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대법원 2009. 01. 15. 선고 2008두18274 판결

임차보증금 등으로 사용된 금액이 증여받은 것인지 아니면 금전소비대차인지 여부[국승]

Case Number of the immediately preceding lawsuit

Seoul High Court 2007Nu12353 (Law No. 9, 2008)

Case Number of the previous trial

National High Court Decision 2007Du2842 ( October 11, 2007)

Title

Whether the amount used as lease deposit, etc. was donated or monetary loan for consumption

Summary

In light of the details of the deposit and the Plaintiff’s father’s confirmation document, it is presumed that the Plaintiff donated the instant amount to the Plaintiff according to the empirical rule.

The decision

The contents of the decision shall be the same as attached.

Related statutes

Article 2 of the Inheritance Tax and Gift Tax Act

Article 4 (Gift Tax Liability)

Text

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Reasons

The records of this case and the judgment of the court below and the grounds of appeal were examined. However, the grounds of appeal by the appellant are not included in the grounds prescribed in each subparagraph of Article 4(1) of the Act on Special Cases Concerning the Procedure of Appeal or are recognized as groundless. Thus, the appeal is dismissed under Article 5 of the same Act. It is so decided as per

[Seoul High Court 2007Nu12353 (Law No. 19, 2008)]

Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of gift tax of KRW 81,550,800 against the plaintiff on April 3, 2007.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for this Court's explanation is as follows: "No. 6 of the first instance court's decision" is changed to "the first instance court's decision was "the first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's second instance court's first instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second

2. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Seoul Administrative Court 2007Guhap48391, 2007)]

Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Purport of claim

The disposition of imposition of gift tax of KRW 81,550,80 against the Plaintiff on April 3, 2007 by the Defendant shall be revoked.

Reasons

1. Details of the imposition;

A. On May 25, 2005, 2005, ○○○○○○○○○ Bank account in the Plaintiff’s name was deposited on October 31, 2003 and deposited on March 2, 2004, 350,000 won received from ○○○○○○○ Bank account in the Plaintiff’s wife (the Plaintiff’s father of February 8, 1941) received from ○○○○○○○ Bank account in the Plaintiff’s name, and was deposited on March 2, 2004 and used as KRW 300,000,000,000 for the lease deposit of “○○○○○○○○○○, a wife of the Plaintiff’s wife, was opened.

B. The director of ○○ Regional Tax Office notified the Defendant of the above taxation data, and on April 3, 2007, the Defendant issued a disposition imposing gift tax, such as the statement in the purport of the claim, on the ground that “the Plaintiff was donated KRW 350,000,000 (hereinafter “the instant amount”) from the original store on March 2, 2004.” (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Defendant’s disposition of this case, which was otherwise reported, was unlawful, even though the Plaintiff did not constitute donated property because it was not donated from the original ○○○.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On December 2006, 2006, at the time of the tax investigation by the director of the regional tax office of ○○○○○, lent KRW 350,000,000 in total from the working capital of the father and the member of the child association operated by the ○○○○○○○ at early October 2002, which was returned from the end of October 2003, and deposited it in the regular deposit passbook in the Plaintiff’s name and kept the passbook. Furthermore, around February 2004, the Plaintiff’s husband and wife opened the business of ○○○○○○○○○○ (hereinafter “○○○○”). Around February 2004, the Plaintiff did not prepare a loan certificate or an agreement on cash loan for consumption, etc. among the Plaintiff, and the Plaintiff’s mother did not know that the Plaintiff’s provisional attachment was made in his name to receive the refund of the lease deposit, and the Plaintiff’s mother was signed and sealed at the time of 1992.

(2) However, on December 19, 2006, at the time of the Defendant’s investigation, the Plaintiff borrowed KRW 300 million from the original account with respect to the business of ○○○○○ on March 19, 2006, but did not prepare documents on the loan for consumption. If the original account holder retired from ○○○○○ and requested the refund of KRW 300 million to the original account holder due to the lack of the new lessee, the original account holder was operating ○○○○○○○ upon the death of ○○○○○○○ on May 25, 2005, the Plaintiff filed a criminal issue, such as embezzlement of public funds related to ○○○○○○, but the Plaintiff was obligated to return the deposit to ○○○○○○○○ upon the completion of the lawsuit against ○○○○○○○’s heir, the husband’s heir, and the Plaintiff was obligated to return the deposit to 300 million won.

(3) On January 30, 2007, 2007, ○○ building building and its site were forced for compulsory auction, and the auction price has not been allocated due to share disputes such as co-owners.

○○○○ had registered its business on March 2, 2004 as the opening date of the business and closed down February 22, 2006.

(4) Meanwhile, according to the medical records of ○○○ Hospital issued on February 25, 2007, the original ○○○ Hospital stated that the original ○○○ Hospital was in the first place in 1990 and did not suffer from an infectious disease, such as a serious wind, after being cryp, etc., in the first place in 1990, and that the medical records of ○○○ Hospital Saryary stated that “the mental state requires due care, but the head MFI is in the normal condition.”

[Ground of recognition] Facts without any dispute, Gap 1, 2, Eul 3 through 5, the purport of the whole pleadings

D. Determination

(1) Generally, in a lawsuit seeking revocation of the disposition imposing tax, the burden of proving the facts of taxation requirements shall be deemed to have the imposing authority. However, if the facts alleged in light of the empirical rule in the course of a specific lawsuit are revealed, it cannot be readily concluded that the pertinent disposition is an unlawful disposition that fails to meet the taxation requirements unless the other party proves that the pertinent facts in question are not eligible for application of the empirical rule (see, e.g., Supreme Court Decision 97Nu13894, Jul. 10, 1998).

(2) In light of the contents of the entry and release of the deposit passbook in this case and the contents of the confirmation document drawn up by the original source, it is presumed that it was a taxable requirement that the Plaintiff donated the instant amount to the Plaintiff according to the empirical rule, and thus, the Plaintiff must prove “the circumstances in which the relevant facts, which became the issue, cannot be eligible for the application of the empirical rule.”

However, in light of the following circumstances revealed in the above facts, i.e., ① no agreement on a loan for consumption, including the loan certificate, between the Plaintiff and the original account, ② no assertion exists as to the content of the loan for consumption, such as the time of return, interest agreement, interest rate, delay damages rate, etc. even if the loan certificate, etc. was not prepared in light of the characteristics of the sub-party, and there is no evidence to acknowledge it. ③ The original account, the donor, prepared and submitted a letter of confirmation that the Plaintiff donated the instant amount to the Plaintiff, and Kim ○-soo also did not raise any objection to the contents at the time of the instant disposition, ④ The original account claimed the return of the instant amount to the Plaintiff prior to the instant disposition, or there is no evidence to acknowledge that the Plaintiff paid the instant amount to the Plaintiff, and there is no evidence to acknowledge that the Plaintiff borrowed the instant amount from the original account.

(3) Therefore, the Defendant’s instant disposition is lawful, and the Plaintiff’s assertion disputing this disposition is groundless.

3. Conclusion

Therefore, the plaintiff's claim is without merit, and it is decided as per Disposition by the assent of all participating Justices.

Related Acts and subordinate statutes

○ Taxables subject to gift tax under Article 2 of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007)

(1) Where donated property falls under any of the following as of the date of donation due to a donation by a third party (excluding donation becoming effective due to the death of a donor; hereinafter the same shall apply), gift tax shall be levied on such donated property, as prescribed by this Act:

1. Where a person to whom property has been donated (hereinafter referred to as " donee") is a resident (including a non-profit corporation, the head office or main office of which is located in Korea; hereafter the same shall apply in this paragraph and Articles 54 and 59), all of the donated property, as a donation, by the

(3) The term "donation" used in this Act means a free transfer (including transfer at a remarkably low price) of any tangible or intangible property, the economic value of which can be calculated, directly or indirectly, to another person or an increase in the property value of another person by donation, notwithstanding the name, form, purpose, etc. of the relevant act or transaction.

○ Liability to pay gift tax under Article 4 of Inheritance Tax and Gift Tax Act

(1) A donee shall be liable to pay gift tax pursuant to this Act: Provided, That where the donee is a profit-making corporation, the gift tax payable by such profit-making corporation shall be exempted, but where the profit-making corporation, the title holder of the gift tax under Article 45-2, is exempted from paying the gift tax, the actual owner (

○ Scope of donated property under Article 31 of Inheritance Tax and Gift Tax Act

(1) Gift property under Article 2 shall include property belonging to the donee, all articles having economic value capable of realizing in money and all de facto or de facto rights having property value.

(4) Where the donated property (excluding money) is returned by an agreement between the parties thereto within the report deadline under Article 68, it shall be deemed that the donation had never been made: Provided, That this shall not apply where the tax base and amount of tax were determined pursuant to the provisions of Article 76 before such return.

(5) Where a donee returns the donated property (excluding money) to the donor or re-donates it to the donor within 3 months after the time limit for report pursuant to the provisions of Article 68 expires, gift tax shall not be levied on such returned or re-donates.

1) The ○○○○○○○○○○○○-○ was located in the ○○○○○○○○○○○○○○○○○○○, and the ○○○○○○○ was located in the ○○○○○○ building (the 3rd floor, the 7th floor above the ground). On March 2, 2004, the ○○○○ building owned the 60% share of the ○○○, Kim○, and the 20% share of each 20% share of the ○○○○○○○ on February 22, 2005.

2) It is written as “the blood of the part with multi-malopic brain color and the part with cardio-high color.”

3) The Plaintiff also recognized the authenticity of the evidence Nos. 4 and 5, and it is difficult to view that the evidence Nos. 4 and 5 were written against the will of ○○ or Kim ○-si.

4) The Plaintiff succeeded to the obligation to return the original ○○ Deposit, and agreed that the obligation and obligation between the original ○○○ and the Plaintiff will be extinguished within the scope of KRW 170,00,000. As a result, the original ○○ Award claims against the Plaintiff for the loans of KRW 180,000 to the Plaintiff. However, the original ○○ Award does not have any right to extinguish the obligation to return the original ○○ Deposit, and even based on its assertion itself, the obligation to return the original ○○ Deposit, which was inherited by the original ○○○○○○○○, is nothing more than 68,571,428 (lease Deposit) (30,00,000) x 4/5 (OO’s shares) x 2/7 (O’s shares in ownership in the original ○○).