It is not sufficient to prove that there was a loan as well as not only the burden of proving that the loan was repaid.

Since there is no specific assertion or proof as to the timing and amount of recovery, etc., the instant disposition of taxation based on the legal principles of presumption of donation cannot be deemed unlawful.

Article 31 (Scope of Donated Property)

2014Guhap32145 Revocation of Disposition of Imposition of Gift Tax

CC Kim

The director of the Southern Incheon District Office

on October 28, 2015

on 015 07 09

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 imposition of gift tax of KRW 5,960,850 against the Plaintiff on December 10, 2013 is revoked.

1. Details of the disposition;

A. The ABB made the Plaintiff’s spouse, and the AB transferred KRW 0,000,000 to the Plaintiff by account transfer on February 11, 2009. On the same day, the AB remitted KRW 30,000,000 to the Plaintiff, and KRW 35,000,000 to the Plaintiff’s ASEAN, respectively. On April 14, 2010, the AB transferred KRW 40,000,000 to the Plaintiff.

B. On December 10, 2013, the Defendant deemed that the MediationA donated the Plaintiff KRW 40,000,000, and imposed a gift tax of KRW 5,936,700 on the Plaintiff (hereinafter “instant disposition”).

C. On February 20, 2014, the Plaintiff, who was dissatisfied with the instant disposition, filed a request for review with the National Tax Service, but was dismissed on May 26, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-3, Eul evidence Nos. 1 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff and ChoA shall jointly purchase 256,30,000 square meters and 50 square meters and 256,30,000 square meters of each of the instant lands at ○○○○○○○ Dong, ○○○○○○, ○○○○, and ○○ 50 square meters of each of the instant lands (hereinafter “each of the instant lands”), and the Plaintiff held title trust with 1/2 equity shares. Since the transfer of each of the instant lands to 100, the Plaintiff received KRW 1,060,814,990 of each of the instant lands to ○○○○○, ○○, ○○○, and ○○○, ○○, and ○○, ○○○, ○○○, and ○○, the Plaintiff received the said money under its settlement. Even if not title trust, the Plaintiff may be deemed to have leased half of the purchase price of each of the instant lands to the Plaintiff, and thus, the instant disposition of imposition should be revoked on the premise that the donation was unlawful.

(b) Fact of recognition;

1) On April 3, 2003, the MediationA completed the registration of ownership transfer on each of the instant lands under its own name on the grounds of sale and purchase on March 9, 2003, and on October 28, 2008, transferred each of the instant lands to Korea00 won on the grounds of consultation and purchase, and received the said purchase price from Korea00.

2) The process of reporting, rectifying, and administrative litigation on the transfer income tax on the transfer of each of the instant lands by Article A to the effect that the transfer of each of the instant lands is made is as follows:

① On December 31, 2008, when filing a preliminary return of capital gains tax on each of the instant lands based on the actual transaction values, the ChoA reported that the instant land was purchased from E and owned at KRW 650,00,000,000, and that it was transferred to 1,060,814,990 on the ground of consultation.

② However, on November 1, 2009, the director of the tax office of the Si interest and the director of the tax office denied the actual transaction price reported by the MediationA and recognized the amount of KRW 188,400,000 as paid to the EE on the financial transaction statement submitted by the MediationA as acquisition price and notified the MediationA of KRW 278,676,480 as transfer income tax.

③ Accordingly, the conciliationA filed a lawsuit claiming invalidation of the disposition imposing capital gains tax by asserting that the actual acquisition value of each of the instant lands was KRW 512,00,000, and that the money that did not appear in the details of financial transactions was borrowed from the KimCC and that the said disposition was invalidated by the Suwon District Court 201Guhap6296. However, the said court dismissed the claim of the conciliationA on the ground that there was any circumstance to determine the said disposition as acquisition value on February 16, 2012, and even if there was any defect, it cannot be deemed that the said defect constitutes a cause for invalidation of the said disposition imposing capital gains tax. The said judgment was finalized on September 14, 2012 through the appellate court (Seoul High Court 2012Nu83999).

3) Meanwhile, the Republic of Korea filed a lawsuit against B on April 14, 2010 between A and B by the Incheon District Court Decision 2010Kahap10326, which claimed revocation of the gift agreement between B and AB on April 14, 2010. The said lawsuit was concluded upon confirmation of the decision of recommending settlement that B shall pay 152,694,535 won to the Republic of Korea, and the B paid the above KRW 152,694,535.

[Ground of recognition] Facts without dispute, each evidence mentioned above, Gap evidence Nos. 2 through 5, evidence Nos. 7-1 through 3 and 9, the purport of the whole pleadings

C. Determination

The burden of proving the existence of the taxation requirement is against the tax authority, but if the facts alleged in light of the empirical rule are revealed in the course of a lawsuit, it cannot be deemed an illegal disposition that failed to meet the taxation requirement against the disposition imposing tax unless it proves such circumstances (see, e.g., Supreme Court Decision 89Nu6006, Apr. 27, 1990). In a lawsuit seeking the revocation of the imposition of gift tax, as long as the deposit in the name of the person who is recognized as a donor by the tax authority as the donor is withdrawn and the deposit is made in the name of the taxpayer, the deposit shall be presumed to have been donated to the taxpayer. Thus, if there are special circumstances, such as withdrawal of such deposit and the deposit in the name of the taxpayer is made for any other purpose than gift, it is necessary to prove such fact to the taxpayer (see, e.g., Supreme Court Decision 96Nu3272, Feb. 11, 197).

In light of the above legal principles, the plaintiff is presumed to have received the above KRW 40,000,000 from the MediationA to the plaintiff's account on February 11, 2009. Thus, in light of the above legal principles, the plaintiff bears the burden of proving that the above money was received from the MediationA to the disposal price of the real estate property held in title trust, i.e., the money received from the disposal price of the real estate property held in title trust or collected the loan.

However, in light of the following circumstances, the Plaintiff failed to bear the burden of proof in light of the respective descriptions of the evidence Nos. 3, 2, 4, and 5 (including those with serial numbers) and the overall purport of the pleadings.

① According to the above Suwon District Court Decision 201Guhap6296, May 1, 201,: (a) “A” reported the acquisition value of each of the lands of this case to 650,000,000 won, along with a sales contract stating that the sales price was 650,000,000 won; (b) in the process of the on-site investigation by the Director of the Office of Reconstruction, EE selling each of the lands of this case was unable to present a sales contract; and (c) at the time, EE reported the transfer income tax after selling each of the lands of this case to Cho, the sales contract submitted by 7,50,000 won was stated as 77,50,000 won, and it was difficult to find that the purchase price was 18,400,000 won, and 300,000 won, which was confirmed to have been paid to EE under the financial transaction statement submitted by ChoA, as the actual transaction price of this case was 20000, each of land.

② In the above Suwon District Court case No. 2011Guhap6296, Suwon District Court stated that, unlike the Plaintiff’s title trust assertion, the payment of the purchase price was made by borrowing some of the purchase price from the Plaintiff, and that, as at the time of the sales contract, the ICF of the ICE was present in the above lawsuit as a witness and testified that the ICF borrowed some of the purchase price from the Plaintiff, and that, in this lawsuit, the said BB was remitted money from the IC to itself in a fraudulent act revocation lawsuit against the Plaintiff, the Plaintiff’s family members lent the money that he borrowed from the IC to the IC. Meanwhile, the IC and EG (MH’s subsidiaries) made a testimony to the effect that the Plaintiff was in accord with the Plaintiff’s assertion of title trust by attending the case as a witness, it is difficult to believe that it is inconsistent with the statement of the IC in the previous lawsuit and is inconsistent with the statement of the IC.

③ According to the copy of each financial institution transaction (Evidence 8-1 through 15 of the evidence No. 8), it may be recognized that the sum of KRW 60 million on February 25, 2013, which was the date of conclusion of the sales contract between the MediationA and the EE, KRW 50 million on March 14, 2013, which was the date of intermediate payment, and KRW 1.5 million on April 2, 2003, which was the outstanding payment date, was withdrawn or borrowed from the Plaintiff’s account on April 2, 2003, but there is no evidence to support that the said sum was paid to the MediationA or E., however, there is no evidence to support that the said amount was paid to the MediationA or E.

④ Furthermore, even if part of the above money was actually paid to MediationA or E, according to the evidence as seen earlier, the Plaintiff appears to have lent part of the purchase price of each of the instant land to MediationA or E, and it is likely that Mediation A would have made, on April 14, 2003, the right to collateral security was created on each of the instant land and repaid the Plaintiff with the loan granted to Chosan Agricultural Cooperative on October 23, 2006. In this respect, there is no room to deem that KRW 40 million received from MediationA to have been partially recovered from the Plaintiff’s loan to MediationA, but the Plaintiff failed to assert and prove the specific collection schedule, such as the time and amount of the loan collected.

⑤ Article 278,676,480 of the capital gains tax imposed as above was not paid. Korea filed a lawsuit for the revocation of fraudulent act against this BB, which received KRW 400,000,000 from ChoA, and this BB paid KRW 152,694,535 of the said amount to the Republic of Korea. However, as the Plaintiff asserted, if the Plaintiff had a title trust of each of the instant lands, 1/2 shares were paid from KRW 1,060,814,90 of the capital gains tax from KRW 782,138,510 of the remainder after deducting KRW 278,676,480 of the capital gains tax from KRW 278,510 of the capital gains tax, KRW 391,00 of the capital gains tax, KRW 510 of the capital gains tax, KRW 500,000 of the said amount, KRW 51,500,000 of the said amount.

④ Although ChoA received the transfer proceeds from 00 Korea around October 28, 2008, it is difficult to view that the Plaintiff paid 105,000,000 won to the Plaintiff and the Plaintiff’s family members on February 11, 2009, without paying 1/2 of the transfer proceeds, and immediately paying 400,000 won to the Plaintiff and the Plaintiff’s family members on April 14, 2010, which was after 1 year and 2 months thereafter. In light of the fact that the said amount was paid 400,000,000 won to the Plaintiff from April 14, 2010, it is difficult to view that the said amount was paid to the Plaintiff out of the transfer proceeds of each land of this case.

7) The Plaintiff, as evidence of title trust, testified that the Plaintiff is the purchaser of each of the instant lands, and presented a sales contract (Evidence A (Evidence A) dated February 25, 2003, the purchase price of which is KRW 512,600,000. However, there is no signature or seal of a broker on the relevant contract, and the period for submission is suspected of authenticity since it was around March 201, 201, and the period for submission is suspected of authenticity. The rightF testified that, in the instant lawsuit, the Plaintiff borrowed KRW 200,000 from the Plaintiff to borrow KRW 20,000,000 from the Plaintiff in the name of the Plaintiff, and later the remaining payment is completed, the Plaintiff would transfer the ownership under the name of the ChoA upon completion of the remaining payment. In light of the fact that the ownership transfer registration was completed under the name of ChoA, the said sales contract alone is insufficient to recognize that the Plaintiff jointly purchased each of the instant real estate and jointly purchased each of the instant real estate.

In short, in light of the relationship between the Plaintiff and ChoA and the financial status of ChoA, etc., it is difficult to deem that the Plaintiff paid a large amount of money exceeding KRW 40,00,000 to the Plaintiff’s family members, and furthermore, it is difficult to deem that the Plaintiff paid a large amount of money exceeding KRW 500,000,00 to the Plaintiff’s family members for the purpose of donation without any prior consideration. However, in the instant case where the Plaintiff bears the burden of proving prior consideration and repayment, the instant disposition of this case is unlawful, since the Plaintiff failed to fulfill specific arguments and proof as to the fact that the consideration was a title trust or loan and was repaid.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.