Seocho 2013west 3850 (2014.06)

As long as the donation is presumed to have been made, the taxpayer who asserts that there has been another purpose other than the donation must prove it.

As long as the money of a person recognized as a donor by the taxing authority is revealed to have been deposited in the account in the taxpayer’s name, it is presumed that the money was donated to the taxpayer, and thus, it is necessary to prove special circumstances, such as that it was conducted for other purpose

2014Guhap5979 Revocation of Disposition of Imposition of Gift Tax

Z Kim

YThe director of the tax office

November 28, 2014

January 23, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposing gift tax on the Plaintiff on January 3, 2013 is revoked.

1. Details of the disposition;

A. In the course of tracking and investigating a person suspected of evading the disposition on default against KimA, his father, the director of the Central District Tax Office of China confirmed that ○○○○○○-ri 266-1, 266-2, and 307 land owned by KimA, ○○-9, 425-9, 425-11, and 425-13 land, which is part of the compensation money for expropriation, deposited ○○○○ (hereinafter referred to as “the money of this case”) into the account in the name of the plaintiff, and notified the defendant of the duty to taxation of the gift.

B. On May 14, 2012, the Defendant sent a notice demanding the Plaintiff to submit explanatory materials on the pertinent taxation data, but on January 3, 2013, the Plaintiff, who did not vindicate the Plaintiff, determined and notified ○○○○○○○ (including penalty taxes for unfaithful reporting and payment) of gift tax to the Plaintiff on the ground that the Plaintiff was donated the instant money from KimA, and confirmed that an excessive determination of ○○○○○○○○○○○○ (including penalty taxes for unfaithful reporting and payment) of penalty taxes was made, and corrected ex officio on April 19, 2013 by reducing or correcting KRW ○○○○○○○ (hereinafter referred to as “instant disposition”).

C. On April 25, 2013, the Plaintiff appealed to the Tax Tribunal on August 26, 2013, but was dismissed on March 6, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 20 evidence (including paper numbers; hereinafter the same shall apply), Eul evidence 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The issue of whether to grant a gift should be determined by comprehensively taking into account the following facts: (a) if the party to the instant monetary transaction was in a family relationship, it cannot be readily concluded that the amount deposited to the account was directly donated, solely on the ground that there was no evidence regarding the loan increase or loan period; (b) on August 2003, the Plaintiff sold ○○○ apartment-dong 439, ○○○○○○○○○○○, and deposited the money, which was part of the purchase price, into an account in the name of ○○○○○○○○○○, in the name of 200, KRW 6,000, KRW 100, KRW 200, KRW 200, KRW 300, KRW 200, KRW 206, KRW 208, KRW 368,000, KRW 206, KRW 368,000, KRW 28,000.

B. Relevant statutes

Attached Table 2 shall be as stated in the relevant statutes.

(c) Fact of recognition;

1) At the time of filing an objection, the evidence of the financial transaction with the plaintiff (the plaintiff of July 1972) is presented as evidence.

The accounts in the name of the plaintiff submitted shall be as follows:

List of votes

Bank

Account Number

Period of Transaction

BB Bank

012502-04-00

From January 1 to February 13, 2013

BB Bank

498102-01-00

From January 1 to February 13, 2013

BB Bank

394437-04-00

From May 2, 2011 to February 13, 2013

CC Bank

137-91026-26-○

From January 1 to February 13, 2013

CC Bank

288-810529- 00

From January 1 to February 13, 2013

D Bank

129-20- 00

From July 12, 2004 to August 10, 2011

D Bank

129-20- 00

From October 18, 2005 to February 13, 2013

D Bank

609-20- 00

From January 5, 2005 to August 14, 2006

BB Bank

423302-04-00

From December 1, 2010 to July 31, 2012

Details of transactions between the two accounts in the name of the account and KimA shall be as follows:

List of votes

Year

Withdrawal (Plaintiff ? KimA)

Deposit (GaA ? Plaintiff)

Amount (won)

Number of Cases

Amount (won)

Number of Cases

204

○ ○

8

○ ○

205

○ ○

9

○ ○

3

206

○ ○

20

○ ○

4

2007

○ ○

9

○ ○

2

208

○ ○

11

○ ○

4

209

○ ○

12

○ ○

6

2010

○ ○

35

○ ○

61

2011

○ ○

30

○ ○

43

Total

○ ○

134

○ ○

123

2) The registration of ownership transfer was completed on January 26, 2004 with respect to the ○○○○○dong 439 ○○dong 439 ○○dong on March 2004 under the Plaintiff’s name on March 5, 2004, and the registration of ownership transfer was completed on January 20, 2004 under the name of the Trade Association.

3) On September 1, 2003, the Plaintiff deposited KRW 00 won into the BB bank account (Account Number: 012-24-O) in the name of KimA.

4) On June 29, 200, on an aggregate of KRW 28,060 square meters in the name of ○○○○○○○○○○ 2,00,000 in the name of ○○○○○○○ 2,00,00,000 KRW 28,060 (round June 29, 2004, KRW 40-8,000,000 KRW 40-14,00 KRW 11,423 square meters in the name of 40-14, 40-15, 1393 square meters in the name of 20.3 square meters in the name of ○○○○ 2,00,000, KRW 1/30 in the name of 30,000 in the name of ○○○○ 2,000 in the name of 3,00,000 in the name of 1/6,000. Shares in the name of 36.

5) The reason for the transfer was stated as "CC-BE President" that the D Bank account (Account Number: 129-20-O: 129-20) in the Plaintiff’s name was transferred from June 15, 2006 to KRW 100,00,00, and KRW 19,125,000 on June 15, 2006. The reason for the transfer was that ○○○○○ was transferred from the above account in the Plaintiff’s name on August 30, 2006. The reason for the transfer was that ○○○○○ was stated as “NF President”. On November 8, 2006, KimE drafted a receipt (Evidence No. 15) that it was repaid to KimA as part of the loan of ○○○ billion won.

6) As a result of the Defendant’s inquiry of the details of the report of capital gains tax from 2003 to 2009 by KimA, capital gains during the pertinent period are approximately KRW 00 billion. On this basis, the Plaintiff sold real estate, taking into account the maximum amount of the right to collateral security over a real estate held by KimA, and the maximum amount of the outstanding maximum amount of the right to collateral security over a real estate sold and cancelled with the purchase price, he asserted that the gains actually acquired by KimA are merely KRW 00,00,000, and submitted a map indicating the transfer value and the details of the right

7) On May 22, 2004, the registration of ownership transfer was completed on May 21, 2004 on the ○○○○○○○-si 35,306 square meters prior to the division owned by KimA-si ○○○○-si 35,000 square meters (divided into 35,000 square meters prior to May 17, 2006, 35,000 square meters prior to 35,000 square meters prior to 35,000 square meters prior to 35,000 square meters prior to 35,363 square meters prior to 35-1,000 square meters prior to 35,000 square meters prior to 15,000 square meters prior to 1591,5306 square meters prior to 204. The registration of ownership transfer was completed on the 00,000 square meters prior to 35,363 square meters prior to 2006.

8) The Defendant’s inquiry of the Plaintiff’s global income tax return details from 2004 to 2013

The details shall be as follows:

List of votes

No.

Tax year

Type of Report

Tax Base (won)

1

204

Regular (Final)

0

2

205

Regular (Final)

0

3

206

Regular (Final)

○ ○

4

2007

Regular (Final)

○ ○

5

208

Regular (Final)

○ ○

6

209

Regular (Final)

0

7

2010

Regular (Final)

○ ○

8

2011

Regular (Final)

○ ○

9

2012

Regular (Final)

○ ○

10

2013

Regular (Final)

○ ○

9) On September 3, 2004, the Plaintiff completed the registration of ownership transfer for ○○○-dong ○○○○-dong ○○○○○-dong ○○○○-dong ○○○○○○-dong ○○○○○○-dong ○○○-dong ○○○○-dong 656 ○○○-dong ○○○-dong dong on December 12, 2001 with respect to ○○○○-dong ○○○○○-dong ○○○○○-dong ○○○○ ○○○○ ○○○○ ○○ ○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 27.

10) On April 6, 2009, the transfer income amount reported by the Plaintiff while transferring the same 4,363 square meters of 1/3 square meters of 0,000 square meters of 0,000 ○○○-do, ○○-si, ○○○-do, 40-8 Forest Land 8,986 square meters to ○○○.

11) While KimA was delinquent in paying the transfer income tax for over KRW 2000,000, over KRW 2009, the ownership transfer registration was completed on June 29, 2010 on the land owned by ○○○○○ 803 ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○ ○○ ○ ○ ○ ○6-1, which was due to donation to Kim JJ, Kim KK, and KimL. Accordingly, on May 29, 2012, the Republic of Korea filed a lawsuit for revocation of fraudulent act against Suwon JJ, Kim KK, and KimL as the Suwon District Court Decision 2012Ga40963, which became final and conclusive to recognize the purport of the claim of the Republic of Korea with respect to Kim KK, and with respect to the land owned by ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○.

12) According to the transaction details of the above BB bank account (Account Number: 012-24-24-O) in the name of KimA, the total amount of KRW 00,000 per month was transferred to the Plaintiff for 14 months from November 19, 2002 to December 19, 2003.

[Ground of recognition] Facts without dispute, Gap's statements, Gap's 2 through 15, 19, 21, 22, 23, 25, Eul's statements, and the purport of the whole pleadings

D. Determination

1) As long as the amount of money of a person recognized as a donor by the tax authority in a lawsuit to revoke the revocation of the disposition imposing gift tax is proved to have been donated to the taxpayer, the amount is presumed to have been donated to the taxpayer. Thus, if there are special circumstances, such as that deposit to an account under the name of the taxpayer was made for other purpose than donation, it is necessary to prove that there is a taxpayer (see, e.g., Supreme Court Decisions 9Du4082, Nov. 13, 2001; 2003Du6290, Oct. 10, 2003). As long as the amount of money, which is part of the compensation for expropriation of real estate owned by KimA, was deposited to an account under the name of the plaintiff, the amount of this case is presumed to have been donated to the plaintiff. Thus, the plaintiff must prove that the amount of this case was for the purpose of repayment to KimA.

2) In light of the following circumstances, it is insufficient to recognize that the instant money was for the purpose of repaying the money that the Plaintiff lent to KimA, solely based on the evidence or assertion submitted by the Plaintiff, and there is no other evidence to acknowledge it. Accordingly, the Plaintiff’s assertion is without merit.

① From 2003 to 2009, KimA owned a large number of real estate, and the transfer income from 2009 exceeds 3 billion won. Accordingly, the Plaintiff sold the real estate and cancelled the right to collateral with the payment of the purchase price. On the other hand, upon deducting the maximum debt amount for the cancelled real estate from the purchase price, KimA submitted a paper stating that the actual profit gained by KimA is merely ○○○○, and that the transfer value of the real estate and the details of the right to collateral, as shown in attached Table 1. However, it is difficult to readily conclude that the purchase price was used in repayment of the obligation solely on the ground that the termination date of the right to collateral security established on the real estate was either equal to or adjacent to the date of termination of the right to collateral security, and it is difficult to conclude that the Plaintiff was the actual obligation with the remaining maximum debt amount. In addition, the Plaintiff’s transfer value is difficult to conclude that the Plaintiff was the transfer value of KRW 321,542,413 square meters, each of the above KRW 1000,000.

② KimA donated real estate to the Plaintiff, Kim J, Kim KK, KimL, and Kim II, who were their children, and the Plaintiff’s wife (as to this, the Plaintiff’s land at ○○○○○○ 35, where KimA was deemed to have been donated to the Plaintiff’s husband and wife, was merely a donation by the Plaintiff’s husband and wife, and the Plaintiff’s land at ○○ 35, who was a senior grandchild, was deemed to have been donated to Kim JJ, Kim KK, and KimL, and the Plaintiff’s claim that ○○ 803, ○○ ○○ ○○ ○ ○○ ○○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○○ ○ ○ ○○ ○ ○ ○○ ○ ○ ○○ ○ ○ ○○ ○ ○○ ○ ○ ○○ ○ ○ ○ ○ ○ ○○ ○ ○ ○○ ○ ○ ○ ○ ○ ○).

③ In light of the Plaintiff’s global income tax return from 2004, it is difficult to view that the Plaintiff loaned a large amount of money exceeding KRW 2 billion to KimA solely on his own income. Accordingly, the Plaintiff, from 2004 to 2007, from 2007 to 2010, from ○○ Industrial Power Planning Team to 2010 to 2010 to ○○ Communications Strategy Team operated the ○○ Private School and the ○○○○ Center from 2013 to 2011, and from 1997 to 2006 to ○○ University and several universities, such as ○○ University and the Arts High School, operated an instructor’s occupation from 197 to 2006 to ○ University, ○○ University, KimCC, the Plaintiff’s assertion to the effect that there was no sufficient funds to lend money to the Plaintiff, and even if the Plaintiff’s economic activities were not verified, it is difficult to conclude that the Plaintiff’s financial resources exceeded 200 billion.

④ Around August 2003, the Plaintiff sold ○○ apartment, ○○○○ apartment, 439, and deposited ○○○○○ apartment, part of the purchase price, into an account in the name of KimA on September 1, 2003, and lent the above money to KimA. The Plaintiff’s assertion that KRW 1/3 of the sales price of KRW 1/3 (6358/280) out of KRW 40,000,000,000,000,000 KRW 30,000,000,000,000 KRW 430,000,000,000,000,000 KRW 1/30,000,000,000,000 from KRW 20,000,000,000,000,000,000,000.

⑤ The Plaintiff purchased real estate four times from September 3, 2004 to April 17, 2009. In light of the above, it is difficult to view that the Plaintiff purchased real estate as one’s own money and at the same time lent large amount of money exceeding KRW 00 billion to KimA, i.e., the Plaintiff’s global income tax return, the Plaintiff’s accurate income details or source, the Plaintiff’s age at the time of the purchase of real estate, and the Plaintiff’s loan of the real estate as security several times as otherwise asserted in the preparatory document dated October 22, 2014, or taking over approximately KRW 00 billion due to the shortage of funds when purchasing ○○○ apartment-dong, Seoul ○○○○○ apartment-dong, ○○○○○ apartment-dong, 2009.

④ From the D Bank account under the Plaintiff’s name, the KRW ○○○○○○○○○○ on June 15, 2006 was transferred to the D Bank account, and on August 30, 2006, the said amount was transferred to the KRW ○○○○○○○○○○○ on behalf of the Plaintiff. However, there is no evidence to acknowledge that the said amount was paid by the Plaintiff to KimE on behalf of the Plaintiff for the gift certificates related to the game place on behalf of KimA. [Plaintiff submitted as evidence a receipt (Evidence 15) that the KRW 100 million was repaid to KimA on November 8, 2006, but there is no evidence to acknowledge that the said receipt was transferred to the Plaintiff on behalf of the Plaintiff, even if there was no evidence to acknowledge that the said amount was transferred to the Plaintiff on August 16, 2006.

7) On May 14, 2012, the Plaintiff did not submit any supporting materials despite that it was demanded by the Defendant to submit explanatory materials against the instant money.

3. Conclusion

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

shall be ruled.