[Smiling] Apartment received for property division after consultation divorce... 'out of the blue' notice of gift tax payment, why?

□ Broadcast date and time: December 19, 2024 (Thursday)
□ Host: Attorney Cho In-seop
□ Starter: Lawyer Son Eun-chae

* The text below may differ from the actual broadcast content, so please check the broadcast for more accurate information.

◆ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): Lawhouse for you, Son Eun-chae is with you. Hello.

◇ Lawyer Son Eun-chae (hereinafter referred to as Son Eun-chae): Hello, I'm lawyer Son Eun-chae from Shinsegae Law Firm.

◆ Jo In-seop: Let's first talk about what kind of concerns you have if you come to the counseling center today.

■ DEAR TORN: My husband divorced before he met me. The ex-wife cheated on her, and the high school son left with her, siding with her. My husband and I became close about five years after he divorced. We met at the company and became a couple, and soon posted a marriage registration. We have lived a very peaceful and flat life for 25 years. On weekdays, I went out to work, and on weekends, I grew crops in a small field in the church. However, my husband recently received a bad result from the medical examination. At this rate, my husband said he had only three years left. My husband has all he has to do with a small apartment he now lives in, a small field of church he's using as a weekend farm, and some deposits. My husband was worried about me, who would be left alone when he died. Actually, last year, my ex-wife's son contacted me and asked me to lend him money. In the future, I was worried that if we argue with each other over my and ex-wife's inheritance, we could be kicked out of our small apartment. So we reported a consensual divorce, and I transferred the apartment from my husband in a property split. However, even after the divorce, we lived together as it was. I cared for my husband, who was a time-limited patient, but he died a year later. After my husband died, I suddenly received a notice from the customs office asking me to pay the gift tax. Are you paying gift tax even though you got divorced? I have no experience paying gift tax, what should I do?

◆ Jo In-seop: Lawyer Jo In-seop's counseling center. Now that I see it, it seems that he divorced to take care of his wife's wealth before he died.

◇ Son Eun-chae: Yes, I think it was a reluctant choice because your wife cared for her husband even after your divorce.

◆ In fact, there are many more dramatic stories than this, right?

◇ Son Eun-chae: Yes, even if it's a drama, there are things that I wouldn't believe.

◆ [Jo In-seop] Yes, that's right. The question now is whether it's a property split. If real estate is transferred through property division, acquisition tax is paid, but it is not subject to gift tax. But why did the tax office ask you to pay gift tax?

◇ Son Eun-chae: As you said, we do not pay gift tax on property division. The division of property following divorce means that the couple receives what was originally my share because it is to liquidate and distribute the common property acquired during marriage. Therefore, it cannot be regarded as a free transfer of property, and in principle, it is not subject to gift tax. I think the tax office saw that the divorce between you and your late husband was the most invalid because of the divorce.

◆ [Jo In-seop] Yes, I see. Then, in the meantime, I've talked about divorce several times in the chat room. It would be nice if you could organize it one more time. Please give me a brief description of the most divorce.

◇ Son Eun-chae: It literally means that you were divorced on the outside, but you didn't really intend to do that. It's a fake divorce. However, since there was no intention of divorce, you may think that divorce is invalid, but our court's current attitude is that divorce is valid even if it is the most divorce. In other words, the fact that the divorce was reported by consultation means that there was a willingness to resolve the legal marital relationship anyway, and even if there was another purpose to divorce, there was an agreement to divorce temporarily, and accordingly, the divorce would take effect as long as it was reported. Otherwise, in order for the divorce to be invalid, special circumstances that anyone can understand must be recognized.

◆ [Jo In-seop] So what is the reason why the tax office saw that it was a divorce nullification?

◇ Son Eun-chae: I think the customs office saw that the two of them did not actually divorce to end their marriage, but were fake because they continued to live together as before after reporting the divorce and his husband died not long after the divorce. So it seems that the transfer of the real estate was not a real property division, but just a borrowed gift from the shape of the property division.

◆ [Jo In-seop] Yes, that's right. Then, should the sender pay gift tax?

◇ Son Eun-chae: To tell you my opinion, I don't think I have to pay. As I said, even if there are other purposes involved in the divorce, it does not mean that you and your husband have no intention of divorce. In similar cases, there were cases in which it was difficult to admit that it was an invalid masquerade divorce just because they maintained a common-law relationship after divorce or divorced after discussing in advance to avoid other disputes. Also, the apartment you received seems to be about half of your husband's total property.Considering the length of the marriage, the contribution to the division of property seems to be about half recognized. Therefore, it is difficult to say that there is such a special situation that the division of property between the two is excessive to the extent that it is contrary to the purpose of the right to claim the division of property in Article 839 of the Civil Code or is only a means to avoid taxes. You can file an objection to the imposition of gift tax.

◆ Cho In-seop: Yes, so you can appeal now by saying that the gift tax burden is inappropriate because it was received through property division, not as a gift. But there's another problem. You sold your house for moving. But it is said that capital gains tax came out a lot in a few months. What's the reason?

◇ Sohn Eun-chae: This is because the acquisition time of the real estate received through the division of the property is not the time when the property was divided, but the time when the spouse acquired it for the first time. Even if you haven't received the house in months, your husband's first acquisition would have been years ago. So, the difference in the price of the house that rose during the period was recognized as the difference in transfer, so it seems that the capital gains tax came out a lot.

◆ Cho In-seop: Yes, to summarize the contents of the consultation so far, gift tax is not levied if the real estate is transferred through property division, but in the case of the sender, it seems that the gift tax was imposed because it was judged as the most divorced. The most significant divorce refers to a case in which a person is externally divorced but does not actually intend to divorce. I think the customs office saw the divorce as fake, considering that you lived with her even after she reported the divorce and her husband died not long after the divorce. However, in your case, you can't say you have no intention of divorce, and the apartment you received from your husband is likely to be recognized as part of the property division. Therefore, you can now appeal against the imposition of gift tax. And in the case of the real estate you received, the transfer income tax is calculated as the time the husband first acquired it, so I answered that the tax seems to have been paid a lot for the difference in the transfer of the increase in housing prices.

◆ Cho In-seop: So far, Son Eun-chae of Shinsegae Law Firm has been with lawyer.

◇ Son Eun-chae: Thank you.

Lawyer Cho In-seop's counseling center can be heard again on YouTube and on the website. If you have any questions or suggestions, please leave a message on the consultation board on the website. You can contact Shinsegae-ro, a law firm, separately.