Seocho 2014west 3729 (2015.05)

Money deposited in the account that can be seen as the taxpayer's account is presumed to have been donated to the taxpayer.

The taxpayer bears the burden of proving that the amount deposited in the account that can be seen as the taxpayer's account is presumed to have been donated to the taxpayer, and that the amount is not used by the taxpayer.

Article 2 of the Inheritance Tax and Gift Tax Act

2015Guhap8428 Revocation of Disposition of Imposition of Gift Tax

AA

○○ Head of tax office

November 27, 2015

December 18, 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 imposition of gift tax of KRW 00,000,000 against the Plaintiff on May 12, 2014 exceeds KRW 00,000,000 shall be revoked.

1. Details of the disposition;

A. On June 4, 2002, BB, the Plaintiff, was awarded a bid for the instant house at KRW 00,000,000 from the auction procedure (Seoul District Court 2001 ○○○○○○○○○○○○○○, Seoul District Court 2001) of the housing located in Gangnam-gu, Seoul (hereinafter “instant housing”). The Plaintiff used loans and bonds from financial institutions to prepare the bid price, and accordingly, registered the establishment of a neighboring mortgage in the name of the Plaintiff on the instant housing. Since then BB transferred the instant housing to ○○○ on September 19, 207, at KRW 0,000,000.

B. Around November 2009, the director of the Seoul Regional Tax Office conducted an investigation into default on and after BB’s failure to report the transfer income tax. In the process, BB deposited KRW 000,000,000 out of the above transfer price of KRW 0,000,000 into the CCC’s account (○○ bank ○○-○-○○○○○, hereinafter “instant account”) and was found to have used KRW 00,000,00 in the repayment of the secured debt of the Plaintiff’s establishment of mortgage in the name of the Plaintiff on the instant housing. Accordingly, the Defendant conducted an investigation related to the gift tax on the Plaintiff from September 4, 2013 to October 2013, and the Plaintiff decided that KRW 00,000 from BB to October 20, 2014 and notified the Plaintiff of the gift tax on October 10, 2014.

C. Accordingly, the Plaintiff filed an appeal with the Tax Tribunal on July 18, 2014. On June 5, 2015, the Tax Tribunal rendered a decision that the amount of KRW 00,000,000, which may be recognized as being directly used by BB after reinvestigation, should be deducted from the taxable value of gift tax, on the grounds that the amount of KRW 00,000,000, which was confirmed to have been paid by BB to the Plaintiff to the mortgagee, was used for the acquisition of the instant house and repayment of the loan, etc. (hereinafter referred to as “the disposition imposing gift tax of KRW 00,000,000,000 on the Plaintiff on June 30, 2015).

[Ground of Recognition] Unsatisfy, Gap evidence 1, 4 through 6, Eul evidence 1 and 2, before pleadings

The purpose of body

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff used only KRW 00,000,000 from the instant account and did not use the remainder. Since the Defendant considered the entire KRW 00,000,000 as the value of donated property without any evidence, the instant disposition is unlawful.

(b) Fact of recognition;

1) The period during which KRW 00,000,000 was used from the instant account is from September 20, 2007 to December 31, 2008. Among them, the account transfer records on July 17, 2008 are as follows, and the Plaintiff has used the following money:

2) On November 10, 2009, CCC submitted to the Defendant a letter of explanation as follows:

CCC은 미국에서 결혼하여 현재 미국시민권자로써 미국회사에 수 년 동안 다니던 중 부친의 사업부도 이후 점점 더 어려움을 겪고 있는 부모님을 뵙고져 2007년 8월 일시 귀국.... 이런 부모님의 생활정황에서 부친과 모친이 금융 불량으로 통장거래를 못함을 알았고 또 부친, 모친의 요청이 있어 본인이 금번에 귀국한 2007년 8월부터 부모님들이 그간 제3자 명의로 사용하던 통장을 제 명의 통장으로 대체 사용하게 되었습니다.

He is also going to go back to the U.S. where he is able to make it difficult to collect the house in November 2001 after the business division of his own set up, and he is going to complete the university in the U.S. and currently going to the U.S. company. The students are unable to return to Korea only once after studying in the U.S..

Use of Receiving Funds

(Omission)

3) On November 16, 2009, the Plaintiff submitted to the Defendant a letter of explanation as follows, such as the process of receiving the price.

If there is also a business division, one's wife, and another's BBB will be the bad credit holder. It is inevitable to deposit part of BB's transfer proceeds with a passbook of CCC other than the bad credit holder among our family members.

00 million won deposited in the account of the CCC in September 2007 was used by the principal as a preparatory fund to resume the business and a living fund to resume the business even on one's own.

[Reasons for Recognition] The Evidence Nos. 2, 3, 7 and No. 3

C. Determination

1) In a lawsuit seeking revocation of a disposition imposing gift tax, insofar as the deposit in the name of a person who is recognized as a donor by the tax authority is revealed to have been withdrawn and deposited in the account under the taxpayer’s name, such deposit is presumed to have been donated to the taxpayer. Thus, barring special circumstances, such as withdrawal of such deposit and deposit in the taxpayer’s name, etc. were made for other purpose than donation, the need to prove such fact is the taxpayer (see Supreme Court Decision 9Du4082, Nov. 13, 2001)

2) In light of the following circumstances, it is reasonable to view that BB donated to the Plaintiff the money deposited in the instant account in full view of the aforementioned acknowledged facts by comprehensively taking account of the purport of the entire pleadings.

① From September 20, 2007 to December 31, 2008, KRW 000,000 deposited in the account of this case was used from September 20, 2007 to December 31, 2008. The Plaintiff and CCC submitted a explanatory statement with the content that the name of the account of this case was used by CCC or the Plaintiff in the name of the account of this case on November 10, 2009 and November 16, 2009. As above, it appears that the time to prepare explanatory statement was not longer long from the time of use of money, and that it appears that it appears that the Plaintiff would have been able to understand that the Plaintiff used the account of this case for the Plaintiff, who is a ancillary CCC, was able to understand. As seen earlier, the above explanatory statement with the content that the Plaintiff used the account of this case was ○○ bank account in the name of CCC.

② In the above explanatory note, the CCC clarified the detailed details of how it used for the Plaintiff, and the Plaintiff also recognized that it used KRW 00,000,000.

③ The Plaintiff bears the burden of proving that the Plaintiff did not use KRW 00,000,000 deposited in the instant account, which can be seen as the Plaintiff’s account. Nevertheless, the Plaintiff recognized that the Plaintiff used only KRW 000,000,000, which clearly revealed the transaction details, and did not prove that the remainder was not used.

④ In fact, only part of the Plaintiff used 00,000,000 won deposited in the instant account that can be seen as the Plaintiff’s account, and it is difficult to view that some of others used.

3. Conclusion

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