Examination Donation 2007-0023 (O. 31, 2008)

In order to reverse the presumption of donation, it is necessary to clarify and prove the source of the funds to acquire a separate property.

In order to reverse the presumption of donation, it is necessary to clarify the source of the funds for acquiring property, separate from the funds presumed to have been donated, and to prove that the funds have been used as the funds for acquiring the property in question. The presumption of donation was reversed except for part of the amount proved by the plaintiff.

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

Article 45 (Presumption of Donation of Funds, etc. for Acquiring Property)

Article 34 (Presumption of Donation of Funds, etc. for Acquisition of Property)

1. On January 10, 2007, the Defendant revoked the portion that exceeds the reasonable amount of tax recorded in the item column of the same list among the amount of imposition disposition on the Plaintiff’s attached list and the amount of imposition disposition on the gift tax.

2. The plaintiff's appeal shall be dismissed;

3. Four minutes of the lawsuit are assessed against the plaintiff, and the remainder is assessed against the defendant.

The Defendant’s disposition of imposing gift tax on the Plaintiff on January 10, 2007 is revoked.

1. Circumstances of the disposition;

The following facts may be acknowledged, either in dispute between the parties, or in full view of the contents of Gap evidence 1, Gap evidence 2-1 through 12, Eul evidence 1-1 through 12, and the whole purport of pleadings:

A. On February 9, 2003, the plaintiff's father, died on the ground that the defendant conducted an on-site investigation of the inheritance tax against the plaintiff, and the defendant confirmed that the sum of 845,029,926 won, including the depositor, was deposited into the plaintiff's account in 12 times over 12 times as shown below (hereinafter referred to as "each entry amount"), and "the issue amount in this case" was indicated in the following sequence, and "B. The defendant, on January 10, 2007, requested the plaintiff to explain the above entry amount, but there was no specific explanation about the above entry amount, and thus, it was presumed that there was no specific explanation about the above entry amount, and that the plaintiff was subject to a disposition of imposition of gift tax on the aggregate of 26,029,926 won as stated in the attached list of donations, and the plaintiff was subject to a notice of imposition of 300,781,200,207.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) Under Article 45 of the Inheritance Tax and Gift Tax Act, in order for the presumption of donation to be made with respect to the amount at issue at issue at issue at issue at issue at issue at issue at issue at issue at issue at issue at issue, the defendant must prove that the plaintiff has no occupation or ability to return to booms, and that the plaintiff has a ability to return to booms at issue at issue at issue at issue before 1998.

"At the time, 430 million won was secured in aggregate, such as store rental deposit and premium, etc., and from 1997 to 1998, the Plaintiff received 50 million won per annum from 1997 to 199 and worked as vice president for the vice president with the annual salary of 50 million won from 1997 to 200,000. From September 1999 to 217, 1999, the Plaintiff was able to prove that ○○○○○-dong 217, Suwon-si ○○○○-dong 217, which was 198 to 202, when the presumption of donation was made, and the Plaintiff was found to have received considerable income from 198 to 202 from 200, and thus, the Plaintiff was not subject to imposition of the gift tax in this case, and thus, the Plaintiff was not subject to imposition of the gift tax in this case.

(A) Key amount (1) The Plaintiff’s work as ○○ International Vice President at the time of the Plaintiff’s death as the Plaintiff’s death penalty, and deposited ○○○ International Corporate Fund in the account of ○○ Bank established in the name of the Plaintiff.

“(B) Key issue: (4) The amount was loaned KRW 130 million from ○○ Bank (at the time ○○ Bank (at the time ○○ Bank) on August 21, 1999 in order to raise funds for the construction of souping facilities when the Plaintiff started the soup project from September 1, 199, and (5) the amount was deposited as business profit through the Plaintiff’s business and deposit money received from others.

(D) Issues 6: (7) On September 21, 200, the sum was deposited part of the down payment and the remainder of the lease deposit received from the lessee when concluding a lease contract with ○○○○○○○○○○○ apartment 231 and 702, which was owned by the Plaintiff, as ○○○-dong, Seoul, 89 ○○○○○○○ apartment 231 and 702, around September 21, 200, as ○○○○○○○○○ apartment 5,000,000 won.

(마) 쟁점⑧, ⑨, ⑪ 금액은 원고가 1999. 9.경부터 약 2년간 ○○시 ○○구 ○○동 217-1에서 '○암' 불가마찜질방을 직접 운영하다가 2001.경부터 직접 운영을 그만두고 그 시설을 분식ㆍ스낵코너, 미용실, 슈퍼, 식당, 피씨방 등 용도로 임대하는 사업을 하게 되면서 각 상가 임차인들로부터 지급받은 보증금 및 윌 임대료 등 수익을 예치한 것이다.

(F) On January 20, 2001, the Plaintiff sold the above ○○○○○ apartment at KRW 337 million, and deposited part of the remainder of KRW 132,00,000,000, excluding the above 175,000,000, which was succeeded by the buyer.

(G) The key issue amount is that the Plaintiff placed at around February 2002 the above ○○ Rental Apartment again in Seoul to deposit the lease deposit that the Plaintiff was refunded from the ○○ apartment lessor’s door-to-door.

(b) Related statutes;

Article 45 (Presumption of Donation of Funds, etc. for Acquiring Property)

Article 34 (Presumption of Donation of Funds, etc. for Acquisition of Property)

C. Determination

(1) Presumption of donation

(A) The fact of donation of property, which is a requirement for the imposition of gift tax, shall be presumed to have been donated by a person who has a certain occupation and has considerable financial capacity, in the course of a transaction, such as purchase of real estate, without any proof, if the tax authority does not clearly prove the source of part of the fund. However, in order to reverse such presumption, it is reasonable to presume that a person who has no special occupation or property has received a donation from his/her spouse or lineal ascendant, and that he/she has received a donation of the property from his/her lineal ascendant, etc., if he/she had a financial capacity to make a donation. This legal principle also applies to the case where it is objectively obvious that the degree of income or other financial status of his/her own occupation has a certain income, but it is extremely difficult to prepare such property due to its income or re-performance compared to the value of the pertinent property (see, e.g., Supreme Court Decision 90Nu6071, Oct. 26, 190). 198>

(B) Even if ○○○○○○○○ 2’s ○○○○ 2’s 2, and 3’s 4, B’s 4-1, 2, and 7’s each of the following facts are acknowledged by the overall purport of the pleadings, i.e., the Plaintiff’s business registration from September 1, 199 to 198, and the Plaintiff started the business by newly building ○○ 216’s 9’s 2,000 ○ 9’s 9’s 9-6,000 9-6’s 9-6,000 9-6’s 9-6,000 9-6’s 9-6,0000 9-6,000,000,000,000,000,000,000,000,000 won and 9-1,000 won.

Therefore, in order for the plaintiff to reverse the presumption of gift, it is necessary to clarify the source of property acquisition fund separate from the presumed funds, and to prove that the funds have been used as the acquisition fund of the property in question.

(2) The source of funds for the issue amount of the instant case

(A) As to the issue ① amount

According to the statements in the evidence No. 8-1, No. 2, and No. 20 and the testimony of O○○ Witness, the Plaintiff is recognized as having worked as a vice president of ○○ ○○○○○○○○’s one operated by her own malone from around 1997 to around 1998 and managed the company’s funds as a bank account in the name of the Plaintiff. On February 11, 1998, the Plaintiff withdrawn KRW 200,029,926 from the bank account of ○○○○○○○○’s account of 159,029,926, excluding KRW 50,000,000 among them, and deposited KRW 159,029,926,000,000 from which the Plaintiff was donated to the Plaintiff’s account. Therefore, it is reasonable to deem that the issue amount was not the Plaintiff’s donation

(B) Keys, 3, 4

"The statement of No. 14 through 16 and the overall purport of the pleadings, and the loan of an amount equivalent to KRW 130 million from ○○ Bank (at the time ○○ Bank) on August 21, 1999, around the time when the plaintiff started the soup project, and deposited it into the Plaintiff’s account, and then withdrawn and then used it as the funds for ○○ Bank. On September 15, 1999, it can be acknowledged that KRW 45 million was withdrawn from the above ○○ Bank’s account and deposited 40 million with the cashier’s check on the same day, and it is reasonable to view that the amount of issue was re-paid from the Plaintiff’s account. However, it is not reasonable to admit that the Plaintiff’s loan was partially withdrawn from the above ○ Bank’s account.

(C) As to the issue ⑤ Amount

"The plaintiff asserts that the amount of money is five million won through the plaintiff's business and guarantee money received from others, but there is no evidence to acknowledge it. Further, in the absence of any circumstance to see that the plaintiff deposited business profits, etc. in the bank account and withdrawn it from the bank account and deposited it into other accounts, the plaintiff's allegation is not accepted in light of the fact that the plaintiff opened a new account on June 5, 2000 and deposited 150 million won in the account on December 5, 2000, even though it was extended on August 21, 199 to raise funds for the sobrying facilities, etc. and 65 million won in addition to the loan on March 24, 200, even though it was extended on June 24, 200.

1) Facts of recognition

The following facts may be acknowledged in light of the overall purport of the statements and arguments in Gap evidence 3-1, 2, Gap evidence 7, Gap evidence 8-1, 2, Gap evidence 9, Gap evidence 10-1, 2, Gap evidence 11, and 12, and the whole purport of arguments:

A) Around March 20, 1996, the Plaintiff purchased 89 ○○○○○○○○○ apartment, 315 401 Dong around that time, and resided there around that time. Around September 200, the Plaintiff concluded a lease agreement with ○○○○○○○○○ apartment, 530 dong 401, 301, the lease deposit amounting to 89 million won from ○○○○○○○○○○, 530 dong 401, and completed the move-in report on September 21, 200, and leased the above ○○○○○○○○ apartment with the lease deposit amounting to 175 million won. Meanwhile, the Plaintiff deposited the lease deposit amount of KRW 175 million into the account of the National Bank on July 24, 200, the Plaintiff deposited the Plaintiff’s cashier’s account with the National Bank on June 1, 2005 (hereinafter “○○ bank”).

B) As to the above ○○○○○○ apartment, the registration of establishment of a mortgage Nos. 1 and 2 No. 9,100,000 won for each maximum debt amount was completed on August 1, 200 for the establishment of a mortgage No. 1. The registration of cancellation was completed on August 1, 200 for the establishment of a mortgage No. 200,000 won, and the registration of establishment of a mortgage No. 24 million won was changed on September 18, 200 for the establishment of a mortgage No. 200, and was completed on January 13, 2001.

C) On January 10, 2001, the Plaintiff entered into a sales contract with the above ○○○○○○ apartment as KRW 337 million between the Plaintiff and the above Kim○○○○○ apartment. The Kim○○○ apartment was paid to the Plaintiff a down payment of KRW 30 million on the date of the contract, the remainder of KRW 132 million on the date of the contract, and the remainder of KRW 175 million on December 11, 2001, and the Plaintiff paid the remainder of KRW 175 million by the method of accepting the Plaintiff’s obligation to refund the lease deposit to the lessee. The Plaintiff received the down payment and the remainder from Kim○○○, respectively, and completed the registration of ownership transfer on December 15, 2001, the Plaintiff deposited the above apartment with the Kim○○○ apartment as KRW 30 million on December 12, 201, Plaintiff No. 300 million on a cashier’s checks.

D) On February 19, 2002, the Plaintiff completed a move-in report with ○○○○○○○○ apartment, 89 ○○○○○○○○ apartment, 231 702, from the above ○○○○ apartment, and moved around that time. On February 19, 2002, the ○○○ Region deposited KRW 89 million with the Plaintiff’s agricultural bank account.

2) According to the above facts, the Plaintiff appears to have held an amount equivalent to KRW 86 million, which is the difference between KRW 175 million and KRW 89 million for lease guarantee that leased and paid ○○○○○○ apartment on September 2000. Thus, it is reasonable to deem that the key amount deposited into the Plaintiff’s account as of September 15, 2000, was deposited into the money held as above, and the remainder of KRW 132,000,000, which was paid as of December 11, 2001, was sold to Kim○○○○ apartment and received as of December 12, 2001, and that the Plaintiff received KRW 132,00,000 from the Plaintiff’s account as of December 12, 2001.

However, on July 24, 200, the Plaintiff asserted that the amount of KRW 32 million deposited into the account of the Plaintiff ○○○○ apartment is the amount of deposit paid after receiving the down payment of the lease deposit (175 million won) paid by the Plaintiff. However, it is reasonable to view that the amount of KRW 89 million out of the lease deposit paid by the Plaintiff was used as the payment of the deposit for the lease of ○○○ apartment, and that the remainder is considered as the source of funds for the issue amount as seen above. Accordingly, this part of the Plaintiff’s assertion is rejected.

(마) 쟁점 ⑧,⑨,⑪ 금액에 대하여

원고는 2001년경 그가 운영하던 '○암' 불가마찜질방을 그만두고 그 시설을 구획하여 식당, 미용실 등에 임대하고 그 임차인들로부터 임차보증금, 월차임 등을 지급받아 그 자금 등으로 쟁점 ⑧,⑨,⑪ 금액을 입금하였다는 것이나, 이에 부합하는 듯한 갑제5호증의 1, 2(갑제19호증의 6, 7과 같다), 갑제13호증의 1, 2, 갑제19호증의 1 내지 5, 8의 각 기재는 원고가 ○○시 ○○구 ○○동 217-1 건물 중 각 일부씩을 분식ㆍ스넥코너, 미용실, 슈퍼, 식당, 피씨방, 카센터 등으로 임대하였다는 내용이기는 하나, 위 각 임대차계약에 따른 임차보증금이나 윌차임을 실제로 수령하였다는 점에 대하여는 이를 인정할 아무런 증거가 없고, 일부 임대차계약은 쟁점 ⑧, ⑨ ,⑪ 금액이 원고의 계좌에 입금된 날짜 이후에 체결된 것일 뿐만 아니라(카센터, 갑제13호증의 1, 2, 갑제 19호증의 8), 위 각 임대차계약에 따른 임차보증금지급일자와 금액이 쟁점 ⑧, ⑨ ,⑪ 금액이 입금된 날짜와 금액과 일치하지 아니하며, 앞서 본 바와 같이 원고가 2001년도 부동산 임대소득금액으로 선고한 금액과도 현저히 차이가 나는 점 등에 비추어 보면, 위 각 증거들만으로 쟁점 ⑧, ⑨ ,⑪ 금액이 원고가 주장하는 바와 같이 임차보증금, 윌차임 등을 자원으로 하여 임금된 것이라는 점을 인정하기 부족하다. 따라서 원고의 이 부분 주장도 받아들이지 아니한다.

(3) Sub-decisions

Therefore, among the key issues of this case, the presumption that the plaintiff received a donation from Park Jong-chul has been reversed, since the key issues of this case ①, ③, No. 3, No. 500, No. 500, No. 2000, and No. 500, No. 1000, No. 2000, No. 2000, No. 2000, No. 2000, No. 2000, No. 2000, No. 2000, No. 2000, No. 2000, No. 2000, No. 2000, No. 2000, No. 2000, No.

Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.