Suwon District Court 2012Guhap1575 ( October 09, 2012)

(2) the Corporation shall have the right to dispose of the money in advance and shall be subject to prior donation property

If it is found that the deposit is deposited in the bank account, etc. in the taxpayer's name, the deposit shall be presumed to have been donated to the taxpayer, and the transfer money shall have been used by withdrawing the transferred money on the same day, etc., and it shall be deemed that the plaintiff had the right to dispose of it.

Gift Tax Act

2012Nu34251 Revocation of the imposition of gift tax

Yellow AA

Head of the Pakistan Tax Office

Suwon District Court Decision 2012Guhap1575 Decided October 9, 2012

August 20, 2013

September 13, 2013

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

On January 2, 2012, the Defendant imposed an aggregate of the gift taxes on the Plaintiff on January 2, 2012, and revoked the imposition of an aggregate of the gift taxes on the same day by the Defendant, respectively.

2. Purport of appeal

The judgment of the first instance shall be revoked.

On January 2, 2012, the Defendant revoked the imposition of the aggregate of the gift tax on the Plaintiff.

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff sought revocation of the disposition of gift tax imposed by the △△ on January 2, 2012 by the Defendant against the Plaintiff, and sought revocation of the disposition of gift tax imposed by the Defendant against △△ on the same day.

The judgment of the court of the first instance rejected the lawsuit seeking revocation of the imposition of gift tax against the Plaintiff, and dismissed the claim for revocation of the imposition of gift tax against the Plaintiff.

Since the plaintiff appealed only for the dismissal part above, only the part seeking revocation of the disposition imposing gift tax on the plaintiff is within the scope of the judgment of this court.

2. Gift tax;

The following facts are acknowledged as a whole by taking account of the overall purport of the pleadings in each entry in Gap evidence 4, Eul evidence 1 to 5 (including paper numbers) without dispute between the parties or in each entry in Gap evidence.

[1]

On January 25, 2008, the Plaintiff’s father YCC borrowed OOOOOOO-type 134-3, 136, 302, and 322-2 land as security from OO-type OO-type OO-type OO-type OO-type OO-type OO-type OOO-2.

On January 28, 2008, the YellowCC remitted OOO won to the Plaintiff’s account.

○ The YellowCC remitted the sum of the Plaintiff’s wife’s wife’s accounts over four occasions between February 21, 2008 and September 22, 2009.

[2]

○ On October 9, 2009, YellowCC also borrowed OOO members from OF on the security of the above land.

As between October 21, 2009 and October 29, 2009, the YellowCC remitted the sum of the Plaintiff’s accounts to the Plaintiff’s account three times.

[3]

○ After that, on November 1, 2009, YellowCC died.

○ On January 2, 2012, the Defendant: (a) deemed that the Plaintiff donated the said money to YellowCC; and (b) imposed an imposition of gift tax on the Plaintiff on January 2, 2012 (hereinafter “instant disposition”).

○ In addition, on January 2, 2012, the Defendant: (a) deemed that JungB donated the above amount to the YellowCC with respect to the transfer of KRW OB to the account of JungB; and (b) imposed a disposition of imposition of KRW OB on JungB on January 2, 2012.

3. The plaintiff's assertion

(a) Donations;

The sum of the amounts transferred by YellowCC to the Plaintiff’s account as above (hereinafter “OOCC”) was loaned from OCC as security due to the shortage of cash. The Plaintiff was used for the daily living costs of YellowCC while the Plaintiff stored on behalf of YellowCC, or the Plaintiff was given gift from OOUU UOU U.S. 73, U.S. 76 forest, etc. on January 31, 2007, and the tax authority did not pay the gift tax amount to the Plaintiff, and the tax authority attached OOOU U.S. 76 forest, so that the Plaintiff could not pay the gift tax. Thus, the Plaintiff did not receive a donation from YCC.

Therefore, the instant disposition that the Plaintiff imposed gift tax on the Plaintiff by deeming that the instant money was donated from YellowCC is unlawful.

(b) Value of donated;

Even if the Plaintiff received the instant monetary amount from YellowCC, Article 47(3) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “the Inheritance Tax and Gift Tax Act”) and Articles 36(2) and 10(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provide that even in cases where a donee takes over the donor’s obligation with respect to the onerous donation between lineal ascendants and descendants, the amount of the said obligation shall be presumed not to have been assumed by the donee, but the said obligation shall not be deemed to have been taken over by the donee, but the said obligation shall not be deemed to have been objectively recognized as the obligation owed to the State, local governments, and financial institutions. The instant monetary amount constitutes a donation by YellowCC, a donor, to the Plaintiff after receiving a loan from a financial institution, and thus, the Plaintiff, a donee, who is a donee

Therefore, the instant disposition imposing gift tax on the Plaintiff with the instant money as the value of donated property is unlawful.

4. Determination

(a)a fact;

The following facts are acknowledged by adding up the whole purport of the pleadings to each entry of Gap evidence Nos. 2.3.10 to 27, Eul evidence Nos. 4, 5, 8 through 14 (including paper numbers).

[1]

On January 31, 2007, the Plaintiff’s father YCC donated to the Plaintiff a 328 OO-Eup O28 m24 m2, a 73 m2,942 m2, a 76 m2,975 m2, a 82 m2,975 m2, a O2,975 m2, a O239-5 m28 m2, a O219 m2, a O28 m2, a O219 m2, a house on the ground.

On January 24, 2008, the head of Seodaemun-gu Tax Office imposed the gift tax OOO on the Plaintiff.

○ Then, on January 25, 2008, YellowCC borrowed 140,000,000 won from OF as collateral on its own land, and transferred OB to the Plaintiff’s account on January 28, 2008, and transferred OB to the Plaintiff’s account on February 21, 2008.

○ On February 26, 2008, the Plaintiff filed an application for annual payment with regard to the rest of the OO members while paying OO members among the above OO members of the gift tax.

○ The head of Seodaemun-gu Tax Office permitted payment by annual installments after he received the above OOrisan 76 forest land of 15,471m2 as security for tax payment by annual installments. On January 2, 2009, the head of Seodaemun-gu Tax Office required the OOOOO and the second subdivision on January 19, 2010 to pay OOOOO and the third subdivision on November 3, 2010.

○ After that, on February 29, 2008, YellowCC remitted OO members to the account of JungB on February 29, 2008.

○ On February 16, 2009, the Plaintiff received a loan from the National Bank on the part of the National Bank, and paid OO in the first annual installments.

○ Thereafter, on August 31, 2009 and September 22, 2009, YellowCC remitted OOO and OOOOB to the account of AB.

[2]

Then, as seen earlier on October 9, 2009, YellowCC borrowed OOOOE from OF as collateral for its own land.

On October 21, 2009, the YellowCC remitted OOO won to the Plaintiff’s account, and on the same day, the Plaintiff collected OOO won from the said account and repaid the above OOO won borrowed from the National Bank.

Then, on October 26, 2009 and October 29, 2009, YellowCC remitted OOO and OOOOO on the Plaintiff’s account, but died on November 1, 2009.

○ On February 29, 2010, the Plaintiff paid KRW 2000 for annual installments, and paid KRW 300 for annual installments on November 3, 2010.

[3]

○ Meanwhile, among the money withdrawn from the Plaintiff’s account from October 2009 to February 23, 2010, the amount of credit car use (i.e., the amount of OO. 27 November 2009 + the amount of OOO won on December 28, 2009 + the amount of OOOO won on December 28, 2009 + the amount of OOOO won on January 27, 2010). The water supply and sewerage, water supply and sewerage, newspaper subscription fees, etc. do not exceed the amount of OO.

○ On December 7, 2011, the Plaintiff obtained a loan from OOOCO from OF, and repaid OOOO which was borrowed by YCC. On February 29, 2012, the Plaintiff repaid OOOO which was borrowed by YCC.

(b) Donations and donated property;

(1) In a lawsuit seeking revocation of a gift tax disposition, insofar as a deposit in the name of a person recognized as a donor by the tax authority is revealed to have been withdrawn and deposited in a deposit account in the name of a taxpayer, such deposit shall be presumed to have been donated to the taxpayer. Thus, barring special circumstances, such as withdrawal of such deposit and deposit in the name of a taxpayer, the burden of proving such fact is the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov. 13, 2001).

According to the above facts of recognition, since the Plaintiff’s father YCC borrowed a total of OOOwon and OOOOwon from OF on January 25, 2008 and October 9, 2009, and remitted the instant amount to the Plaintiff’s account four times between January 28, 2008 and October 29, 2009, the Plaintiff is presumed to have received donation from OOCC, barring any special circumstances.

(2) In addition, according to the facts found earlier, on January 31, 2007, 2007, the △△△ Group donated real estate to the Plaintiff on January 24, 2008, and imposed a gift tax on the Plaintiff on January 24, 2008. After which △△△ Group loans total OOE from the Plaintiff Nonghyup on January 25, 2008 and October 9, 2009, and transferred the total amount of the instant money to the Plaintiff’s account four times from January 28, 2008 to October 29, 2009, and the Plaintiff paid the said gift tax between △△△ and February 26, 2008 to November 3, 2010. The amount of OO and charge out of the Plaintiff’s credit card water supply and drainage account or did not reach the Plaintiff’s account.

In light of the above circumstances, the Plaintiff appears to have used the instant money transferred from YellowCC to pay the gift tax OOO won imposed on the Plaintiff. The Plaintiff cannot be deemed to have used the instant money as the living costs of YellowCC while keeping it. There is no other evidence to acknowledge this.

In addition, considering the overall purport of the arguments in the statement No. 3-1 and No. 2 of the evidence No. 3-2, it is recognized that sulfurCC borrowed OOOOOO won from the OCC’s account and paid the interest. In addition, in light of such circumstances and the fact that the Plaintiff appears to have used the instant money transferred from YellowCC to pay the gift tax imposed on the Plaintiff as seen above, it cannot be deemed that YellowCC loaned the instant money to the Plaintiff. Furthermore, it cannot be deemed that the Plaintiff agreed to accept the above loan obligation of YellowCC, or that the Plaintiff was transferred the instant money from YellowCC on the condition that the Plaintiff was to take over the above loan obligation, and there is no evidence to acknowledge this.

(3) Therefore, even if the Plaintiff did not receive a donation from YellowCC or did not do so, the Plaintiff’s assertion that the instant disposition was unlawful on the ground that it constitutes an onerous donation between lineal ascendants and descendants is without merit.

5. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is so decided as per Disposition.