특수관계자로부터 금전을 차용하고 이자지급을 약정 등을 인정하기에 부족하다[국승]
It is insufficient to recognize an agreement, etc. to borrow money from a person with a special relationship and pay interest.
It is insufficient to recognize that an agreement was made to pay interest or set off against a claim for living expenses by borrowing money from a person with a special relationship.
2015Guhap51781 Revocation of Disposition of Imposition of Gift Tax
JAA
Head of Yongsan Tax Office
June 18, 2015
July 16, 2015
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant, on August 1, 2014, on March 30, 2012, on the gift tax on the gift to the Plaintiff, ○○○○○, and on March 2012, 2012.
12. 7. 7. Donation ○○○○○○○○○○, March 30, 2013, gift tax on donation ○○○○○○, and December 2, 2013.
7. Imposition of the gift tax on March 30, 2014 by ○○○○○○, and on March 30, 2014, respectively.
(b) revoke the subsection (3).
1. Details of the disposition;
A. The Plaintiff borrowed the gold ○○○○ on December 7, 201, and gold ○○○○ on March 30, 2012, respectively, from Nonparty BB, his/her father, and from Nonparty BB on December 7, 2011.
B. The Defendant: (a) deemed that the Plaintiff received, on August 1, 2014, an amount equivalent to interest by borrowing ○○○○○○ (hereinafter referred to as “the instant money”) from BB as interest-free, the Plaintiff’s fraudulent act; and (b) determined and notified, on March 30, 2012, the Plaintiff of the gift tax ○○○○, on December 7, 2012, the gift tax ○○○○, on March 30, 2013, the gift tax ○○○, on donation ○○, on donation ○○○, on December 7, 2013, and on March 30, 2013, the gift tax ○○, on donation ○○, on donation ○○, on December 7, 2013, and on March 30, 2014 (hereinafter referred to as “instant disposition”).
C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on August 12, 2014, but was dismissed on January 6, 2015.
[Ground of Recognition] The facts without dispute, Gap evidence 1-1 through 3, Gap evidence 2-1 through 3, Gap evidence 3-1 through 3, Gap evidence 4-1 through 3, Gap evidence 10, Gap evidence 12-1, 2, Gap evidence 13, Gap evidence 14-1, 20-1, Gap evidence 21-1 through 5, Eul evidence 22-1, Eul evidence 1-6, and the purport of whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The Plaintiff borrowed the total cost of KRW 00,000,000,000,000,000,000 won per month by applying the interest rate of 5% per annum to the above borrowed amount. However, since BB had to pay the Plaintiff the living cost of KRW 00,00,00 per month, it is only formed in appearance, such as that the Plaintiff did not pay the interest by offsetting the two monetary amounts. Accordingly, this is different.
The defendant's disposition of this case is unlawful and thus must be revoked.
B. Relevant statutes
The entries in the attached Table-related statutes shall be as follows.
C. Determination
It is not sufficient to recognize that the Plaintiff agreed to pay interest at 5% per annum by borrowing the key money of this case from BB, or to offset it against the claim for living expenses of KRW 00,000,000 per month, on the sole basis of the descriptions of Gap evidence 16, Gap evidence 17-1, Eul evidence 17-2, Gap evidence 23-1, 23-2. The plaintiff's above assertion is without merit.
(B) Even if the Plaintiff borrowed the issue of this case from BB, which was the Plaintiff’s fraudulent act and the spouse of BB, intended to repay the Plaintiff’s debt incurred by the Plaintiff as the surety’s surety, the disposition of this case cannot be deemed as not being permitted against the social rules.
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.
shall be ruled.
Relevant statutes
▣ 구 상속세 및 증여세법(2013. 1. 1. 법률 제11609호로 개정되기 전의 것)
Article 41-4 (Donation of Profits Following Gratuitous Loan, etc.)
(1) Money exceeding 100 million won is free of charge or at a lower rate than an appropriate interest rate from a related party prescribed by Presidential Decree.
If a loan has been made at an interest rate, the amount under the following classifications on the date on which the loan was made:
The period of loan shall be deemed to be the value of donated property of the person withdrawn. In such cases, when the period of loan has not been fixed, the period of loan shall
shall be deemed to have been newly granted every year on the following day of the first year if the period of such loan is at least one year.
(h) calculated the corresponding amount.
1. Where a loan is granted without compensation: An amount calculated by multiplying the amount of loan by the appropriate interest rate;
2. Loaning at an interest rate lower than the appropriate interest rate: An amount calculated by multiplying the amount of loan by the appropriate interest rate;
amount calculated by subtracting an amount equivalent to the interest actually paid.
(2) The method of calculating 100 million won or more under paragraph (1), the appropriate interest rate, and other necessary matters shall be prescribed by Presidential Decree.
(c)
▣ 구 상속세 및 증여세법 시행령(2013. 2. 15. 대통령령 제24358호로 개정되기 전의 것)
Article 12-2 (Scope of Specially Related Persons)
(1) "Person in special relationship prescribed by Presidential Decree" in the proviso to Article 16 (2) of the Act with the principal and the following related persons:
A person who is in a relationship falling under any of the following subparagraphs means a person. In such cases, the person himself/herself shall also be defined in subparagraphs 20 of Article 2
A specially related person shall be deemed a specially related person pursuant to the latter part of the same part.
1. A person falling under any of subparagraphs 1 through 4 of Article 1-2 (1) of the Enforcement Decree of the Framework Act on National Taxes (hereinafter referred to as "friendly");
The spouse of any paternal blood relative and his/her lineal descendant within the second degree of relationship and their spouse.
Article 31-7 (Calculation Method, etc. of Profits from Free Loan, etc.)
(1) "A related party prescribed by Presidential Decree" in the former part of the main body of Article 41-4 (1) of the Act means granting money loans.
A person who has a relationship falling under any of the subparagraphs of Article 12-2 (1) with a recipient.
(3) The term "reasonable interest rate" in the former part of the main body of Article 41-4 (1) of the Act means the control of Real Name Financial Transactions and Confidentiality.
The number of circulations of three-year corporate bonds guaranteed by financial institutions under subparagraph 1 of Article 2 of this Act (hereinafter referred to as "financial institutions").
The interest rate determined and publicly announced by the Minister of Strategy and Finance in consideration of following rates.
▣ 국세기본법 시행령
Article 1-2 (Scope of Specially Related Persons)
(1) Relationships prescribed by Presidential Decree, such as blood relatives and relatives under subparagraph 20 (a) of Article 2 of the Act means any of the following relationships (hereinafter referred to as "ties of kinship"):
1. Blood relatives within the sixth degree of relationship;
▣ 금전무상대출 등에 따른 이익의 증여 계산시 적용할 이자율(2010. 11. 5. 기획재정부 고시 제
2010-18)
"Interest rate determined and publicly announced by the Minister of Strategy and Finance" under Article 31-7 (3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act.
8.5% per annum. The end.