Standard for determining the acquisition fund of the property, the source of which is obscure, to be presumed to be a donation, and the burden of proof (=the competent authority)

[1] Article 34-6 (see current Article 45 of the Inheritance Tax and Gift Tax Act) of the former Inheritance Tax Act (amended by Act No. 5193, Dec. 30, 1996) Article 41-5 (see current Article 34 of the Inheritance Tax and Gift Tax Act) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15193, Dec. 31, 1996)

Supreme Court Decision 90Nu6071 Decided October 26, 1990 (Gong1990, 2465) Supreme Court Decision 94Nu9603 Decided November 8, 1994 (Gong1994Ha, 3294) Supreme Court Decision 96Nu1252 Decided April 12, 1996 (Gong196Sang, 1622), Supreme Court Decision 95Nu11368 Decided July 30, 1996, Supreme Court Decision 96Nu7205 Decided April 8, 1997 (Gong197Nu1480) Decided April 8, 1997.

Ad Hoc (Attorney Ahn Byung-hee, Counsel for defendant-appellant)

Head of the District Tax Office

Seoul High Court Decision 2002Nu12559 delivered on August 26, 2003

The judgment below is reversed, and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below found that the plaintiff's disposal of the money of this case was legitimate on December 13, 1994 by using his husband's deposit account in the name of Gangnam-gu, Seoul, 62-22m2 (hereinafter "the site of this case") and completed the registration of transfer of ownership on January 16, 1995. The successful bid price was withdrawn from the Twit-si Account under the name of the plaintiff (hereinafter "the Deposit Account of this case"). The defendant collected the money of this case from 482,693,600 won for the acquisition of the land of this case from the deposit account of this case on August 12, 200 on the ground that the plaintiff's disposal of the money of this case was not based on the 3rd-si's deposit account under the name of her husband's deposit account and it was presumed that the money of this case was collected from 196m206,000 won for the plaintiff's deposit account in the name of this case.

2. The judgment of this Court

However, such fact-finding and judgment of the court below are hard to accept.

As a matter of principle, the fact of donation of property, which is a requirement for the imposition of gift tax, is proved by the tax authority. If the tax authority establishes a certain occupation at the time of acquisition of the property, and there is a person who actually had a considerable income from the acquisition of the property, barring any special circumstance, the part of the fund for acquisition of the property that was not presented clearly cannot be deemed to have been donated to another person, barring any special circumstance. However, if a person without a certain occupation or income does not have any money to obtain a donation of the property, and his lineal ascendant or spouse, etc. has any ability to obtain a donation, it shall be reasonable to presume that the fund for acquisition was given by the person with a financial power (see, e.g., Supreme Court Decisions 9874, Sept. 26, 1997; 97Nu9239, Nov. 14, 1997).

Therefore, in order to presume that the Plaintiff, as alleged by the Defendant, was donated the land acquisition fund of this case from the Dohee, her husband, the Defendant must first prove that the Plaintiff had the ability to donate it to the Dohee. Even according to the Defendant’s assertion, the Defendant should prove that there was no other property or real estate to the Dohee at the time of the acquisition of the land of this case, and that the money deposited in the instant deposit account is the only property as a political fund managed by the Dohee. Accordingly, the Defendant must prove that the money deposited in the instant deposit account is not the Plaintiff’s ownership, but the ownership of the Dohee.

However, under the premise that the Plaintiff bears the burden of proving that the money deposited in the instant deposit account is the Plaintiff’s ownership, the Plaintiff failed to prove the source and details of the money deposited in the instant deposit account, while Dohee is a member of the National Assembly who is a member of the National Assembly, and managed a considerable amount of political funds using his/her or his/her deposit account in the name of the member of the National Assembly. In light of the fact that the money deposited in the instant deposit account is a member of the National Assembly, the lower court recognized that the money deposited in the instant deposit account was a political fund deposited

However, according to the evidence rejected by the court below, the first account notified by the Seoul District Prosecutors' Office is included in the le-mail's non-deposit account, the le-mail's non-deposit account, the le-hee's entire address, and Kim Jong-hee's entire address. However, the deposit amount was not included in the plaintiff's deposit account in the name of the plaintiff who is close to the le-hee's address, and the deposit amount was deposited in the le-hee's own account in the number of million won and the deposit amount was deposited in the le-hee's own account. On the other hand, the plaintiff's claim that the deposit was made in the bill of this case because it was difficult to determine that the deposit was made in the name of the plaintiff's own account (the loan deposit amount was directly deposited by the plaintiff) and most of the deposit amount was deposited in the bill of this case. The plaintiff's claim that the deposit was made in the bill of this case with the maturity of the bill of this case, but the defendant's claim that the deposit was made in the bill of this case.

In addition, in light of the evidence revealed in the record and the circumstances shown in the argument of this case even if the process of property creation is a voice, it is reasonable to view that the plaintiff operated the studio business even if the process of property creation is a voice, and the money received by the Japanese business from the Japanese citizen as a consolation money for living together with the Japanese resident, and accumulated considerable property. On the other hand, it is difficult to recognize that the Doman had acquired special property or income in light of his career or family relation.

Nevertheless, the court below concluded that the money deposited in the savings account of this case was a political fund managed by Dohee because the plaintiff's husband, as an assistant to the National Assembly member, managed political funds. In this regard, there is an error of law that affected the conclusion of the judgment by misunderstanding the legal principles on presumption of donation, failing to exhaust all necessary deliberations, or misunderstanding facts in violation of the rules of evidence, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)