Seoul Administrative Court 2008Guhap17097 (2008.02)

Examination Donation 2007-0025 (O25, 2008)

Whether it can be viewed as a presumption of gift without proving the amount deposited into the account

It is reasonable to view that the acquired property has withdrawn the money deposited in the account of the principal and returned it again, and it does not seem that it was donated since it is recognized that there was an occupation and re-payment of considerable income at the time of acquisition of that money.

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

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

1. Claim: the Defendant’s disposition of imposing KRW 116,047,213, which was made against the Plaintiff on January 15, 2007 is revoked.

2. Purport of appeal: Revocation of the judgment of the first instance. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

This Court's reasoning is the same as the entry of the first instance court's decision except for the revision of part of the first instance court's decision as follows. Thus, this Court's ruling is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

【Revisioned Part】

① Change of 3rd parallel 7th parallel 2008 to February 3, 1998

② Change of 523,335,508 Won 526,335,508 Won 526,335,508

2. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

[Seoul Administrative Court 2008Guhap17097 (2008.02)]

1. The Defendant’s disposition of imposing gift tax amounting to KRW 116,047,213 against the Plaintiff on January 15, 2007 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be recognized by comprehensively taking into account the descriptions of Gap evidence 1 (the same as Eul evidence 2-2), Gap evidence 2, Eul evidence 1, Eul evidence 2-1, and Eul evidence 2-1, and the whole purport of pleadings:

A. Upon the Plaintiff’s death on February 9, 2003, the Defendant conducted an on-site investigation of the Plaintiff’s inheritance tax. From February 3, 1998 to August 21, 2001, the Defendant presumed that the sum of KRW 1,356,35,508 deposited into the Plaintiff’s account under the Plaintiff’s name was donated from 116,047,213, gift tax on January 15, 2007; KRW 6,50,000, gift tax on April 27, 1999; KRW 196,67,67,677, and KRW 1,35,508; and KRW 36,985,97, gift tax on June 4, 199; KRW 196,398, gift tax on 197; KRW 196,985,989, gift tax on 196,84,97.

No.

Bank Name

Deposit Account

Date of Transaction

Classification

A depositor;

도요

Amount of entrance fees (won)

(1)

○

(A)

98.02.03

Deposit

New

100,000,000

(2)

○

B.

98.02.03

Deposit

New

139,734,770

(3)

○

C.

98.02.03

Deposit

New

286,60,738

(4)

friendly ○

D.

9.04.27

Deposit

○ Heading

Tropty

50,000,000

(5)

friendly ○

D.

9.06.04

Deposit

○ Heading

Tropty

100,000,000

(6)

friendly ○

D.

9.07.13

Deposit

○ Heading

Tropty

230,000,000

(7)

Hao

E

01.08.21

Deposit

○ Heading

Tropty

450,000,000

Total

1,356,335,508

B. On April 11, 2007, the Plaintiff appealed and filed a request for review with the Commissioner of the National Tax Service. On February 25, 2008, the Commissioner of the National Tax Service revoked the remaining gift tax except for KRW 116,047,213 of the gift tax as of January 15, 2007. Accordingly, on April 27, 1999, the Defendant revoked the request for review of the gift tax as of April 27, 199, KRW 6,50,00, and KRW 19,16,677, KRW 58,589, KRW 474, and KRW 168,00 on July 13, 199, KRW 308, KRW 168,00 of the gift tax as of August 21, 201, KRW 193,09, KRW 1693,975, etc. of the gift tax as of June 16, 1997.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the Plaintiff’s income and property status, in principle, the provision on the presumption of donation cannot be applied to the Plaintiff. The fact that the acquisition property of this case was donated to the Plaintiff from Park Il-hwan, despite the Defendant’s burden of proof, is not proven at all by the Defendant. Rather, the Plaintiff, during the period from February 3, 1995 to October 7, 1996, deposited 56,211,333 won after deducting 39,875,825 won, including interest income tax and resident tax, etc., from 523,35,508 won, and deposited 523,35,508 won in lump sum, and the price for the acquisition of the property of this case was proved to be unlawful.

(b) Related statutes;

Article 2 (Gift Tax Taxables)

Article 45 (Presumption of Donation of Funds, etc. for Acquiring Property)

Article 34 (Cases Where it is difficult to Recogniz that Property was Acquired with Self-Support)

(c) Fact of recognition;

The following facts may be acknowledged by comprehensively taking account of the evidence mentioned above, Gap evidence 3 through 6, Gap evidence 7-1 through 7, and the whole purport of oral arguments:

1) The plaintiff was born on November 29, 1962, and from February 22, 1988 to January 4, 1993, the plaintiff operated 26 stores in total from February 22, 198 to April 12, 1999, including the operation of ○○○-dong 00-6 in Seoul, 00-6, and operated 10 '○○-dong 40-1 ○○○○-dong 25 in Seoul as of February 3, 1998.

2) The details of global income tax return filed by the Plaintiff at the tax office and the details of the Plaintiff’s real estate possession and transfer are as follows.

(unit won)

Year

Total

Interest income

Real estate rental income

Business Income:

Income tax paid

1992

10,985,668

6,432,500

4,553,168

1,087,306

1993

18,380,018

8,349,168

10,030,850

2,446,005

1994

86,901,971

10,848,264

76,053,707

27,386,886

195

135,632,655

11,480,280

124,152,375

3,916,491

196

238,330,090

12,550,751

8,260,000

17,519,339

70,892,036

1997

238,269,456

135,251,413

8,380,712

94,637,331

69,667,782

1998

105,900,067

105,900,067

27,920,026

199

4,931,318

4,931,318

33,131

200

201

Total

839,331,243

247,802,164

53,750,924

537,778,155

233,649,663

No.

Location

Classification

Land (Size)

A building (land size)

Date of acquisition

Transfer Date

(1)

Seoul ○○-dong 000-07

Commercial buildings

96.00

162.35

.08.31

held :

(2)

Busan ○○○-dong 0-08

Commercial buildings

19.04

3.25

993.15

held :

(3)

Seoul ○○-gu ○○○-dong 000-2

○○a apartment 00-002

Apartment house

92.96

166.98

October 27, 1995

201.05.19

(4)

Seoul ○○○-dong 00-12, 3

Commercial buildings

337.2

337.2

205.04.18

held :

3) The Plaintiff deposited KRW 49,582,984 in seven bank accounts under the Plaintiff’s name during the period from September 11, 1995 to February 24, 1997. On February 3, 1998, the Plaintiff deposited KRW 526,35,508, which deducts KRW 39,825, such as interest income and resident tax, from KRW 566,21,333 of the principal and interest income deposited in the said seven accounts. On the same day, the Plaintiff deposited KRW 526,335,508, which is the same amount as the Plaintiff’s three Cho○ Bank accounts (Ga, b) under the Plaintiff’s name.

Bank

Deposit Account No.

Details of the first deposit;

February 3, 1998. Details of the final withdrawals

Date of Transaction

Amount of reserve

Principal and Interest

Amount of deduction

Amount of withdrawal

New○

(1)

95.09.11

192,000,000

241,667,490

1,932,720

239,734,770

New○

(2)

24, 1997

8,737,680

8,822,583

14,790

8,807,793

New○

(3)

November 07, 1996

6,562,500

6,694,037

22,500

6,671,537

New○

(4)

. 24, 1997

87,376,850

91,865,386

9,500,000

82,365,386

New○

(5)

November 01, 1996

136,933,449

145,543,374

20,745,675

124,797,699

New○

(6)

October 07, 1996

50,000,000

53,315,068

7,603,350

45,711,718

New○

(7)

November 30, 1996

17,972,505

18,303,395

56,790

18,246,605

쇠지지지지지지 3000 only

499,582,984

566,211,33

39,875,825

526,335,508

D. Determination

1) Article 45(1) of the Inheritance Tax and Gift Tax Act provides that where it is difficult to recognize that a person acquired the property by his own means in view of his occupation, age, income, property status, etc., as prescribed by Presidential Decree, the acquisition fund of the property shall be presumed to have been donated to the person who acquired the property at the time of the acquisition of the property, and Article 34(1) of the Enforcement Decree of the same Act provides that "cases as prescribed by Presidential Decree" shall be deemed to be the value of the property acquired by the person who acquired the property at the time of the acquisition of the property." Article 45(1) of the same Act provides that "the amount proved by the income amount reported or received by taxation (including cases where taxes are non-taxable or exempted)," "2."

2) As seen in the above C-C-3, the Plaintiff deposited 49,582,984 won into the 7 new bank account under the Plaintiff’s name for the period from September 11, 1995 to February 24, 1997, but on February 3, 1998, the Plaintiff deposited 526,335,508 won after deducting 39,875,825 won, such as interest income tax, resident tax, etc., from 566,21,333 won, and 526,335,508 won in lump sum. In light of the fact that the same amount was deposited into the 3 ○○ bank account under the Plaintiff’s name, it is reasonable to view that the acquisition property of this case was returned to the 7 ○ bank account under the Plaintiff’s name, and therefore, it cannot be viewed that the Plaintiff received the pertinent property directly from the Plaintiff in return for acquiring the pertinent property from the ○○ bank account.

Furthermore, during the period from September 11, 1995 to February 24, 1997, the Plaintiff reported the total amount of KRW 83,331,243 won to 7 new bank accounts under the Plaintiff’s name, and the Plaintiff operated 49,582,984 won from 198 to 26 clothing retail stores. It appears that the Plaintiff secured surplus funds, such as deposit money, premium, etc. in the process of disposing of some stores. From 1992 to 1999, the Plaintiff reported the total amount of KRW 83,331,243 won to 83,331,243 won to 199, and the Plaintiff actually received a considerable amount of KRW 476,59,596,970 from 194 to 1997, and the amount of KRW 197,596,975,986,970 from 198,99.

Therefore, the disposition of this case, which applied the presumption of donation of funds for acquisition of property under Article 45 (1) of the Inheritance Tax and Gift Tax Act, is unlawful. The plaintiff's assertion pointing this out is with merit

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.