Cho High 208 Mine0185 (Law No. 24, 2008)

It is presumed to be a gift in case a deposit in the name of a donor was withdrawn and was withdrawn from a bank account in the name of a taxpayer.

It is presumed that the money used for the repayment of the construction payment is donated, as the deposit in the name of the donor was withdrawn, and deposited into the bank account in the name of the taxpayer.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing gift tax of KRW 26,600,000 against the Plaintiff on December 5, 2007 shall be revoked.

1. Circumstances of the disposition;

가. 원고의 아버지인 망 오☆☆(2004. 8. 4. 사망하였다. 이하 '망인'이라 한다)은 2002. 3. 9. 그 소유의 서울 ★구 ○○○6가 18-117 소재 부동산(이하 '이 사건 부동 산'이라 한다)을 주식회사 ●●●시티에 매매대금 4,320,000,000원에 매도하였다.

B. While investigating the source of funds for the property disposed before the commencement of inheritance tax in relation to the deceased’s inheritance tax investigation, the director of the Central Tax Office found that KRW 1,916,700,000 out of the sales amount of the real estate of this case was deposited into the bank account in the name of the Plaintiff’s mother, and that the Plaintiff withdrawn KRW 1,029,30,000 out of the above money between March 7, 2002 and June 18, 2002, and notified the Defendant thereof.

C. On July 1, 2006, the Defendant deemed that the Plaintiff donated the above KRW 1,029,300,000 from the Deceased, and imposed and notified KRW 335,706,00 on the Plaintiff as the taxable amount of gift taxes.

D. On September 15, 2006, the Plaintiff filed an appeal with the National Tax Tribunal on September 15, 2006, and the National Tax Tribunal decided to conduct a reinvestigation on February 9, 2007.

E. Accordingly, around December 2007, the director of the Central Tax Office notified the Defendant of the following results of re-audit.

(1) From July 19, 200 to November 18, 2002, the Plaintiff returned KRW 690,000,000, out of the above KRW 1,029,30,000, which were withdrawn as stated in the above Paragraph (b) above, to the bank account in the name of the deceased or shotum, and thus, the above KRW 690,000,000 shall be deducted from the taxable amount of gift taxes stated in the above Paragraph (c).

(2) As indicated in the following table, the Deceased donated each of the corresponding money indicated in the column of “the date of donation” between October 16, 2002 and December 2, 2002 to the Plaintiff on each date, and thus, the gift tax should be imposed anew.

F. On December 5, 2007, the Defendant issued a gift tax of KRW 40,600,000 on each of the pertinent gift tax stated in the following table to the Plaintiff.

G. However, during the proceeding of the lawsuit in this case, the defendant revoked the gift tax of KRW 13,160,000 as to KRW 13,00 on November 20, 2009 and KRW 840,000 on KRW 3,00,000 on KRW 16,00 on October 16, 202, among the following table, since it is confirmed that the plaintiff returned the above money to the deceased's side, the defendant would have revoked the gift tax of KRW 13,160,000 on the following table, and the imposition disposition of KRW 13,00,000 on KRW 13,00 on December 2, 2002 on the following table shall be revoked (see the disposition of imposition of gift tax of KRW 95,00,000 on the aggregate of the gift tax amount of KRW 3,00,000 on the following table).

[Reasons for Recognition: Facts without dispute, Gap evidence 1 through 5, Eul evidence 1-1 through 5, Eul evidence 2 and 3, Eul evidence 5-1, 2, Eul evidence 5-2, and Eul evidence 6, the purport of the whole pleadings]

2. Whether the imposition disposition of the instant case is lawful; and

A. The plaintiff's principal

The Defendant issued the instant disposition on November 5, 2000 won on the ground that the Plaintiff received the gift from the Deceased on November 5, 2002, including the sum of KRW 95,000,000,000 on November 7, 2002, and KRW 95,000,000 on November 28, 2002, and KRW 10,000 on December 21, 2002 (hereinafter “the instant amount”). However, the Plaintiff borrowed the said money from the Deceased, not from the donation, and from August 26, 2002 to May 23, 2006, the instant amount was equivalent to the instant amount. Therefore, the Defendant’s disposition on imposition was unlawful as it misleads the Defendant of the fact.

B. Determination

(1) In a lawsuit seeking revocation of disposition imposing gift tax, insofar as the deposit in the name of a donor, which is recognized as a donor by the tax authority, is revealed to have been withdrawn and deposited in the bank account, etc. under the taxpayer’s name, such deposit is presumed to have been donated to the taxpayer. Thus, barring special circumstances, such as withdrawal of such deposit, deposit in the taxpayer’s name, etc., was made for other purpose than donation, the need to prove it is the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov

(2) 이 사건에 관하여 보건대, 갑 3호증의 1 내지 5, 갑 4호증의 3, 4, 갑 8호증, 갑 11호증의 1, 2, 을 4호증의 각 기재에 변론 전체의 취지를 종합하면, ① 망인 명의의 은행계좌에서 2002. 11. 5. 50,000,000원, 2002. 11. 7. 30,000,000원, 2002. 12. 2. 10,000,000원이 각 인출되어, 각 같은 날 위 각 인출금이 원고 명의의 은행계좌로 입금된 사실, ② 망인 명의의 은행계좌에서 2002. 11. 28. 10,000,000원이 인출되어, 같은 날 위 돈 중 5,000,000원이 원고의 '������모텔' 공사대금 채무 변제를 위하여 공사업자인 한◇◇ 명의의 은행계좌로 입금된 사실, ③ 위와 같이 원고 명의의 예금계좌로 입금된 돈 합계 90,000,000원(= 50,000,000원 + 30,000,000원 + 10,000,000원)은 원고가 위 예금계좌에서 수시로 인출하여 사용한 사실을 각 인정할 수 있는바, 위 인정사실에 의하면 망인 명의의 은행계좌에서 인출되어 원고 명의의 계좌로 입금된 90,000,000원 및 망인 명의의 은행계좌에서 인출되어 원고의 공사대금 채무 변제를 위하여 사용된 5,000,000원을 합한 이 사건 쟁점 금원은 망인이 아들인 원고에게 증여한 것으로 추정된다 할 것이다.

Meanwhile, comprehensively taking account of the overall purport of the arguments in the statement Nos. 3-1, 4-1, 11-2, 12-1, 2-2, 12-2, and 13-1 through 13-13 of the evidence Nos. 3-1, 4-1, 11-2, and 12-2 of the evidence Nos. 12, and 13-13 of the above statement, the following facts can be acknowledged. However, the issue amount of this case is the money deposited into the bank account in the name of the plaintiff and △△△△ after the time when the deceased disposed of the real estate of this case, and its source is deemed to be related to the real estate purchase price of this case. The plaintiff frequently withdrawn and used the money, ② from the bank account in the name of the plaintiff, his parent, the deceased, and the bank account in the name of the plaintiff from August 26, 2002 to May 23, 2006.

Therefore, the Defendant’s disposition that deemed that the deceased donated the instant money to the Plaintiff is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.