Cho High-2016-Seoul Government-0765 (2016.07)

Land acquired in the name of spouse to develop and avoid the lending limit shall be held in title trust.

Acquisition of land under the name of the husband who is a real estate developer in order to promptly permit development and avoid the lending limit of the bank constitutes title trust, not donation.

Article 45 (1) of the former Inheritance Tax and Gift Tax Act (Presumption of Donation of Property Acquisition Funds, etc.)

2016 Gohap 73955 Revocation of Disposition of Imposition of Gift Tax

BB

00. Head of tax office

December 16, 2016

February 3, 2017

1. Each disposition taken by the Defendant against the Plaintiff on August 11, 2015, including KRW 000,000,000, and KRW 000,00,00,000, which shall accrue for the year 2012, against the Plaintiff, shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

“A. On October 9, 2012, with respect to the Plaintiff’s name, at 00:00:00 to 00:00,000 and 00 parcels of land, each registration of ownership transfer has been completed on January 29, 2014 (hereinafter “instant land”). (B) The head of Hhh tax office conducted an investigation into the property acquisition fund against the Plaintiff, based on the Plaintiff’s donation of KRW NN in 2012 and KRW 000,000, which is the husband, and notified the Defendant of the imposition of gift tax on each of the instant land. On August 11, 2015, the Defendant rendered a disposition imposing gift tax on the Plaintiff in 200,000,000,000 won, and 2000,000,000 won, hereinafter referred to as “each of the instant land”).

C. The Plaintiff filed an appeal with the Tax Tribunal on January 19, 2016 on the instant disposition on September 22, 2015, but the Tax Tribunal dismissed the Plaintiff’s appeal on June 7, 2016.

[Ground of recognition] No dispute, Gap evidence Nos. 1 through 4 (including paper numbers), Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant land is only the land nominal by NN, not the land that the Plaintiff acquired by receiving a donation of the purchase price from NN.

B. Determination

In light of the following circumstances acknowledged in light of the respective descriptions and arguments stated in Gap evidence Nos. 5 through 28, the land of this case is deemed to be the land trusted to the plaintiff by NN, and cannot be deemed to be the land acquired by the plaintiff after receiving a donation of the purchase price from NN. Therefore, the plaintiff's assertion is reasonable, and thus, the disposition of this case should be revoked because it is unlawful.

1) The funds to acquire the instant land were either borrowed funds from or obtained loans from NN from 000, a corporation in which N own 64.3% shares, and the purchase price of the instant land was transferred from NN’s account to the account of the owner of the instant land.

2) NN was a person engaged in real estate development business and owned 00 :00 :00 :00 :00 :00 and 11, around the instant land, together with a siblings, and applied for permission to engage in development activities, etc. to convert the inherited land into a factory site at Hh at around 2011. Therefore, there is sufficient reason to acquire the instant land in order to develop the instant land together with the inherited land, while the Plaintiff did not find any such reason as a family registry at all.

3) The Plaintiff’s explanation that NN intended to avoid the limit of loan to the same person for the future financing necessary for the development of the instant land, etc., or entrusted the instant land in the name of the Plaintiff to obtain permission for development activities promptly is fully acceptable. On the other hand, NN did not have any reason to grant the Plaintiff the purchase price and to allow the Plaintiff to own the instant land.

4) The Defendant asserts, based on Article 45(1) of the Inheritance Tax and Gift Tax Act, that the Plaintiff acquired the instant land in a state without any special occupation or income as a family owner, and that the acquisition amount would be presumed to have been donated from N, but as long as the Plaintiff cannot be deemed to have “acquisition” of the instant land, Article 45(1) of the Inheritance Tax and Gift Tax Act does not apply.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for the reasons and it is so decided as per Disposition.