Suwon District Court-2016-Gu Partnership-67180 ( March 25, 2017)

Whether donation can be recognized solely on the fact that the premium of the insurance contract to be entered into under the name of the husband was paid with the husband’s funds

It is difficult to view that the Plaintiff’s husband’s key money belongs to the Plaintiff as a donation, and it is difficult to deem that the Plaintiff’s husband’s key money was donated to the Plaintiff solely on the ground that the insurance premium of the insurance contract concluded in the name of the

2017Nu64912 Revocation of Disposition of Imposition of Gift Tax

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○ Head of tax office

Suwon District Court Decision 2016Guhap67180 Decided July 25, 2017

December 5, 2017

December 19, 2017

1. Revocation of a judgment of the first instance;

2. On December 4, 2015, the Defendant’s disposition of imposition of KRW 243,00,000 against 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. Details of the disposition, the plaintiff's assertion, and relevant statutes;

The reasoning for this part of the judgment by the court is the same as that for the corresponding part of the judgment of the court of first instance, and thus, it is accepted by Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Determination

(a) Facts of recognition;

1) On October 25, 201, the Plaintiff subscribed to the insurance on the following issues, and paid the amount of KRW 1 billion as insurance payment after having subscribed to the said insurance policy.

2) After subscribing to the insurance policy, the Plaintiff received approximately KRW 5 million monthly insurance proceeds ( KRW 10 million as of November 25, 201) between October 25, 201 and September 12, 2013, and terminated the insurance policy on September 12, 2013. On September 12, 2013, the Plaintiff was refunded KRW 892,436,994 (hereinafter referred to as “repaid insurance proceeds”) out of KRW 1 billion as the Plaintiff’s bank account in the name of the Plaintiff.

3) On September 12, 2013, the Plaintiff subscribed to the AA Bank’s ○○ SP derivatives under its own name and deposited KRW 500 million out of the refunded insurance proceeds. Meanwhile, on September 16, 2013, the Plaintiff and the AA Bank purchased an insurance policy of KRW 200 million in total of the remainder of the refunded insurance proceeds and the remainder of the said deposit account, respectively, on the BB bio-resources on September 16, 2013, and was refunded the said insurance proceeds upon termination on September 30, 2013, and subsequently purchased an insurance policy of KRW 200 million in each of the aforementioned refunded insurance proceeds on October 1, 2013.

4) The Plaintiff received interest from the said AA bank derivatives from October 14, 2013, and terminated on August 3, 2016, and received KRW 518,707,185 from the termination refund to the AA bank account under the name of the Plaintiff (Evidence A12), and transferred KRW 14,607,718 out of the termination refund on the same day to the AA bank account under the name of ○○○○ (Evidence A3), 146,00,000,00 to the account under the name of Kim○, a fraud.

5) Meanwhile, on February 15, 2011, the Plaintiff concluded a contract to establish a right to lease on a deposit basis with 923,50,000 won for lease on a deposit basis with respect to ○○○○○○○○○○○○dong-dong, 114, 302 (hereinafter “instant apartment”). On August 19, 201, the Plaintiff completed the registration of establishment of a right to lease on a deposit basis under his/her own name. On August 28, 2015, ○○○○○ completed the registration of ownership transfer on the said apartment under his/her own name on August 24, 2015.

Facts without any dispute arising in recognition, Gap's 3, 5, 7, 8, 11 through 14, Eul's 3 and 4 (including virtual numbers), and the purport of the whole pleadings.

B. Determination

1) Determination on the first argument

A) Since the real estate acquired by one of the married couple in the marriage is presumed to be the unique property of the nominal owner of the real estate, the presumption is not reversed solely on the ground that the other spouse actually bears the burden of paying the price for the pertinent property in order to recognize that the real estate has been trusted in title for convenience as the actual owner of the real estate, and that there was a cooperation with him in the acquisition of the real estate, or there was an assistance in the marriage life (see, e.g., Supreme Court Decision 98Du15177, Dec. 22, 1998).

B) On September 29, 2006, ○○○, the Plaintiff’s spouse, acquired the instant real estate in his/her name during the marriage period with the Plaintiff, and subsequently sold the instant real estate in KRW 11,387,705,00 and received the purchase price of the instant real estate fromCC around September 29, 2006. On October 25, 2011, ○○ paid the insurance amount of the instant real estate as the key money, which was part of the purchase price, to which the Plaintiff was a contracting party, with no dispute between the parties. According to the above facts of recognition, it is reasonable to deem that the instant real estate was acquired in the name of ○○○’s sole name during the marriage period with the Plaintiff, and that it is presumed that the instant real estate was a special property of ○○○○ in the judgment of the first instance, and there is no evidence to support the Plaintiff’s assertion that each of the instant real estate was in title trust with the Plaintiff’s share in convenience.

2) Judgment on the second argument

A) In a case where it is proved that the facts alleged in the facts alleged in light of the empirical rule in the specific litigation process in a lawsuit seeking revocation of a tax imposition disposition are inappropriate to apply the empirical rule, or that there are special circumstances to exclude the application of such empirical rule in the pertinent case. However, in a case where such empirical rule is not recognized, the tax authority must, in principle, prove the facts subject to taxation. In a case where a spouse’s deposit is withdrawn between the couple and the other spouse and deposits into the deposit account in the other spouse’s name, there may be various causes such as convenient community life, trust management of one spouse’s fund, and payment of living expenses to the other spouse. Thus, solely on the basis that such withdrawal and deposit was revealed, the relevant deposit cannot be presumed to have been donated to the other spouse in light of the empirical rule (see Supreme Court Decision 2015Du41937, Sept. 10, 2015).

B) As seen earlier, the insurance premium of the instant insurance contract was paid with the funds of ○○○○, and the monthly insurance premium of the key insurance and the refund insurance premium due to the termination thereof was paid to the Plaintiff’s account in the name of the Plaintiff. However, in full view of the following circumstances that can be seen in light of the overall purport of the statement of No. 4 and the pleading in the above recognition facts, it is difficult for ○○ to deem that the instant insurance premium under the name of the Plaintiff was paid with the funds of ○○○○, and it is difficult to view that ○○○ was a donation to the Plaintiff solely on the ground that the insurance premium of the instant insurance contract concluded in the name of the Plaintiff was paid

① The Plaintiff (1934years) and ○○○○ (1943) married in 1969, and the Plaintiff had been living as a family head during the marriage period and did not seem to have any other occupation.

② From March 2006 to February 2010, ○○ wired the amount of KRW 2 million to the AA bank account in the name of the Plaintiff, from March 2006 to May 2007, and from March 2006 to May 200, the amount of KRW 200,000 to KRW 20,000 per month. Thereafter, the Plaintiff wired the amount of KRW 3 million to KRW 20,000 on an irregular basis. On the other hand, from May 2012 to August 2013, the Plaintiff wired the amount of KRW 12 million to the A bank account in the name of ○○.

On the other hand, as seen earlier, approximately KRW 400,000, out of the refund insurance money upon the termination of the insurance at issue, was paid to the Plaintiff and ○○○○○’s BB Life and DB Life Insurance, respectively, and KRW 144,607,718 out of the refund money of ○○ Products subscribed to the refund insurance at issue was remitted to the account of ○○○○.

In light of the details of the transfer transaction between the Plaintiff and the ○○○○, it appears that the monthly insurance proceeds received from the instant insurance are substituted for the living funds that were paid to the Plaintiff. After the relevant insurance contract is terminated, the refund insurance proceeds were paid with the insurance premiums of another insurance under the name of the Plaintiff and the ○○○○○, or some of the funds were transferred to the ○○○○○. If there are such circumstances, it is difficult to view that the ○○○ donated the instant money to the Plaintiff, and deeming that the Plaintiff entrusted the management of the said money to the

C) Therefore, the instant disposition, based on the premise that the Plaintiff received a donation, is unlawful, and the Plaintiff’s above assertion is with merit.

3. Determination as to the defendant's additional claim for disposition

Although the Defendant asserts that ○○○ donated the Plaintiff the right to receive insurance proceeds at issue, the Defendant’s preliminary disposition is not recognized as having paid the key money as insurance premiums, as long as ○○○ was not recognized as having paid the key money with the intent of donation.

4. Conclusion

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