Seoul Administrative Court 2008Guhap21447 ( April 30, 2009)

Examination Donation 2007-0023 (O. 30, 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.

1. Judgment of the first instance shall be modified as follows:

A. On January 10, 2007, each part of the imposition disposition of gift tax on the Plaintiff, which exceeds the amount stated in the same list column, shall be revoked.

B. The plaintiff's appeal is dismissed.

2. The total costs of the lawsuit shall be ten minutes, and one of them shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The Defendant’s disposition of imposing gift tax on the Plaintiff on January 10, 2007, respectively, as indicated in the item column of imposition of the attached Table 1, shall be revoked.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The part exceeding KRW 3,250,00 as to each disposition imposing gift tax on the plaintiff on January 10, 2007, in excess of KRW 34,837,550 as to paragraph (4), in excess of KRW 34,837,550 as to paragraph (5), in excess of KRW 8,648,690 as to paragraph (6), in excess of KRW 13,648,690 as to paragraph (8), in excess of KRW 10,953,580 as to paragraph (9), and in excess of KRW 10,980,610 as to paragraph (111), shall be revoked.

: Cancellation of the part of the judgment of the first instance, and the plaintiff's claim corresponding to the above cancellation shall be dismissed.

1. Circumstances of the disposition;

The following facts are either disputed between the parties, or acknowledged by Gap evidence 1, Gap evidence 2-1 through 12, Gap evidence 27-1, Eul evidence 1-1 through 12, and the whole purport of the pleadings.

A. He died on February 9, 2003, and the defendant confirmed that the sum of 815,029,926 won was deposited into the plaintiff's account in the name of the plaintiff over 12 times from February 11, 1998 to February 15, 2002, such as the entry of the entry column in the table 1 on the inheritance tax investigation by the plaintiff, and the defendant confirmed that the sum of 815,029,926 won was deposited into the plaintiff's account in 12 times (hereinafter referred to as "each entry amount") by the following sequence.

B. On January 10, 2007, the Defendant: (a) requested the Plaintiff to vindicate each amount of money to be paid to the Plaintiff; (b) on the premise that there was no specific vindication as to the amount of money to be paid to the Plaintiff; and (c) on the premise that the Plaintiff received a donation equivalent to each amount of money to be paid from ParkA; and (d) accordingly, the Defendant imposed and notified the gift tax of KRW 266,078,90 in total, as stated in the item of the amount of gift tax imposed under

C. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on April 11, 2007, but was dismissed on March 31, 2008.

2. Determination on the lawfulness of each of the dispositions of this case

A. The plaintiff's assertion

(1) (A) The Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Inheritance Tax and Gift Tax Act") shall apply to the aggregate amount of this case.

For the presumption of gift pursuant to Article 45, the defendant must prove that "the plaintiff has no occupation or ability to return to the plaintiff," and that "YA has had the ability to return to the plaintiff."

(B) However, in light of the following, the instant issue amount did not meet the requirements for presumption of gift under Article 45 of the Inheritance Tax and Gift Tax Act.

1. Requirements that "the plaintiff has no particular occupation or ability to resume."

원고는 1998년 이전에 원고와 원고의 처가 운영하던 의류매장 '△△스', '○○빗' 등을 폐업하면서 매장 임차보증금, 권리금으로 4억 3,000만 원을 받았고, 1997년부터 1998년까지 원고의 형 박AA이 운영하는 '□□□널'에서 연봉 5,000만 원(판공비 별도)을 지급받으면서 부사장으로 근무하였으며 1999. 9.경부터 2년 간 ○○시 ○○구 ○○동 217에서 '▷▷ 불가마찜질방'을 직접 운영하다가 그 후부터 임대업을 하는 등 증여추정이 이루어진 시기인 1998년부터 2002년까지 사업가로서 분명한 직업과 상당한 수입이 있었고, 여러 부동산을 소유하고 있었다.

② The requirement of “A” that “A had re-refluent refluent refluent power to give the Plaintiff a donation to the Plaintiff was fluent, but it did not have any particular income due to business depression since 1998, so there was no re-refluent power to give the Plaintiff the instant key amount.

(C) Therefore, each of the instant dispositions rendered by the Plaintiff based on the presumption that the Plaintiff received a donation of the key amount from Park Jong under Article 45 of the Inheritance Tax and Gift Tax Act is unlawful.

(2) Even if the gift can be presumed for the key issue amount of this case, so long as the financial resources for the deposit of the key amount of this case are sufficiently proven, such presumption of donation should be reversed, and thus, each disposition of this case is unlawful.

(A) Key amount ①

The Plaintiff, while working as a vice president of Magna, deposited the International Enterprise Fund in the account of one bank opened in the name of the Plaintiff.

(B) Issues, No.44

The Plaintiff deposited part of the bank loans to raise funds for business operation, such as making soup and making soup.

(C) Issues ⑤ Amount

The plaintiff deposited a long operating profit and a security deposit, etc. as a soup project.

(D) Issues 6 and No. 50

원고는 □□ □□구 □□동 89 ☆☆☆☆아파트 315동 401호(이하 '□□동 아파트'라 한다)를 소유하면서 거주하다가, □□동 아파트를 임대하고 ○○시 ○○구 △△동 530 ◆◆◆아파트 303동 401호(이하 '△△동 아파트'라 한다)를 임차하여 이사하면서, 두 아파트의 임차보증금 차액 중 일부를 예치하였다.

(E) Key amount 0

On November 20, 2001, the Plaintiff sold an apartment building in △dong and deposited part of the purchase price.

(f) Key amount

The Plaintiff deposited the rental deposit with the △dong apartment.

(사) 쟁점 ⑧,⑨,⑪ 금액

원고가 1999. 9.경부터 2년간 ○○시 ○○구 ○○동 217-1에서 불가마찜질방을 직접 운영하다가 2001.경부터 그 시설을 분식 ・스낵코너, 미용실, 슈퍼, 식당, 피씨방 등으로 임대하고 상가 임차인들로부터 지급받은 보증금 및 월 차임 등 수익을 예치하였다.

(b) Related statutes;

Attached Table 3 shall be as stated in the relevant statutes.

C. Determination

(1) Presumption of donation

(A) The fact of donation of property, which is a requirement for the imposition of gift tax, is proved by the tax authority, and in the event that the person having a certain occupation and a considerable financial capacity fails to clearly prove the source of part of the fund in the course of the transaction, such as purchase of real estate, it is not presumed that the fund was donated from his spouse or a lineal ascendant without proof. However, it is reasonable to presume that the person without a special occupation or property fails to prove that he was given a donation of the fund in question, and if the lineal ascendant, etc. has the financial capacity to give a donation, it is presumed that he was given a donation from the person having the financial capacity, even though there is income in a certain occupation, or that the degree of the income or other financial status is significantly higher than the value of the property in question.

It should be equally applied to cases where it is objectively clear that the assets cannot be prepared due to the income or the re-performance of roads (see, e.g., Supreme Court Decision 90Nu6071, Oct. 26, 1990).In addition, in order to reverse such presumption, it is necessary to verify the source of the funds for acquiring property, apart from the funds presumed to have been donated, and to prove that the funds have been used as the funds for acquiring the relevant property (see, e.g., Supreme Court Decision 94Nu14308, Aug. 11, 1995).

(B) In full view of each of the statements in Eul evidence Nos. 2-1, 2, Eul evidence Nos. 3-1, 4-2, and Eul evidence Nos. 7, the following circumstances can be acknowledged.

① 원고는 1998년경 별다른 사업을 하지 않다가 1999. 9. 1.부터 '▷▷'이라는 상호로 사업자등록을 한 다음 박AA으로부터 증여받은 ○○시 ○○구 ○○동 216 토지에 건물을 신축하여 부동산임대사업을 시작하였는데, 원고가 이 사건 쟁점금액에 대한 증여추정이 이루어진 1998년부터 2002년까지 과세관청에 신고한 원고 소득금액 총액은 〈표 2> 종합소득세 신고내역과 같이 43,185,139원으로서 연평균으로 환산한 소득 금액은 8,637,027원에 불과하다.

Although the remainder argues that the return has not been filed, it is necessary to prove that there is a substantial amount of income in order to recognize the existence of income different from the tax return.

② Even if the Plaintiff earned a certain amount of income through the frying operation and the commercial building rental business, it is difficult to view that the income was attributed to the Plaintiff’s income as it is, given that the Plaintiff received a bank loan from the facility investment fund, etc. as the initial stage of the business, and used some of the revenue as expenses

(3) Except for the apartment house owned and sold by the Plaintiff, the Plaintiff did not have any income accrued from the transfer of real estate since 1998 to 2002, such as the status of possession and transfer of real estate in the table 3.

④ The Plaintiff asserted that, from August 1, 1990 to June 30, 1994, “△△△△△” was the trade name of “△△△△,” and that, from July 1, 1991 to October 30, 1998, “○○○○○○○” was operated. However, it is insufficient to find that the testimony by the witness witness of the party at the trial was insufficient to support that the Plaintiff and his wife received the lease deposit, premium, etc. upon the discontinuance of the store operation, and there is no other evidence to support the fact that the Plaintiff and his wife were paid the lease deposit, premium, etc., even if the said money was paid, it is most prior to 198 and the said money was included in the amount of the issue of this case.

(C) In light of the aforementioned circumstances, even if there was a certain amount of income between 1998 and 2002, it is difficult to view that the Plaintiff was sufficiently capable of acquiring the key amount of KRW 845 million. In light of the property status at the time of the commencement of inheritance (property 2 billion, property 1.2 billion, property 1.1 billion, and property 2.1 billion), it is assumed that the Plaintiff was able to donate the key amount of this case to ParkCC, and thus, it is presumed that the Plaintiff was donated the key amount of this case from ParkCC to the Plaintiff.

Ultimately, in order for the plaintiff to reverse the presumption of gift, it should be proved that the money was used as the acquisition fund of the property in question, while disclosing the source of the funds separate from the estimated funds.

(D) Judgment on the Plaintiff’s assertion

1) The Plaintiff’s occupation, income, and financial history alone are insufficient to recognize the financial ability to acquire more than KRW 845 million, which is the key issue amount of this case, cannot be applied to the gift presumption provision under Article 45 of the Inheritance Tax and Gift Tax Act. Specifically, as a result of the examination, the Plaintiff’s argument that each disposition of this case is unlawful by itself. Since Article 45 of the Inheritance Tax and Gift Tax Act is a gift presumption provision for cases where it is difficult to recognize that the Plaintiff acquired the pertinent property with financial capacity in light of the purchaser’s financial status, etc., it is sufficient to determine whether to apply the gift presumption provision, and it is sufficient to determine whether to apply the above gift presumption provision, and it is not possible to apply the above presumption provision for the Plaintiff’s assertion on this part, since the Plaintiff’s argument is without merit.

2) The Plaintiff’s duty to pay the gift tax is established when the property is acquired through the gift. If the acquired property is a deposit, each provision on the presumption of gift under the Inheritance Tax and Gift Tax Act shall apply at the time of deposit. Under the provisions on the presumption of donation under the provisions on the presumption of donation, the Plaintiff’s obligation to pay the gift tax shall apply at each time of deposit.

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

(A) Key amount ①

According to the statements in Gap evidence 8-1, 2, 20, 20 to 22 and the testimony of the witness of the court of first instance, the plaintiff was working as the vice president of YA from 1997 to 1998 and managed the company funds in the name of the plaintiff in the bank account in the name of the plaintiff. On February 11, 1998, the plaintiff withdrawn KRW 200,029,926 from the one bank account of YAA and immediately deposited the remainder of KRW 159,029,926, excluding KRW 50,000,000,000,000 among them, and immediately deposited the remaining KRW 159,029,926 into the plaintiff's one bank account. According to the above facts of recognition, the issue amount seems not to have been donated to the plaintiff, but to have been deposited in the name of YA.

(B) Issues, No.44

According to Gap evidence Nos. 14 through 16, the following facts are acknowledged: (a) loans of KRW 130 million from the new bank on August 21, 1999 at the time when the plaintiff started the soup project; and (b) some of them were deposited into the Plaintiff’s new bank account; (c) making soup and making soup out; (d) KRW 1 million from the new bank account; and (e) KRW 45 million from September 15, 1999; and (e) KRW 40 million from the cashier’s checks on September 15, 199; and (e) KRW 25 million deposited into the Plaintiff’s account on September 29, 199. According to the above facts, according to the issue, the amount of money remaining after being withdrawn from the Plaintiff’s new bank account and used as the remaining deposited money.

(C) Issues ⑤ Amount

⑤ There is no evidence to acknowledge the Plaintiff’s assertion that the amount of money deposited by the Plaintiff through the soup program is the amount of business profit, lease deposit, etc. However, in the absence of any circumstance to deem that the Plaintiff deposited business profit, etc. in the bank account and withdrawn it from the bank account, etc., and deposited in other accounts, the amount of money was loaned KRW 130 million on August 21, 1999 and was additionally loaned KRW 65 million on March 24, 2000 and was additionally loaned KRW 65 million on June 5, 2000, it was not less than three months after the Plaintiff opened a new account on June 5, 200 and deposited KRW 150 million in the said account at once and was withdrawn on December 5, 200. Therefore, this part of the Plaintiff’s assertion is without merit.

(D) Keys 6, No. 200, 200

1) Facts of recognition

The following facts may be acknowledged based on the evidence Nos. 3-1, 2, 7, 8-1, 2, 9, 10-1, 2, 11, 12, 27-1, 2, 27-2, 28, 29 of the evidence Nos. 3-1, 3-2, 7, 8-9, 10-1, 11, and 12, and 27-1, 27-2, and 29 of the witness E-E of the trial.

A) Around March 20, 1996, the Plaintiff purchased and resided in Seodong apartment units, and on September 15, 2000, leased 175 million won of the deposit, and around that time, the Plaintiff leased △dong apartment units to 89 million won of the deposit money, and completed the moving-in report on September 21, 2000. Meanwhile, on the other hand, on July 24, 2000, the Plaintiff deposited 32 million won of the deposit with the national bank term deposit account with the Plaintiff’s new bank account with the cashier’s checks.

B) The establishment registration of a neighboring mortgage No. 1 and No. 2 with the maximum debt amount of KRW 9,100,000,000,000 and KRW 96,000,000 was completed with respect to the apartment of Doldong, but the establishment registration of a mortgage No. 1 was revoked on August 1, 201, and the establishment registration of a mortgage No. 2 was revoked on September 18, 200 with the maximum debt amount of KRW 24 million, and was revoked on November 13, 201.

C) On November 10, 2001, the Plaintiff sold 337 million won apartment units to Kim GG for the purpose of KRW 30,000,000,000,000 to the Plaintiff on December 11, 2001. The payment of the down payment of KRW 30,000,000 on the date of the contract and the remainder of KRW 132,000 on December 11, 2001, the remainder of KRW 175,00,000 shall be paid by taking over the Plaintiff’s obligation to refund the lease deposit to the lessee. The Plaintiff received the down payment and the remainder from KimG, and completed the registration of ownership transfer on December 15, 2001 in the name of Kim GG. Meanwhile, on the Plaintiff’s account on December 12, 201, the Plaintiff deposited KRW 130,000,000 in his own check in front of the Plaintiff’s own account.

D) On February 19, 2002, the Plaintiff was the director, and on February 19, 2002, the doorF deposited KRW 89 million in the Plaintiff’s agricultural bank account on February 19, 2002.

2) According to the above facts, the issue, No. 6, No. 1, 200, and 200 are the amount deposited from the separate source of funds as follows, not the Plaintiff’s donation from Park Jong-A.

A) Issues 6. No. 500

86 million won, which is the difference in the rent deposit for two apartments (=175 million won for the rent deposit for the apartment in △dong-dong-dong-dong- - KRW 89 million for the rent deposit for the apartment in △dong-dong--dong-), seems to be a major issue.

The Defendant alleged that the amount should be excluded from the source of the fund as it was used for the repayment of the secured debt with the amount of KRW 60 million converted from the maximum debt amount of the right to collateral security to KRW 24 million, as seen above 2.C. (2) (d) (1) of the difference in the lease deposit, but according to the evidence adopted earlier, the Defendant appears to have used the secured debt amount of KRW 60 million deposited in the amount to repay the guaranteed debt, which is the secured debt of the right to collateral security, and thus, the Defendant’s assertion on the other premise is without merit).

(B) Key amount

The remainder of 132,00,000 won paid while selling the apartment house in Gyeongdong-dong seems to be the source of the fund of the amount in question.

(C) Key amount

(12) The lease deposit of △dong apartment that the Plaintiff returned seems to be a source of funds for the amount.

(마) 쟁점 ⑧,⑨,⑪ 금액

1) Facts of recognition

The following facts may be acknowledged by comprehensively taking into account the following facts: Gap evidence 19-1 through 5, Gap evidence 30, 34, and 35, witness Eul's partial testimony, and the fact inquiry results to the National Agricultural Cooperative Federation of the first instance court.

A) Around 2001, the Plaintiff retired from a soup bank operated by him and concluded a lease agreement with the content of the lease as follows, and completed a notarized deed on a part of the contract.

① Around July 2001, the Plaintiff leased KRW 80,000,000,000 to △△ to ○○○○-dong 216, 204 to ○○○-dong 204, a deposit of KRW 80,00,000 (sum payment of KRW 5,000,000,000 on July 10, 2001, KRW 35,000 on July 200, and KRW 2,70,000 on July 20, 201).

② On July 19, 2001, the Plaintiff leased 14 square meters of building 17,000,000,000 to the ParkJ on the cosmetic-type 14th of the building (in case of a contract, KRW 1.3 million, KRW 5,700,000 on the date of commencement of construction, KRW 1.3 million on August 15, 2001, and KRW 5,50,000 on the monthly rent).

③ On August 16, 2001, the Plaintiff leased 55 square meters of the building to the largest KK at KRW 45 million as a restaurant (an amount of KRW 3 million in the contract, KRW 42 million in installments until August 31, 2001), and KRW 1.2 million in the monthly rent.

④ Around September 2001, the Plaintiff leased the 11st floor of the building to LL for KRW 20 million (2 million upon contract, KRW 3 million on September 6, 2001, KRW 15 million on September 25, 2001, and KRW 600,000 on September 25, 2001).

⑤ 원고는 2001. 9. 28. 강MM에게 건물 13평을 스낵코너로 보증금 2,000만 원(계약시 200만 원, 2001. 10. 8. 1,800만 원으로 분할 지급) 윌 차임 70만 원에 임대하였다.

B) From July 2001 to October 2001, the Plaintiff received money from the Plaintiff as part of the deposit and rent from Park J, Lee J (title of Lee Jong-chul), and KangM to the Plaintiff’s agricultural account.

2) 위 인정사실에 의하면, 원고는 찜질방 시설을 임대하면서 받은 보증금과 차임을 은행에 예치하였다고 봄이 상당하므로, 쟁점 ⑧,⑨,⑪ 금액은 원고가 박AA으로부터 증여받은 것이 아니라 아래와 같이 별도의 자금 원천으로부터 입금된 금액임이 밝혀졌다고 할 것이다.

A) Key amount 8

80,000,000 won, which the Plaintiff leased to H, appears to be a source of funds 80,000 won.

B) Key amount 9

The key issue is that part of the 80,000,000 won of the above supermarket deposit and part of the decentralization deposit leased by the plaintiff to L and that it is the tea paid according to each lease contract.

(C) Key amount

The key issue is 45 million won and the vehicle that the plaintiff has leased to the largest K K, which is paid according to each lease contract, 1) most of the amounts seems to be funded.

(3) Sub-decisions

Therefore, the presumption that the Plaintiff received a donation from Park Jong-A was reversed as to the amount of the issues in this case, excluding the amount of the gift tax, as the source of property acquisition fund and its funds were used for the payment of each of the above amounts (in this case, ① the tax assessment of the amount of the amount of the second donation tax is imposed on the amount of the issue, so long as the amount of the tax assessment should be revoked, ② the tax assessment of the amount at issue should also be revoked). Accordingly, excluding the amount of the issue amount reconciled in each of the dispositions in this case, the amount of the gift tax shall be included in the details of the gift tax in attached Table 1 when calculating the amount of the gift tax on the amount of the issue. (The specific basis for calculating the amount of the gift tax is the same as the statement on the calculation of the gift tax on the amount of the gift tax on June 5, 200). The portion

3. Conclusion

Therefore, each of the dispositions of this case shall be revoked in excess of the amount stated in the "reasonable amount of tax" of the attached Form 1, and the judgment of the court of first instance shall be modified as above. It is so decided as per Disposition.