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Title
Whether a disposition imposed on a person deemed donated by his/her spouse is justifiable
Summary
It is difficult to recognize that the plaintiff lent money to his/her spouse in light of the fact that the plaintiff and his/her spouse had been frequently admitted or withdrawn, and it is reasonable to deem that the spouse donated money to the plaintiff
Related statutes
Article 2 of the Inheritance Tax and Gift Tax Act
Text
1. The plaintiff's claim is dismissed.
2. Litigation costs shall be borne by the plaintiff.
Purport of claim
The Defendant’s disposition of imposition of gift tax of KRW 856,211,830 against the Plaintiff on June 1, 2005 is revoked.
Reasons
1. Details of the disposition;
A. On March 14, 2002, the Plaintiff’s wife, Kim ○, on 14, 2002, sold to ○○○○○○○, ○○○-○, and ○○○-○ (hereinafter “instant land”) the land located in ○○○, ○○, and ○○-○, to KRW 9 billion, and completed the registration of ownership transfer.
B. From March 9, 2001 to April 12, 2002, the Defendant confirmed that Kim○○ deposited 2.457 billion won out of the above purchase price (hereinafter “the instant issue price”) in the savings account under the name of the Plaintiff, the husband at the time during eight times from March 9, 2001, and on this premise, the Defendant considered it as a gift and imposed KRW 856,211,830 as follows (hereinafter “the instant disposition”).
No.
Deposit Date
Amount of reserve
Amount of gift tax
1
March 9, 2001
169,000,000 won
None
(spouse’s deduction of 500 million won)
2
November 30, 2001
50,000,000 won
3
December 1, 2001
150,000,000 won
4
February 5, 2002
20,000,000 won
5
February 6, 2002
50,000,000 won
108,920,00 won
6
March 5, 2002
30,000,000 won
8,272,060 won
7
April 11, 2002
1,280,000,000
625,940,900
8
April 12, 2002
208,000,000 won
113,078,870 won
Total
2,457,00,000 won
856,211,830 won
C. On August 24, 2005, the Plaintiff appealed against the above disposition and received a decision of dismissal from the director of ○○ Regional Tax Office. On October 31, 2005, the Plaintiff filed an appeal with ○○ Tribunal for revocation of the above disposition, but received a decision of dismissal on June 29, 2006.
Facts without dispute, Gap evidence 1, Gap evidence 2-1, Eul evidence 1 to 8
2. Related statutes;
former Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002)
○ Article 2 Gift Tax Taxables
(1) In case where, owing to a donation by a third party (excluding a donation becoming effective upon the death of a donor; hereinafter the same shall apply), there exists donated property on the donation date falling under one of the following subparagraphs, gift tax shall be levied, pursuant to this Act, on such donated property
1. Where a person who acquires property by donation from another person (hereinafter referred to as a " donee") is a resident (including a non-profit corporation, the head office or main office of which is located in Korea; hereafter the same shall apply in this paragraph and Articles 54 and 59), all of the donated property which the resident has donated;
§ 31. Scope of donated property
(1) Gift property under Article 2 shall include property belonging to the donee, all articles having economic value capable of realizing in money and all de facto or de facto rights having property value.
○ Article 53 Gift Tax Deduction
(1) In case where a resident receives a donation from a person falling under any of the following subparagraphs, the amount under the classification of the following subparagraphs shall be deducted from the taxable amount of gift taxes. In this case, if the sum of the amount deducted within 10 years before the relevant donation and the amount deducted from the value of the relevant donation exceeds the amount stipulated in the following subparagraphs, the relevant excessive portion shall not
1. 50 million won, where a donation is received from a spouse;
3. Whether the instant disposition is lawful
A. The plaintiff principal
The plaintiff married with Kim ○ in around 1975, but from around 1997 to around 1997, the plaintiff got separate from Kim ○, Kim ○, and Kim ○ in several separate ways. From around March 1995 to around 2002 before and after the above separate occupation, the plaintiff lent approximately KRW 2.8 billion to Kim ○ in the aggregate of the civil and criminal litigation costs related to the dispute between the local buyers and the purchase price of the land in this case and the above purchase process. The key issue amount of this case paid to the plaintiff by Kim ○ was merely a repayment of the above loan. Thus, the disposition of this case imposing gift tax on the plaintiff is unlawful, since the key issue amount of this case falls under the repayment of the existing debt.
(b) Fact of recognition;
(1) The plaintiff, around March 2005, was divorced by two children by marriage with Kim○-○, around 1975.
(2) As seen earlier, the Plaintiff received the instant key payment from Kim○○○, and all of them were repaid for borrowed money or paid as an auction deposit for acquired real estate.
(3) The amount that the Plaintiff remitted to Kim ○ from March 1995 to 2002 is KRW 1,283,373,150 as shown in the attached Table 1.
(4) The amount remitted by Kim○ to the Plaintiff from March 1999 to June 2004 is KRW 1,295,515,484 as shown in the separate sheet No. 2.
Evidence A 2-2, Evidence A 12-1 through 3, Evidence A 13-1 through 4, Evidence A 14, 15-1, 2, Eul 1 through 12, Evidence A 13-1, 2, and Eul 13-2, and the purport of the whole pleadings.
C. Determination
(1) The burden of proof on the existence of a taxable fact is against the tax authority, so the fact of donation of property, which is the requirement for the imposition of gift tax, is proved by the tax authority in principle, but if it is revealed in the course of litigation that the facts of taxation are proved in light of the examination rules, it cannot be deemed an illegal disposition that does not meet the taxation requirement on the disposition imposing tax, unless it proves such circumstances in the process of litigation, and if it is revealed that the deposit or funds in the name of the person recognized as a donor by the tax authority are deposited in the name of the taxpayer, the deposit shall be presumed to have been increased by the taxpayer. In addition, as recognized earlier, since all of the amount of the issue amount of this case was deposited in the account of the plaintiff, which is the husband, and used for the plaintiff, the amount of the above issue amount may be presumed to have been donated to the plaintiff by Kim○-○.
(2) From among approximately 2.8 billion won claimed by the Plaintiff to be lent to Kim○○, the amount confirmed to be deposited in addition to the key amount in this case is KRW 1,283,373,150, and the amount confirmed to be deposited by Kim○○ in addition to the key amount in this case is 1,295,515,484 as seen earlier. In light of the above, it is difficult to recognize that the Plaintiff lent the claimed amount to Kim○○, in light of the situation where the Plaintiff and Kim○○, frequently entered and withdrawn from time to time, and even if the Plaintiff recognized that the Plaintiff lent KRW 1,283,373,150 to Kim○○, he paid KRW 1,295,515,484 to the Plaintiff in addition to the key amount in this case, even if the Plaintiff recognized that the Plaintiff lent KRW 1,283,373,150 to Kim○○, ○, as well as the key issue in this case, the Plaintiff’s assertion that the key amount in this case is groundless is groundless.
In addition, according to the evidence Nos. 2-2 and 15 of Eul evidence Nos. 2-2 and 15, Kim ○ obtained gains from the transfer of the instant land, but he did not pay capital gains tax of KRW 4,251,00,000 to the Plaintiff, and at present, he can be recognized that the Plaintiff did not have the ability to pay capital gains tax in the state of personal history, with the aim of evading the above tax payment. In short, Kim ○ seems to have raised the issue amount of this case to the Plaintiff for the purpose of evading the above tax payment.
Therefore, it is reasonable to deem that the issue amount of this case is to be donated to the Plaintiff by Kim○○, and the Defendant’s disposition imposing gift tax on the Plaintiff on the same ground is lawful.
4. Conclusion
Therefore, the plaintiff's claim seeking revocation is dismissed on the premise that the disposition of this case is unlawful, since it is without merit. It is so decided as per Disposition.
List 1
Details of transfers made by the Plaintiff to Kim ○
No.
Date
Amount (won)
Plaintiff
Withdrawal Account
Account transferred to Kim○-○
1
March 10, 1995
12,000,000
○○○-○○-○○○○-○○○(〇〇은행)
2
January 18, 1996
13,000,000
“”
3
9.11.
56,000,000
“”
4
April 7, 1997
84,000,000
○○○-○○-○○○○○○(〇〇은행)
○○○-○○-○○○○○○(〇〇은행 권○○)
5
May 13, 200
36,000,000
“”
○○○-○○-○○○○○○(〇〇은행 권○○)
6
May 28, 200
71,000,000
“”
○○○-○○-○○○○○○(〇〇은행)
7
August 12, 200
20,000,000
“”
○○○-○○-○○○○○○(〇〇은행)
8
September 20, 200
74,000,000
“”
“”
100,000,000
○○○-○○-○○○○○○(〇〇은행)
“”
9
September 23, 200
20,000,000
○○○-○○-○○○○○○(〇〇은행)
“”
10
November 11 of the same year
50,000,000
○○○-○○-○○○○○○(〇〇은행)
“”
100,000,000
○○○-○○-○○○○-○○○(〇〇은행)
“”
11
November 21, 190
105,000,000
○○○-○○-○○○○○○(〇〇은행)
○○○-○○-○○○○○○(〇〇은행)
12
March 17, 1998
10,000,000
○○○-○○-○○○○○○(〇〇은행)
○○○-○○-○○○○○○(〇〇은행)
13
April 27 of the same year
11,000,000
“”
“”
14
June 29, 200
2,000,000
○○○-○○-○○○○-○○○(〇〇은행)
15
October 29 of the same year
6,000,000
○○○-○○-○○○○○○(〇〇은행)
16
December 30, 198
1,200,000
○○○-○○-○○○○-○○○(〇〇은행)
17
January 29, 199
5,000,000
○○○-○○-○○○○○○(〇〇은행)
18
3.5
5,000,000
“”
19
March 19, 200
3,800,000
“”
20
March 31, 200
6,000,000
“”
21
May 7 of the same year
10,000,000
○○○-○○-○○○○-○○○(〇〇은행)
“”
22
May 11 of the same year
3,000,000
“”
23
May 29, 200
50,000,000
○○○-○○-○○○○○○(〇〇은행)
“”
24
6. 9.
40,000,000
○○○-○○-○○○○-○○○(〇〇은행)
“”
25
July 8 of the same year
10,000,000
“”
26
August 2, 200
4,000,000
“”
27
August 9 of the same year
60,000,000
○○○-○○-○○○○-○○○(〇〇은행)
“”
28
9.27
1,700,000
“”
29
November 30 of the same year
2,000,000
“”
30
February 25, 2000
5,000,000
“”
31
April 27 of the same year
5,000,000
“”
32
May 29, 200
20,000,000
○○○-○○-○○○○-○○○(〇〇은행)
“”
33
December 5, 190
180,673,150
○○○-○○-○○○○○○(〇〇은행)
(〇〇은행 차입상환)
34
December 11, 200
12,000,000
“”
○○○-○○-○○○○○○(〇〇은행)
35
January 11, 2001
16,000,000
“”
○○○-○○-○○○○○○(〇〇은행)
36
March 26 of the same year
10,000,000
“”
37
April 20 of the same year
60,000,000
○○○-○○-○○○○○○(〇〇은행)
“”
38
January 26, 2002
3,000,000
“”
Total
1,283,373,150
List 2
Details of remittance by Kim○-○ to the Plaintiff in addition to the instant issues
No.
Date
Amount (won)
Plaintiff
Account Number
1
July 31, 1997
5,000,000
○○○-○○-○○○○○○(〇〇은행)
2
November 30, 1998
6,000,000
“”
3
December 29, 200
5,500,000
“”
4
January 29, 199
7,735,484
“”
5
March 30, 300
8,000,000
○○○-○○-○○○○-○○○(〇〇은행)
6
May 4, 200
23,100,000
“”
7
June 8 of the same year
40,000,000
“”
8
June 21, 200
34,000,000
“”
9
July 5 of the same year
5,000,000
“”
10
August 30, 200
14,000,000
“”
11
October 18, 200
15,000,000
“”
12
March 13, 2000
50,000,000
“”
13
April 26 of the same year
57,000,000
“”
14
May 31, 200
20,000,000
“”
15
June 30 of the same year
5,000,000
“”
16
December 4, 190
2,000,000
“”
17
may 22, 201
40,000,000
“”
18
May 28, 200
12,000,000
19
June 30 of the same year
5,300,000
20
July 28, 200
7,000,000
21
September 25, 200
7,700,000
22
October 25, 200
11,000,000
23
November 26, 200
6,900,000
24
12.24.9
7,700,000
25
February 5, 2002
20,000,000
○○○-○○-○○○○-○○○(〇〇은행)
26
February 28, 200
5,000,000
27
March 25, 200
9,800,000
28
April 25 of the same year
7,700,000
29
May 25, 200
11,080,000
30
December 10, 198
270,000,000
○○○-○○-○○○○○○(〇〇은행, 원고의 자 양○○)
31
May 16, 2003
50,000,000
○○○-○○-○○○○-○○○(〇〇은행)
32
6.4.9
70,000,000
“”
33
December 26, 200
37,000,000
“”
34
May 11, 2004
100,000,000
“”
35
May 11 of the same year
90,000,000
“”
36
6.4.9
100,000,000
37
6.4.
30,000,000
Total
1,295,515,484
* After-Appellee: Busan High Court 2007Nu2029 ( October 26, 2007)
Text
1. The plaintiff's appeal is dismissed
2. The costs of appeal shall be borne by the plaintiff.
Purport of claim
Purpose of appeal and appeal
The judgment of the first instance shall be revoked. The disposition of imposition of gift tax of KRW 856,211,830 against the plaintiff on June 1, 2005 by the defendant shall be revoked.
Reasons
1. The reasoning for the court's explanation concerning this case is that the part of "(2) of the judgment of March 1, 200 in the court of first instance other than the part of the "(3..............." below is the same as the part of the reasoning for the judgment of the court of first instance, and therefore, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 4
(Fed part)
“(2) However, the Plaintiff’s transfer of KRW 1,283,373,150 to ○○○○○○○ from March 10, 1995 to January 16, 2002 is recognized as above. However, the Plaintiff asserts that the Plaintiff’s transfer of KRW 1,283,373,150 to ○○○○○○○○○○○ was much more than 2.8 billion if the Plaintiff’s transfer of money to ○○○○○○○○○○ was consistent with the check, etc., on the other hand, the Plaintiff’s testimony to ○○○○○○○○○○○○ was not trust, and accordingly, it is difficult to acknowledge that the Plaintiff’s transfer of money to ○○○○○○○○○○○○, as in light of the above fact that the Plaintiff’s transfer of money was insufficient, and there is no other evidence to acknowledge otherwise between the Plaintiff and the Plaintiff’s transfer of money and the Plaintiff’s transfer of money to ○○○○○○○○.
Along with the Plaintiff’s recognition that the Plaintiff lent KRW 1,283,373,150 to Kim ○, ○○. However, since Kim ○○ paid KRW 1,295,515,484 to the Plaintiff in addition to the key amount in this case, the key amount in this case cannot be deemed to have received a loan to Kim ○ as alleged by the Plaintiff. In addition, in full view of the purport of the arguments in the evidence No. 2-2 and No. 15, Kim ○○ acquired KRW 4,251,00 from the transfer of the land in this case, but the Plaintiff did not pay KRW 2,133,970,000 from the transfer of the land in this case while he did not pay KRW 2,133,970,00, and as a result, Kim ○○ is recognized to have no ability to pay the capital gains tax in its insolvent status. In light of this, Kim ○○ appears to have been a donation to the Plaintiff for the purpose of evading the capital gains tax.
Therefore, the Defendant’s disposition of this case that imposed gift tax on the Plaintiff by deeming the key amount of this case to be donated to the Plaintiff by Kim ○○.
2. If so, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just, and the plaintiff's appeal shall be dismissed as it is without merit, and it is so decided as per Disposition.