Examination Inheritance 2007-003 (Law No. 25, 2008)

Quashing of the presumption of donation

The plaintiff has proved that the source of the funds to acquire property, apart from the funds presumed to have been donated, has been used as the funds to acquire the property, and thus the disposition included in the taxable value of the property is unreasonable.

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

○ ○

Head of Nowon Tax Office

1. On January 15, 2007, the part that exceeds KRW 350,664,69 of the inheritance tax imposition disposition of KRW 424,029,180 against the Plaintiff, and the part that exceeds KRW 205,97,029 of the inheritance tax imposition disposition of KRW 282,601,330 against the Plaintiff Intervenor Park Young-B, and the part that exceeds KRW 222,520,529 of the inheritance tax imposition disposition of KRW 282,60 against the Plaintiff Intervenor Park Young-B.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of the lawsuit, the part relating to the participation by the Plaintiff shall be borne by the Intervenor, and 3/4 of the remainder shall be borne by the Plaintiff, and 1/4 of the remainder by the Defendant.

The part that exceeds KRW 108,907,469 among the inheritance tax imposition disposition of KRW 424,029,180 against the Plaintiff on January 5, 2007, and each part that exceeds KRW 72,583,203,203 among the inheritance tax imposition disposition of KRW 282,60,330 against the Intervenor joining the Plaintiff shall be revoked.

1. Circumstances of dispositions;

A. After the Plaintiff’s husband Park CC (hereinafter referred to as “the deceased”) died on February 9, 2003, the Plaintiff transferred the remaining remittance amount of KRW 1,50,105,162 (hereinafter referred to as “the transferred amount”) excluding KRW 200,300,105,162, which the Defendant recognized as property contributed to a public-service corporation, from March 18, 2003 to June 10, 2003, to the bank account of the Plaintiff, the Intervenor, and the Deceased, the Intervenor’s Intervenor (hereinafter referred to as “ Intervenor”), who is his children, from March 18, 2003 to June 10, 2003.

B. When the Plaintiff and the Intervenor reported the inheritance tax on the property inherited from the deceased on August 1, 2003, the Plaintiff and the Intervenor reported and paid KRW 169,52,520,520,527, which is not included in the taxable value of the inheritance, on the ground that the remittance amount to the public interest corporation constitutes property contributed to the public interest corporation, as shown below (hereinafter referred to as the “money transferred”) from February 11, 1998 to February 15, 2002, without including the amount of KRW 815,029,926, which is deposited into the financial account of the Intervenor Park DoD (hereinafter referred to as the “money deposited in this case”) in the taxable value of the inheritance.

C. On January 15, 2007, the Defendant calculated the taxable value of inherited property as KRW 8,415,279,283 by including the remittance amount to the public interest corporation and the pertinent entry amount, etc. in the taxable value of inherited property, and imposed the penalty tax on the Plaintiff and the Intervenor in addition to the penalty tax on the return and payment in bad faith.

D. ① On March 19, 2008, the Defendant initially reduced the estimated value of donated property from KRW 3,078,202,187 to KRW 1,239,632,765 [The Plaintiff’s donated property + KRW 117,766,086 + KRW 276,86,753 of the value of donated property of the Intervenor ParkB + KRW 845,029,926 of the value of donated property of the Intervenor Park DongD (as seen above, KRW 815,029,926; the Defendant calculated the total amount of donated property of the Intervenor as KRW 6,00,000 on September 15, 200, KRW 2009, KRW 9,0000, KRW 9,000, KRW 2089, KRW 208486) to the Intervenor; the Defendant calculated the amount of the inheritance tax and the inheritance tax imposed upon the Intervenor as KRW 20085,20084868.

마. 그런데, 위와 같이 감액된 총 상속세액 1,271,883,170원에 대한 원고와 참가인들의 정당한 상속세액을 상속세 및 증여세법령에 따라 계산하면, '별지 1'2008.3.19.자 상속인별 상속세액 계산표 중 ⓗ 상속인별 납부할 세액 기재와 같이 원고의 상속세액은 392,426,218원, 참가인 박AA의 상속세액은 230,494,584원, 참가인 박BB의 상속세액은 253,947,199원, 참가인 박DD의 상속세액은 394,965,169원이 된다(이 사건 처분은 원고와 참가인들의 민법상 상속지분에 따라 단순히 계산한 것으로서 부당하다고 보이고, 당시 피고가 산출한 증여재산가액을 기초로 한 상속세액 계산내역에 관하여는'별지 1'2008.3.19.자 상속인별 상속세액 계산표 참조).

[Ground of recognition] Facts without any dispute, Gap 1 to 3, Eul 6, Eul 1 to 4 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) As to the amount of the instant prize

Although the amount of the instant input money is not included in the taxable value of inherited property for the following reasons, the Defendant issued the instant disposition, including the said input amount in the taxable value of inherited property.

(A) In order to presume that the intervenor Park Do has received a donation from the deceased pursuant to Article 45 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") (hereinafter referred to as the "Gift") and Article 45 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003), the intervenor Park Do has no special occupation or re-existence and there is no proof as to this. In addition, if the amount not proved by the proviso of Article 34 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177, Dec. 30, 2003; hereinafter referred to as the "former Enforcement Decree of the Inheritance Tax and Gift Tax Act") is less than the smaller amount between the amount equivalent to 20/100 of the acquired property and 200,00 million won.

(b)Notwithstanding the application of the presumption of gift to the amount of the instant deposit, the said deposit shall be reversed, inasmuch as the Intervenor deposited the amount of the Bank loan, operating profit, deposit, lease deposit, apartment sale balance and the amount of the deposit for the making soup of the business operation fund, the Bank loan, operating profit, lease deposit, the refund of the deposit money, etc. to be raised by the Intervenor.

(2) As to the remittance of the instant public interest corporation

The remittance amount to the public interest corporation of this case is part of the property inherited by the plaintiff and the intervenor from the deceased, which was within six months from February 9, 2003 to June 10, 2003, the date of commencing the inheritance. Thus, it constitutes the value of the property donated to the public interest corporation under Article 16(1) of the former Inheritance Tax and Gift Tax Act, notwithstanding that it constitutes the value of the property donated to the public interest corporation under Article 16(1) of the former Inheritance Tax and Gift Tax Act.

(b) Related statutes;

Attached Form 3 is as shown in the relevant statutes.

C. Determination on the assertion on the amount of the instant admission

(i)whether the provision on presumption of gift applies;

The fact of donation of property, which is a requirement for the imposition of gift tax, is proved by the tax authority, and where the tax authority fails to clearly prove the source of some of the funds in the course of the transaction, such as purchase, etc. of real estate by a person with a certain occupation and a considerable financial capacity, it shall not be presumed that the funds have been donated from his/her spouse or lineal ascendant. However, it is reasonable to presume that a person without a special occupation or property has received the funds from his/her spouse or lineal ascendant without any proof that he/she would be able to obtain the funds in question, and where the lineal ascendant, etc. has the financial capacity to make a donation, it shall be presumed that he/she has received the funds from the person with the financial capacity. This legal principle shall also apply where even though there is a certain occupation, it is objectively evident that the degree of the income or other financial status is extremely poor compared to the value of the relevant property, and it is impossible to prepare the assets in question (see, e.g., Supreme Court Decision 90Nu

In this case, the following circumstances are acknowledged to show the overall purport of the pleadings in the statement No. 10,11, Eul evidence No. 2,35, and No. 9 (including various numbers), i.e., the total amount of income reported to the tax authorities from 1998 to 2002 by the Intervenor Park Jong-Do is 8,637,027 won per annual average income, and ii even if the Intervenor Park Jong-Do received certain income from 200 billion won, it is difficult to view that part of the income was used as expenses for the above Intervenor's income even if it was hard to view that the Intervenor had no revenue from 20 billion won from 200,000,000 won from 200,000,000 won to 300,000,000 won from 29,000,000 won from 20,000,000 won from 20,000 won from 29,000.

(ii)whether the presumption of donation has been reversed

In order to reverse the presumption of donation, it is necessary to clarify the source of the fund to acquire the above property and to prove that the fund was used as the acquisition fund of the pertinent property (see, e.g., Supreme Court Decision 94Nu14308, Aug. 11, 1995). In full view of the following circumstances, the amount of KRW 815,029,926, 150,929, 200, 200, 150, 600, 660, 60, 60, 609, 60, 200, 60, 60, 60, 60, 60, 60, 926, 200, 60, 60, 609, 609, 60, 609, 609, 209, 609, 609, 609, 609, 2006, 609, 606, 606, etc.

(a)The amount deposited on February 11, 1998 159,029,926 Won 1)

The Intervenor Park Jae-D worked as the vice president of △△ International operated by the Intervenor from 1997 to 1998, and managed the Company’s funds using his bank account. On February 11, 1998, the Intervenor withdrawn KRW 200,029,926 from his bank account and deposited KRW 159,029,926, excluding KRW 50,000 on the same day, into his bank account. The amount is deemed to have been deposited by the Intervenor’s personal account.

(b)40,000,000 won deposited on September 15, 1999 and 25,000,000 won deposited on September 29, 199 (deposit Nos. 2, 3)

Around August 21, 1999 when the intervenor started a soup program, the intervenor took out 130,000,000 won from a financial institution and deposited in his bank account, and then withdrawn 1.51,000,000 won, and then used 199.9.15.45,000,000 won for soup and then deposited 40,000,000 won as cash for soup and then deposited 199,99,99,99,9,9,9,25,000 won as cash for the business, each of the above amounts is considered to have been paid again.

(c)150,000,000 won (on June 5, 2000 Nos. 4) deposited on June 5, 200

In addition, there is no evidence to support the Plaintiff’s assertion that the Intervenor deposited operating income, lease deposit, etc. through the soup program, and there is no circumstance to deem that the Intervenor deposited operating income, etc. in the bank account, etc., and deposited in the other account. Rather, the given Intervenor borrowed KRW 65,00,000 on August 21, 199 to raise funds for the soup program, as seen earlier, and additionally borrowed KRW 65,000,000 on March 24, 200, and the said Intervenor opened a new account on June 5, 2000 and deposited KRW 150,000 in the said account on a lump sum, but withdrawn on December 5, 2005.

(d)32,00,000 won deposited on July 24, 200, 60,000 won deposited on September 15, 200, 130,000 won deposited on December 12, 2001, and 89,000,000 won deposited on February 15, 2002 (in order, deposit sheet 5,6,9,11)

①참가인 박DD은 1996.3.경 ○○동 아파트를 매수하여 거주하다가, 2000.9.경 ○○동 아파트를 보증금 175,000,000원에 임대하고, 그 무렵 문EE으로부터 △△시 △△구 △△동 530 ■■아파트 303동 401호(이하'△△동 아파트'라고 한다)를 보증금 89,000,000원에 임차하였다. 결국, 2000.7.24.자 입금액 32,000,000원과 2000.9.15.자 입금액 60,000,000원은 위 각 보증금의 차액을 입금한 것으로 보인다.

② On November 19, 2001, the Intervenor Park Jong-dong apartment was sold to KimF at KRW 337,00,000 on the day of the contract, and the down payment of KRW 30,000,000 on the day of the contract, and KRW 132,00,000 on December 11, 2001, and the remainder of KRW 175,000,000 on the day of the contract was paid to the Intervenor Park Jong-dong apartment. On February 19, 2002, the Intervenor was paid the remainder of KRW 89,00,000 on the apartment of △△△-dong at the △△△△dong apartment, and received KRW 130,00,00 from the △△-dong apartment from the △△△△△△△, and the amount of KRW 130,000 on December 12, 201 on deposit money received from the Intervenor, respectively.

(e)50,00,000 won deposited on July 28, 2001, 40,000,000 won deposited on August 25, 2001, and 40,000,000 won deposited on December 26, 2001 (as order, Nos. 7,8,10)

Around 2001, the Intervenor Park Jong-D retired from a soup project, and then leased the facility to YG, Park HH, LII, Lee J and Gangnam and received deposits and rents from them. The amount seems to have been paid by the Intervenor Park Jong-D to be the deposit or rent received from the above lessee.

D. Determination as to the assertion on the remittance amount of the public interest corporation of this case

In accordance with Articles 16(1) and 67(1) of the former Inheritance Tax and Gift Tax Act and Article 13(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the inherited property should be contributed within 6 months from the commencement date of the inheritance and shall not be included in the taxable value of the inheritance as the property donated to the public-service corporation. However, in full view of the following circumstances where: (a) the statement of evidence No. 24 through 42, 44, and 48 (including each number); (b) the partial statement of evidence No. 23; and (c) the witness testimony of the most LL, the part of the case was deemed to show the overall purport of the pleadings, the Plaintiff and the Intervenor’s assertion within 6 months from February 9, 2003, which was the commencement date of inheritance to June 10, 2003, which was part of the property inherited from the deceased’s public-service corporation, which was a public-service corporation, was not legitimate from the Plaintiff and the Intervenor’s transfer to the above third party’s account.

(1) From March 18, 2003 to June 10, 2003, the Plaintiff and the Intervenor transferred the sum of KRW 1,500,105,162 out of the deceased’s inherited property to the bank account of the △ church where the Plaintiff and the Intervenor LL (hereinafter “LL”) (hereinafter “minimum LL”) is the Plaintiff’s remaining students and the Intervenor’s external third-party relationship, as indicated in the following table (hereinafter “the remaining amount of remittance to the public interest corporation of this case”). From March 18, 2003 to June 10, 2003, the details of the transfer, etc. to the public interest corporation of this case are as shown below.

(2) From the date of transfer to April 1, 2004, ○○○○○ Bank (hereinafter “L”) deposited KRW 200 million in the bank account and used it as church expenses. The remittance amount to the public interest corporation of this case has been deposited in the bank, etc. as fixed deposit from the date of receipt to March 31, 2005. Meanwhile, from August 2002 to June 2004, ○○ Association borrowed KRW 2.1 billion from financial institutions, etc. while promoting the new church building construction business, etc., and borrowed and used the amount of remittance amount from June 20, 2003 to April 1, 2004, the amount of remittance amount to the public interest corporation of this case reaches KRW 1.175 million from the date of the last deposit to April 2004, 200 to the financial institution from May 31, 2005.

(3) If there was a mutual agreement between the Plaintiff and the Intervenor to contribute the remittance amount to the instant public interest corporation within six months from the date of commencing the inheritance as alleged by the Plaintiff on the date of maturity, it cannot be deemed that the Doldong Association deposited the remittance amount to the said public interest corporation as a two-year term deposit with a considerable interest rate.

(4)In addition, the witness testimony that "LL strongly avoided the opposing opinion against the contribution of the transfer amount of this case by the husband of Park Don (which seems to be a clerical error of the intervenor Park Don) and his husband of the intervenor Park YB", and "When it is decided that the heir will make a contribution of KRW 1.3 billion to a church at the end of 2003", the plaintiff's counsel's answer that "at the end of 2003, the heir would not be informed that the heir would have arranged his opinion at the end of 2003, and finally, the plaintiff was present at the time of full repayment of the loan on March 31, 2006 (which seems to be a clerical error of March 31, 2005) (which was written by the plaintiff) and the plaintiff was written at the church that he would have repaid the loan to the plaintiff at the time, and how it would be appropriate for the plaintiff to deposit the plaintiff's money to the intervenor or the intervenor's testimony."

(5)On the other hand, on the other hand, on July 11, 2003, after the last month from June 10, 2003, the remittance amount of the public interest corporation of this case was remitted to the intervenor Parkh, and the intervenor Parkh, after the commencement of the inheritance tax investigation with respect to the plaintiff et al., repaid the above KRW 500 million to the Do Council from October 7, 2004 to January 5, 2005. However, after the other co-inheritors donated the amount exceeding KRW 1.3 billion to the public interest corporation, borrowing KRW 500 million from the public interest corporation for business purposes such as business funds again after one month after the contribution to the public interest corporation, and according to the witness Choi LL's testimony, etc., the above loan was deemed to have been made by the intervenor to make a donation to the public interest corporation of this case, so it is not possible that the intervenor Parkh, as a mere objection to the above amount of the loan may not be ruled out.

(6) Even though the Doldong Association submitted documents containing the details of contributed property, the use plan, and the current status of Jindo school to the tax authority within three months from the end of the business year pursuant to Article 48(5) of the former Inheritance Tax and Gift Tax Act and Article 41 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, it did not prepare and submit such documents. However, it did not prepare or keep a book on the details of the operation of public projects, etc. under

E. Sub-committee

Therefore, in the disposition of this case, the part that exceeds 150,00,000 won as the value of donated property of the Intervenor Park DoD, i.e., 695,029,926 won as the value of donated property of the Intervenor Park Do, i.e., 5,343,468,896 won, excluding 695,029,926 won from 6,038,498,822 won, and the remaining 5,343,468,896 won, excluding 695,029,926 won, shall be calculated as the value of donated property of the Intervenor Park Do. Accordingly, when the amount of inheritance tax is calculated as the value of inherited property, the sum of the inheritance tax amount of the Plaintiff’s inheritance tax on the Plaintiff and the Intervenor shall be 350,64,699 won, 205,97,029 won, and the amount of inheritance tax on the Intervenor Park B shall be calculated as the heir tax amount (see 229, Do.).

Therefore, the part which exceeds KRW 350,664,69 among the inheritance tax disposition of KRW 424,029,180 against the Plaintiff; the part which exceeds KRW 205,97,029 among the inheritance tax disposition of KRW 282,601,330 against the Intervenor Park Dong; the part which exceeds KRW 222,520,529 among the inheritance tax disposition of KRW 282,601,30 against the Intervenor ParkB; the part which exceeds KRW 222,520,529 among the inheritance tax disposition of KRW 424,029,180 against the Plaintiff; and the part which is subject to disposition of KRW 282,610,330 should be revoked; and the part which is subject to disposition of KRW 321,028,918 - the amount of taxation disposition of KRW 282,610,30 among the intervenors; and the part which is subject to disposition of the Plaintiff and the Intervenor shall be dismissed within the scope of each of this case.

3.In conclusion

Therefore, the plaintiff's claim of this case is justified within the above recognition law, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.