National High Court Decision 2000Gu0907 ( October 15, 2001)

Donations

Revocation

In light of the fact that the full amount of provisional payment was used as capital increase for the purpose of issuing new shares by the corporation Eul and that there was a burden of interest on the provisional payment, and that it is difficult to see that there is a gift and a gift certificate between the donor and the donee, the disposition imposing gift tax on the gift

Article 26-2 of the Framework Act on National Taxes / [Period of Exclusion for the Imposition of National Taxes] / Articles 2 of the Inheritance Tax and Gift Tax Act

OOOOOOO

The amount of donation received by the director of the tax office of the Daegu District Tax Office on January 10, 2000 to the claimant

The imposition of gift tax amounting to 232,050,000 shall be revoked.

1. Facts;

After the claimant received KRW 800,00,000 from the O Construction Co., Ltd. (hereinafter referred to as the "OO") on April 13, 1995, the claimant received KRW 800,000,000 from the OOO (hereinafter referred to as the "OO") (hereinafter referred to as the "OO") other than the co-born of the claimant on May 30, 1997, and received KRW 672,959,311 and the OO (127,040,689), the agency notified the claimant of the fact that the claimant received the issue amount from the OO on January 10, 200, and the agency notified the claimant of KRW 232,05,00.

The claimant appealed against this and filed an appeal on March 28, 200.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

The claimant and the OOO et al., a shareholder of the company other than the claim for the new construction of a national housing unit, used funds from the company other than the claim for the purpose of using the capital increase for the purchase of the new construction site of a house and the acquisition requirements of the comprehensive construction license. As the interest burden due to the above provisional payment increases, it is unfair to conclude that the claimant and the OOO made a monetary loan agreement on May 30, 197 that they received funds from the OO, and that the plaintiff received funds from the corporation other than the claim while the OO knew that there was a considerable amount of funds from the real estate disposal, etc.

(b) Opinions of disposition agencies;

Although the claimant asserts that the issue amount is a monetary loan for consumption and presented an agreement of a monetary loan for consumption, it is justifiable to deny the agreement of a monetary loan for consumption between the parties and impose gift tax, even if there was the above loan for consumption, considering the following: (a) the period of the agreement of a monetary loan for consumption is for a long of five years; (b) there is no agreement of interest on the loan for money, even though it is a claim or an obligation for money; (c) the claimant and an OO is a shareholder of the non-claimed Foreign Corporation; and (d) the claimant has no ability to repay the higher amount of money; and

3. Issues and judgments

A. Key issue

Whether the claimant is a monetary loan for consumption or a donation that has received the key amount from the OOOO of the city.

(b) Related statutes;

The gift tax under Article 26-2 of the Framework Act on National Taxes shall not be imposed after the expiration of the ten-year period from the date when the gift tax can be imposed. Provided, That in cases where a gift tax return is not filed, it shall be 15-year period.

Article 2(1)1 of the Inheritance Tax and Gift Tax Act provides that gift tax shall be imposed on all property donated to a person who acquires property through a donation by another person. Article 4(1) of the same Act provides that a donee is obligated to pay gift tax pursuant to this Act. Article 554(1) of the Civil Act provides that donation shall take effect by expressing the intention to grant property free of charge to the other party and accepting it by the other party.

C. Facts and determination

The agency imposed this case by deeming that the issue amount was donated by OO, and the claimant claims that it was a loan for consumption from OO, and this is examined.

(1) The representative director of the applicant non-indicted 32,233 square meters of land 32,233 square meters of non-Ori-gun, Ulsan-gun, Ulsan-gun, Ulsan-gun, Seoul Special Metropolitan City owned by the applicant non-indicted 197. 2, 1997, acquired 6,768,930,000 square meters of land 13,042 square meters of three lots of land to the OOOO corporation, and transferred 25,643,735,000 won to 6,618,903,000 won of the above advisory service price excluding 6,024,832,00 won of the above advisory service price excluding 6,00,000 won, 19,618,918,90,90,903,000 won of land purchase 6,78,90,9000 won of the rest of the claim 19,3097,9000

The claimant received KRW 800,00,000 from the non-claimed Corporation on April 13, 1995 and used the full amount for the non-claimed Corporation’s capital increase (160,000 shares). The above provisional payment was used for the increase of capital due to the inevitable increase in capital for the maintenance of a license for the construction business of the non-claimed Corporation, and the claimant was confirmed by the related data such as the report on the completion of investigation by the disposition agency, etc. on the fact that the above provisional payment was used for the increase of capital for the purpose of maintaining the license for the construction business of the non-claimed Corporation.

(2) If an OOO, the husband of the claimant stated in the disposition agency on December 3, 1999, the claimant stated that it received funds from an OO for the purpose of maintaining the comprehensive construction business license for an OO's company on April 13, 1995, and that "the above provisional payment was received from the real estate transfer proceeds by the OOO, resulting in the claimant's provisional payment against an OO's non-claimed corporation," and that "OO made an amendment to the above statement to the disposition agency on December 9, 199, in part of the above statement, it stated that "OO declared that the claimant's provisional payment was against an OO's corporation other than the claimant's claim" was "as a result, it stated that the claimant and OO made a bilateral agreement with the claimant on May 30, 1999, it was additionally borrowed from the OO, and the claimant and the O2000O's loan agreement prepared by 2000O20,000.

(3) According to the above facts, the claimant used the total amount of the provisional payment from the non-claim corporation as the capital increase for the purpose of the non-claim corporation's capital increase for the purpose of the non-claim corporation, according to the statement of recognition of the provisional payment for the business year from January 1, 1996 to December 31, 1996 and the statement of recognition of the interest on provisional payment for the business year from the non-claim corporation (A), the interest rate for the provisional payment was 15% to 17%, and the issue amount paid by the OOO was not used for personal purpose by using the counter-payment system for the whole non-claim corporation, and in general, there are special circumstances that can give a donation between the donor and the donee where the property is donated without compensation as the disputed amount, and it is difficult to view the donor and the donee as having intention to give a donation and a gift.

D. Accordingly, this case's petition is with merit, so it shall be decided as ordered in accordance with Articles 81 and 65(1)3 of the Framework Act on National Taxes.