of the land of this case for the above 5th of December 21, 1995. Such fact that the above 5th of December 21, 1995 was the owner of the land of this case (the title of the registered branch is indicated as the party under the sales contract as the owner of the above 5th of the above land) and the purchaser of the above 178,360,000 won after signing the contract for the sale and purchase of the land of this case with the 10th of October 16, 1996.

In regard to this, the defendant argued that the person who entered into a partnership contract with ParkB was not Korea, but the plaintiff or Han-B Kim E, the mother of the plaintiff or Han-B, and that he acquired the share of the land of this case by donating money to Han after he borrowed money from ParkB under the partnership contract. However, there is no evidence to acknowledge this, the above assertion is without merit.

Therefore, the instant disposition against the foregoing judgment should be revoked as it is unlawful without examining the remaining arguments of the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.