증여된 것으로 추정되는 이상 증여가 아닌 다른 목적이 있었음에 대하여는 주장하는 납세자가 입증하여야함[국승]
Seoul Administrative Court 2014Guhap5979 ( January 23, 2015)
As long as the donation is presumed to have been made, the taxpayer who asserts that there has been another purpose other than the donation must prove it.
(1) The taxpayer needs to prove special circumstances, such as that, inasmuch as the amount of money of a person recognized as a donor by a tax office is revealed to have been deposited with a taxpayer’s account, etc., the amount is presumed to have been donated to the taxpayer.
Article 2 (Gift Tax Taxables) of Inheritance Tax and Gift Tax Act
2015Nu3596 Revocation of Disposition of Imposition of Gift Tax
Z Kim
YThe director of the tax office
Seoul Administrative Court Decision 2014Guhap5979 decided January 23, 2015
November 26, 2015
January 14, 2006
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The disposition of imposition of gift tax of KRW 166,581,040 against the Plaintiff on January 3, 2013 shall be revoked.
1. Quotation of judgment of the first instance;
The reasoning of this court's judgment is as follows, and thus, it is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.
Parts used for cutting.
○ The part from 16th of the 9th page to 16th of the 9th page is as follows.
It is difficult to readily conclude [for example, the maximum debt amount set forth in July 23, 2008 with respect to the ○○○○○○○○○○○ Dong in the attached Table 1 Do, which was set up on July 27, 2008. The creditor creditor-creditor may not set up the debt amount of KRW 2250 million or the actual loan amount of KRW 150 million or the actual loan amount of KRW 150 million with respect to the same mountain ○○ and mountain ○○○○○○ in the attached Table 1 Do, which was set up on June 27, 2008, KRW 30 million or the actual loan amount of KRW 30 million or the actual loan amount of KRW 30 million with respect to the same ○○○○○○○○○dong in the attached Table 1 Do, and regarding the ○○○○○○○○○○○○○○ and building, which was set on August 27, 2008.
○ The following shall be added to the last page of the 11st page:
[Plaintiffs] In the appellate court on May 29, 200, from the ○○○○○○○, 2, and 3 regional housing associations around May 29, 200, ○○○ apartment ○○○○-dong ○○○○ apartment ○○○, ○○-dong ○○ apartment (hereinafter referred to as “○○ apartment”).
Around August 2003, 200 million won was sold to ○○○○○○○○○ KRW 50 million and approximately KRW 200 million was gains, but the above gains thereafter became financial resources for loans to ○○○○○. ② On June 14, 1986, ○○○○○○○○○○○○○○○○ 28,060 square meters of forest (hereinafter referred to as “○○ 60 square meters”) was donated to ○○○ 50,000 won (hereinafter referred to as “the Plaintiff, Kim○○○, and ○○○○○○ 50,000, KRW 1/3 of each share of KRW 1/60, KRW 700, KRW 700, KRW 500, KRW 7000, KRW 97, KRW 2056, KRW 507, KRW 209, KRW 7005, KRW 2005, KRW 70965, etc.
Therefore, as seen earlier, it is difficult to view that the Plaintiff purchased ○ apartment with the Plaintiff’s funds, such as that at the time of the purchase of ○ apartment, the Plaintiff received KRW 900,000 per month from Kim○ at the time of the purchase of ○ apartment. Moreover, the Plaintiff did not present objective data to verify that the Plaintiff acquired approximately KRW 250,000 capital gains by disposing of the source of ○ apartment purchase fund or KRW 400,000,000, and the transfer value of ○ apartment was KRW 243,829,980, and the necessary expenses, including the acquisition value, were KRW 6,170,020,000, and the transfer gains were only KRW 6,170,020 (Evidence evidence 13, 170,020) and KRW 200,000,0000,000,000 won, or the Plaintiff’s assertion that the Plaintiff used ○ apartment with the loan income of ○ apartment.
(2) On the other hand, the Plaintiff did not issue an order of 1/3 of the Plaintiff’s share in the land of ○○○○○, which was inherited by ○○○○○, at the same time with Kim○○ and Kim○○, which was a private village. However, the Plaintiff did not issue an order of 259,650,00 won out of the sale price of part of ○○○○ land to transfer the total amount to Kim○○○, without distributing it with Kim○, Kim○, Kim○, or the reason why the Plaintiff did not distribute it to ○○○, Kim○, Kim○, Kim○, and then transferred the total amount to ○○○○, 2,596,50,00 won out of the sale price of ○○○○ land exceeding one-third of the Plaintiff’s share in KRW 1,038,600,000 (=650,000 + 778,950,000) x 305,506,00 interest in light of the Plaintiff’s share ownership 2506.
○ The following shall be added to the 8th page following the 8th page:
[3] Of the above real estate purchased in the name of the plaintiff, the ownership transfer registration for the sale of the building on the ○○○○○○○○○○○○○○, 485.9 square meters and five stories above its ground (hereinafter referred to as “○○○○○○○○○○○○○”) was made on September 3, 200 on the title of the plaintiff on August 3, 2004. The ownership transfer registration for the reason of the sale on August 3, 2004 was made on the 5, 6 (total Certificate of Registered Matters), 000, 600, 700, 60, 300, 60, 60, 60, 60, 706, 60, 300, 60, 606, 60, 606, 300, 60, 606, 300, 606, 606, 3006, 606, 7,00636, etc.
As seen earlier, the Plaintiff alleged that the sum of KRW 2,276,241,263 that the Plaintiff lent to Kim○○ from August 2003 to February 2013 exceeds KRW 1,99,847,156 in total, which the Plaintiff received from Kim○○ for the same period. As such, when the Plaintiff purchased ○○ Dong real estate, the sum of KRW 866,617,00, which the Plaintiff paid to Kim○○○○ upon the Plaintiff’s purchase of ○○ Dong real estate, exceeds the amount claimed by the Plaintiff to have lent to Kim○○○.
In addition, ○○○○○○○○-dong ○○○○○-dong ○○○○○-dong 101 underground floor (hereinafter referred to as “○○-dong”).
On April 25, 2006, the establishment registration of a neighboring mortgage was completed on the part of the debtor Kim○ (owner at the time), the mortgagee Kim Il-young, the maximum debt amount of 3 billion won, and the maximum debt amount of 3 billion won. On December 27, 2007, the establishment registration of a neighboring mortgage was revoked on the ground of the public sale under the plaintiff's name. On the same day, in light of the facts that the establishment registration of a neighboring mortgage was newly completed on the part of the debtor Kim○-○, the mortgagee ○ Mutual Savings Bank, the maximum debt amount of 1.5 billion won, and the facts that the establishment registration of a neighboring mortgage was completed on the same day, it seems that the ○ building purchased from the funds of Kim○-○.
Next, on April 17, 2009 with respect to 1/2 shares of ○○○○○○○dong ○○○○○○ apartment (hereinafter referred to as “○○ apartment”) among each of the ○○○○○○○○○○○○○○○○○○○ apartment, the ownership transfer registration was made in the name of the Plaintiff and Kim○○○○ on April 17, 2009. At the time, there was no record on the mortgage on the ○ apartment on the register of the company at the time, and there was no record on the loan received (Article 25-4 of the Evidence No. 25 of the Act). On April 13, 2009, ○○○ apartment was deposited in the Plaintiff’s account (Evidence No. 7), and KRW 600,000,000 from the Plaintiff’s account to April 13, 2009. In light of the fact that ○ apartment was acquired by each of the ○○ apartment as well.
The 12th part of the 12th part of the 19-18th part is as follows, and the 19-20th part of the 19-20th part is deleted.
④ From the bank account in the Plaintiff’s name of ○○○○○○○○ on June 15, 2006, KRW 100,000 and KRW 19,125,00 were transferred on June 15, 200. However, as alleged by the Plaintiff, there is no evidence to acknowledge that the said money was paid to ○○○○○○○○ on behalf of ○○○○○○ on behalf of ○○○○○○, as the gift certificates related to the game place, and there is no evidence to acknowledge that the Plaintiff was paid for KRW 10,00 on behalf of ○○○○○○○○○○○○ on behalf of ○○○○○○○○○○○ on behalf of ○○○○○○○○○○ on behalf of ○○○○○○ on November 8, 2006 (Evidence 15). Even if ○○○○ was transferred in the name of ○○○○○○ on account of 160 billion.
2. Conclusion
Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.