Seoul Administrative Court 2013Guhap24587 ( October 28, 2014)

Cho High Court Decision 201Du0445 (2013.07.02)

The Plaintiff cannot be deemed to have borrowed the instant money from his father.

The Plaintiff bears the burden of proving that the Plaintiff borrowed not each of the instant funds from his father, but rather, without specific explanation, such as the maturity period and the interest agreement under the monetary loan contract, etc., is insufficient to recognize it as a contract for the actual loan.

Article 44 of the Inheritance Tax and Gift Tax Act (Presumption of Donation at Time of Transfer to Spouse)

Seoul High Court 2014Nu51236

○ ○

○ Head of tax office

Seoul Administrative Court 2013Guhap24587

November 6, 2014

November 20, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. The defendant revoked each disposition of imposition of KRW 00,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,00,00,00,00,00,00,000,00,00 for the gift tax of October 0, 00, respectively (the plaintiff corrected the date of disposition in the appellate court as above).

1. Quotation of judgment of the first instance;

The reasons why the court shall explain in this decision are as follows:

In addition to the phrase "paragraph 2, it is the same as the statement of the reasons for the decision of the court of the first instance." Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

A. Each part of the Second Instance 15, 17 of the judgment of the court of the first instance shall be written by " January 13, 2009".

B. Each part of the 3rd and 6th decisions of the court of the first instance, "the 13th of Jan. 13, 2009" shall be written with "the 9th of Jan. 9, 2009".

(c)the following shall be added between the fourth and nine of the first instance judgment:

Article 44(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8139, Dec. 30, 2006; hereinafter "the Inheritance Tax and Gift Tax Act") which applies to the disposition of this case provides that the transferor of the property transferred to his spouse, lineal ascendants or descendants (hereinafter "spouse, etc.") shall be presumed to have been donated to the spouse, etc. at the time of transfer of the property by the transferor, and thus, the value of the property shall be deemed to have been donated to the spouse, etc. and shall be deemed to have been donated to the donated property. Article 44(3)5 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1989, Feb. 28, 2007; hereinafter "the Inheritance Tax and Gift Tax Act") provides that Article 33(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1989, Dec. 30, 2006; hereinafter "spouse, etc.) shall be assumed that the Plaintiff borrowed not each of the above money from his father.

(d) No. 9 of the first instance court's decision No. 4 stated "in addition to the purport of the entire pleadings," the part " shall be made by adding to the entries in No. 2 and the purport of the entire pleadings".

E. According to Article 44(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8139 of Dec. 30, 2006), Article 44(1) of the fourth 10-13 of the judgment of the court of first instance provides that "The part of the property transferred to a lineal ascendant or descendant is presumed to have been donated to a lineal ascendant or descendant at the time of the transferor's transfer of the property, and is deemed to be the value of the property donated to the lineal ascendant or descendant" shall not be deemed to be a general case where a monetary loan contract is concluded and implemented between his father and son. Thus, the fact finding should be sufficiently based on reasonable and reasonable grounds, and the plaintiff's father and ○○, who are his father, are deemed to have failed to provide reasonable and reasonable grounds or sufficient grounds for the actual existence of the contract due to the absence of a detailed explanation on the repayment period or interest agreement, etc. under the monetary loan contract of the plaintiff."

F. Ground 4 to 5 of the first instance judgment’s fifth to the lower court’s judgment, the ground for appeal as above is difficult to accept.

종합하면," 부분을 "위와 같은 주장은 받아들이기 어려운 점, ④ 한편 원고는 항소심에서 양○○에게 차용금에 대한 변제 명목으로 상환한 00,000,000원(= 00,000,000원 + 00,000,000원)은 이 사건 증여가액에서 추가로 공제되어야 한다고 주장하므로 보건대, ㉠ 갑 제1, 5, 8호의 각 기재와 변론 전체의 취지에 의하면, 위 금원 중 00,000,000원은 앞서 인용한 바와 같이 조세심판원이 양○○의 원고에 대한 이 사건 증여재산가액에서 제외할 것을 명한 000,000,000원에 이미 포함된 금원으로 보이는 사정, ㉡ 갑 제9, 10, 11호증의 각 기재만으로는, 원고가 위 금원 중 나머지 00,000,000원을 원고의 양○○에 대한 차용금의 상환 명목으로 이를 양○○에게 지급한 것이라고 단정할 수 없는 사정, ㉢ 또한, 갑 제8 내지 11호의 각 기재에 의할 때, 위 금원은 모두 이 사건 처분일 이후에 양○○ 명의의 예금 통장에 입금된 것으로 인정되는 사정, ㉣ 나아가, 증여세 부과처분 이후에는 수증자가 증여세 부담을 회피하기 위한 의도로 증여자에게 상속세및증여세법 제44조 제1항에 따라 증여로 추정되는 양도 재산에 상응하는 대가를 지급할 개연성이 충분히 존재함과 아울러, 원고 주장과 같은 양○○과의 금전소비대차계약이 실제로 체결되었다고 인정할 만한 객관적 자료가 제출되지 아니한 사정까지 보태어 볼 때, 위 00,000,000원을 이 사건 증여가액에서 공제할 수는 없다고 할 것인 점 등을 앞서 본 법리와 종합해 볼 때, 원고가 제출한 증거들과 그 주장의 사정을 모두 고려한다

even if applicable, "" shall be written.

G. In full view of the fact that “the above money cannot be deemed to have been repaid by the Plaintiff x the borrowed money,” the part of the first instance judgment No. 15-16, stating that “The above money is not deemed to have been repaid by the Plaintiff x Kim x the borrowed money,” the evidence submitted by the Plaintiff and the circumstances surrounding its assertion are considered.”

3. Conclusion

If so, the plaintiff's appeal is without merit, and it is dismissed (On the other hand, considering the above circumstances, even if considering all the circumstances asserted in the application for resumption of argument as of October 0, 000 and the reference documents as of October 0, 000 and the contents of reference materials attached thereto that the plaintiff deposited money with the company of this case after the date of disposition of this case, it is insufficient to reverse the above judgment).