Cho High Court Decision 2008Da2749 ( October 17, 2009)

Donation of insurance money as deemed donation

Doing a disposition of insurance premium paid by an ancestor in the name of his heir as a donation;

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant imposed a gift tax of KRW 370,758,00 on the portion of March 2, 2005 on the Plaintiff on May 9, 2008, imposed a gift tax of KRW 451,541,440 on the portion of donation of March 10, 2005, imposed a gift tax of KRW 90,40,40 on the portion of donation of March 10, 2005, imposed a gift tax of KRW 90,402,380 on the aggregate and omitted portion in the event of a second donation, and revoked each disposition for imposition of KRW 122,687,680 on the aggregate return at the time of filing an inheritance tax on April 6, 207.

1. Details of the disposition;

A. A. The rightB, the outerCC and the Plaintiff, the son, and the son and wife, respectively, had the right and license of the Plaintiff, the son and the son. However, the rightB died on September 13, 2006, and the CC died on April 6, 2007.

B. On November 19, 2004, the 19 insurance contracts entered into with AA Life Insurance Co., Ltd. were cancelled and received refund 1,564,869,000 won (hereinafter the same shall apply). On March 2, 2005, the Plaintiff entered into an insurance contract under the name of AA Life Insurance Co., Ltd. and the Plaintiff, and paid KRW 1,040,000 as insurance premium.

C. From October 1, 1999 to November 19, 2004, the Plaintiff changed five insurance contracts in the name of the Plaintiff under three times in the name of the Plaintiff. On March 10, 2005, the Plaintiff terminated five insurance contracts and received refund amounting to KRW 749,458,00.

D. On March 2, 2005, the Defendant: (a) donated KRW 1,040,000 from the KCC on March 2, 2005; (b) determined that the Plaintiff donated KRW 714,806,000 excluding the insurance premium paid by the Plaintiff on March 10, 2005; and (c) determined that the Plaintiff donated KRW 714,806,000 to the Plaintiff on May 9, 2008, the Defendant imposed an additional tax on the gift of KRW 370,758,00 and KRW 451,541,440 on the gift of March 10, 205 on the gift of KRW 370,758,00,00 on March 2, 2005; and (d) imposed the additional tax on the gift of KRW 451,541,440 on the gift of March 10, 2005 on the ground that it was omitted.

E. On July 21, 2008, the Plaintiff filed an appeal with the Tax Tribunal. On June 17, 2009, the Tax Tribunal dismissed the remainder of the appeal upon correcting the amount of additional tax on negligent tax returns.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Eul evidence 1-1, 2-2, Eul evidence 2-8, 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

DD, the husband of the Plaintiff, donated approximately 400,000,000 won to the Plaintiff’s husband. The Plaintiff’s husband asked the KCC to manage the said money and increase it. On May 10, 1988, the KCC kept custody of KRW 400,000,000, and the increased money was delivered to the Plaintiff’s husband and wife by preparing a cash storage and funding agreement containing the contents of ownership of the Plaintiff’s husband and wife, and then, the KCC increased insurance money up to KRW 1,50,000 by 194.0, around August 198, 198, up to KRW 30,000 to the Plaintiff’s husband and wife’s payment of the said money to KRW 1,50,000,00 to the Plaintiff’s husband and wife’s payment to KRW 300,000,000,000 to the remainder of the Plaintiff’s payment to the Plaintiff’s husband and wife’s payment to KRW 100.

B. Determination

(1) As a matter of principle, the fact of donation of property, which is a requirement for the imposition of gift tax, is proven by the tax authority. Thus, even if the tax authority does not offer daily funds required for the acquisition of the property if there is a person who has a substantial refluence with a certain occupation at the time of the acquisition of the property and had a substantial income therefrom, it cannot be presumed that the portion of the funds required for the acquisition of the property was donated to another person, barring special circumstances, unless there is a special circumstance, to the effect that the portion of the funds required for the acquisition of the property was not clearly presented to the other person. In a case where a person without a certain occupation or income is not a site to obtain funds, and where the lineal ascendant, etc. is able to obtain a gift, it is reasonable to presume that the funds acquired

(2) On March 2, 2005, the Plaintiff’s 1,040,00 won was used as the Plaintiff’s insurance premium on March 1, 200 for 1, 30, 40, 70, 70, 70, 106, 60, 70, 100, 70, 70, 100, 70, 60, 70, 100, 70, 60, 70, 100, 70, 60, 70, 60, 70, 70, 100, 60, 100, 60, 70, 106, 60, 60, 70, 60, 60, 60, 60, 60, 70, 60, 60, 300, 70, 200.

x) With respect to whether the largestF and HH have donated to the leastD around 1987 49,50,00,000 UN + 8,500,000 UN + 37,000,000 UN + 37,000,000 UN at the time of foreign exchange registration, there is no evidence to acknowledge it other than those stated in the foreign exchange registration certificate. In addition, when calculating 49,50,000 UN at the time of exchange rate of 278,226,80 [22,60,000 UNx 565.20,000 UNx x 565.20,000 + (8,500,000x 56.20,534,200,00x 10,000 + 37,000,000,00 UNx 108,208,2010]

The plaintiff asserts that during the period in which the maximum DD was in the Gun, Japan was erroneous and received 140,000,000 won from his/her parents as a result of living expenses and marriage, but there is no evidence to acknowledge it.

Even if the Plaintiff husband and wife received the above amount from the largestF and HH, there is no evidence to support that the Plaintiff’s husband and wife was in charge of management of the above amount, and since the Plaintiff’s husband and wife appears to have received the income from the head of the company whose largest DD is the head at the time of marriage, it is difficult to recognize that the Plaintiff’s husband and wife requested the Defendant to receive the above amount and increase it. Meanwhile, the agreement on cash storage and self-sufficiency management (No. 4-2 of the evidence A) states that the Defendant had received approximately KRW 400,00,000 from the Plaintiff’s husband and wife. However, considering that the agreement was concluded in advance with the mother and the Plaintiff’s husband and the Plaintiff’s wife, it is difficult to recognize the Plaintiff’s assertion that the above amount was actually in charge of the above amount. In addition, considering that the agreement was concluded in advance not only for the mere cash storage certificate but also for the increased amount of money, it is insufficient to acknowledge the claim that the above agreement was actually in possession of the above money.

Although the Plaintiff is deemed to have increased 1,500,000 won by operating a corporate bond business with the money of the Plaintiff couple, it is difficult to understand that there is no objective data regarding the increase process even though the KCC appears to have been in charge of lending through a financial institution for effective management since the KCC had been in charge of corporate bonds, it would be difficult to understand that the KCC had a separate account book or passbook. The Plaintiff merely submits a document with signature of the KCC (Evidence 4-3) and the content of the contract would have a difficulty in causing damages to the Plaintiff’s husband and wife, and it is difficult to recognize that the KCC had a maximum amount of 00,000 won for the remainder 1,50,000,000 won by cancelling the contract, and that the KCC had a maximum amount of 0,000 won for 0,000 won for 0,000 won for 20,000 won for 30,000,000 won and more for 0,000,0,000 won.

In the case of the insurance contracts concluded by the RedCC, the insurance contracts concluded on a lump sum basis with a lump sum payment do not tend to be a donation or inheritance for the purpose of the insurance contract. The KanCC changed the name of the total five insurance contracts to the Plaintiff, which led the Plaintiff to receive the cancellation amounting to KRW 749,458,00,00. The KanCC changed the name of the total five insurance contracts to the Plaintiff, and made the KOL receive the maturity insurance amounting to KRW 746,204,986 by changing the total two insurance contracts.

Therefore, in full view of the above circumstances, the Plaintiff’s assertion that the Plaintiff’s mother did not receive any gift tax by using the amount brought by Japan in order for the Plaintiff to divide the Plaintiff’s own property and distribute it to the Plaintiff, is without merit, and the instant disposition that was issued by the Plaintiff is justifiable.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.