The burden of proof and the standard for determining whether to recognize the fact of donation where the funds acquired by the property whose sources are unknown are estimated and assessed as the donation.

As a matter of principle, the fact of donation of property, which is a requirement for the imposition of gift tax, is proven by the tax authority. Thus, even if the tax authority establishes a certain occupation as at the time of acquisition of the property and there is a person who actually had a considerable amount of income, the portion of the fund required for acquiring the property cannot be presumed to have been donated to another person, barring special circumstances, unless there are special circumstances, to the effect that the portion of the fund required for acquiring the property is not clearly presented to another person. If a person who has no occupation or income has a financial ability to obtain a donation, and the lineal ascendant, etc. has a financial ability to obtain a donation, it is reasonable to

Article 34-6 of the former Inheritance Tax Act (amended by Act No. 5193, Dec. 30, 1996; see Article 45 of the current Inheritance Tax and Gift Tax Act); Article 41-5 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14082, Dec. 31, 1993; see Article 34 of the current Enforcement Decree of the Inheritance Tax and Gift Tax Act)

Supreme Court Decision 90Nu6071 delivered on October 26, 1990 (Gong1990, 2465) Supreme Court Decision 94Nu9603 Delivered on November 8, 1994 (Gong1994Ha, 3294) Supreme Court Decision 96Nu1252 Delivered on April 12, 1996 (Gong196Sang, 162) (Gong162) Decided July 30, 1996

Lee Jong-sung (Attorney Jeon-soo et al., Counsel for the defendant-appellant)

The director of the tax office

Seoul High Court Decision 94Gu3837 delivered on April 26, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court determined that: (a) the Plaintiff’s co-ownership shares of 1/2 of the above 48 square meters of 45 square meters of 35 square meters of the above 40-dong 48-dong 191; and (b) the Plaintiff’s co-ownership shares of 245,00,00 of the above 19-dong 45 square meters of the above 19-dong 20-dong 15-dong 20-dong 14000-dong 9-dong 16-dong 20-dong 9-dong 197; and (c) the Plaintiff’s co-ownership shares of 2456-7 square meters of the above 9-dong 19-dong 20-dong 19-dong 20-dong 19-dong 16-dong 196-dong 20-dong 196-dong 200-dong 197

2. However, since the tax authorities establish the facts of donation of the property, as a matter of principle, it cannot be presumed that the part of the funds required for the acquisition of the property is donated to the other person, barring special circumstances, even if the above 10-party 2 had a considerable impact on the acquisition of the property at the time of the acquisition of the property, and that it is reasonable to presume that the funds were donated to the other person for the above 10-party 10-party 3-party 9-party 1-6-party 9-party 9-party 1-party 9-party 9-party 9-party 1-party 9-party 9-party 1-party 9-party 1-party 9-party 9-party 1-party 9-party 1-party 1-party 9-party 9-party 1-party 1-party 1-party 1-party 1-party 3-party 9-party 1-party 1-party 1-party 9-party 94-party 1-party 9-

The court below erred in the misapprehension of legal principles as to the presumption of gift under Article 34-6 of the former Inheritance Tax Act and Article 41-5 of the Enforcement Decree of the same Act, and there is room for further review and determination as to whether all of the co-ownership shares of this case has been donated, on the ground that the plaintiff had considerable financial power other than a certain occupation and income at the time of the acquisition of the property, and on the premise that the sum of the amounts provided for in each subparagraph of Article 41-5 of the above Enforcement Decree was not proven to reach the acquisition value of each co-ownership share of this case, under the premise that the plaintiff had a burden of proof as to the source of financing the acquired property immediately, and even according to the record, it is clear that the above illegality of the court below affected the conclusion.

There is a reason to point this out.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Final Young-young (Presiding Justice)