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서울행정법원 2015. 10. 23. 선고 2014구합20599 판결
증여세 과세가액 중 일부금액은 위법하며 증여세과세가액을 기초로 산정되는 상속세 일부금액도 위법함[일부국패]
Title

The amount of part of the taxable value of the gift tax is illegal and the part of the inheritance tax calculated based on the taxable amount of gift tax is also illegal.

Summary

The disposition of gift tax of this case is based on the taxable value of donated property which is excessively calculated, so it is unlawful, and the amount to be added to the taxable value of inherited property also is based on the excessive calculated taxable value of inherited property and thus is unlawful.

Related statutes

Article 2 of the Inheritance Tax and Gift Tax Act

Cases

Seoul Administrative Court 2014Guhap20599

Plaintiff

Kim*

Defendant

& director of the tax office

Conclusion of Pleadings

September 18, 2015

Imposition of Judgment

oly 23, 2015

Text

1. The Defendant limited on March 12, 2014 to the Plaintiff:

(a)the portion exceeding KRW 00,000,000 among the disposition imposing gift tax (including penalty tax) of KRW 00,000;

(b) revoke each part exceeding KRW 000,000,000 (including additional duties) of the imposition of an inheritance tax of KRW 000,000 (including additional duties).

2. The plaintiff's remaining claims are dismissed.

3. 7/10 of the costs of lawsuit shall be borne by the plaintiff, and the remaining 3/10 shall be borne by the defendant, respectively.

Cheong-gu Office

Each disposition of imposing gift tax of KRW 00,000,000, and inheritance tax of KRW 000,000,000, which the Defendant rendered to the Plaintiff on March 12, 2014, shall be revoked (the amount of gift tax of KRW 000,000,000, as stated in the written complaint shall be deemed to be a clerical error).

(c).

Reasons

1. Details of the disposition;

"가. 피상속인 김**(이하피상속인'이라 한다)은 2012. 5. 5. 사망하였고, 상속인의 자녀인 원고, 원고의 형 김&&, 원고의 누나 김$$(이하 원고, 김&&,김$$를 통칭하는 경우 '상속인들'이라 한다)는 피상속인의 재산을 상속하였다.",나. 원고와 나머지 상속인들은 2012. 12. 6. 상속세 과세표준을 0,000,000,000원으로

In addition, 00,000,000 won was reported and paid.

다. 피고는, 피상속인이 상속인들 명의로 @@증권 주식회사(이하 '@@증권'이라 한다)의 계좌를 개설하여 피상속인과 상속인들의 재산을 함께 관리하였다고 보고, 2005.1. 14.부터 2011. 4. 4.까지 '① 원고 명의의 @@증권 계좌에서 인출되어 부동산 취득과 증여세 납부에 사용된 돈, ② 원고 명의의 @@증권 계좌에서 원고의 **은행 계좌로 이체된 돈, ③ 원고 명의의 @@증권 계좌에서 김&&의 &&은행 계좌로 이체되어 부동산 취득에 사용된 돈, ④ 김&& 명의의 @@증권 계좌에서 원고의 **은행 계좌로 이체된 돈, ⑤ 김&& 명의의 @@증권 계좌에서 김&&의 &&은행 계좌로 이체되어 취득세 납부에 사용된 돈'을 합한 0,000,000,000원1) 중에서 원고가 소유하던 토지들의 양도대금 000,000,000원과 원고에게 분배되지 아니한 임대소득 000,000,000원을 자금원천이 원고에게 있다고 인정하여 제외한 다음, 피상속인이 그 중 000,000,000원을 원고에게 증여한 것으로 보아 2014. 3. 12. 원고에게 증여세 000,000,000원(가산세 포함)을 결정・고지하였다(이하 '이 사건 증여세 부과처분'이라 한다).

D. In addition, on March 12, 2014, the Defendant decided and notified the Plaintiff of KRW 000,000,000 (including additional taxes) for the reason that the said KRW 000,000,000 should be added to the taxable value of inherited property as donated property (hereinafter “the disposition imposing inheritance tax of this case”) (hereinafter “the disposition imposing inheritance tax of this case”) and the disposition imposing gift tax of this case and inheritance tax of this case “each disposition of this case”

E. The Plaintiff appealed and filed an appeal on May 13, 2014, but the Tax Tribunal dismissed the said appeal on September 18, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 2, 6, 22 through 25 (including the relevant numbers), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

For the following reasons, each of the dispositions of this case is unlawful.

1) 피상속인은 2001년 말경 이후 건강이 나빠져 2005년경에는 증권투자를 할 수 없게 되었고, 이에 따라 2005년 초순경 대부분의 증권계좌를 정리하였다. 원고는 2005년 이후부터 증권계좌를 개설하여 직접 운용하였으므로, 원고 명의의 @@증권 계좌는1) 아래에서 보는 바와 같이 이 부분의 합계액은 0,000,000,000원인데, 피고는 원고의 @@증권 계좌에서 2005. 3.14. 인출된 돈을 실제 인출액인 000,000,000원이 아니라 000,000,000원으로 잘못 파악함으로써 이 부분의 합계액을 0,000,000,000원으로 계산하였다.피상속인이 개설하여 운용한 차명계좌가 아니다. 따라서 원고와 김&& 명의의 각 **증권 계좌(이하 '이 사건 각 계좌'라 한다)에서 인출되거나 원고와 김&&의 다른 은행 계좌로 이체된 돈은 증여재산이 아니다.

2) Even if each of the instant accounts was the name account of the inheritee, and even if there were money of the inheritee, the said money was a profit derived from managing the money for expropriation of the land owned by the Plaintiff as the source of source, and thus, the Defendant’s calculation of donated property, which is the basic amount of donated property claimed by the Defendant, is not all donated property.

3) Even if each of the instant accounts is the deceased’s borrowed name account, since each of the instant accounts was not distinguished from the decedents, the decedents, the Plaintiff, the proceeds from the sale of land, and the proceeds from the lease, and was deposited into each of the instant accounts, and thus, it is not clear that the Defendant is liable for taxation claiming

4) Even if the decedent’s payment to the Plaintiff was made, additional deductions are deemed to have been made or the deduction amount should be different as follows.

"가) 원고는, 2000. 10.말경 원고가 소유하던 서울 **구 **동 00-0 제0동 제000호 **아파트(이하 '### 아파트'라 한다)를 6억 원에 매도한 후 위 매매대금 중 0억 0,000여만 원을 원고의 @@증권 계좌(***-***-*******)에 입금하였고, 위 매매대금 중 0억 0,000만 원으로 서울 **구 **동 100-000 제000호(이하*** 빌라'라한다)를 매수하였으며, 위 매매대금 중 0,000만 원을 김&&의 @@증권 계좌(***-***-*******)로 입금하였다가 그 중 5,000만 원을 원고의 @@증권 계좌(***-***-*******)로 이체하였다. 한편, 원고는 2005년 1월경 *** 빌라를 0억 0,000만 원에 매도한 다음 *** 빌라 매매대금도 @@증권 계좌에 입금하였다. 원고는 이중 0억 원을 서울 **구 **동 00 ****아파트 108동 1802호(이하 '*** 아파트'라 한다)를 매수하는 데에 사용하였므로, 위 4억 원을 증여재산가액에서 공제하여야한다.",나) 위 0억 원이 증여재산가액에서 공제될 수 없다고 하더라도, *** 빌라 매도대금 1억 0,000만 원은 증여재산가액에서 공제하여야 한다.

다) 원고는 서울 *구 **동 131-11 토지 및 그 지상 건물(이하 통틀어 '이 사건 *** 건물'이라 한다)의 공유자인데, 피상속인이 1989년경부터 2012년경까지 이 사건 건물의 임대수익을 전부 수령하고 원고에게 배분하지 아니하였다. 위 기간 동안의 임대수익금은 000,000,000원[ h16년(1989년부터 2005년까지) × 12개월 × 월 160만원 × 공유지분 1/4 � +�7년(2006년부터 2012년까지) × 12개월 × 월 260만 원 × 공유지분 1/2 ]인데, 이 사건 *** 건물의 임대사업에 관한 비용 중 원고의 부담부분을

All the above 00,000,000 won which have not been deducted shall be deducted from the value of donated property.

D) The Defendant: (a) deemed that the decedent borrowed KRW 000,000,000 from the Plaintiff as the proceeds of the transfer of the land owned by the Plaintiff; and (b) deducted only the principal amount of KRW 000,000 from the value of donated property; (c) however, the amount equivalent to the interest calculated at the rate of 5% per annum as stipulated in the Civil Act on KRW 00,000,000 should also be additionally deducted.

E) Any real estate owned by the Plaintiff, the transfer value of which has not been verified among the real estate owned by the Plaintiff, should be additionally deducted from the value of donated property.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) As to the imposition of gift tax of this case

A) Whether each of the accounts of this case is a borrowed name account

(1) If a tax authority received a written confirmation from a taxpayer to a certain taxable fact in the course of conducting a tax investigation, it cannot readily deny the value of the evidence of the written confirmation, barring special circumstances, such as where the written confirmation was duly signed and sealed against the author’s will or it is difficult to take the written confirmation as evidence for the specific fact due to lack of the content (see, e.g., Supreme Court Decision 2006Du8068, Sept. 25, 2008).

(2) Facts of recognition

(가) 원고, 김&&, 김$$ 명의로 @@증권에 개설된 계좌 내역은 다음과 같다

Title holder

Account Number

Plaintiff

*****************

*****************

*****************

*****************

*****************

Kim & Kim

*****************

*****************

*****************

*****************

*****************

*****************

*****************

김$$

*****************

*****************

(B) The Plaintiff submitted a written confirmation as follows in the course of the tax investigation.

○ @@증권에서 원고가 계좌를 개설한 적이 없고, 관리를 한 적도 없다.

From the 1990s, the decedent entered into a stock transaction with the securities account under the name of the plaintiff and his own name.

In the beginning of 1990, the plaintiff also has rare memory because the decedent's resident registration certificate is changed.

○ An inheritee’s account of securities continuing to undergo several operations and medical treatment from 60 to 80 years of age;

was held by the Corporation.

○ @@증권 주식거래나 입출금 거래에 대해서 원고는 관여한 바 없다.

(다) 김$$는 세무조사 과정에서 '피상속인 계좌에서 자신에게 이체된 내용은 모르는 내용이고 아마도 피상속인이 차명계좌로 사용한 것 같다. @@증권 광화문지점은 한 번도 방문한 적이 없다'는 취지가 기재된 확인서를 제출하였다.

(라) 피상속인은 2006. 2. 6.경 원고를 대리하여 원고 명의의 @@증권 계좌 ***-***-*******를 개설하였다.

【Reasons for Recognition】 Each entry of evidence Nos. 3, 4, 5, and 9, the purport of the whole pleadings

(3) The facts alleged above and the statements Nos. 7 and 8 included the whole purport of the pleadings.

수 있는 다음과 같은 사정, 즉 ① 원고는 과세전적부심사 단계에서 '이 사건 각 계좌의거래내역은 피상속인이 상속인들의 토지보상금을 재원으로 증권투자를 함으로써 상속인들의 토지 보상금을 위탁 관리한 것이다'라는 취지의 주장을 한 점, ② 원고와 김&&가 세무조사 과정에서 제출한 각 확인서(을 제4, 5호증)가 원고와 김$$의 의사에반하여 강제로 서명・날인되었다고 볼 만한 자료가 없는 점 등을 종합하여 보면, 피상속인은 원고와 김&&의 명의를 차용하여 이 사건 각 계좌를 개설한 다음 상속인들의 토

It is difficult to believe that it operated and managed land compensation, etc. Gap evidence No. 3, which is contrary to this, and each statement of evidence No. 7, 8, and 9 alone is insufficient to reverse the above recognition.

There is no counter-proof. Accordingly, the plaintiff's assertion on this part is without merit.

B) As to the assertion that the Plaintiff’s expropriation compensation, etc. is a property created as a source, (1) pursuant to Article 2(3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013; hereinafter the same), “donation subject to gift tax” means a gratuitous transfer of tangible and intangible property (including transfer of property at a remarkably low price) or an increase in the value of another’s property by either directly or indirectly means such act or transaction’s name, form, purpose, etc.

(2) The decedent appears to have earned profits from the management of the real estate by means of securities investment, etc. using the source of compensation and the acquisition price of the real estate owned by the Plaintiff as the source. Among the money in each of the instant accounts, the above management profits should be deemed as the property of the decedent since they were formed by the contribution of the decedent. As seen below, part of the property of the decedent was transferred to the Plaintiff’s account or used as the funds for the acquisition of the real estate purchased by the Plaintiff or for the payment of taxes to be paid by the Plaintiff. This constitutes a gratuitous transfer of the property by the decedent’s type, and thus, the amount equivalent to the above amount is deemed as donated property subject to gift tax (if an agreement on investment profit distribution or a loan for consumption was concluded between the Plaintiff and the decedent, then the amount equivalent to the profits or interest accrued therefrom shall be deemed as the property to be reverted to the Plaintiff, and there is no evidence to deem that there exists

C) As to the assertion of uncertainty of taxable object

Since the heir’s compensation, etc. is mixed with deposits in each of the instant accounts, it is impossible to distinguish the Plaintiff’s compensation, etc. from the Plaintiff’s compensation, etc. from the remainder of the heir’s compensation, etc. Therefore, it cannot be deemed unclear that the subject of taxation of the gift tax and the inheritance tax disposition is unclear solely on the ground that the Plaintiff’s compensation, etc. for expropriation of Kim && were mixed among the money transferred from the decedent to the Plaintiff (the amount equivalent to the compensation, etc. for expropriation of Kim & & &

In addition, the Defendant considered KRW 0,00,000,00, which was determined to have been transferred by the decedent to the Plaintiff as seen in the above B B, as the basis for calculating the property donated to the Plaintiff from the decedent. Among them, ① the Plaintiff’s acceptance compensation, etc. entrusted by the Plaintiff, and ② the remainder, excluding the rental income, which was deposited to each of the instant accounts but not distributed to the Plaintiff, was subject to taxation of gift tax and inheritance tax. It is difficult to view that the method of calculating the value of donated property by the Defendant is based on the standard in which the method of calculating the value of donated property is unclear.

D) Basic amount for calculation of donated property

(1) In a lawsuit seeking revocation of gift tax imposition, as long as the deposit of a person recognized as a donor by the tax authority is found to have been withdrawn and deposited in a deposit account in the taxpayer’s name, such deposit shall be presumed to have been donated to the taxpayer (see Supreme Court Decision 99Du4082, Nov. 13, 2001).

(2) Facts of recognition

(A) The flow of the funds withdrawn from each of the instant accounts from January 14, 2005 to April 4, 2011 is as follows.

Title holder

** Number

Date of transaction

Amount of withdrawal

The form of the withdrawal and the subsequent flow

Plaintiff

*****************

January 14, 2005

00,000,000 won

Withdrawal

******************

February 21, 2005

00,000,000 won

Withdrawal

*****************

Mar. 14, 2005

00,000,000 won

Withdrawal

*****************

April 28, 2009

00,000,000 won

Transfer to the R&&T account. Withdrawal of KRW 30.0 million on April 30, 2009, and KRW 60 million on June 8, 2009, from the R&D account for Kim &&&, shall be made respectively.

*****************

July 20, 2009

.0,000,000

To withdraw KRW 00,000,000,000,000 from the R&D account for Kim & Kim as well as KRW 00,000,000,000,000,000,000,000,000

*****************

.21 209.10

oly 21, 2009

Transfer by means of the transfer into the R&&&C account. On October 21, 2009, the account transfer of KRW 30 million to M&A on October 21, 2009, and the withdrawal of KRW 00 million on October 29, 2000,000.

Kim & Kim

*****************

December 10, 2009

00,000,000 won

Kim & & Kim & Account

(00000000000000). Before the transfer, from the same account, the withdrawal of KRW 0,000,000 from the same account

Plaintiff

*****************

March 24, 2011

00,000,000 won

Plaintiff** Account

(00*************)

Kim & Kim

*****************

201.3.24

00,000,000 won

Plaintiff’s above * Bank account transfer to bank account

*****************

201.3.24

00,000,000 won

Plaintiff’s above * Bank account transfer to bank account

*****************

201.3.24

0,000,000 won

Plaintiff’s above * Bank account transfer to bank account

*****************

4, 2011

0,000,000 won

Plaintiff’s above * Bank account transfer to bank account

Plaintiff

*****************

4, 2011

0,000,000 won

Plaintiff’s above * Bank account transfer to bank account

Total

0,000,000,000

(B) The Plaintiff purchased **** an apartment in KRW 000,000 from January 14, 2005, Kim*** from South**, and the said seller paid 00,000 won of the down payment on January 14, 2005, the intermediate payment of KRW 00 billion on February 21, 2005, and the remainder of KRW 000,000,000 on March 12, 2005, respectively.

(C) On March 9, 2006, the Plaintiff paid KRW 00,000,000 to the Plaintiff.

(D) On April 30, 2009, the Plaintiff purchased KRW 72 million from Seoul***Gu* 35-1 of that building** 800 of that building (hereinafter referred to as "*****). The Plaintiff succeeded to the lease agreement on the officetel, and deducted KRW 0 million of the lease deposit from the purchase price. The Plaintiff paid KRW ** million of the down payment to this * on the same day, and paid the remainder 00 million on June 8, 2009.

(마) 원고는 2009. 8. 29. 이##으로부터 서울 **구 **동 733 **인텔리안오피스텔 400호(이하 '@@@ 오피스텔'이라 한다)를 1억 0,000만 원에 매수하였는데, 원고가 @@@ 오피스텔에 관한 임대차계약을 승계하면서 그 임대차보증금 0,000만 원을 매매대금에서 공제하였다. 원고는 같은 날 이%%에게 계약금 1,000만 원을 지급하였고, 2009. 9. 15. 잔금 0,000만 원을 지급하였다.

(바) 원고는 2009. 10. 21. 오**으로부터 서울 **구 **동 559 **트라팰리스 에이동 2000호(이하 '$$$ 오피스텔'이라 한다)를 4억 0,000만 원에 매수하였는데, 원고가 $$$ 오피스텔에 관한 임대차계약을 승계하면서 그 임대차보증금 0,000만 원을 매매대금에서 공제하였다. 원고는 같은 날 오**에게 계약금 0,000만 원을 지급하였고, 2009. 10. 29. 잔금 0억 원을 지급하였다.

(G) On December 8, 2009, the Plaintiff paid acquisition tax of KRW 0,000,000.

(아) 원고는 2010. 7. 10. @@@ 오피스텔의 임차인이던 이◎◎에게 임대차보증금 0,000만 원을 지급하였다.

[Ground of recognition] Facts without dispute, Gap evidence 6-2, Eul evidence 9, 10, 26-29, 31, and 33

(3) 위 법리에 비추어 앞서 본 이 사건 각 계좌에서 2005. 1. 14.부터 2011.4. 4.까지 출금된 자금의 흐름, *** 오피스텔, @@@ 오피스텔, $$$ 오피스텔의각 매수 경위 및 매매대금과 임대차보증금 지급 시점, 원고의 세금 납부 시점 등을 종합하여 보면, 증여재산가액 산정의 기초금액은, ① *** 아파트 취득자금 0억 0,000만 원(= 계약금 3,000만 원 중 출금액에 대응하는 0,000만 원 + 중도금 1억 원 + 잔금2억 0,000만 원), ② 증여세 납부대금 0,000만 원(증여세액 00,000,000원 중 출금액에 대응하는 부분), ③ *** 오피스텔 취득자금 0,000만 원(임대차보증금을 공제한 매매대금), ④ @@@ 오피스텔 취득자금 1억 0,000만 원, ⑤ $$$ 오피스텔 취득자금 4억 0,000만 원(임대차보증금을 공제한 매매대금), ⑥ 취득세 납부대금 0,000,000원(김** 명의의 @@증권 계좌에서 김&&의 &&은행 계좌로 이체된 1,000만 원 중 김&&의 &&은행 계좌에서 출금된 0,000,000원에 대응하는 부분), ⑦ 원고와 김&& 명의의 @@증권계좌에서 원고의 **은행 계좌로 이체된 00,000,000원(= 2011. 3. 24.자 00,000,000원 + 2011. 3. 24.자 00,000,000원 + 2011. 3. 24.자 00,000,000원 + 2011.3. 24.자 0,000,000원 + 2011. 4. 4.자 0,000,000원 + 2011. 4. 4.자 0,000,000원)을 합한 0,000,000,000원이 된다.

E) Scope of mutual aid

(1) Comprehensively taking account of the purport of the respective entries and arguments in the evidence Nos. 11 through 16, the Plaintiff’s receipt of compensation for expropriation and sale of real estate owned by the Plaintiff, as shown below, and the fact that the above compensation for expropriation and sale of real estate was deposited into each of the instant accounts does not conflict between the parties. 00,000,000 won, which is the total sum of the compensation for expropriation and sale of real estate owned by the Plaintiff, shall be deducted from the amount that the Plaintiff would have been refunded from the decedent. As such, the amount should be deducted from the amount of KRW 0,00,000,000, which is the basic amount for calculating the value of donated property.

Location

Date of acquisition

Transfer Date

Transfer Value

Jinay

*** Si* Eup******00-1

September 22, 1989

October 5, 199

0,000,000 won

Expropriation

*** Si* Eup******00-2

September 22, 1989

August 12, 2005

00,000,000 won

Sales through Consultation

*** Si* Eup****** 000-3

September 22, 1989

August 12, 2005

00,000,000 won

*** Si* Eup****** 000-4

September 22, 1989

August 12, 2005

00,000,000 won

*** Si* Eup****** 00-5

September 22, 1989

August 12, 2005

00,000,000 won

*** Si* Eup******00-6

September 22, 1989

August 12, 2005

00,000,000 won

*** Si* Eup******00-7

September 22, 1989

August 31, 1998

00,000,000 won

Expropriation

****Gu** Dong* 000-16

December 27, 1982

May 17, 2000

00,000,000 won

Sales through Consultation

****Gu** Dong* 000-3

April 19, 1988

May 17, 2000

00,000,000 won

Sales through Consultation

****Gu** Dong* 000-199

December 9, 1983

5, 196

00,000,000 won

Sales through Consultation

****Gu* 000-6 et al.1

August 27, 1982

November 25, 1997

00,000,000 won

Total

00,000,000 won

(2) Deductions of rental income not distributed to the Plaintiff

(A) Comprehensively taking account of the overall purport of the statements and arguments in Eul evidence Nos. 18 through 21 (including the relevant number), the plaintiff purchased the decedent, the plaintiff's mother *, Kim & & Kim on October 11, 1989 ** Gu** 131-11, 278.5 square meters of the same 131-11, and the above land and buildings (hereinafter referred to as "the aggregate of the above land and buildings") and acquired *** 1/4 shares of the same * on October 16, 1989 * the plaintiff acquired 1/4 shares of the land and buildings * on December 20, 205 * the plaintiff acquired 1/4 shares of the land and buildings * the plaintiff acquired excluding the total amount of money accruing from the sale of the land and buildings * the sale of the land and the real estate income from the sale of the land and the building * the sale of the real estate * from December 20, 2005.

Year

gross sales profit

Official Fees, etc.

Amount of income;

Equity Holdings

Plaintiff

Reversion

203

00,000,000 won

00,000,000 won

00,000,000 won

1/4

0,000,000 won

204

00,000,000 won

00,000,000 won

00,000,000 won

1/4

0,000,000 won

205

00,000,000 won

0,000,000 won

00,000,000 won

1/4 (from December 20, 2005 to 1/2)

0,000,000 won

206

00,000,000 won

0,000,000 won

00,000,000 won

1/2

00,000,000 won

2007

00,000,000 won

0,000,000 won

00,000,000 won

1/2

00,000,000 won

208

00,000,000 won

0,000,000 won

00,000,000 won

1/2

00,000,000 won

209

00,000,000 won

0,000,000 won

00,000,000 won

1/2

00,000,000 won

2010

00,000,000 won

00,000,000 won

00,000,000 won

1/2

00,000,000 won

2011

00,000,000 won

0,000,000 won

00,000,000 won

1/2

00,000,000 won

2012

00,000,000 won

0,000,000 won

00,000,000 won

1/2

0,000,000 won

Total

00,000,000 won

* 0,000,000 won for the year 205

0

* For the year 2012 0,000,252(t)

0

(B) According to the above facts, the Plaintiff shared Kim&&&&T * the same site and buildings * as joint business operators, and has been running the leasing business of the same site and building ** the same site and building * so long as there is no proof that the profit and expenses incurred in the course of running the above leasing business have been otherwise determined in the profit sharing ratio or the cost sharing ratio, the Plaintiff shall belong to the Plaintiff according to the Plaintiff’s ratio of shares in the new site and building. Accordingly, the rent income to be distributed to the Plaintiff is ** the amount obtained by deducting the expenses from the total profit on the rental business of the same site and building * the

(C) Furthermore, ** from October 1, 1989, which was the opening date of the leasing business of the same site and building, to May 4, 2012, which was the day before the commencement date of the commencement of the inheritance, the entire amount not distributed to the Plaintiff may be deducted from the value of donated property. There is no evidence to acknowledge that there exists any rental income exceeding the above KRW 00,000,000. Therefore, the argument that the Defendant’s rental income should be deducted from the income not distributed to the Plaintiff is with merit within the scope of KRW 00,00,00,000, which is recognized as above.

(3) As to the assertion of KRW 400 million deduction

원고가 2000. 10. 30.경 ### 아파트를 0억 원에 양도하였다는 점을 인정할 아무런 증거가 없으므로, 이와 전제를 달리하는 원고의 이 부분 주장은 더 나아가 살필 필요 없이 이유 없다.

(4) As to the allegation that the amount of KRW 100 million is deducted

(가) 갑 제6호증의 1, 을 제9, 11호증의 각 기재 및 변론 전체의 취지를 종합하면, 원고가 2000. 12. 19.경 *** 빌라를 취득한 사실, 원고가 2005. 1. 12. 배**에게 *** 빌라를 1억 0,000만 원에 매도하면서 계약금 1,000만 원은 위 계약일에, 중도금 3,000만 원은 2005. 2. 20.에, 잔금 1억 원은 2005. 3. 18.에 지급받기로 약정한 사실, 원고 명의의 @@증권 계좌(***-***-*******)에 2005. 2. 21. 0,000만 원, 2005. 3. 18. 1억 원이 입금된 사실을 인정할 수 있다.

위 인정사실에 의하면, 원고가 소유하던 누** 건물의 매매대금 중 1억 0,000만 원이 피상속인이 관리하던 @@증권 계좌에 입금된 것으로 보이므로, 위 1억 0,000만 원은 자금 원천이 원고에게 있다고 보고 증여재산가액에서 공제되어야 한다.

(나) 이에 대하여 피고는, ### 아파트와 *** 빌라 취득 당시 원고의 구체적인 소득이 확인되지 아니하여 원고가 자기 소유 부동산의 수용보상금 등으로 **동 아파트와 *** 빌라를 취득하였던 것으로 보이는데, 이 사건 각 계좌에 입금된 *** 빌라의 매도대금을 이미 공제된 원고의 수용보상금 등과 동일하다고 평가할 수 있는 이상 *** 빌라의 매도대금이 추가로 공제되어서는 안 된다고 주장한다. 그러나 을 제12, 14, 15, 16호증의 각 기재만으로는 원고가 소유하던 토지들의 협의매도대금이나 수용보상금으로 *** 빌라를 취득하였다는 점을 인정하기 부족하고, 달리 이를 인정할 증거도 없으므로, 피고의 이 부분 주장은 이유 없다.

(C) Accordingly, KRW 100,000,000, which is a part of the sale proceeds of **** in the value of donated property, should be additionally deducted.

(5) As to the assertion of additional deduction equivalent to civil statutory interest rate

The Defendant: (a) lent the price for sale through consultation or the price for expropriation of the real estate owned by the Plaintiff to the inheritee without interest; and (b) calculated the excess amount as the value of donated property only on the ground that it was repaid. Unless a loan for consumption between merchants is not a loan for consumption among merchants, if the Plaintiff entered into a loan for consumption without an interest agreement, then the borrower is not obligated to pay interest. However, there is no evidence to prove that the decedent agreed to pay the amount equivalent to the statutory interest under the Civil Act at the time when the said loan was paid by the Plaintiff; (b) there is no assertion and proof as to the legal grounds, etc. for which the statutory interest should be paid; and (c) there is no right of the Plaintiff to receive the statutory interest equivalent to the said

(6) As to the assertion of additional deduction equivalent to the officially announced value

As to the fact that the transfer price of land owned by the Plaintiff was additionally deposited in each of the instant accounts in addition to the Defendant’s recognition of mutual aid, it is necessary to prove that the Plaintiff had to prove that the transfer price of land owned by the Plaintiff was additionally deposited. However, there is no proof as to whether the actual transfer price or the officially announced price of other land owned by the Plaintiff was or not, and what much was set out in each of the instant

F) Sub-decision

If so, the value of the property donated by the decedent to the Plaintiff from January 14, 2005 to April 4, 2011 is KRW 000,000,000, which is the aggregate of the proceeds for the sale of land owned by the Plaintiff, and KRW 00,000,000, which is the aggregate of the proceeds for the sale of land owned by the Plaintiff, and ②*** KRW 00,000,000, which is not distributed to the Plaintiff out of the rent income on the building and land *** KRW 130,00,00,000, which is calculated by deducting the amount of KRW 130,000,00 from the proceeds for the sale of land owned by the Plaintiff. Therefore, the disposition imposing the gift tax in this case is based on the taxable value calculated excessively, and thus is unlawful

2) As to the instant disposition of imposing inheritance tax

A) According to Article 13(1) of the former Inheritance Tax and Gift Tax Act, the taxable value of inherited property is the amount calculated by adding the value of property donated by the decedent to his/her heir within 10 years before the date inheritance commences, after deducting public charges, funeral expenses, and debts related to the decedent or inherited property as of

B) The Defendant: (a) deemed that the decedent donated KRW 00,000,000 to the Plaintiff from January 14, 2005 to April 4, 201, 201, which was within ten (10) years before the date the inheritance commences; and (b) issued the instant disposition imposing inheritance tax by adding it to the taxable value of inherited property. However, as seen earlier, the amount to be added to the taxable value of inherited property should be KRW 00,000,000; (c) thus, the instant disposition imposing gift tax is unlawful on the grounds that the instant disposition imposing gift tax was based on the excessive taxable value of inherited property.

3) Justifiable tax amount for each disposition of the instant case

A) In a lawsuit seeking the revocation of a taxation disposition, the subject matter of adjudication is whether the tax base and tax amount notified by the tax authority exist objectively. In a case where the tax base and tax amount recognized by the disposition are excessive compared to the legitimate tax base and tax amount, the disposition of imposition is unlawful only to the extent exceeding the reasonable tax base and tax amount (see, e.g., Supreme Court Decision 88Nu6504, Mar. 28, 198

B) As seen earlier, the justifiable taxable value of donated property is KRW 00,000,000, and the value of donated property to be added to the taxable value of inherited property is KRW 0,000,000, and accordingly, the deductible amount of the amount of the gift tax should be KRW 000,000,000. Accordingly, each disposition of this case, which was made by separately calculating the above donated property, is unlawful.

The amount of political party tax calculated by taking this into account shall be KRW 00,000,000 of the gift tax, and KRW 00,000,000 of the inheritance tax, such as the attached Table of Calculation of Amount of Political Party Tax.

3. Conclusion

Therefore, the plaintiff's claim as to the portion exceeding the above legitimate tax amount among the plaintiff's claim of this case is justified, and the plaintiff's remaining claim is dismissed as it is without merit. It is so decided as per Disposition.