If a person without any special occupation or property fails to clearly present the source of funds to acquire the property, the propriety of presumption of donation (affirmative)

The fact of donation of property, which is a requirement for the imposition of gift tax, is that the tax authority has a certain occupation as a matter of proof and fails to clearly prove the source of part of the fund in the course of the transaction, such as purchase, etc. of real estate by a person who has a considerable financial capacity, it shall not be presumed that the fund was immediately received from his/her spouse or lineal ascendant. However, if a person who has no special occupation or property does not prove that he/she was able to obtain a donation from his/her lineal ascendant, etc. and the lineal ascendant, etc. has a financial capacity to obtain a donation, it is reasonable to presume that the

Article 29-2 of the Inheritance Tax Act

Supreme Court Decision 90Nu6071 delivered on October 26, 1990 (Gong1990, 2465) Supreme Court Decision 94Nu9603 Delivered on November 8, 1994 (Gong1994Ha, 3294) Supreme Court Decision 94Nu14308 Delivered on August 11, 1995 (Gong195Ha, 3136)

[Judgment of the court below]

Head of the tax office

Seoul High Court Decision 94Gu32100 delivered on January 10, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

The fact of donation of property, which is a requirement for the imposition of gift tax, is that the tax authority establishes a certain occupation and fails to clearly prove the source of part of the fund in the course of the transaction, such as the purchase of real estate by a person with a considerable financial capacity, it shall not be presumed that the fund was immediately received from his/her spouse or lineal ascendant. However, if a person without a special occupation or property fails to prove that he/she was able to obtain the loan from his/her lineal ascendant, etc. and the lineal ascendant, etc. has a financial capacity to obtain the loan, it is reasonable to presume that the relevant property was received from the person with a financial capacity of his/her own property (see, e.g., Supreme Court Decision 90Nu6071, Oct. 26, 190).

According to the reasoning of the judgment below, the court below held that the plaintiff's purchase price of the land of this case was not a specific occupation at the time of acquiring real estate or deposits in Gangnam-gu, Seoul ( Address omitted), but it is reasonable to view that the non-party, the husband of the plaintiff, had considerable financial capabilities, such as the plaintiff's operation of manufacturing business, such as concrete, etc., and the transaction of acquiring real estate at a time across the country was conducted several times. However, although the plaintiff received a loan of 30,000,000 won from the non-party mutual savings and finance company in the Dong bank in the Dong bank in the case of this case from about 9 months before the time of purchase of the land of this case, there is no objective financial data to regard that it was appropriated for the purchase fund of this case, the plaintiff's purchase price of the land of this case is unclear, and thus there is no objective financial data to regard it as being donated from the above non-party, the spouse with the ability to give donations. In light of related records and evidence, the court below's determination of fact-finding is justified and there is no error.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)