주식 취득자금의 출처가 남편인지 또는 원고가 대표로 되어있는 회사자금인지[국패]
whether the source of the fund to acquire shares is husband or that of the company whose representative is the plaintiff.
It appears that the company that is the representative of the Plaintiff deposited the amount of this case in the securities account of this case for the purpose of investing shares in the name of the borrower.
Article 45 of the Inheritance Tax and Gift Tax Act (Presumption of Donation of Funds for Property Acquisition)
The appeal is dismissed.
Costs of lawsuit shall be borne by the defendant.
1. Details of the disposition;
A. On September 7, 1999, the director of the regional tax office of ○○○○○○○○○ Co., Ltd. (hereinafter “○○○○○○○○○”) conducted an investigation of changes in stocks, and confirmed that cash KRW 750,000 (hereinafter “the instant amount”) was acquired with the securities account (Account Number: 00-00-0000, hereinafter “the instant securities account”) under the Plaintiff’s name, and notified the Defendant of the taxation data on the said amount by deeming that the Plaintiff received cash donation from ○○○○○○ Co., Ltd. (hereinafter “○○○○○”).
B. On May 18, 2004, the Defendant notified the Plaintiff of the foregoing taxation data, and on May 18, 2004, imposed gift tax of KRW 52,00,000 on the gift tax of this case (hereinafter “instant disposition”).
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
○○○○○○○○○○ Co., Ltd. (hereinafter “○○○○○○○”) that was the representative director of the Plaintiff (hereinafter “Nonindicted Company”) deposited the instant amount in the instant securities account for the purpose of investing in stocks by borrowing the Plaintiff’s name in the course of managing the investment fund. Despite the fact that the said amount was actually used for equity investment, the Defendant’s disposition that was based on the premise that ○○○ donated the said amount to the Plaintiff is unlawful.
B. Relevant statutes
[Inheritance Tax and Gift Tax]
Article 45 (Presumption of Donation of Funds, etc. for Acquisition of Property)
(1) In cases prescribed by Presidential Decree, where it is difficult to recognize that a person acquired the relevant property by his/her own means in view of occupation, age, income, and property status, etc., the acquisition fund of the relevant assets shall be presumed to have been donated to the person who acquired the relevant property,
The donation shall be presumed by the acquisitor of the property - and shall be deemed to be the value of donated property of the acquisitor of the property.
(3) The provisions of paragraphs (1) and (2) shall not apply to cases where the relevant acquisition fund or repayment fund falls below the amount prescribed by Presidential Decree in consideration of occupation, age, income, property status, etc. and where sufficient vindication exists on the source of the relevant acquisition fund or repayment fund.
(c) Fact of recognition;
(1) The plaintiff was the representative director of the non-party company from April 29, 199 to February 15, 200, but the person who actually operated the above company was his husband ○○○.
(2) On September 7, 1999, △△△△, the head of the finance management division of the non-party company, deposited the instant amount into the instant securities account upon the order of ○○○○○○○○○○○○○○○○, and the said amount was part of the amount discounted by ○○○○○○○○○○○○○○, Inc. (e.g., KRW 1 billion, and KRW ○○○○, which was held by the non-party company.
(3) On September 27, 1999, 28,100 shares of ○○○○○○○ and other issued shares were sold to the instant securities account, and all of 28,100 shares were released.
(4) The non-party company included 28,100 shares as investment securities on the statement of investment securities (Evidence A) and the balance sheet (Evidence A 16).
(5) 28,100 shares of ○○○○○○ was combined at the ratio of 1:20 shares and increased to 56,200 shares. On July 6, 2001, the non-party company offered 22,430 shares of this case to ○○ Consulting Co., Ltd. as security, but it was traded on October 26, 2001 and deposited 78 million won in the account under the name of the non-party company.
[Ground of recognition] Facts without dispute, Gap 1-8, 11-14, 16 evidence, Eul 4-9 evidence, the witness's testimony for seed collection, and the purport of the whole pleadings
D. Determination
As seen earlier, the non-party company deposited the instant amount in the instant securities account, which is part of the discounted bills, and appropriated 28,100 shares of 00 ○○○○○○○○○○○○○○, etc. remaining after making a transaction of shares at the deposited amount in the instant securities account, as investment securities. In full view of the fact that part of the shares increased due to the consolidation of the above shares was offered as security and sold, and the sales amount was deposited in its own account under its name, it appears that the non-party company deposited the instant amount, which is its own money, for the purpose of investing in its name.
Therefore, the instant disposition based on the premise that ○○○ donated the instant amount to the Plaintiff is unlawful (the Defendant is a de facto shareholder of the non-party company, and the non-party company’s money is immediately one of the shareholders of the non-party company. However, it seems that the instant disposition was taken on the premise that the non-party company’s money was the money of ○○○○○○○. However, it is an independent corporate body, and the non-party company cannot present ○○○○ as it cannot be identical with the non-party company. Therefore, the Plaintiff’
3. Conclusion
Therefore, the claim of this case is reasonable, and it is so decided as per Disposition.
* Note *
(i)