Whether a donation is made in the name of the spouse after making a deposit of the provisional payment.

In this case, it is reasonable to view that the husband paid the provisional money to a juristic person under the name of the wife who has no particular income, and the wife received and used it.

The contents of the decision shall be the same as attached.

Article 2 (Gift Tax Taxables)

Article 31 (Scope of Donated Property)

1. The plaintiff's claim is dismissed.

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

Each disposition of imposition of gift tax of KRW 33,959,750 on August 10, 2006 and KRW 389,20,000 shall be revoked.

1. Circumstances of the disposition;

A. ○○○ Housing Co., Ltd. (hereinafter referred to as “○ Housing”) and ○○ Construction Co., Ltd. (hereinafter referred to as “○○ Construction”) are the husband of the Plaintiff, who is the representative director of ○○ Housing Co., Ltd. and ○○ Construction Co., Ltd. (hereinafter referred to as “○○ Construction”) is the Plaintiff’s husband, and ○○○ Housing Co., Ltd.

B. On August 10, 2006, the Defendant: (a) deemed that the Plaintiff received shares and money from ○○○○○ as follows; and (b) imposed gift tax of KRW 33,959,750 on the Plaintiff (hereinafter “instant first disposition”).

(1) On March 28, 2003, the Plaintiff acquired 31,500,000 non-listed shares of ○○○ C&C Co., Ltd. (hereinafter “○○○”) without compensation (hereinafter “instant shares”).

(2) From June 27, 2002 to May 22, 2003, the withdrawal deposited KRW 117,257,820 in the Plaintiff’s name, and KRW 250,821,40 in the name of Kim○-ro (the representative director at the time of ○○○○ Crona), respectively, in the name of ○○○. The said amount was changed to the Plaintiff’s name on March 28, 2003, and the Plaintiff received reimbursement from ○○○ on June 24, 2003 in total of KRW 368,079,220 (hereinafter referred to as “loa”).

C. In addition, on March 28, 2003, the Defendant: (a) 1.1 billion won of the virtual money deposited to ○○○ in the name of Kim○-ro (hereinafter “the second amount”) was changed to the name of the Plaintiff; and (b) thereafter, on June 24, 2003, the Plaintiff received the second amount of the instant money from ○○○; (c) on August 10, 2006, deeming that the Plaintiff received the said money from ○○○; and (d) on August 10, 2006, the Defendant imposed a disposition imposing gift tax of KRW 389,200,00 on the Plaintiff (hereinafter “the second disposition of this case”; and (e) the first and second disposition of this case were each of the instant dispositions).

D. Although the Plaintiff filed an objection against each of the dispositions in this case on November 14, 2006, the Commissioner of the National Tax Service of 006 dismissed the Plaintiff’s objection on December 20, 2006, again, on March 23, 2007, the National Tax Tribunal dismissed the Plaintiff’s appeal on October 2, 2007. The written decision was served on the Plaintiff on October 8, 2007.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, 3, Eul evidence 1-1, 2-2, and the purport of the whole pleadings

2. Whether the dispositions of this case are proper; and

A. The plaintiff's principal

(1) Since the Defendant did not specify the tax base and the basis for calculation of the amount of tax at the time of rendering each of the instant dispositions, each of the instant dispositions is unlawful.

(2) The Plaintiff left the management of the income amount generated from real estate rental business, etc. to ○○, a husband. Since ○○ received the instant shares from her revenue amount, and deposited 1 provisional receipts to ○○○○, the Plaintiff received the first provisional receipts from ○○○ by using the Plaintiff’s passbook in the name of her husband, the Plaintiff’s disposition of this case, based on the premise that the Plaintiff received the instant shares and 1 provisional receipts from ○○○, was unlawful.

(3) Even if the first demand amount is not the Plaintiff’s money, the withdrawal deposited its own money into the first demand amount, and deposited its own property with the second demand amount in lieu of the documentary demand that it is impossible to communicate with the Plaintiff due to sick exchange, and then deposited each of the demand amount to ○○ in the name of the Plaintiff after changing the Plaintiff’s name, and then being paid each of the demand amount from ○○○ in the name of the Plaintiff. As such, the first demand amount is owned by ○○, and the second demand amount is owned by ○○, and the second demand amount is owned by ○○, and thus, each of the wifes of this case on the premise that the Plaintiff received each donation from ○○○ and second demand amount from ○○.

(b) Related statutes;

Article 2 (Gift Tax Taxables)

Article 31 (Scope of Donated Property)

Article 44 (Presumption of Donation at Time of Transfer to Spouse, etc.)

Article 47 (Taxable Amount of Gift Tax)

Article 77 (Determination and Notice of Tax Base and Tax Amount)

Article 79 (Notification of Determination of Tax Base and Tax Amount)

C. Determination

(1) Whether the procedure of each of the dispositions of this case is legitimate

(A) According to Article 77 of the Inheritance Tax and Gift Tax Act and Article 79(1) of the Enforcement Decree of the Act, where a notice of the tax base and amount of gift tax is given, the notice must specify the tax base and basis for calculation of the tax amount.

(B) According to each of the statements in Gap evidence Nos. 1-1 and 2, it can be recognized that the tax base, tax rate, calculated tax amount, and additional tax are specified in the notice of each of the dispositions of this case. Thus, the plaintiff's assertion that the tax base, calculation basis, etc. were not specified is without merit.

(2) Whether the first disposition against the shares of this case is lawful

(A) According to Article 44(1) of the Inheritance Tax and Gift Tax Act, the property transferred to the spouse shall be presumed to have been donated by the transferor at the time of transferring the property to the spouse, and this shall be deemed to be the value of the property donated to the spouse.

(B) Comprehensively taking account of the overall purport of pleadings in evidence Nos. 1, 2, and 11, 12, and 14 of the evidence Nos. 2-1, 2, and 2-2, and each of the above statements, ○○ Construction’s representative director, paid 1.6 billion won to the ○○○○○○ on the land owned by the ○○○○○○○, but the sale rate is low, the ○○○○ was decided to take over the ○○○ and the investors’ real estate assets. After being recommended to invest from the ○○○○○○○○○○○○ on March 28, 200 after acquiring 11,00 shares of the ○○○○○○○○○○○○○○’s 6-2,000 shares, and the Plaintiff’s 2,000 shares were subscribed to the ○○○○○○’s shares and 3,000 shares, and the Plaintiff’s 2,000 shares were subscribed to the 3000.0 shares.

(C) In light of the fact that the Plaintiff appears to have no particular income from May 2002, it is reasonable to deem that ○○○○ transferred the instant shares acquired while acquiring ○○○○, without compensation, to the Plaintiff, who is the spouse on March 28, 2003. Therefore, the Plaintiff received KRW 31,500,000, which is the value of the instant shares, from ○○○, and thus, the instant disposition 1 is lawful.

(3) Whether the rejection of the instant case was lawful

(A) The burden of proof regarding the facts requiring taxation may not be readily concluded as an illegal disposition that did not meet the requirement of taxation unless the other party proves that the pertinent facts at issue are not subject to the application of the empirical rule, although the person having the burden of proof regarding the facts requiring taxation exists, in light of the empirical rule in the specific litigation process (see, e.g., Supreme Court Decision 2002Du6392, Nov. 13, 2002).

(나) 살피건대, 당사자 사이에 다툼이 없거나, 갑 제5호증의 1 내지 12, 을 제2호증 의 1, 2, 을 제3 내지 9호증, 을 제10호증의 1, 2, 을 제11, 12, 13호증, 을 제15 내지 18호증, 을 제19호증의 1, 2, 3, 을 제20 내지 24호증의 각 기재와 증인 서○출의 일부증언에 변론 전체의 취지를 종합하면, 서○출은 자신이 경영하던 ○○주택이 부도나자 ○○주택의 ○○종합금융 주식회사에 대한 채무를 변제하기 위하여, 자신과 서○술, 서○희(서○출의 여동생이다)가 공동으로 소유하던 ○○ ○○구 ○○동 소재 부동산을 서○술, 서○희를 대리하여 2002. 4. 15. 이성구에게 대금 66억 5천만원에 매도한 후, 위 대금 중 약 50억원을 위 채무의 변제에 사용한 사실, 서○출은 위와 같이 변제한 돈을 확보하기 위하여 2002. 5. 9. ○○주택에게 자신 명의로 32억 8,450만원, 서○술 명의로 11억 4,300만원, 서○희 명의로 2억 4,250만원을 각 가수금 입금한 것으로 회계처리한 사실, 그 후 서○출은 ○○주택으로부터 자신 명의의 위 32억 8,450만원 대부분을 수시로 변제받아 그 돈을 다시 자신이나 배우자인 원고 명의로 ○○건설에게 가수금 입금하였고, 또한 서○술 명의의 위 11억 4,300만원을 전액 변제받아 그 돈을 다시 서○술 명의로 ○○건설에게 가수금 입금한 사실, 그 후 서○출은 ○○건설로부터 자신이나 원고 명의로 되어 있던 위 돈 대부분을 수시로 변제받았는데, 2002. 6. 27.부터 2003. 5. 22.까지 사이에 ○○에게 위 돈 중 250,821,400원을 당시 ○○의 대표이사이던 김○웅 명의로, 117,257,820원을 배우자인 원고 명의로 입금한 사실, 또한 서○출은 ○○건설로부터 서○술 명의의 위 돈 중 11억원을 변제받아 김○웅 명의로 ○○에게 전액 입금한 사실(2002. 7. 19.자 1억원 입금, 2002. 8. 13.자 1억원 입금, 2002 12. 26.자 9억 원 입금), 그런데 김○웅 명의의 위 각 가수금(250,821,400원 및 11 억원)은 모두 2003. 3. 28. 원고 명의로 변경되었고, 그 후 제1, 2 가수금 전액은 서○출의 지시에 의하여 2003. 6. 24. 원고에게 변제되어 인출된 사실, 그 후 원고는 2003. 7.경 제1가수금을 자신의 은행대출금 3억 5천만원의 변제에 사용하였고, 제2가수금을 배○순(원고의 여동생이다) 및 박○표(배○순의 남편이다) 명의로 각 5억원의 수익증권을 매입하는데 사용한 사실, 한편 원고는 부동산임대사업자로서 1997. 6.경부터 2002. 4.경까지 사이에 자신의 근로소득・ 부동산임대소득・ 은행대출금(이는 위와 같이 변제 한 대출금 3억 5천만원이다) 등으로 총 5건의 부동산 및 ○○에너지 주식회사의 주식 2만주를 취득하였는데, 위 기간 동안 원고 소득 대부분은 위와 같이 부동산 및 주식의 취득자금으로 사용된 사실을 인정할 수 있고, 이에 반하며 제1가수금은 원고의 돈이고, 그렇지 않다고 하더라도 각 가수금은 서○출이 원고 명의를 빌려 거래한 것일 뿐 실제 원고의 돈이 아니라는 원고의 주장에 부합하는 듯한 갑 제2, 3호증, 갑 제4호증의 1, 2, 3, 갑 제6호증, 갑 제7호증의 1, 2의 각 기재와 증인 서○출의 일부증언은 믿기 어려우며, 달리 반증이 없다.

(C) In light of the fact that the Plaintiff appears to have no particular income from May 2002, it is reasonable to deem that the Plaintiff received a donation of KRW 1 from the Seocho who is the spouse, and that the Plaintiff received a donation of KRW 2 from the ○○○ through the ○○○○○ who actually managed the property on behalf of the Malaysia who is the spouse (the same applies to the case where the ○○○ was deemed to have no capacity at that time). Accordingly, the Plaintiff received a donation of KRW 1 from the ○○○○ and the 2nd amount from the 2nd amount from the 2nd amount from the 2nd amount. Therefore, each of the dispositions of this case is legitimate.

3. Conclusion

If so, the plaintiff's claim for objection case is without merit, so it is decided to dismiss it and it is the same as the disposition.