Cho High Court Decision 2010Du3742 ( December 22, 2011)

It is reasonable to deem that a claim was donated with the inheritor’s consent.

Considering the fact that a person either disposes of an important asset bond or concludes a private teaching institute underwriting agreement, it is reasonable to deem that he/she received a donation of bond with the consent of the remaining inheritors, and in some cases, it cannot be deemed that he/she received a donation of the acquisition fund of this case.

2012Guhap6568 Revocation of Disposition of Imposition of Gift Tax

KimAA et al.

Samsung Head of Samsung Tax Office

October 17, 2012

November 2, 2012

1. The Defendant’s disposition of imposing gift tax of KRW 000 (including additional tax) on Plaintiff LB on January 4, 2011 shall be revoked.

2. The plaintiff KimA's claim is dismissed.

3. Of the costs of lawsuit, the part arising between the plaintiff KimA and the defendant shall be borne by the above plaintiff, and the part arising between the plaintiff ChoiB and the defendant shall be borne by the defendant.

The disposition of Paragraph 1 (00 won is a clerical error) and the defendant on August 2, 2010 on the imposition of gift tax of KRW 000 (including additional tax) against the plaintiff KimA.

1. Details of the disposition;

A. On February 20, 2007, KimD was accepted in land exclusively used for salt located in Jung-gu Incheon Metropolitan City, Jung-gu, Incheon, which was owned by Dong on February 20, 200, and paid KRW 000,000,000, out of the compensation for expropriation, as credit.

B. On August 30, 2007, KimD was declared incompetent by the Seoul Family Court (2006 Ma3394), and Plaintiff KimA, the head of the GlaD, became a guardian.

"On the other hand, the above claims were entered into the AA investment securities account in the name of KimD, and on October 21, 2008, the plaintiff Kim Jong-A transferred 00 won credit amounting to inheritance shares (1/5) to his own account (hereinafter "the claims in this case") and entered into the AA investment securities account in his name. The plaintiff Kim Jong-A was notified of the claim in this case from the Industrial Bank of Korea on October 27, 2008, and deposited 00 won to his own account on April 22, 2009, and 00 won to the defendant on April 22, 2009. The plaintiff Kim Jong-A transferred 20 won to his own account in his name, and the plaintiff Kim Jong-A was notified of the additional tax on the plaintiff Kim Jong-A's transfer of 00 won to the Kim Private Teaching Institute's account in his name, and the defendant was notified of the defendant's transfer of the claim in this case to the plaintiff Kim 209.

E. Plaintiff KimA filed each appeal on October 29, 2010, and Plaintiff LB on March 29, 2011, but received each decision of dismissal from the Tax Tribunal on December 22, 2011.

[Ground of Recognition] The non-strifed facts, Gap 2, 3, 4 (including household numbers), and Eul 1 through 6, and the purport of the whole pleadings

2. Whether each disposition imposing gift tax on the plaintiffs is legitimate

A. The plaintiffs' assertion

(1) Plaintiff KimA

The above plaintiff entered into an underwriting agreement with the EE Institute in the capacity of the guardian of KimD, who is incompetent, and took over the claim in order to pay the acquisition fund, and did not receive a donation of the claim in this case. Even if the claim was received, it was disbursed for the purpose of paying the acquisition price of the school foundation in the name of KimCC, and there is no gift value. Therefore, the gift tax imposition disposition against the above plaintiff on the premise of the existence of donation or inheritance value is illegal.

(2) Plaintiff LB

The above plaintiff was transferred by account to pay the acceptance fund of the EEA on behalf of the plaintiff KimA, and the imposition of gift tax against the above plaintiff on the premise that the acceptance fund of this case was donated is illegal.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

"(1) On July 13, 2007, Plaintiff KimA entered into an underwriting agreement with HHA on behalf of the former president of the school foundation HHA (hereinafter referred to as the "HHA"), but the underwriting agreement was disrepared to the status of the president of the PHA." (2) On October 17, 2008, Plaintiff KimA issued a power of delegation to Plaintiff LA comprehensively delegate all matters concerning the acquisition process of the EEA, such as transfer agreement and school, loan of financial rights, and money-related business in the process of underwriting, and business affairs related to the EEA (private dispute mediation committee). On the other hand, the power of delegation is accompanied by Plaintiff KimA’s certificate of personal seal impression on February 27, 2006 and April 21, 2009.

(3) On October 17, 2008, Plaintiff LB entered into an underwriting agreement with KK, on behalf of Plaintiff Kim J, a founder of the EEA, on behalf of Plaintiff Kim J, with the following terms and conditions:

(4) On December 11, 2008, Gangnam, the principal of LL High School, at the board of directors of the EE Institute, visited the school with a property contribution plan to have succeeded to the right of management of the school and manage the school, and divided the relationship between the principal and the representative of the school. Plaintiff B expressed his intention to operate the school by doing his best after dialogue with the teachers and staff at the meeting of the emergency teachers and staff. At that time, Plaintiff B stated that there was no mid- to long-term plan separately, and there was a copy of the property contribution plan and the head of the Tong.

(5) On April 9, 2009, Plaintiff LB reported a plan that “IEA will attend the Private School Dispute Resolution Committee and will operate the IEA.” On April 23, 2009, the Private School Dispute Resolution Committee decided to appoint the directors recommended by Plaintiff LB as regular directors.

(6) On May 8, 2009, Plaintiff KimA contributed 000 won in cash to the ECEA as basic property for profit. On the same day, the board of directors of the EEA decided to elect Plaintiff LB as the president and deposit the basic property for profit-making in cash with the Gwangju Bank. Plaintiff LOO deposited KRW 00,000 transferred from Plaintiff KimA’s account with the Gwangju Bank on May 13, 2009.

(7) On June 3, 2009, Plaintiff LB entered into a contract with Plaintiff LB et al., three (3) and Plaintiff LB to take over the status of contributor of real estate contributed as a basic property for profit at the time of establishment of EEM, and pay KRW 00. The EEM board of directors decided to change the contributor of real estate used as a basic property for profit to Plaintiff LB on June 9, 2009. Meanwhile, Plaintiff LB agreed to exchange the basic property for profit of HK and EE private teaching institutes and the basic property for profit of EM institutes of educational foundations established by HK.

(8) On October 27, 2009, KimD’s successors entered into an agreement on the division of inherited property, and Plaintiff KimA did not receive the remainder of the claim for expropriation except for the instant claim.

(9) On May 19, 2010, the board of directors of the EE Institute adopted a resolution to dismiss Plaintiff LB and appoint KimP, which is the Plaintiffs’ children, as the chief director.

(10) In the tax investigation, the Defendant requested the superintendent of the Gwangju Metropolitan City Office of Education to confirm whether the Plaintiff LB exercised the authority to take over the ESA on behalf of the Plaintiff KimA as related documents, and on August 23, 2010, the superintendent of the Office of Education of Gwangju Metropolitan City responded to the Defendant on August 23, 2010 that the Plaintiff KimA did not have any relationship with the ESA. In the tax investigation, the Defendant requested that the Dispute Mediation Committee check whether the Plaintiff LB exercised the authority to take over the ESA on behalf of the Plaintiff KimA and whether the Private School Dispute Mediation Committee deliberated on the Plaintiff KimA on behalf of the Plaintiff, and confirmed that there was no content or discussion on the Plaintiff KimAA in the meeting materials related to deliberation.

(11) On October 20, 2010, the head of the administrative office of the EE Institute testified that the sales contract of the EE Institute was made between Plaintiff LB and KK, and that he paid KRW 00 of the EK’s debt in subrogation of Plaintiff LBB on October 20, 2010.

(12) 류KK는 세무조사에서 "EE학원의 실제 양수인은 원고 최BB이다・ 원고 최BB은 사학분쟁조정위원회로부터 자신에 의하여 추천된 이사장， 이사， 감사를 승인받는 조건으로 EE학원 인수대금 000원을 지급하기로 하였다"고 진술하였다・ 류KK는 2010. 1. 14. 위 민사소송에서 "사학분쟁조정위원회의 승인이 확인된 날 원고 최BB 명의의 예치금에서 EE학원 인수대금을 즉시 지급받기로 하였다. 자신과 아들인 QQ이 김JJ를 대리하여 EE학원 인수계약에 따른 업무를 처리하였다 고 증언 하였다.

(13) On February 21, 2012, KimO, an employee of the Industrial Bank of Korea, prepared a written statement that it could not engage in credit transactions with KimD, an incompetent, under the rules on credit business implementation, and that the Plaintiff KimA provided the instant claims as collateral.

(14) Around May 2010, the KimD’s successors, KimG, Kim R, KimS, and KimT, prepared a letter of confirmation that the intention to take over the school juristic person was to have the Plaintiff KimA borrowed the instant claim as collateral.

(15) In this Court, KimG testified testified that “GG was unable to engage in normal decision-making and activities since the aggravation of the disease from around 2000. There was no indication that KimD intended to take over a certain school juristic person specifically, and that Plaintiff KimA would take over the EEA. The remaining successors except Plaintiff KimA testified that they are not involved in the operation of the EEA.”

[Grounds for Recognition] The non-satched facts, Gap evidence 4 through 12, evidence 15, 16, 17, 19 (including household numbers), Eul evidence 5, 7, 9, 10, 11, 12, 13, and 14, the testimony of witnesses KimG, and the whole purport of the pleadings.

D. Determination

(1) As to Plaintiff KimA

(A) Article 2(3) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) provides that “The term “11 donation” means a free transfer (including a case of transferring at a remarkably low price) of tangible or intangible property, which can calculate economic values, by direct or indirect means, to another person (including a case of transferring it at a remarkably low price) or an increase in property values of another person by means of contribution” (Article 2(3) of the Inheritance Tax and Gift Tax Act provides for the concept of comprehensive donation under the Civil Act and other tax-related Acts. Therefore, even if a donation contract is not under private law, if an asset is de facto transferred without compensation, it constitutes subject

(B) It is recognized that back to the instant case, health class, and KimD are incompetents, and that part of the inheritors of KimD could not receive loans in the name of KimD, and that part of the inheritors of KimD obtained loans as collateral by the intention to accept the school foundation by obtaining the maintenance of KimD, and that the assignee of the instant claims is KimD. However, since HH and EE Private Teaching Institutes had difficulty in normal decision-making and activities since around 2000, KimD could not express their intention to accept the instant claims, and KimD could not specifically state that it would not accept any school foundation, and that the instant claims correspond to the inheritance shares of the Plaintiff KimA, among the acceptance compensation claims, and that the Plaintiff KimG was not divided or exercised the right to receive the remainder of the acceptance claims except the instant claims when it was agreed upon, KimGG was not subject to the permission of the Family Court, and that the remainder of the claim was not subject to the permission of the Plaintiff's heir's acquisition of the instant claims as the heir's heir's acquisition of the instant claims.

(2) As to Plaintiff LB

(A) Inasmuch as it is revealed that a lawsuit seeking revocation of gift tax imposition is filed, and that a deposit in the name of a person who is recognized as a donor by the tax authority is withdrawn and deposited in a deposit account, etc. in the taxpayer’s name is presumed to have been donated to the taxpayer, such deposit is presumed to have been donated to the taxpayer. Thus, barring special circumstances, such as withdrawal of such deposit and the taxpayer’s deposit, etc. are made for other purpose than donation, the need to prove it is the taxpayer (Supreme Court Decision 99Du40

(B) Since the acquisition fund of this case returned to the instant case, was transferred from the Plaintiff KimO account to the Plaintiff KimO account, it is presumed that it was donated in advance in accordance with the foregoing legal doctrine.

① However, Plaintiff KimA, including delegation and underwriting contractor, entrusted with the right to take over the ESA and signed an underwriting agreement on behalf of Plaintiff KimA on behalf of Plaintiff KimB, accompanied by Plaintiff KimA’s certificate of personal seal impression. ② Plaintiff KimA entered the instant claim into the Korea Investment Securities Account in its name to take over the PEA; the instant acquisition fund was planned to be paid as the acquisition fund under the underwriting agreement of the ESA; the instant acquisition fund was actually used as the acquisition fund; and Plaintiff ChoiB intended to take over the ESA, it was reasonable to take into account that Plaintiff KimB received the instant claim from the account under the name of KimD to take over the Plaintiff’s own account, and that Plaintiff KimB was not subject to removal of Plaintiff KimB’s basic property by taking account of the fact that Plaintiff KimB’s maximum receipt and payment was made on behalf of Plaintiff KimB; and thus, Plaintiff KimB was not unlawful.

3. Conclusion

Therefore, the claims of the plaintiff MaximumB are reasonable, and the claims of the plaintiff KimA are dismissed because they are without merit. It is so decided as per Disposition.