증여자로 인정된 자의 자금이 납세자 명의의 예금계좌로 예치된 경우 그 예금은 납세자에게 증여된 것으로 추정됨[국승]
Examination-Gift-2014-0068 (2014.09.02)
If funds of a person recognized as a donor are deposited into a bank account in the name of the taxpayer, such deposits are presumed to have been donated to the taxpayer.
It is argued that the amount of money deposited into the account in the name of the principal was not received as a donation since the amount was used in full, but it is presumed that the donation was received if it is impossible to completely exclude the possibility that the person was used due to lack of evidentiary materials for the use.
Article 2 (Gift Tax Taxables) of Inheritance Tax and Gift Tax Act
2014Gudan2086 Revocation of Disposition of Imposition of Gift Tax
KimA
The director of the Southern Incheon District Office
July 14, 2015
September 1, 2015
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s disposition of imposition of KRW 138,423,600 on January 2, 2014 against the Plaintiff was revoked.
1. Details of the disposition;
(a) Receiving compensation;
1) In its original form, part of the shares of 00 ○○○-dong, Incheon ○○○○○-dong, 910-6 866.4 m2 and its neighboring ground buildings (hereinafter “instant real estate”) owned by Kim○-○, the father of the Plaintiff, and Kim○-○ was completed the registration of ownership transfer of the instant real estate in the name of the Dong Kim Il-young, which was the birth of
2) On March 5, 2009, the Korea National Housing Corporation completed the registration of ownership transfer based on the consultation on public land with respect to the instant real estate, and on June 15, 2009, paid KRW 628,885,990 as part of the compensation to Kim Il-Hy, a title trustee of the instant real estate.
(b) Opening of accounts and transfer of money;
1) On July 3, 2009, the Plaintiff’s deposit account in the name of the Plaintiff at ○○○○○○○○ Branch (Account Number:
The account of this case was opened 00-000-000-33, hereinafter referred to as "the account of this case").
2) As seen earlier, Kim○-○ is the title trustee of the instant real estate by the Korea National Housing Corporation.
It managed the compensation paid to BBS, and deposited KRW 500 million to the account of this case on July 3, 2009.
(c) Imposition of gift tax;
On January 2, 2014, the Defendant: (a) deemed that the Kim○○ deposited into the instant account as a result of the tax investigation on the Kim Balbale and Kim○○, 50 million won, which was donated to the Plaintiff by Kim○○; and (b) imposed and notified the Plaintiff of KRW 138,423,600, gift tax attributed to the Plaintiff in 209 (hereinafter “instant disposition”).
(d) Requests for examination;
On June 2, 2014, the Plaintiff filed a petition for review against the instant disposition, but was dismissed on September 2, 2014.
[Ground of recognition] Facts without dispute, Gap 4 through 8, 11, Eul 2 through 4 (including additional numbers), the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The plaintiff's assertion
The instant account is a borrowed-name account opened by Kim○, the father of the Plaintiff, who was registered as the father of the Plaintiff with bad credit standing at the time, upon the request of the Plaintiff, and the said KRW 500 million was deposited in the instant account and was withdrawn and consumed by Kim○○. Therefore, it cannot be deemed that Kim○○ donated the Plaintiff with the said KRW 500 million. Therefore, the instant disposition was unlawful on a different premise.
B. Relevant statutes
▣ 구 상속세 및 증여세법(2010. 1. 1. 법률 제9924호로 개정되기 전의 것)
Article 2 (Gift Tax Taxables)
(1) A donation from another person (excluding a donation becoming effective upon the death of a donor; hereinafter the same shall apply) shall be made by such donor.
If any of the following donated property is found as of the date of donation, the property shall be substituted for the donated property:
the gift tax shall be imposed pursuant to the provisions of this Act.
1. Where a person to whom property has been donated (hereinafter referred to as a " 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 received, as donation,
(3) The term "donation" in this Act means a gratuitous 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 any third person, notwithstanding the name, form, purpose, etc. of such act or transaction, or an increase in the property value of any third person by contribution.
C. Determination
In a lawsuit seeking revocation of a disposition imposing gift tax, a person who is recognized by the tax authority as a donor shall pay the
As long as it is revealed that a deposit account, etc. in the name of a third party is deposited, the deposit is presumed to have been donated to the taxpayer. Thus, if there are special circumstances, such as that the deposit, etc. in the name of a taxpayer was made for any purpose other than a donation, the burden of proving such deposit is the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov. 13,
Based on the above legal doctrine, the fact that ○○○○ deposited KRW 500 million into the instant account on July 3, 2009 is as seen earlier. Therefore, the above KRW 500 million is presumed to have been donated to the Plaintiff by ○○○, its owner. Meanwhile, the following circumstances, which can be known through the entire purport of entry and pleading, i.e., ① on January 30, 2010, the Plaintiff opened ○○○○○○○-ro 52 (○○○ Dong, 1st floor) with the trade name, ○○○○○○○○-ro, Incheon, ○○○○○-dong, 865-32, and on the ground that ○○○○○○○-○○○○○○’s ownership transfer registration was completed on a 17th day, 2011, and the Plaintiff’s allegation that ○○○-○○○ was not sufficient to fully purchase or transfer the real property from 500 million won.
3. Conclusion
If so, the plaintiff's claim is without merit and it is so decided as per Disposition.