Seoul Administrative Court 2014Guhap5941 ( October 02, 2014)

Since it is recognized that the account is opened and used by lending the name of the child, the key amount deposited in the account cannot be deemed to have been donated by the child.

Inasmuch as the mother is recognized to open an account by lending the name of son and to have used it in substance, the mother cannot be deemed to have donated the issue amount to son solely on the ground that the issue amount was deposited in the instant account.

Article 2 (Gift Tax Taxables) of Inheritance Tax and Gift Tax Act

2014Nu6729 Revocation of Disposition of Imposing gift tax

SAA

O Head of tax office

May 14, 2015

June 4, 2015

1. Revocation of a judgment of the first instance;

2. The imposition of gift tax on the Plaintiff on September 2, 2013 by the Defendant is revoked. The imposition of gift tax on the Plaintiff shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Partial citement of judgment of the first instance;

The reasoning of the judgment of this court is as follows, with the exception of the following, the corresponding part of the reasoning of the judgment of the court of first instance (from 1.1 to 2, and from 2.2). Thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, as it is stated in Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

Parts used for cutting.

○ The second page 9 "O-O-O-O-O-OOO-O-O-OO-O-O-O-O-O-O-O-O- of this case" (hereinafter referred to as "the second account in this case") deleted "the second page of this case", and "the first account in this case" is "OO-O-O-O-O-OOO-OO- of this case", and "the second account in this case" as "the second account in this case", and "the 6 May 2013" of the 19th page as "the 3 May 2013".

The "OOOO members of the third side" added "(hereinafter referred to as "the issues of this case") to "OO members", "after the decision was made," "after the decision was made, the gift tax was imposed on the plaintiff on September 2, 2013 (hereinafter referred to as "the disposition of this case")", and "the used place" in the second part of the third side is "the used place".

2. Determination

A. In a lawsuit seeking the revocation of a gift tax imposition, insofar as the deposit in the name of a person recognized as a donor by the tax authority is revealed 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. Thus, barring special circumstances, such as withdrawal of such deposit, deposit in the taxpayer’s name, etc. was made for purposes other than donation, the need to prove it is the taxpayer (see Supreme Court Decision 99Du4082, Nov. 13, 2001).

B. The key issue amount of this case was deposited into the first account in the Plaintiff’s name. However, in light of the following circumstances, the first account in the Plaintiff’s name is either the Plaintiff’s account or the originalB account in fact managed and used by the originalB, and the key issue amount of this case was deposited into the first account in the Plaintiff’s name, and it cannot be deemed that the originalB donated the amount of this case to the Plaintiff solely on the basis of the fact that the key issue amount was deposited into the first account in the Plaintiff’s name.

1) The Plaintiff entered the OO.O.O.O.O.O.O.O.O.O., 197 and was on leave of absence on O.O.O.O., 199, but was on leave of absence on O.O.O.O.O., and was on leave of absence on O.O.O.O., and was on leave of absence on O.O.O., 2003 and graduated from O.O.O.O.O., 2005 (Evidence No. 15). When the issue amount of the instant case was deposited into the first account under the name of the Plaintiff, the Plaintiff was on leave of absence at O.O.O., 25 years of age.

2) The title holder of the first and second accounts in this case was both the Plaintiff and the Plaintiff, and the title holder of the two accounts (OO, the name prior to the opening of the name) were both the original BB (OO) (Evidence No. 9 and 27 in this case), and the preparation of the monetary check (Evidence No. 27 in this case) prepared to collect money from the first account was also the original BB (which is different from the body of the evidence No. 17 in the Plaintiff’s document No. 17). In this regard, the Plaintiff asserted that the first and second accounts were opened and used the account under the Plaintiff’s name after being subject to the disposition of suspension of current account transaction from the financial institution in 1998 at the time of the so-called foreign exchange crisis, and that the Plaintiff’s submission of the check account No. 1 in this case’s account No. 6B in this case’s name could not be deemed to have been justifiable for the Defendant’s submission of the above notice No. 1 in the first and second account.

3) During the period betweenO.O.O.O. andO.O.O., 202, fromO. toO.O., 203, O.O., O-O.O., O-O.O., O.O., O.O., O.O.O., and sale to KimD, Yang E, and Kim F. (Evidence 18), O.O., the sum of sales proceeds received from O.O., and the sum of sales proceeds received from O.O. (i.e., KimDD O. £« + YangO-O-O-O-O, O., O., O., O., and O., the Plaintiff deposited O.O. under the Plaintiff’s name (=O.-O., 3700).

WonB withdrawn OOO on 203 O.O.O. 3 accounts of this case and paid OO's KRW 22,00,00 in the bid price for the real estate of this case awarded in the name of KimG (Evidence A, 20) (Evidence A, 20), and transferred O-O-O-O-O-O-O-O-O-O-O-O-2's name (O-O-O-O-2's name (O-O-O-O-2's name) under the name of this Section and South JJ, and the remainder was opened on 202 O-O-O-O-2's name (O-O-O-2's name)'s name (O-O-O-O-O-2's name) under the name of 3 O-O-O-O-O-2's name (O-O-21).

On the other hand, between O.O.O. and O.O.O., 2005, the sum of OOO.O. transferred from Nos. 1 and 2 accounts of this case toCC Construction 20 times.

In light of the circumstances such as the fact that CC Construction used the money deposited into the third account as the purchase price of real estate or the construction cost it performs, and thereafter, the transfer of money from the first and second account of this case to CC Construction from the first and second account of this case to CC Construction, the financial transaction with CC Construction with the first and second account of this case is presumed to have been performed by NAB to have been borrowed from CC Construction.

4) The Defendant deducted OB from the value of the Plaintiff’s donated property on the ground that OB was used by OB out of the KRW 1 account deposited in the instant account. Of these amounts, the amount deducted includes either OB from the value of the Plaintiff’s donated property. Of the amount of OB, the amount used for family life expenses by OB’s subsidiaries using O cards in the name of the Plaintiff, used money transferred by OB to POB-friendly employees, the amount remitted to OB-friendly employees, and the amount paid to POP in relation to the registration of O-dong buildings and O-dong buildings constructed by OB-related companies. However, the Defendant did not deduct the sum paid to OO, 204, OO, O, 204, and 200O or 200,0000,0000 won paid to OO or 20,0000,000 won paid to O20,000

이 사건 제1계좌의 거래내역에서 피고가 위와 같이 공제한 금액을 제외한 나머지 거래내역 중에는 원BB이 2003. OO. OO. OOO동 건물 도시가스 공사업체 QQ 주식회사의 대표이사 유RR에게 지급한 OOOO원(갑 제8, 32호증)이 포함되어 있고, 2002. OO. OO. OO동 건물 신축공사의 도급인 이II로부터 입금받은 OOOO원, 2002. OO. OO. OO동 건물 분양대행업자인 이SS(갑 제12호증)으로부터 입금받은 OOOO원 등이 포함되어 있다. 또한 이 사건 제1계좌에서 2004. OO. OO. OOOO원 등 수차례에 걸쳐 법무사 김TT에게 돈이 송금되었는데, 이와 관련하여 법무사 김TT은, '2003년경부터 건축업을 하던 원BB에게서 소유권보존등기 등을 의뢰받아 업무를 수행하였고, 당시 원BB은 그 아들인 서AA(원고) 명의의 통장에서 본인(김TT)의 통장으로 여러 차례 입금한 사실이 있으며, 본인은 서AA을 직접 만나거나 서AA과 거래한 사실이 없다'는 확인서(갑 제16호증)를 작성하였다. 그 밖에 원BB은 2004. OO. OO. 이II를 상대로 공사대금 청구소송을 제기하였고 위 소송에서 UU법무법인이 원BB을 대리하였는데(갑 제24호증), 이 사건 제1계좌에서 UU법무법인에 2004. OO. OO. OOOO원 등 수차례에 걸쳐 돈이 송금되었다.

On the other hand, between O.O.O. and O.O.O., 2003, KOB paid V, YangE, and Dok-based waste disposal costs related to the O-dong building from O-K's account (Evidence A23) under the above Kim KK's name.

5) As to the OO-O apartment O-O apartment O-O apartment O-O apartment O-O apartment O-O apartment O-O apartment hereinafter referred to as "O-O apartment O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O

OO-O apartment O-O apartment O-O apartment O-O apartment O-O2 (hereinafter referred to as "O apartment O-O-O apartment "), the ownership transfer registration was completed on the ground of the sale due to the voluntary auction on the same date under the name of the plaintiff, and the ownership transfer registration was completed on the date of O.O.O. O. 2006 under the name of O.O. O. O. 2006 O. O. 2006. The debtor, creditor, YY, and OO-200 won was completed on the above apartment , and the establishment registration was revoked on October 2005, the 1000 O-O-20 O-O's loan 200 O-O. 40 O. 20 O. 16 O. 20 O. 20 O. 206 O. 20 O. 206 O. 200 O. 20

On the other hand, the plaintiff and this Won-C were registered as a shareholder ofCC Construction from 2003 to 2005, and the plaintiff was registered as a representative ofCC Construction from OO.O. to O.O.O.O. in 2007 (from O.O.O.O. in 2010, the plaintiff's spouse ID was registered as a representative ofCC Construction, and the plaintiff was registered as an auditor). The receipt for tax withholding for wage and salary income (Evidence B) of the plaintiff for the plaintiff is stated as that the plaintiff received OOO in 2003, 2004, OOOOOOOO in 2005, and OOOOO in 206, respectively.

However, at the time of the registration of transfer of the Plaintiff’s ownership in the name of the Incheon apartment, the Plaintiff was under 22 years of age and was under temporary closure for military service. At the time of the registration of transfer of ownership in the name of the Plaintiff regarding the O apartment, the Plaintiff was under 24 years of age and was under temporary closure, the Plaintiff was under the age of 25 years and was under the Plaintiff’s shareholder and representative director, and there was no wage paid by the Plaintiff from the CC Construction, and there was no objective financial data that the Plaintiff actually received the payment from the CC Construction from the 1 through 3 account under the name of the Plaintiff, and there is no room for recognizing that the Plaintiff was under the name of the 1st to 1st to 3rd account, and there is no room for recognizing that the Plaintiff was under the name of the 1st to receive the payment from the CC Construction. In light of the fact that the Plaintiff was under the name of the 1st to 3rd account of the Plaintiff’s own apartment apartment construction expenses and basic living expenses from the 25th account.

6) Rather, as seen earlier, in light of the overall circumstances such as: (a) the Plaintiff’s mother is unable to open an account under the Plaintiff’s name; (b) the Plaintiff’s mother opened the account Nos. 1 through 3 under the Plaintiff’s name; and (c) the Plaintiff engaged in financial transactions necessary for the Plaintiff’s real estate trading or construction business; or (d) the Plaintiff and his/her father paid the Plaintiff’s living expenses with the Plaintiff and his/her father, his/her father; and (b) it is reasonable to deem the account Nos. 1 through 3 as the Plaintiff’s account practically managed and used by the originalB. Therefore, solely on the ground that the key amount of the instant case was deposited into the first account, it cannot be deemed that the original

C. Sub-decision

Therefore, the instant disposition based on the premise that the originalB donated the instant amount to the Plaintiff should be revoked as it is unlawful.

3. Conclusion

If so, the plaintiff's claim should be accepted with due reasons, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and the disposition of this case