[2] Since Article 45 (1) of the former Inheritance Tax and Gift Tax Act, which provides the presumption of donation of funds acquired by property, was revised by the law that adopted the taxation method of complete comprehensive taxation as to the gift tax on December 30, 2003, whether the burden of proof by the tax authority as to the fact that the lineal ascendant or spouse, etc. of the purchaser of property had the financial power to donate property to the lineal ascendant or spouse, etc.

With respect to the presumption of donation of funds for acquiring property, Article 45(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter “former Act”) provides that “In cases where it is difficult to recognize that a person acquiring the property has acquired the property by his own means in view of his occupation, age, income, property status, etc., as prescribed by the Presidential Decree, the person who acquired the property shall be deemed to have received a donation of funds for acquiring the property from another person at the time of acquiring the property.” However, Article 45(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “former Act”) of the same Act (amended by Act No. 9910, Dec. 30, 2010) provides that “where it is difficult to recognize that the property was acquired by his own means due to his occupation, age, income, and property status, etc., the person who acquired the property shall be presumed to have acquired the property.”

In the past, the Supreme Court held that, as a matter of principle, since the fact of donation of property, which is a requirement for imposition of gift tax, is proved by the tax authority, it cannot be deemed that the portion of the fund required for acquiring the property is donated to another person, unless there are special circumstances. However, in cases where a person without a certain occupation or income has no land to obtain funds from a third person, it is reasonable to presume that such funds were donated from a person with a history of re-acquisition of donated property, and thus, it is reasonable to presume that a person without a specific occupation or income has received funds from a donor if such lineal ascendant or spouse, etc. has a financial capacity to presume donation, the tax authority has to prove that there was financial capacity to donate property to a donor, as well as that there was no certain occupation or income, even after the amendment of the Act and the Act and the Act and the Act and the Act related to the 4th Amendment to the 2014Nu1308 Decided August 11, 195, 2008).

Nevertheless, the court below held that the disposition of this case is legitimate on the ground that the tax authority did not review whether the Plaintiff’s income amount from around 2001 to 2005 exceeds KRW 10 million per annum and otherwise did not have sufficient means to obtain the real estate acquisition fund of this case on the ground that the tax authority had proved that the Plaintiff’s lineal ascendant or spouse, etc. had financial capacity to obtain the real estate acquisition fund of this case. The judgment below erred by misapprehending the legal principles as to the burden of proof or scope of the presumption of donation of the property acquisition fund, which affected the conclusion of the judgment, and by failing to exhaust all necessary deliberations, the grounds of appeal assigning this error are with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)