Seoul Administrative Court-2016-Gu Partnership-85798 ( October 20, 2017)

Cho Jae-2016-Seoul Government-2527 (2016.30)

Whether the presumption of donation and the reversal of presumption in the case of voluntary withdrawal where the deposit in the name of a person recognized as a donor by the tax authority is deposited in the account in the taxpayer’s name.

As long as the deposit in the name of a person recognized as a donor by the tax authority is withdrawn and deposited in the account in the name of a taxpayer, such deposit shall be presumed to have been donated to the taxpayer, but if the deposit is deemed to have been voluntarily withdrawn and returned, such part shall not be deemed to have been donated.

Article 45 of the Inheritance Tax and Gift Tax Act (Presumption of Donation of Funds, etc. for Acquisition of Property)

2017Nu65946 Revocation of Disposition of Imposition of Gift Tax

AA and 1

BB Director of the Tax Office

Seoul Administrative Court Decision 2016Guhap85798 decided July 20, 2017

April 11, 2018

May 16, 2018

1. Of the judgment of the first instance court, the part against the Plaintiff A that orders the revocation below shall be revoked.

The Defendant’s imposition of gift tax of KRW 117,921,820 (including additional tax) against Plaintiff A on April 1, 2016, which exceeds KRW 74,401,420, shall be revoked.

2. The remaining appeals by Plaintiff A and Plaintiff CCC are dismissed, respectively.

3. The 3/5 of the total litigation cost between the plaintiff AA and the defendant shall be borne by the plaintiff AA, the remainder by the defendant, and the costs of appeal by the plaintiff CCC shall be borne by the plaintiff CCC.

The judgment of the first instance shall be revoked. On April 1, 2016, the Defendant imposed a gift tax of KRW 117,921,820 (including additional taxes) on Plaintiff AA and the disposition of imposition of KRW 114,756,70 (including additional taxes) on Plaintiff CCC shall be revoked.

1. Quotation of judgment of the first instance;

The reasons for this Court concerning this case are as stated in the reasoning of the judgment of the court of first instance, in addition to using or adding some contents as stated in the following Paragraph (2). Thus, the meaning of the abbreviationd language used in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act (hereinafter the same shall apply to the judgment of the court of first instance).

2. Parts used or added;

"17,921,820 won" of Part 14 and "114,756,700 won" of Part 15 for the second reason shall be added.

The third party borrowed "each loan" in the 12th chapter, "I arbitrarily used it in relation to the increase of deposit for lease on a deposit basis", and the third party borrowed the "loan" in the 13th sentence to "the money used at will" respectively.

After the last 3th of the last conduct, "the plaintiffs paid 9 million won for it on February 6, 2006," and after the last 5th of the fourth 5th, "the plaintiffs paid 30,941,660 won for each of the above confinement compensation."

The plaintiffs in Part 15 of Part 4 include "Plaintiff A" as "Plaintiff AA was 1988, Plaintiff CCC was 1989," and evidence Nos. 13 and 14 was added to the 17th [based grounds for recognition].

The 5th parallel 7 to 7th parallel 4th parallel shall be followed as follows:

2) First, we examine the argument that some of the key issues of the instant case was repaid with the instant transfer money arbitrarily used by DD in connection with the increase of deposit.

A) The fact that DoD had been kept in custody of Dodddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd from April 25, 2011.

B) However, comprehensively taking account of the overall purport of the pleadings as to Plaintiff CCC’s evidence No. 7-2 and evidence No. 13-3, Plaintiff CCC’s transfer of KRW 100 million from the Plaintiff CCC’s account to the account under the name of DCC on April 26, 2011, and then deposited KRW 100 million in the above Plaintiff CCC’s account again on April 29, 201. However, among the instant funds, there is no evidence that KRW 100 million was paid on April 29, 201 under the above DCC’s account’s transaction details, which was transferred to Plaintiff CCC’s above KRW 100 million, and there was no evidence that Plaintiff CCC’s transfer of KRW 100 million to the above account under the name of CCC’s name for other than the Plaintiff CCC’s transfer of KRW 100 million to the Plaintiff’s account under the same reason. However, there was no room to view that the Plaintiff CCC’s transfer of the instant funds to the same account.

C) Meanwhile, in the case of Plaintiff AA, unlike the case of Plaintiff CCC, it is reasonable to view that: (a) on April 25, 2011, Plaintiff AA transferred KRW 100 million from the account under its name to the account under its name; and (b) there was no material to deem that Plaintiff AA had already been returned from DD prior to the transfer of the key money; (c) as seen earlier, Plaintiff AA paid gift tax when receiving a donation of KRW 115 million on November 22, 2005; (d) transfer income tax on forest expropriation compensation was paid; and (e) Plaintiff AA and DD paid transfer income tax on forest expropriation compensation; and (e) Plaintiff A and DD paid all taxes related to the said money to Plaintiff A as of April 25, 201; (b) there was no intention or intent to receive a donation from Plaintiff A to the said funds again, and thus, it is reasonable to deem that the Plaintiff’s assertion that the amount of the instant donation does not change its credibility in the process of performing the Plaintiff’s claim that it did not change in the Plaintiff’s new claim.

3) Next, we examine the argument that the remainder of the issue amount, other than the instant transfer amount, was paid as compensation for damages suffered by the Plaintiffs due to the investment of DD funds.

As seen earlier, the fact that the passbook and the seal impression of the plaintiffs whose funds were deposited in this case during the study abroad were kept by DoDD, where they were gathered. In full view of the entries of 5, 7-2, 9-1 through 3, 12-1, and 5-2, 9-1 through 3, and 12-2, and the overall purport of the pleadings at the witness EE testimony of the court of first instance, DoD invested a considerable portion of the funds in the fund, etc., and it was found that losses were incurred in the course of investment and redemption, but it was not revealed that the grounds for calculating the damages claim by the plaintiffs were unclear, and that the specific legal relationship between DoD and the plaintiffs surrounding such investment was ambiguous, it is insufficient to confirm that the part of the funds of this case excluding the funds of this case was paid for losses caused by investment, such as the funds of DoD, etc., and there is no other evidence to accept this part of the plaintiffs' assertion.

4) Accordingly, the part regarding Plaintiff CCC among the instant disposition is lawful. Of the instant disposition, the part regarding Plaintiff AA regarding the instant disposition is lawful within the scope of 74,401,420 won (no dispute between the parties as to the legitimate amount of tax) calculated by modifying the amount donated on November 26, 2014 from DD to KRW 380,00,000,000,000, excluding the said KRW 110,000,000,000, and is unlawful.

3. Conclusion

Therefore, the claim of this case by the plaintiff AA is justified within the scope of the above recognition, and the rest of the claim of the plaintiff AA and the claim of the plaintiff CCC shall be dismissed for each reason. Since the part of the judgment of the court of first instance with respect to the plaintiff AA is partly different from this conclusion, the part of the judgment of the court of first instance which accepted part of the appeal by the plaintiff AA and lost the plaintiff AA, which constitutes the order for cancellation under the judgment of the court of first instance, shall be revoked, and the part which exceeds 74,401,420 won among the disposition of this case against the plaintiff AA shall be revoked, and the remaining appeal by the plaintiff AA and the appeal by the plaintiff CCC shall be dismissed for each reason, and this part