Seoul Administrative Court 2015Guhap10827 ( October 31, 2016)

The instant money is donated not to a loan but to a third party.

Since there are no circumstances to regard the money of this case as a loan, it is received as a gift tax equivalent to the original gift in accordance with the empirical rule.

Article 31 of the Inheritance Tax and Gift Tax Act

2016Nu41790 Revocation of Disposition of Imposition of Gift Tax

IsaA

○ Head of tax office

Seoul Administrative Court Decision 2015Guhap10827 Decided March 31, 2016

October 27, 2016

November 17, 2016

1. The plaintiff (appointed party)'s appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff (Appointed Party).

The judgment of the first instance is revoked. The defendant's decision against the plaintiff (appointed party) on December 1, 2014 is revoked.

Each disposition imposing gift tax of KRW 00,000,000, KRW 000,000, and KRW 000,000,000, and KRW 000,000,000, and KRW 00,000,00,000, as against Appointestb, shall be revoked.

1. Details of the disposition;

The reasoning for this part is that the corresponding part of the reasoning of the judgment of the first instance is the same as that of Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, except where the "00,000,000" in the aggregate of the payment column on July 1, 2013 as "0,000,000" is the same as that of the corresponding part of the reasoning of the judgment of the first instance (from Chapter 7 to Chapter 17). Thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the

2. Whether the instant disposition is lawful

A. Summary of the plaintiff (appointed party)'s assertion

Plaintiff (Appointed Party) et al., not donated the key money of this case from Isc

In order to pay gift tax, the first Plaintiff (Appointed) et al. borrowed money from thisc, which had been in possession of surplus funds at the time of inevitable transfer of ownership of the real estate, on the ground that the Plaintiff (Appointed Party) et al. did not refuse to accept the gift tax and did not accept the Plaintiff (Appointed Party) on the ground that the Plaintiff (Appointed Party) was under a low credit rating, although the Plaintiff et al. were to take over the obligations of collateral security in the name of cc and to pay gift tax by performing additional loans on the real estate of this case after the transfer of ownership of the real estate of this case, but the real estate of this case continues to have been leased since November 201, and most of the assets of the Plaintiff (Appointed Party) et al. were comprised mainly of real estate. Accordingly, the disposition of this case on the premise that the Plaintiff (Appointed Party) et al. received the gift of this case was unlawful.

B. Determination

(1) In a lawsuit seeking revocation of a disposition imposing gift tax, inasmuch as the deposit in the name of a donor was withdrawn by the tax authority and deposited in a deposit account in the name of the taxpayer, such deposit is presumed to have been donated to the taxpayer. Therefore, barring special circumstances, such as withdrawal of such deposit and that deposit in the name of the taxpayer was made for other purpose than donation, it is necessary to prove such fact to the taxpayer (see Supreme Court Decision 99Du4082, Nov. 13, 2001).

As seen earlier, Isc as the donor at the time when the Plaintiff (Appointed) et al. paid gift tax.

If the amount equivalent to gift tax was withdrawn from the account of the Plaintiff (Appointed Party) and provided to the Plaintiff (Appointed Party) etc., in light of the close relationship between the Plaintiff (Appointed Party) and Ecc, it is presumed that Ecc has given a donation to the Plaintiff (Appointed Party) in accordance with the empirical rule.

In full view of the circumstances described below, the key issue of this case is c by the plaintiff (appointed party) etc.

It is difficult to see that the loan was borrowed from the lender, and it is reasonable to see that the donation was made. The instant disposition is legitimate.

㈎ 을 제5호증, 을 제7호증의 각 기재에 의하면 이 사건 부동산의 담보가치가 00억원에 육박하여 승계된 피담보채무 00억 원을 공제하더라도 위 증여세 상당액의 추가 대출을 위한 담보가치는 충분히 남아 있었음에도 그와 같은 대출이 이루어지지 않았음이 인정된다.

The plaintiff (Appointed party) shall be 0,000,000,000 won as security value for the real estate of this case. c

It is alleged that the additional loan of this case would not be possible because it remains 00,000,000 won when excluding KRW 0,000,000,000,000,000. However, even according to the evidence No. 22 offered by the Plaintiff (Appointed Party) based on the above ground, the security recognition based on the real estate price of KRW 0,000,000,000 is KRW 0,000,000,000, and the senior security interest of KRW 3,387,519,340,00,00,000 is considered as the senior security interest of KRW 0,00,00,000, and the senior security interest of KRW 3,387,519,519,340,000 is considered as 6,432,50,000,000, and thus, the above assertion cannot be accepted.

㈏ 을 제6호증의 기재에 의하면 원고(선정당사자) 등과 이cc 사이에 위 인출금 상

The loan certificate with respect to the equivalent amount (the date of preparation, April 30, 2013, April 30, 2014, June 30, 2014, June 30, 2014, and June 30, 2014, interest rate of 5%, and April 30, 2014) was prepared. According to the records, etc. in subparagraphs 4 and 11, Plaintiff (Appointed Party) paid KRW 820,040,91 on several occasions from August 29, 2014 to February 29, 2016, the Plaintiff, etc. additionally paid KRW 265,302,058 from March 1, 2016 to August 23, 2016, which was pending in the appellate court of this case.

However, it is difficult to believe that the above loan certificate is true because there is no accuracy in the statement in the year of borrowing the above loan certificate, and the interest and principal are equal to the date of the principal payment, and there is no proper repayment as stated therein, and there is no trace of action taken by c to secure the repayment. Furthermore, the amount repaid by the Plaintiff (Appointed Party) etc. to c has been repaid to c from August 2014 when the investigation was conducted for the imposition of the gift tax of this case to August 23, 2016 during the appellate trial of this case, and its authenticity is doubtful.

㈐ 을 제15호증의 기재에 의하면 원고(선정당사자) 등은 이 사건 부동산을 증여받은 후 5차례에 걸쳐 근저당권과 전세권을 설정(2013. 7. 1. 채권최고액 720,000,000원, 2013. 9. 27. 채권최고액 120,000,000원, 2014. 4. 8. 채권최고액 156,000,000원, 2014. 5. 26. 채권채고액 84,000,000원, 2014. 9. 5. 전세금 400,000,000원)함으로써 상당한 자금을 확보한 사실이 인정됨에도 위 차용증상의 차용원리금의 변제에 사용되었음을 확인할 자료가 없다.

㈑ 원고(선정당사자) 등은 담보가치가 000억 원에 이르는 이 사건 부동산을 증여받

The Plaintiff (Appointed Party) asserted that the instant money is a loan in light of the fact that only 000,000,000 won, which is merely 10% of the value of the gift of the instant real estate, was returned to himself and there is no reasonable ground to avoid gift tax, and that only 00,000,000,000 won, which is merely 10% of the value of the gift of the instant real estate, was not transferred from c through financial transactions on a day-to-day basis. Furthermore, in the case of dd's donation where the instant real estate was donated together, this case’s money against the Plaintiff (Appointed Party) is a loan in light of the fact that this c has been reported by putting together the taxable value of the gift as well as the intention of the gift. However, the said argument by the Plaintiff (Appointed Party)

3. Conclusion

Since the judgment of the first instance is justifiable, the appeal by the plaintiff (appointed party) is dismissed as it is groundless.