(영문) 의정부지방법원 2017. 06. 13. 선고 2016구합7588 판결

On March 23, 2010, the Defendant revoked the imposition of KRW 38,062,00 of gift tax on March 23, 2010 on Plaintiff AA, Plaintiff MM, KK, GG, and ○○○○ on February 10, 2015, and the imposition of KRW 130,308,612 of inheritance tax inherited on October 16, 2013 and the imposition of KRW 383,986,690 of inheritance tax inherited on October 16, 2013, and revoked the imposition of KRW 210,392,030 of gift tax on April 15, 2008 against Plaintiff MM.

Reasons

1. Details of the disposition;

A. Plaintiff AA is the husband of the deceased YY (hereinafter referred to as “the deceased”), and Plaintiff MM and KK, GG, and ○○ are the deceased’s children.

B. As the Deceased died on October 16, 2013, Plaintiff AA, Plaintiff MM, GG, and ○○○○ jointly inherited the deceased’s property. BB filed an inheritance tax on April 24, 2014, and Plaintiff AA filed an inheritance tax on April 30, 2014, respectively.

C. From July 21, 2014 to October 28, 2014, the director of the Central Regional Tax Office: (a) examined the deceased’s inherited property from July 21, 201 to notify the deceased of the result; (b) the Defendant was donated KRW 750,00,000 (hereinafter “the remittance amount”) that the deceased was transferred from the Plaintiff AA on March 23, 2010 to the deceased; and (c) the Defendant was donated to the deceased.

② The deceased transferred KRW 440,00,00 ( KRW 150,000,000 on April 2, 2013; KRW 290,00,000 on August 20, 2013; KRW hereinafter referred to as “the instant provisional deposit”) to the SSS 2, 30,000 (hereinafter referred to as the “S 13,00,000”) under the name of the Plaintiff’s provisional deposit, shall be included in the deceased’s inherited property; ③ after the deceased changed the name of LIG insurance from 2,00 to 3,00,000, KRW 30,000 on November 14, 201, KRW 20, KRW 30,000 on the issue of the S 2,00, KRW 30,000 on the deceased’s non-listed shares, KRW 30,00,00 on the deceased’s 20,010 on April 15,208.

D. The Plaintiffs dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on April 13, 2015, and the Tax Tribunal rendered a decision on December 30, 2015 that “the tax base and tax amount shall be calculated by deducting KRW 62,140,572 from the value of inherited property and the value of donated property and the amount of the remainder of the appeal shall be dismissed,” respectively, on the grounds that the said insurance termination amount cannot be deemed a prior donation by Plaintiff MM (including the Plaintiff).

E. Accordingly, on October 16, 2013, the Defendant reduced inheritance tax of 398,091,550 won from 383,986,690 won to 383,986,690 won against the inheritors, including the Plaintiffs. On November 14, 2012, the Defendant issued a corrective disposition to cancel the gift tax of 27,517,060 won against the Plaintiff MM (hereinafter “instant disposition”).

Facts without any dispute arising in recognition, Gap's 1, 11, Eul's 1 through 5 (including paper numbers; hereinafter the same shall apply), and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

For the following reasons, the imposition of gift tax on March 23, 2010 on the Plaintiffs and the imposition of gift tax on April 15, 2008 on the Plaintiff MM are unlawful, respectively, and the portion exceeding KRW 130,308,612 (the inheritance tax on KRW 381,886,027, which is not disputed by the Plaintiffs) of the imposition of inheritance tax on the Plaintiffs should also be revoked as it is unlawful.

1) The amount of the remittance of this case was lent by the deceased from the plaintiff AA, her husband, and the deceased was granted a right to collateral security by lending 1,240,000,000 won in total to ASEAN with his own money, and thereafter, he repaid part of the above borrowed money at the request of the plaintiff AA by remitting the provisional money of this case to KS World. The disposition of this case was unlawful on the premise that the deceased received the remittance of this case from the plaintiff AA or the provisional money of this case was included in the deceased's inherited property (section 1).

2) The Plaintiff MM entered into a transfer contract with BB on the instant shares and paid 300,000,000 won in full. The instant shares were acquired by Plaintiff MM through normal transactions, not bypassing from the Deceased. As such, the disposition on the instant shares was unlawful (section 2).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to the First Claim

1) Facts of recognition

A) On March 23, 2010, the Deceased received KRW 750,000,000 from the Plaintiff AA and lent its total amount of KRW 1,240,000 to ASEAN.

B) In order to secure the above loan claim, the Deceased received a collateral security, which constitutes a maximum debt amount of 1,300,000,000 for the real estate owned by KK.

C) On April 2, 2013, the Deceased remitted the sum of KRW 440,00,000,000 on April 2, 2013 and KRW 290,000,000 on August 20, 201 of the same year to the SP World, and SP World accounted for the said amount as the provisional deposit of Plaintiff AA, not the Deceased.

Facts that there is no dispute for recognition, described in Gap evidence 2, 3, 4, 10, and the purport of the whole pleadings.

2) Determination

Article 44(1) of the Inheritance Tax and Gift Tax Act provides that "property transferred to his spouse, or lineal ascendants or descendants shall be presumed to have been donated to his spouse, etc. at the time the transferor transfers the property, and shall be deemed to have been donated to him."

In light of the following circumstances, each of the statements Nos. 3, 5, and 6, the deceased shall be presumed to have received a donation from the Plaintiff AA to the entire purport of the pleadings, and the facts alleged by the Plaintiffs are insufficient to reverse the presumption, and there is no other evidence to acknowledge it. Furthermore, as long as the deceased presumed to have received a donation from the Plaintiff AA, it is reasonable to view that the instant provisional payment is included in the deceased’s inherited property. Accordingly, the aforementioned assertion by the Plaintiffs on different premise is without merit.

① The Plaintiffs’ assertion that the deceased borrowed a large amount of KRW 750,00,000 from the Plaintiff AA, her husband, to lend business funds to KR is difficult to easily obtain in light of the empirical rule (in light of the fact that only the network was set up by KR, and the source of the instant provisional payment is the deceased’s own funds, it is difficult to view that Plaintiff AAAA merely went through the deceased’s bank account in the process of lending business funds to KR.).

② The deceased’s SP World balance of KRW 410,00,000 on December 31, 2010, and KRW 720,000,00,00 on December 31, 2012, and the deceased’s self-sufficiency, such as selling ○○○○, Seoyang-gu, Seoyang-gu, Ilyang-gu and part of the share in the land and receiving sales proceeds from the above ground buildings around June 28, 2012, the deceased did not fully repay the instant remittance or interest to the Plaintiff AA for a period exceeding three years. Even when the deceased transferred the instant provisional revenue to the SSP bank account, the deceased’s death (OO on April 2, 2013) up to the maximum period before the death of the deceased (OO on April 2 and August 20, 2013).

③ In light of the fact that the SP World is a small-scale family company and its corporate settlement date has arrived after the deceased’s death, it is difficult to exclude the possibility that the SP World has accounted for the instant provisional revenues in favor of the Plaintiffs.

④ From March 23, 2010 to December 31, 2012, the Deceased traded funds on several occasions, such as lending a sum of KRW 587,00,000,000, and being repaid a total of KRW 97,000,00,00, etc., the instant provisional deposit amount which falls short of the instant remittance was transferred twice, not only twice, but also the instant provisional deposit was transferred in the form of lending it to the company by the representative director without any objective basis without going through Plaintiff AA, the representative director, and without going through Plaintiff AA. In light of the above, it is difficult to readily conclude that the instant provisional deposit was the cause of repayment for the instant remittance amount.

⑤ On April 24, 2014, GG reported inheritance, and included KRW 290,00,000 among the provisional receipts of this case as of August 20, 2013 in the value of inherited property. At the time of the investigation, the GG stated, “as of April 13, 2013, as stated in the written opinion of the Investigation Agency on the Preliminaryity of Taxation (Evidence B No. 3)”, “150,000,000, which appears to be a clerical error as of April 2, 2013, was omitted in the process of confirming financial data, and was not included in the value of inherited property.”

D. Determination as to the second proposal

Article 44(2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter the same) provides that “Where a person having a special relationship with a person having a special relationship prescribed by Presidential Decree transfers property to his/her spouse or lineal ascendant or descendant within three years from the date of transfer, the person having a special relationship is presumed to have received a donation of the property at the time of transfer, and the value of the property at the time of transfer shall be deemed to be the

Around June 27, 2006, the deceased transferred the shares of this case to BB who is a specially related party, and the fact that BB transferred the shares of this case to the Plaintiff MM, who is his father’s father on April 15, 2008, within three years thereafter, was not a dispute between the parties. Thus, the Plaintiff MM is presumed to have donated the shares of this case from the deceased pursuant to Article 44(2) of the former Inheritance Tax and Gift Tax Act.

Furthermore, according to the facts as alleged by the plaintiffs, the BB 1, 5 through 8, and the CB 30, 200, 300, 300, 300, 300, 200, 300, 300, 200, 300, 300, 200, 300, 300, 300, 300, 200, 300, 300, 300, 200, 30, 200, 30, 200, 300, 20, 300, 200, 30, 300, 200, 300, 300, 200, 300, 300, 200, 300, 200, 300, 205, 300, 300.

However, in light of the following circumstances, the evidence Nos. 1, 5, 9, and 9, which can be comprehensively seen in light of the overall purport of the pleadings, the above facts alone are insufficient to reverse the presumption that Plaintiff MM received the instant shares from the Deceased, and there is no other evidence to acknowledge the fact of normal trade as alleged by the Plaintiffs. Accordingly, the Plaintiffs’ assertion is without merit.

① The SS World is an unlisted corporation whose main business is real estate rental business, and the deceased’s family members held all of the shares before the deceased transferred the shares of this case to BB, and there is no special reason to transfer the shares of this case equivalent to 10% of the shares issued by SS World to BB who is the director and the director of the management office.

② BB transferred the shares of this case to the Plaintiff M&M, who was his father, who had resided in the U.S. before two years have passed since the acquisition of the shares of this case, in the same amount, which is very exceptional.

③ BB failed to make a specific statement as to the payment of interest on loans of KRW 200,000,000 and the repayment of principal, etc., from among the acquisition price paid to the Deceased at the time of the tax investigation, and failed to submit documentary evidence.

④ BB around March 12, 2008 238,343,798 around March 12, 2008, the next day following the receipt of an intermediate payment from Plaintiff MM.

In spite of the withdrawal of the source, the user did not submit an explanation or evidence that could be accepted to the user.

⑤ The foreign exchange bank account of BB opened on June 16, 2006 shall have only details of transactions related to the acquisition and transfer of the shares of this case.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed as all are without merit.

참조조문

-상속세 및 증여세법 제44조

-상속세 및 증여세법 제44조 제1항

-상속세 및 증여세법 제44조 제2항

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