송금받은 금액이 대여금의 반환인지 증여추정에 해당하는지 여부[국승]
Whether the remitted amount constitutes the presumption of return or gift of the loan
In light of the fact that the lease deposit is highly likely to have been refunded to the Plaintiff, it is reasonable to view that the money received by the Plaintiffs is donated rather than the money paid for the lease deposit.
Article 2 of the Inheritance Tax and Gift Tax Act
Article 44 of the Inheritance Tax and Gift Tax Act (Presumption of Donation at Time of Transfer to Spouse)
1. Revocation of a judgment of the first instance;
2. The plaintiffs' claims are dismissed.
3. The costs of the lawsuit are assessed against the Plaintiffs.
1. Purport of claim
Each disposition of imposition of gift tax of KRW 14,028,30 for the gift tax of KRW 14,028,300 for the year 2003, for the gift tax of KRW 11,397,200 for the gift tax of KRW 200 for the gift tax of KRW 11,397,20 for the tax year 203, and for KRW 3,820,50 for the gift tax of KRW 203 for the gift tax of KRW 203 for the
2. Purport of appeal
As set forth in the text.
1. Details of the disposition;
A. On October 24, 2003, 105,00,000 won was transferred to the Plaintiff’s literature ○○○○ on October 24, 2003, 119,374,760 won was transferred to the Plaintiff’s Yellow○ on October 30, 2003, and 30,000,000 won was transferred to the Plaintiff’s literature ○○ on the same day.
B. On October 1, 2004, the Defendant: (a) deemed that ○○○ has donated each of the above remittances to the Plaintiffs (However, the Defendant deemed that 119,347,760 won was erroneous in the amount of remittances to ○○○○; (b) imposed gift tax of KRW 14,028,30; (c) KRW 11,397,200; and (d) KRW 3,820,50 on the Plaintiff ○○○ (hereinafter “instant disposition”).
[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, 3, Gap evidence 9-1, 2, Eul evidence 1-1, 2, and 3, and the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiffs' assertion
(2) The Plaintiff’s ○○ lent the lease deposit amount of KRW 280,000 to ○○ on or around February 2003. However, the Plaintiff’s ○○ wired the amount to the Plaintiffs’ account to repay that amount. As such, the instant disposition taken by deeming it as a gift is unlawful.
B. Legal relations
Inheritance Tax and Gift Tax Act (Amended by Act No. 7010, Dec. 30, 2003)
Article 2 Gift Tax Taxables
(1) Where any 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 who acquires property by donation from a third party (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 the donated property received, as a donation, by the resident;
Article 44 Presumption of Donation at Time of Transfer to Spouse, etc.
(1) Property transferred to a spouse, or lineal ascendants and descendants (hereafter in this Article, referred to as the "spouse, etc.") shall be presumed to have been donated by the spouse, etc. at the time when the transferor transfers the relevant property, and it shall be deemed to be the value
(c) Fact of recognition;
(1) The ○○○○ (the birth on March 15, 1915) had 2 South 5 girls, and the Plaintiff Y○○ was the husband of the Plaintiff Y○○, the Plaintiff Y○○○, and the Plaintiff Y○○○. The ○○○ was living in ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, a long-Nam, and the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, a long-North her domicile on February 14, 203, the ○○○○○○○○○ and the ○○○○○○ on behalf of the ○○○○○○○○○○○○○○○○○○○○○○○○○○ on lease.
(2) On August 23, 2003, 200, ○○ apartment, which was solely inherited to ○○○○, sold the above ○ apartment to 448,00,000 won, and among which ○○, 60,000 won was paid to ○○ who is a woman, 30,000 won to 4,00 won, 30,000 won to ○○, 374,760 won, and 254,374,760 won, respectively, to the Plaintiffs.
(3) Around October 2004, ○○○ terminated the lease contract of the above ○ apartment, and he also moved to the Plaintiffs’ house and live together.
[Reasons for Recognition] Evidence No. 5-1, 2, 3, 6, Evidence No. 8-1, 2, Evidence No. 9-2, Evidence No. 9-1, 2, Evidence No. 10-2, Evidence No. 11-1, 2, and 11-2, Part of Evidence No. 11-2, and the purport of the whole pleadings by the witness of the first instance court
D. Determination
6. According to the above ○○○○ apartment lease agreement on behalf of the Plaintiff, it seems that the said ○○○○○○○○○○○○○○○○○○ apartment lease agreement was concluded and it was difficult to conduct a normal legal act at the time of remitting money to the Plaintiffs ( around October 203). ② In light of the fact that ○○○ apartment was divided into and transferred for each of the Plaintiffs, it appears that the said ○○○ apartment was in depth. ③ If ○○○○○○○○○○○○○○○○○○ apartment was to pay KRW 280,00,00,000, it was possible to fully repay the money, and it was more likely that ○○○○○○○○ apartment lease agreement was issued on behalf of the Plaintiff at the time of the above ○○○○○○○○○○○○○○○○ apartment lease agreement, and there was no possibility that ○○○○○ apartment lease agreement would have been issued on the basis of 3rd,000.
3. Conclusion
Therefore, the plaintiffs' claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance which has different conclusions is unfair, so the plaintiffs' claim shall be dismissed. It is so decided as per Disposition.