early 2010Gu3463 ( December 12, 2011)

It is reasonable to view that the donation is a gift without any certificate of loan or there is no record of principal or interest repayment.

It is reasonable to view that the Plaintiff and his family members paid the total amount of this case to the Plaintiff and his family members after five-year imprisonment was finalized for committing the crime of receiving bribe, and that the Plaintiff and his family members did not prepare a loan certificate at the time of receiving this amount and did not pay the principal or interest for more than four years.

2012Guhap746 Revocation of Disposition of Imposition of Gift Tax

XX

Racing Head of the Tax Office

May 16, 2012

June 20, 2012

1. The plaintiff's claim is dismissed.

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

The disposition of imposing gift tax on the Plaintiff on June 10, 2010 in attached Form 1, which the Defendant issued on June 10, 2010, is revoked.

1. Details of the disposition;

A. A. On March 10, 2010, the director of the Seoul Regional Tax Office notified the Defendant of the circumstances that ParkA donated funds to the Plaintiff as a result of the investigation of the corporate tax and gift tax and gift tax on the representative director of XX (hereinafter referred to as "State") and the representative director of ParkA. Accordingly, the Defendant: (a) deemed that the Plaintiff was donated the amount indicated in the “delivery” column of the attached Table 1 from ParkA from the date of delivery (hereinafter referred to as the “total amount of the instant case; and (b) according to each sequence of order, the first disposition of each gift tax on June 10, 2010 was imposed (hereinafter referred to as the “first disposition”).

B. On September 8, 2010, the Plaintiff filed an appeal with the Tax Tribunal. Of the amount in the instant case, the Tax Tribunal corrected the gift tax base by deducting KRW 000,000, which the Plaintiff delivered to ParkA on April 21, 201, from the amount in the instant case, deeming that it was not a donation but a loan, and dismissed the remainder of the appeal.

C. On December 22, 2011, according to the decision of the Tax Tribunal, the Defendant issued the notice of reduction, correction, and notification upon the imposition of gift tax as stated in No. 6 of the same Table (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1-1-7 of Nos. 1-7, the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

The amount of Nos. 1 through 4 of this case is illegal for the Plaintiff’s wife, and the Plaintiff’s total amount of Nos. 5 and 6 of this case was donated from ParkB, on the ground that the Plaintiff received the donation from ParkB, despite the fact that the Plaintiff borrowed respectively from ParkB. Even if the total amount of the instant case was donated, the amount of Nos. 1 through 4 of this case was donated to the Plaintiff’s wife, and the Plaintiff’s gift was merely a gift amount of Nos. 5 through 6 of this case, and thus, the imposition of gift tax on the amount of Nos. 1 through 4

3. Related statutes;

Attached 2 is as shown in the "related Acts and subordinate statutes".

4. Facts of recognition;

A. On May 4, 2005, the Plaintiff was sentenced to five years of imprisonment with prison labor and 000 won of additional imposition (Seoul District Court Decision 2005No119), dismissed (Seoul High Court Decision 2005No180 delivered on August 18, 2005), and dismissed the appeal (Supreme Court Decision 2005Do6432 delivered on November 10, 2005) for the following facts: (a) OO, a corporation with 51% of its shares, had entered into an advertising business agency contract with the 00 committee mentioned in the above paragraph under a negotiated contract with the 00 committee; and (b) by around January 2003, LA et al., received a bribe in relation to the duties of the above 00 committee executive members (Seoul High Court Decision 2005No1180 delivered on August 18, 2005).

C. The details of the instant amount are as follows.

D. During the investigation period of the Seoul Regional Tax Office, the Plaintiff prepared a loan certificate (No. 2-2 of the Plaintiff’s name) on April 2, 2007, and a loan certificate (No. 2-1 of the Plaintiff’s name) of the Plaintiff on July 31, 2007, with the date of preparation of the date of the investigation period of the Seoul Regional Tax Office, and submitted the loan certificate (No. 2-1 of the Plaintiff’s name) to Park Jong, which was issued to Park Jong, and Park Jong was not a gift to the employee of the Seoul Regional Tax Office.

E. On April 21, 201, the Plaintiff deposited KRW 000 into a bank account of ParkA on April 21, 201, where the request for adjudication was pending in the Tax Tribunal.

F. On March 31, 2012, where the lawsuit of this case was pending, the Plaintiff’s wife prepared a certificate of borrowing that the Plaintiff shall make a lump sum payment on the date of the loan and the principal of the debt, KRW 00 on January 10, 2006, KRW 00 on March 9, 2006, KRW 00 on March 24, 2006, and KRW 300 on August 30, 2006, KRW 8.5% per annum from the date of preparation of the loan certificate (Evidence 3-1). The Plaintiff prepared a certificate of borrowing that the Plaintiff shall make a lump sum payment on the repayment date on the basis of KRW 30 on April 200 and KRW 30 on the condition that the loan and the principal shall be repaid on the repayment date (No. 3-1 on April 207, 207).

[Reasons for Recognition] Facts without dispute, Gap evidence 2-1, 2-3-1, 2-2, Eul evidence 3-1, 2-2, and the purport of the whole pleadings

5. Determination

A. According to Article 2(3) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007), the term "donation" means a free transfer (including transfer at a remarkably low price) of any tangible or intangible property (including transfer at a remarkably low price) in a direct or indirect manner, or an increase in the value of another person's property by which economic value can be calculated, regardless of the name, form, purpose, etc. of such act or transaction, or where it is deemed that the inheritance tax or gift tax has been unjustly reduced by indirect or indirect method via a third party or by two or more acts or transactions pursuant to paragraph (4) of the same Article, the provision of paragraph (3) of the same Article shall apply by deeming that such act or transaction is a direct transaction by the party, or that such act or transaction is a continuous one.

In general, the burden of proving the fact of taxation requirement in a lawsuit imposing gift tax should be borne by the imposing authority. However, if it is revealed that the other party is presumed to have been subject to the application of the empirical rule in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the pertinent tax disposition was an unlawful disposition that failed to meet the taxation requirement (see, e.g., Supreme Court Decisions 97Nu13894, Jul. 10, 1998; 9Du13894, Nov. 13, 2001; 99Du4082, Nov. 13, 2001; 9Nu27, Feb. 27, 1997).

B. In light of the above evidence and the following circumstances acknowledged by the above facts, it is reasonable to view that Park A paid the Plaintiff the amount of Nos. 1 through 4 of this case to his wife and his consciousness, who are the Plaintiff’s dependent, by indirect means. Thus, it is reasonable to deem that the Plaintiff donated the remainder after deducting the total amount of Nos. 4 and 5 from the total amount of this case. The Plaintiff’s statement of Nos. 5 is insufficient to recognize that the Plaintiff’s wife and consciousness borrowed or donated the above amount. Thus, the Plaintiff’s assertion is without merit.

(1) The Plaintiff was sentenced to five-year imprisonment for the crime of receiving a bribe from ParkA, etc., and the Plaintiff and his family members paid the total amount of this case to the Plaintiff and his family members. The Plaintiff and his family members did not prepare a loan certificate at the time of receiving the total amount of this case, and did not pay the principal or interest for more than four years from the date of receipt.

(2) In addition to the circumstances that ParkA had been sentenced to imprisonment by the Plaintiff due to the delivery of a bribe to the Plaintiff, and that money was able to be paid to the Plaintiff’s family on behalf of the said Plaintiff, there is no evidence suggesting that ParkA had different motives for paying the Plaintiff’s 1 to 4 amount.

(3) Even if the Plaintiff did not live together with his family due to a prison term of imprisonment, etc., there is no evidence to prove that there was a combustibility between the Plaintiff and his family, and thus, the relationship of support and cooperation still remains maintained.

(4) At the time of investigation of the Seoul Regional Tax Office, the Plaintiff stated that it was prepared on the corresponding date on April 2, 2007 (Evidence A2-2) and on July 31, 2007 (Evidence A-2-1) at the time of the investigation of the Seoul Regional Tax Office, and that it was prepared during the period of investigation in the preparatory documents dated April 17, 2012 during the proceeding of the lawsuit, and reversed that’s statement.

(5) The Plaintiff paid KRW 000 out of the instant amount No. 6 to ParkA. However, in light of the fact that the Plaintiff received KRW 000 and the remaining KRW 000 from the instant amount No. 6, respectively, and that it purchased investment products by transferring only the said KRW 000 to the stock-type fund account in the Plaintiff’s name, it is difficult to view that the Plaintiff borrowed KRW 00 and KRW 5 from the instant amount.

6. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.