Whether the donation should be presumed where a person without a certain occupation or property fails to clearly present the source of funds to acquire the property when acquiring the property (affirmative)

[1] Article 45 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998), Article 34 of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15509 of Nov. 10, 1997)

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 94Nu14308 Delivered on August 11, 1995 (Gong1995Ha, 3136), Supreme Court Decision 97Nu707 delivered on June 12, 1998 (Gong198Ha, 1913)

Freeboard

The director of Gwangju Tax Office

Gwangju High Court Decision 2003Nu901 delivered on July 22, 2004

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Gwangju High Court.

1. According to the reasoning of the judgment below, with respect to the disposition of this case on which the Plaintiff imposed gift tax on the presumption that the Plaintiff was donated 370,020,000 won of the acquisition fund of this case from his father who was his father, based on the evidence of employment, the court below acknowledged that the Plaintiff received a successful bid of the real estate of this case as a collateral and deposited the amount equivalent to the above acquisition fund into the account of the number of winners. In light of the above facts, it is reasonable to view that the Plaintiff borrowed the real estate not as a donation from the number of winners, but as it was illegal

2. However, it is difficult to accept the above determination by the court below for the following reasons.

It is reasonable to presume that a person who does not have a certain occupation or property has failed to prove that he was able to obtain a return on the source of funds to acquire the pertinent property, and in case where his lineal ascendant, etc. has a financial ability to obtain a donation, it shall be presumed that he was given a donation from the person who has a financial capacity (see, e.g., Supreme Court Decisions 94Nu14308, Aug. 11, 1995; 96Nu1900, May 10, 1996).

However, according to the facts acknowledged by the court below, the plaintiff did not have any income as a university student of 23 years old at the time of acquiring the real estate in this case. On the other hand, his father was holding several lots of real estate while running a parking lot business, real estate leasing business, etc., and thus, the plaintiff is presumed to have been donated the above acquisition fund from the above acquisition fund, barring any special circumstance. Meanwhile, in light of the relation between the plaintiff and the plaintiff, income, property status, and the fact that it is difficult to deem that the plaintiff paid the above acquisition fund to a double income account with the amount of the above acquisition fund because the income level is too small even at the time of paying the above loan, the fact that the plaintiff deposited the above acquisition fund into a double income with the above loan cannot be deemed to have borrowed the above acquisition fund from the above acquisition fund, and there is no evidence to support that the above acquisition fund was borrowed from the above acquisition fund even after examining the record.

Nevertheless, the judgment of the court below, which held that the plaintiff borrowed the above acquisition fund from the loan, is erroneous in the misapprehension of legal principles as to the presumption of donation of the fund for the acquisition of property or by misunderstanding the facts against the rules of evidence, which affected the conclusion of the judgment, and the defendant's ground of appeal

3. Therefore, the part of the judgment below against the defendant is reversed, and that part of 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 on the bench.

Justices Shin Hyun-chul (Presiding Justice)