증여자로 인정된 자 명의의예금이 인출되어 납세자 명의의 예금계좌 등으로 예치된 사실이 밝혀진 이상 그 예금은 납세자에게 증여된 것으로 추정됨[국승]
As long as the deposit in the name of a donor is withdrawn and the deposit is revealed to be made in the name of the taxpayer, such deposit shall be presumed to have been donated to the taxpayer.
As long as the deposit in the name of a person recognized as a donor by the tax authorities is withdrawn and deposited in the name of a taxpayer, such deposit is presumed to have been donated to the taxpayer, and under special circumstances, such as the withdrawal of such deposit and the deposit in the name of the taxpayer are made for other purpose than donation, it is necessary to prove it to the taxpayer.
Article 41-4 of the Inheritance Tax and Gift Tax Act
2012Guhap3201 Revocation of Disposition of Imposition of Gift Tax
AA
The Director of Gangnam District Office
May 3, 2013
May 31, 2013
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The imposition of gift tax OOOO on November 1, 201 by the Defendant against the Plaintiff is revoked.
1. Details of the disposition;
A. From the end of 2005 to the end of 2007, the director of the Seoul Regional Tax Office confirmed the increase in the financial assets of the Plaintiff, and from June 13, 201 to August 21, 201, the director of the Seoul Regional Tax Office conducted an investigation into the source of funds (from January 1, 2005 to April 30, 201) against the Plaintiff.
B. From August 8, 2007 to May 16, 2009, the director of the Seoul Regional Tax Office: (a) determined that “OOOOO(s) deposited from the Plaintiff’s mother BB free of charge was received respectively from the Defendant at a reasonable interest rate under Article 41-4(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as “Inheritance Tax and Gift Tax Act”); (b) the difference between the interest and the interest under Article 41-4(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; (c) from February 7, 2006 to March 2, 2009; and (c) notified the Defendant of the taxation data.”
C. Accordingly, on November 1, 201, the Defendant decided and notified the Plaintiff of the gift tax OOO on the details of the attached disposition (hereinafter “instant disposition”).
D. The Plaintiff appealed and filed an appeal on January 18, 2012, and was dismissed by the Tax Tribunal on July 3, 2012.
[Reasons for Recognition] Unsured Facts, Evidence 1 and 2 (including household numbers), and Evidence 1 (including household numbers), and the overall purport of the pleading
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
(1) On behalf of BB with poor mobility, OOO, and the amount of interest was used for BB, including hospital costs, nursing costs, house repair costs, and house repair costs.
(2) The CCC borrowed OOO sources, and on March 15, 2012, the CCC paid 3.5% annual interest.
(3) Along with the lease of US$ (not later than the exchange rate, approximately KRW 00,000) to DD, it was paid out of KRW 00,00,00 including interest OOO.
(b) Related statutes;
It is as shown in the attached Table related statutes.
(c) Fact of recognition;
(1) As to the money received from BB
(A) (1) The Plaintiff received the salaries of the EE (hereinafter referred to as “EE”) from the officers of the EE (hereinafter referred to as “EE”), and from the year 2000, OO or OOO.
② BB is a major shareholder of EE. BB received payment from EE as OO in 2004, OOO in 2005, OOO in 2006, OOOO in 2007, 2008, OOOO in 2009, OOOO in 2009, OOOO in 2010, and OOOO in 201.
On the other hand, the head of Sung-dong Tax Office conducted a tax investigation on EE, and disposed of OOO as a bonus for BB from 2005 to 2009, and cancelled OOOO on March 23, 201.
(B) The Plaintiff received or withdrawn the following money from BB.
Deposit Date
Account
Amount of entrance fees (won)
Date of Termination
The amount of withdrawal shall be the amount of the withdrawal.
Jinay
1
August 8, 2007
O Bank
000-00000-75-011
OOO
February 4, 2008
OOO
2
208.24
O Bank
000-00000-75-051
OOO
March 13, 2008
OOO
3
208.
3. 13.
O Bank
00-00000-75-090
OOO
April 17, 2008
OOO
Deposit of KRW OO on April 17, 2008 in EE under the name of BB's ad hoc deposit.
4
O Bank
000-00000-75-082
OOO
April 17, 2008
OOO
5
April 17, 2008
O Bank
000-00000-75-101
OOO
May 27, 2008
OOO
OOO
6
May 27, 2008
O Bank
00-00000-75-125
OOO
August 26, 2008
OOO
7
August 26, 2008
O Bank
000-00000-75-157
OOO
November 25, 2008
OOO
8
November 25, 2008
O Bank
000-00000-75-171
OOO
March 3, 2009
OOO
FF: F
Transfer of OOOwons
9
March 3, 2009
O Bank
000-0000-96-002
OOO
August 25, 2009
OOO
Use as the Plaintiff’s real estate acquisition fund
September 7, 2009
OOO
10
September 7, 2009
O Bank
000-00000-12-008
OOO
December 8, 2009
OOO
11
March 11, 2010
O Bank
000-0000-96-002
OOO
November 23, 2010
OOO
12
O Bank
000-00000-13-013
February 7, 2011
OOO
BB Return to B
13
O Bank
000-00000-13-000
OOO
April 19, 2011
OOO
00
O Bank
000-0000-96-002
April 19, 2011
OOO
15
O Bank
00-028635-03-012
April 19, 2011
OOO
(C) The Plaintiff deposited OO on April 1, 2008, OOO on April 17, 2008, OOOO on April 22, 2008, OOOOOO on April 22, 2008, and OOOOO on May 16, 2008.
(D) The Plaintiff deposited OO on October 00, 208, 2000, OOO on February 16, 2009, and OOOO on March 3, 2009, 1, total 1, and OOOO.
FF was awarded 'OO-Gu OF OF 113-203 GGGGB 202' in addition to its own money. On November 4, 2011, the Defendant imposed a gift tax on FF on the ground that "the Plaintiff was given a donation of the said money from the Plaintiff". The FF claimed that "the Plaintiff, after being awarded a successful bid for the said real estate, sold the said real estate, divided the principal and the profits, and borrowed from the Plaintiff," and that on July 3, 2012, the Tax Tribunal decided that "the Plaintiff loaned the said money to FF, thus the disposition of imposition is revoked."
(E) On May 20, 2009, the Plaintiff purchased HH A 402 units located in the OOdong located in the OO-dong located in the OO-dong, at the OO-dong, from the purchase price, and withdrawn from the Plaintiff’s account at the O-bank (00-000-96-02) to the purchase price and paid the purchase price.
(f) The Plaintiff is an owner of 'O-gu OO-dong 115-10 land and above-ground housing', and is residing together with BB and FF in the above housing. The Plaintiff has paid comprehensive real estate holding tax on the above land and above-ground housing.
(G) The interest rate publicly notified pursuant to the delegation under Article 31-7(3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010) (amended by Presidential Decree No. 24358, Feb. 15, 2013) is as follows:
Interest Rate
Time of Application
National Tax Service Notice No. 2001-31 of December 31, 2001
Notice No. 2002-41 of December 31, 2002
Notice No. 2009-27 of July 31, 2009
9%
From January 1, 2002, the interest accrued to the application thereof.
Notice of Ministry of Strategy and Finance No. 2010-18 of November 5, 2010
8.5% by mass
From November 5, 2010, interest accrued to the application thereof after November 5, 2010
(h) The Defendant, in sequence, deducted the amount returned from BB, and calculated the gratuitous loan benefit by multiplying the remaining amount by the above interest rate.
(2) As to the money received from the CCC
(A) The Plaintiff received the following money from the CCC:
Deposit Date
Deposit Accounts
Amount (won)
1
February 7, 2006
O Bank 000-0000-02-021
OOO
2
August 13, 2007
〃 4
OOO
3
April 1, 2008
Obank 00-00000-00-006
OOO
O Bank 000-0000-01-007
OOO
4
May 7, 2008
Obank 00-00000-00-006
OOO
O Bank 000-0000-00-007
OOO
5
May 29, 2002
Obank 00-00000-00-006
OOO
O Bank 000-0000-00-007
OOO
6
June 26, 2008
Obank 00-00000-00-006
OOO
O Bank 000-0000-00-007
OOO
7
July 30, 2008
Obank 00-00000-00-006
OOO
O Bank 000-0000-00-007
OOO
8
August 26, 2008
Obank 00-00000-00-006
OOO
O Bank 000-0000-00-007
OOO
9
October 2, 2008
Obank 00-00000-00-006
OOO
O Bank 000-0000-00-007
OOO
10
November 3, 2008
Obank 00-00000-00-006
OOO
O Bank 000-0000-00-007
OOO
11
December 1, 2008
Obank 00-00000-00-006
OOO
O Bank 000-0000-00-007
OOO
12
December 8, 2008
O Bank 000-0000-75-132
OOO
13
January 2, 2009
Obank 00-00000-00-006
OOO
O Bank 000-0000-00-007
OOO
00
February 2, 2009
Obank 00-00000-00-006
OOO
O Bank 000-0000-00-007
OOO
15
March 2, 2009
Obank 00-00000-00-006
OOO
O Bank 000-0000-00-007
OOO
Total
OOO
(B) The CCC has served as the head of the overseas business headquarters of the EE and the head of the Hong Kong EE branch. CCC received from EE the salaries of OO in 2005, OOOO in 2006, OOOO in 2007, OOOOO in 2008, OOOOOO in 2009, and OOOO in 2010.
(C) On March 15, 2012, the Plaintiff borrowed the sum of the principal and interest calculated at the interest rate of 3.5% per annum fromCC, and the amount of OOOOO won from August 13, 2007, and the amount of OOO won from April 1, 2008 to March 2, 2009. The Plaintiff drafted a written agreement that “The obligation and settlement shall be made by paying the sum of the principal and interest calculated at the rate of 3.5% per annum to CCC, and the obligation and settlement shall be made.”
(3) As to the money received from DD
(A) On September 28, 2007, the Plaintiff received OOO staff from DD.
(b)DD is a shareholder of EE.
[Grounds for recognition] The entire purport of Gap's 5, 11, 16 through 28, 34, 35, 46, 47, 48 (including household numbers), and 3,12, 13,00 (including household numbers), and the entire purport of the pleadings
D. Determination
(1) In general, in a lawsuit seeking cancellation of a tax imposition disposition, tax requirements are the burden of proof to the imposing authority, and if it is found that the facts alleged in light of the empirical rule in the course of the lawsuit are proved, it cannot be readily concluded that the other party is an illegal disposition that fails to meet the taxation requirements, unless the other party proves that the facts at issue are not eligible for application of the empirical rule (see Supreme Court Decision 87Nu811, Dec. 22, 1987).
In addition, inasmuch as it is found that, in a lawsuit seeking revocation of disposition imposing gift tax, a person’s nominal deposit recognized as a donor has been withdrawn by the tax office and deposited in a deposit account in the taxpayer’s name, such deposit is presumed to have been donated to the taxpayer, and there are special circumstances, such as withdrawal of the deposit and deposit in the taxpayer’s name, etc. are made for other purpose than donation (see Supreme Court Decision 9Du4082, Nov. 13, 2001).
(2) As to the OO directors received from BB
(A) ① It is not clear that the need to deposit and manageOOB into the Plaintiff’s account (if necessary, it may withdraw money from the Plaintiff’s account) ② OOB is used in combination with the Plaintiff’s money, and the money withdrawn from the account deposited by the OOB is used as the purchase price for the house. ③ According to the records of card use submitted by the Plaintiff (No. 3 evidence, No. 11 and No. 15 evidence No. 15-32), it is difficult to specify the Plaintiff’s personal consumption as the cost to support BB, and (4) it is difficult to specify the nursing expense details submitted by BB (No. 8 evidence No. 1,23, and No. 9), and (5) it is difficult to consider that the Plaintiff’s expenses were paid after return of the OB, and the timing when the OB was not clear, and that it is difficult to consider that the Plaintiff’s income was paid to 10 OB, and that it is difficult to consider that it was paid to 10O-5.
(B) The plaintiff asserts that even if the amount of interest is a donation, the amount of interest should be deducted from the amount of gift tax, as the sum of OOOO is paid to the FF, OO in accordance with BB's instructions.
However, in light of the fact that the Plaintiff and FF asserted that “OO-gu OO-dong 113-203 GG 202 was awarded a successful bid, and then they were resold, and then divided and lent the principal and profits,” it is reasonable to deem that the Plaintiff had the holding interest in the said money, and that the Plaintiff’s assertion is without merit.
(3) As to the money received from the CCC
As shown in the plaintiff's argument, Gap evidence Nos. 1 and witness CCC testimony, and ① CCC has no data on income other than the annual salary of OOO or OOOOO won, ② A total period of payment, interest rate, or loan certificate has not been designated or prepared. ③ CCC has deposited more than two times annual salary in the plaintiff's account in 2006 and 2007, and each month has been divided into two accounts from April 1, 2008 to March 2, 2009, and there was a lot of amount in light of annual salary, and there was no other form of payment, and there was no other reason that the balance between the above OO or OO card was paid by CCC for a long time, and there was no other reason that CCC has been returned to 205 other than the above OO or 25 years, and there was no other economic reason that CCC had been returned.
(4) As to the money received from DD
As shown in the plaintiff's argument, there are 1 statements in Gap evidence 6-1, witness DD testimony, and there is no evidence to support that there was a loan for business purpose like DD testimony, and DD is a certain relationship with the plaintiff as a shareholder of EE, and it is not revealed how the plaintiff lent funds to the plaintiff, and it is unclear how the calculation details of interest, etc. accrued from the loan are unclear, it cannot be viewed that it was repaid from DD.
(5) Therefore, the instant disposition is lawful.
3. Conclusion
If so, the plaintiff's claim is without merit, it is dismissed, and it is so decided as per Disposition.