Cho High Court Decision 201Du5181 (Law No. 112, 2012)

It is difficult to see that the sales amount was donated because of the fact that rent was paid actually.

It is difficult to deem that a portion of the purchase price for land shares was donated to the bank account, as long as it is revealed that they were deposited in the bank account, but the rent has been paid from the owner of land and the land has been provided as collateral and used as personal property by the bank, and thus, it is difficult to deem that

2012Revocation of disposition of revocation of imposition of gift tax

XX

Head of Nowon Tax Office

November 29, 2012

January 10, 2013

1. The Defendant’s disposition of imposing gift tax of KRW 000 on the Plaintiff on October 11, 201, which exceeds KRW 000, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

As set forth in the text.

1. Details of the disposition;

A. On August 6, 1999, with respect to 1/2 shares among the land in Seoul Special Metropolitan City, Nowon-gu, Nowon-gu, 311-25 large 90 square meters (hereinafter “instant land”), the registration of ownership transfer was completed on the ground of sale on July 20, 199 in the name of Austria, the Plaintiff’s mother, and leB, the Plaintiff’s private village, and the Plaintiff’s leB. As to the instant land on August 6, 2007, the registration of ownership transfer was completed under the name of KimCC on May 28, 2007 (transaction value of 00 won).

B. Around September 2010, the director of the Seoul Regional Tax Office confirmed that KRW 00 of the transfer price of the instant land was deposited into the Plaintiff’s bank account on August 6, 2007, and that KRW 000 of the transfer price of the instant land was deposited into the Plaintiff’s bank account on November 30, 2007 in the course of lending and collecting KRW 000,000 from the transfer price of the instant land, and that the Plaintiff’s mother was donated to the Plaintiff with the said KRW 000 and KRW 000 (hereinafter “the instant issue amount”), and notified the Defendant of this fact as gift tax assessment data.

C. Accordingly, on October 11, 201, the Defendant imposed and notified the Plaintiff of KRW 000 on the gift tax (the gift tax of this case includes KRW 000,000,000,000,000,0000,0000,0000,0000,000,0000,000,000,000,0000,000,000,000,000,0000,0000,000,0000,000,000,000,000

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on December 7, 201, but the Tax Tribunal dismissed the appeal on May 21, 2012.

[Based on recognition] Gap evidence Nos. 1, 3, and 4 (including branch numbers, hereinafter the same shall apply), Eul evidence Nos. 1, 2, and 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The key issue amount of this case (00 won) cannot be deemed to have been donated by OrA for the following reasons. Thus, the disposition of this case, based on the premise that the Plaintiff received a donation from OrA, is unlawful.

1) The key amount of the instant case includes the remainder of KRW 000 out of the sales price (00) of the instant land-based building owned by the Plaintiff.

2) When the Plaintiff acquired the instant land, it lent KRW 000 to the Plaintiff, and after selling the instant land, the Plaintiff repaid KRW 000,000, which was the sum of KRW 000 and interest KRW 000,000, which was lent to the Plaintiff with the purchase price of the instant land ( =00 +00). Accordingly, the Plaintiff was not donated the said money, but repaid the loan and interest.

3) In consideration of the fact that the Plaintiff was supported by the Plaintiff, including the Plaintiff’s burden of hospital expenses, the payment of KRW 000 is not a donation of the said money.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

1) On August 6, 1999, the Plaintiff offered the instant land as collateral in the name of her husband, KimD, and took out a loan of KRW 000 from the National Bank of Korea (hereinafter “National Bank”), and paid KRW 1/2 out of the purchase price (00 won) of the instant land. Thereafter, the Plaintiff paid interest on KRW 000 of the loans under the above KimD name.

2) Around 200, EE and 000, the FF leased the instant land to build a new building on the instant land, and thereafter made a registration of ownership preservation on April 23, 2001, but transferred the said building to Ansan on February 28, 2005. Since then, the Plaintiff acquired the said building from Ansan on December 12, 2006 at KRW 00 ( separate premium for premium of KRW 000). At the time, the Plaintiff provided the instant land as security and borrowed KRW 000 from the National Bank on December 12, 2006, used it for personal purposes, such as using the sale price of KRW 00 and premium of KRW 00 for the purchase of the instant land, and received from the National Bank rent of KRW 00 from around 200 and from around 00 to 00 for the instant land.

3) After August 6, 2007, the registration of ownership transfer was completed on May 28, 2007 under the name of KimCC on the instant land and the instant ground buildings (the instant land transaction value of KRW 000, the transaction value of the instant land and KRW 000). KimCC paid KRW 200,000 in total with the purchase price of the instant land and the instant building on the land (including premium). Of the above purchase price, KRW 00 was deposited into the Plaintiff’s national bank account on August 6, 2007, and KRW 00 was deposited into the bank account in the name of OA on the same day.

4) On August 14, 2007, the Plaintiff lent KRW 000 out of the above KRW 000 deposited in the bank account under the name of the Lao to the literatureCC.

5) On October 8, 2007, LCC repaid the principal and interest on the loan by depositing 00 won with the bank account under the name of the Plaintiff on November 29, 2007, with the bank account under the name of the Plaintiff on November 29, 2007, and KRW 000 to the bank account under the name of the Plaintiff on November 30, 2007, and KRW 000 to the bank account under the name of the Plaintiff on November 30, 2007.

6) On the other hand, on October 17, 2007, Australia donated three lots of land (donation property value of 000 won) located in Gyeonggi-gun, Gyeonggi-do to the Plaintiff.

[Basis] Evidence Nos. 1, 2, 4, 5, 6, 8, 10, 12, 16, 17, 18, and evidence Nos. 3 and the purport of the whole pleadings

D. Determination

In a lawsuit seeking revocation of a disposition imposing gift tax, as long as the deposit in the name of a donor was withdrawn and deposited in the bank account in the name of the taxpayer, such deposit is presumed to have been donated to the taxpayer. Thus, in special circumstances where withdrawal of such deposit and deposit in the name of the taxpayer were made for other purpose than donation, it is necessary to prove such fact to the taxpayer (see, e.g., Supreme Court Decisions 96Nu3272, Feb. 11, 1997; 9Du4082, Nov. 13, 2001). In light of such legal principles, insofar as it is revealed that the key money of this case (00 won) out of the purchase price in the name of the Plaintiff’s land portion recognized as a donor by the Defendant was deposited in the bank account in the name of the Plaintiff, the key money in the instant case is presumed to have been donated to the Plaintiff.

In light of the above facts and the overall purport of oral argument, the plaintiff alleged that the interest income of 00 won was paid to 00 won as stated in the above 2-A, not to be donated to 00 won, but to be repaid to 00 won. However, the plaintiff appears to have received all of the proceeds (00 won) of the building on the ground of this case, which was owned by 00, separately from the key money of this case (the plaintiff asserted that the proceeds of the sale of the building on the ground of this case (00 won) are included in the key money of this case at the trial stage of 00,000 won, and it is not consistent with the plaintiff's assertion that the amount of this case was paid to 00 won under the name of 00,000 won. However, the plaintiff did not submit specific documents such as interest rate of 00 won on the leased money or the agreement for payment of the above interest amount to 00,000 won to 00,000 won, and it is not reasonable to acknowledge that the plaintiff's claim that it was paid to 000,000.

However, comprehensively taking account of the above evidence and the purport of the entire pleadings, the following circumstances are as follows: (i) the Plaintiff was granted a loan of KRW 000 to 1/2 of the instant land under the name of her husband KimD, and paid interest on the said loan, and the Plaintiff actually bears all the funds for acquiring the instant share in the land, such as repaying the loan with her own funds; (ii) the Plaintiff was paid rent from the owner of the instant land; (iii) the Plaintiff provided the instant land as collateral and received loans from the bank; and (iv) the Plaintiff used the instant land as an individual with a loan from the owner of the instant land after acquiring the instant land; and (iii) the Plaintiff was working as the owner of the instant land by occupying and using the instant land without compensation by owning the instant land and a building on the ground; and (iv) the transfer price equivalent to 1/2 of the instant land (the transfer price corresponding to 1/2 of the instant land in the name of her husband is KRW 00,000; and (iv) the Plaintiff’s use of the instant share in the transfer price of the instant land by using 1/300.

Thus, the disposition of this case based on the premise that OrA donated the instant money to the Plaintiff is unlawful.

3. Conclusion

The plaintiff's claim is justified and accepted.