계좌로 입금된 금원을 소명하지 않았다 하여 증여추정으로 볼 수 있는지 여부[국패]
Examination Donation 20707-0025 ( October 25, 2008)
Whether it can be viewed as a presumption of gift without proving the amount deposited into the account
It is reasonable to view that the acquired property has withdrawn the money deposited in the account of the principal and returned it again. Since it is recognized that there was an occupation and re-payment of considerable income at the time of acquisition of the money, it does not seem that it was donated.
The contents of the decision shall be the same as attached.
Article 2 (Gift Tax Taxables)
Article 45 (Presumption of Donation of Funds, etc. for Acquiring Property)
1. The Defendant’s disposition of imposing gift tax amounting to KRW 116,047,213 against the Plaintiff on January 15, 2007 is revoked.
2. The costs of the lawsuit are assessed against the defendant.
The same shall apply to the order.
1. Details of the disposition;
The following facts are not disputed between the parties, or may be recognized by comprehensively taking into account the descriptions of Gap evidence 1 (the same as Eul evidence 2-2), Gap evidence 2, Eul evidence 1, Eul evidence 2-1, and Eul evidence 2-1, and the whole purport of pleadings:
A. Upon the Plaintiff’s death on February 9, 2003, the Defendant conducted an on-site investigation of the Plaintiff’s inheritance tax. From February 3, 1998 to August 21, 2001, the Defendant presumed that the sum of KRW 1,356,35,508 deposited into the Plaintiff’s account under the Plaintiff’s name was donated from 116,047,213, gift tax on January 15, 2007; KRW 6,50,000, gift tax on April 27, 1999; KRW 196,67,67,677, and KRW 1,35,508; and KRW 36,985,97, gift tax on June 4, 199; KRW 196,398, gift tax on 197; KRW 196,985,989, gift tax on 196,84,97.
No.
Bank Name
Deposit Account
Date of Transaction
Classification
A depositor;
도요
Amount of entrance fees (won)
(1)
○
(A)
98.02.03
Deposit
New
100,000,000
(2)
○
B.
98.02.03
Deposit
New
139,734,770
(3)
○
C.
98.02.03
Deposit
New
286,60,738
(4)
friendly ○
D.
9.04.27
Deposit
○ Heading
Tropty
50,000,000
(5)
friendly ○
D.
9.06.04
Deposit
○ Heading
Tropty
100,000,000
(6)
friendly ○
D.
9.07.13
Deposit
○ Heading
Tropty
230,000,000
(7)
Hao
E
01.08.21
Deposit
○ Heading
Tropty
450,000,000
Total
1,356,335,508
B. On April 11, 2007, the Plaintiff appealed and filed a request for review with the Commissioner of the National Tax Service. On February 25, 2008, the Commissioner of the National Tax Service revoked the remaining gift tax except for KRW 116,047,213 of the gift tax as of January 15, 2007. Accordingly, on April 27, 1999, the Defendant revoked the request for review of the gift tax as of April 27, 199, KRW 6,50,00, and KRW 19,16,677, KRW 58,589, KRW 474, and KRW 168,00 on July 13, 199, KRW 308, KRW 168,00 of the gift tax as of August 21, 201, KRW 193,09, KRW 1693,975, etc. of the gift tax as of June 16, 1997.
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
In light of the Plaintiff’s income and property status, in principle, the provision on the presumption of donation cannot be applied to the Plaintiff. The fact that the acquisition property of this case was donated to the Plaintiff from Park Il-hwan, despite the Defendant’s burden of proof, is not proven at all by the Defendant. Rather, the Plaintiff, during the period from February 3, 1995 to October 7, 1996, deposited 56,211,333 won after deducting 39,875,825 won, including interest income tax and resident tax, etc., from 523,35,508 won, and deposited 523,35,508 won in lump sum, and the price for the acquisition of the property of this case was proved to be unlawful.
(b) Related statutes;
Article 2 (Gift Tax Taxables)
Article 45 (Presumption of Donation of Funds, etc. for Acquiring Property)
Article 34 (Cases Where it is difficult to Recogniz that Property was Acquired with Self-Support)
(c) Fact of recognition;
The following facts may be acknowledged by comprehensively taking account of the evidence mentioned above, Gap evidence 3 through 6, Gap evidence 7-1 through 7, and the whole purport of oral arguments:
1) The plaintiff was born on November 29, 1962, and from February 22, 1988 to January 4, 1993, the plaintiff operated 26 stores in total from February 22, 198 to April 12, 1999, including the operation of ○○○-dong 00-6 00-6 00 00 -,000 - from February 22, 198 to the operation of 26 -6 stores in Seoul. At February 3, 1998, the plaintiff operated the 10 -0 -0 - 40-1 40-1 0 - 25 - 25 '○ electric zone' stores in Seoul, such as the operation of '○ electric zone' stores.
2) The details of global income tax return filed by the Plaintiff at the tax office and the details of the Plaintiff’s real estate possession and transfer are as follows.
(unit won)
Year
Total
Interest income
Real estate rental income
Business Income:
Income tax paid
1992
10,985,668
6,432,500
4,553,168
1,087,306
1993
18,380,018
8,349,168
10,030,850
2,446,005
1994
86,901,971
10,848,264
76,053,707
27,386,886
195
135,632,655
11,480,280
124,152,375
3,916,491
196
238,330,090
12,550,751
8,260,000
17,519,339
70,892,036
1997
238,269,456
135,251,413
8,380,712
94,637,331
69,667,782
1998
105,900,067
105,900,067
27,920,026
199
4,931,318
4,931,318
33,131
200
201
Total
839,331,243
247,802,164
53,750,924
537,778,155
233,649,663
No.
Location
Classification
Land (Size)
A building (land size)
Date of acquisition
Transfer Date
(1)
Seoul ○○-dong 000-07
Commercial buildings
96.00
162.35
.08.31
held :
(2)
Busan ○○○-dong 0-08
Commercial buildings
19.04
3.25
993.15
held :
(3)
Seoul ○○-gu ○○○-dong 000-2
○○a apartment 00-002
Apartment house
92.96
166.98
October 27, 1995
201.05.19
(4)
Seoul ○○○-dong 00-12, 3
Commercial buildings
337.2
337.2
205.04.18
held :
3) The Plaintiff deposited KRW 49,582,984 in seven bank accounts under the Plaintiff’s name during the period from September 11, 1995 to February 24, 1997. On February 3, 1998, the Plaintiff deposited KRW 526,35,508, which deducts KRW 39,825, such as interest income and resident tax, from KRW 566,21,333 of the principal and interest income deposited in the said seven accounts. On the same day, the Plaintiff deposited KRW 526,335,508, which is the same amount as the Plaintiff’s three Cho○ Bank accounts (Ga, b) under the Plaintiff’s name.
Bank
Deposit Account No.
Details of the first deposit;
February 3, 1998. Details of the final withdrawals
Date of Transaction
Amount of reserve
Principal and Interest
Amount of deduction
Amount of withdrawal
New○
(1)
95.09.11
192,000,000
241,667,490
1,932,720
239,734,770
New○
(2)
24, 1997
8,737,680
8,822,583
14,790
8,807,793
New○
(3)
November 07, 1996
6,562,500
6,694,037
22,500
6,671,537
New○
(4)
. 24, 1997
87,376,850
91,865,386
9,500,000
82,365,386
New○
(5)
November 01, 1996
136,933,449
145,543,374
20,745,675
124,797,699
New○
(6)
October 07, 1996
50,000,000
53,315,068
7,603,350
45,711,718
New○
(7)
November 30, 1996
17,972,505
18,303,395
56,790
18,246,605
쇠지지지지지지 3000 only
499,582,984
566,211,33
39,875,825
526,335,508
D. Determination
1) Article 45(1) of the Inheritance Tax and Gift Tax Act provides that where it is difficult to recognize that a person acquired the property by his own means in view of his occupation, age, income, property status, etc., as prescribed by Presidential Decree, the acquisition fund of the property shall be presumed to have been donated to the person who acquired the property at the time of the acquisition of the property, and Article 34(1) of the Enforcement Decree of the same Act provides that "cases as prescribed by Presidential Decree" shall be deemed to be the value of the property acquired by the person who acquired the property at the time of the acquisition of the property." Article 45(1) of the same Act provides that "the amount proved by the income amount reported or received by taxation (including cases where taxes are non-taxable or exempted)," "2."
2) As seen in the above C-C-3, the Plaintiff deposited 49,582,984 won into the 7 new bank account under the Plaintiff’s name for the period from September 11, 1995 to February 24, 1997, but on February 3, 1998, the Plaintiff deposited 526,335,508 won after deducting 39,875,825 won, such as interest income tax, resident tax, etc., from 566,21,333 won, and 526,335,508 won in lump sum. In light of the fact that the same amount was deposited into the 3 ○○ bank account under the Plaintiff’s name, it is reasonable to view that the acquisition property of this case was returned to the 7 ○ bank account under the Plaintiff’s name, and therefore, it cannot be viewed that the Plaintiff received the pertinent property directly from the Plaintiff in return for acquiring the pertinent property from the ○○ bank account.
Furthermore, during the period from September 11, 1995 to February 24, 1997, the Plaintiff reported the total amount of KRW 83,331,243 won to 7 new bank accounts under the Plaintiff’s name, and the Plaintiff operated 49,582,984 won from 198 to 26 clothing retail stores. It appears that the Plaintiff secured surplus funds, such as deposit money, premium, etc. in the process of disposing of some stores. From 1992 to 1999, the Plaintiff reported the total amount of income of KRW 83,31,243 won to 83,331,243 won to 199, and the Plaintiff actually received a considerable amount of KRW 476,59,596,970 from 1996 to 197, 197, 196 and 1998, 198, 200 won to 196, 397,59636,198.7
Therefore, the disposition of this case, which applied the presumption of donation of funds for acquisition of property under Article 45 (1) of the Inheritance Tax and Gift Tax Act, is unlawful. The plaintiff's assertion pointing this out is with merit
3. Conclusion
Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.