Seoul Administrative Court 2010Guhap41314 ( October 13, 2011)

Seocho 2010west 1742 (2010.09)

disposition that is imposed on the donated property by judgment of the amount repaid by the deceased is unlawful.

It is recognized that a mother has remitted money to a deposit account for the payment of the money for the funeral of the decedent and the payment of the money for stone. The disposition imposing inheritance tax and gift tax is unlawful in the determination that the Plaintiff paid the money on behalf of the decedent in lieu of the decedent and did not constitute donated property even though it was not donated property.

2011Nu40310 Revocation of revocation of the imposition of inheritance tax and gift tax

BAA

Head of Eastern Tax Office

Seoul Administrative Court Decision 2010Guhap41314 decided October 13, 2011

May 23, 2012

October 31, 2012

1. The part of the judgment of the court of first instance against the Plaintiff that orders the revocation below shall be revoked. The part that exceeds KRW 000, out of the part that the Defendant imposed on the Plaintiff, and the part that exceeds KRW 000,000, in the imposition of KRW 00,000, inheritance tax as of December 1, 2009, and KRW 00,000,000, shall be revoked.

2. The remaining appeal filed by the Plaintiff is dismissed.

3. 90% of the total litigation costs shall be borne by the Plaintiff, and 10% by the Defendant.

The judgment of the first instance shall be revoked. The part exceeding KRW 00 of the imposition disposition of KRW 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00 won

1. Details of the disposition;

A. On June 19, 2003, the Plaintiff, who is the deceased BB (hereinafter referred to as the “the deceased”), was given a gift from the deceased on June 19, 2003, and reported and paid KRW 88,469,920 to the Defendant with the value of the donated property at KRW 00. After that time, the Plaintiff, other than the deceased, who succeeded to the deceased’s property on February 8, 2008, reported and paid inheritance tax to the Defendant on August 5, 2008 (the Plaintiff’s inheritance tax amount is KRW 00,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

C. On February 16, 2010, the Plaintiff appealed to the instant disposition, but was dismissed, and on May 19, 2010, filed an appeal with the Tax Tribunal, but was dismissed on August 9, 2010.

[Reasons for Recognition] The facts without dispute, Gap evidence, Gap evidence (including each number, hereinafter the same shall apply), and Eul evidence 1 through 8, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff principal

Of the Plaintiff’s KRW 000 (hereinafter “the instant money”) received from the Deceased on April 16, 2003 (hereinafter “the instant money”), KRW 000 was paid by the Plaintiff on July 2, 2002, and KRW 000 was temporarily borrowed from the Deceased, and thereafter terminated and withdraw KRW 000 in total of the deposit claims of the Plaintiff, the wife, and DonD, and repaid the said borrowed money with the said money. Therefore, the instant money constitutes only KRW 000 (=00 +000) out of the instant money, and only KRW 00,000,000, out of the instant disposition, was deemed donated property and thus, the portion imposed is unlawful.

B. Relevant statutes

Attached Form 1 is as shown in the relevant statutes.

C. Determination

1) Relevant legal principles

In general, in a lawsuit seeking revocation of a disposition imposing a gift tax, the burden of proving the facts of taxation must be borne by the taxpayer, but if it is proved that the facts of taxation are proved in light of the empirical rule in the specific litigation process, it cannot be concluded that the other party is not eligible to apply the empirical rule unless the other party proves the circumstances that the pertinent facts are not eligible to apply the empirical rule (see, e.g., Supreme Court Decision 2006Du6604, Feb. 22, 2007; Supreme Court Decision 2006Du6604, Feb. 22, 2007). Meanwhile, inasmuch as the facts are revealed in the lawsuit seeking revocation of a disposition imposing a gift tax, and the deposit in the name of the person who is recognized as a donor by the tax authority is withdrawn, the deposit is presumed to have been donated to the taxpayer, and if there are special circumstances, such as the withdrawal of the deposit and the deposit in the taxpayer's name, it is necessary to prove it to the Plaintiff (see, e.g., Supreme Court Decision 96Nu328, supra).

2) Determination as to KRW 000

A) First, we examine whether KRW 00,000, out of the instant money, was repaid to the Deceased on July 2, 2002, as alleged by the Plaintiff.

B) In light of the following circumstances, which are recognized as adding the entire arguments to Gap 2 and 6, the plaintiff transferred KRW 000 to the deposit account (Account Number: 000) in the name of the deceased on July 2, 2002, and the deceased deposited KRW 000 in full from the above deposit account on the following day, the plaintiff can be presumed to have lent KRW 00 to the deceased, and the above KRW 000 out of the above money was paid to the plaintiff for loan repayment. The defendant was paid KRW 00,000 from the deceased on April 9, 2002, and the plaintiff claimed that the above KRW 00,000,000, which was remitted to the deceased on July 2, 2002, were paid to the deceased on 00,000 to the above deposit account in the name of the mother of the deceased on April 7, 200, and the purport of the entire arguments, were as follows.

C) Therefore, among the instant money, the above KRW 000 falls under the return of the loan, and the part on which the inheritance tax and each gift tax was imposed on deeming the above KRW 00 as donated property during the instant disposition is unlawful. The Plaintiff’s assertion on this part is with merit.

3) Determination on KRW 000

A) Next, we examine whether KRW 00,000, out of the instant money, was the money borrowed from the Deceased, as alleged by the Plaintiff, and was fully repaid thereafter.

B) The entry in Gap evidence 3 through 5, and 9 through 12 into the whole purport of the pleading, and 1. 206

6. ① A term deposit (Account Number 00, 000, and 000) in the Plaintiff’s name was terminated and deposited in a company bank account in the name of KimK on June 20, 2006, and on August 21, 2007, the account was terminated and withdrawn in the check. ② A bank account number (Account Number 000, and 000) in the name of the Plaintiff’s wife was terminated on July 12, 2006; ② (Account Number 000, and 000) in the name of the deceased’s bank was terminated on July 12, 2006; and ③ (Account Number 00, and 000) in the name of the deceased’s bank were extended to 00,000, and the account number was terminated on December 27, 2007.

C) However, in full view of the following circumstances, the presumption that only 1-ro, the Plaintiff submitted, was given a gift of KRW 00,000, is insufficient to reverse the presumption, and there is no other evidence to deem otherwise.

① The Plaintiff asserted that KRW 000 of the instant money was temporarily borrowed from the Deceased, but there is no evidence to support this.

② The Plaintiff asserted that the above term deposits in the name of the Plaintiff, OO, and DoD were repaid to the deceased on the check that the said term deposits were terminated and withdrawn on the premise that they were owned by the Plaintiff, but as the Plaintiff was the Plaintiff, the deceased was directly sponsed and received the check on the termination table (Evidence A to E) of each term deposit. The term deposit in the name of OO was terminated on the same day, and the term deposit in the name of OO was extended to the deceased’s account on the same day, and the Plaintiff seems to have no specific surplus in addition to the income earned while working in the public enterprise, while the deceased had considerable financial power, the above term deposit in the name of OO appears to have been actually controlled and managed by the deceased. Accordingly, the Plaintiff’s assertion that differs from this premise is unacceptable.

③ At the time of the inheritance tax investigation, the Plaintiff asserted that the instant money was borrowed from the Plaintiff’s OO and the wife borrowed money from the deceased, but was repaid to the deceased (Evidence No. 6), and that all were repaid in the instant lawsuit, and it is difficult to believe that the allegations are inconsistent and consistent.

D) Therefore, the part of the instant disposition, based on the premise that the Plaintiff donated the above KRW 000 to the Deceased, is lawful. The Plaintiff’s assertion on this part is without merit.

4) Sub-committee

Therefore, the part that deemed the above KRW 00 as donated property among the dispositions in this case is legitimate in that the part that deemed the above KRW 000 as donated property is illegal, and the machine part of KRW 000,000 (=not 000 + without dispute) as donated property. The amount of inheritance tax is KRW 00,000, and the amount of gift tax is KRW 00,000, as stated in attached Tables 2 and 3 calculation statement.

3. Conclusion

In the judgment of the first instance, the part against the plaintiff as to the part exceeding the reasonable tax amount shall be revoked, and the disposition corresponding to the revoked part shall be revoked. The remaining appeal filed by the plaintiff shall