Examination Donation 2008-0017 (2008.04.29)

Presumption of Donation on the withdrawal of deposits

In the case of deposit from the deposit account of a person who appears to be a donor to the account in the name of the donee, it is presumed that the donation

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

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of gift tax of KRW 233,605,470 against the Plaintiff on February 1, 2008 shall be revoked.

1. Details of the disposition;

A. On January 25, 2005, the Plaintiff withdrawn KRW 600 million from the bank account in the network A, a senior village, and deposited it into the bank account in the Plaintiff’s name (hereinafter referred to as “the first deposit amount”). On July 18, 2005, the Plaintiff sold to the Gangseo-gu Seoul Metropolitan Government BBdong 449-4 and 2 lots and above-ground buildings (hereinafter referred to as “instant real estate”) in Gangseo-gu, Gangseo-gu, Seoul, which were delegated to sell from the network AA on July 18, 2005, and deposited them into the Plaintiff’s bank account on the same day (hereinafter referred to as “the instant deposit amount”).

B. On February 1, 2008, the Defendant: (a) deemed that the Plaintiff received all of the above prizes from the deceased A; and (b) imposed gift tax of KRW 178,50,150 on the first prize amount (calculated tax amount of KRW 118,50,00,000, additional tax of KRW 59,712,150) on the Plaintiff; (c) calculated the tax amount by adding the first input amount to the first input amount on the ground that the first input amount was donated within 10 years before the date of the deposit of the instant input amount and does not constitute donated property; and (d) calculated the tax amount by deducting the first input amount of KRW 118,50,00 from the first input amount of gift tax of KRW 74,105,472 due to failure to impose and pay gift tax of KRW 23,605,470.

[Ground of recognition] Facts without dispute, Gap evidence 5, Eul evidence 1-10 (including each of the natural disasters) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not have received any donation from the Plaintiff. In other words, on October 9, 2003, the Plaintiff and her husband entrusted the sale of the instant real estate from the GentA, and sold the said real estate to EE and Egyptian, and paid the down payment of KRW 1 billion. However, as the remainder was confiscated due to the failure to pay the remainder, legal disputes between the net A and Egyptian were occurred between the Plaintiff and Egyptian. On July 18, 2005, the Plaintiff received KRW 50 million from the Gents Co., Ltd. to request for the settlement of the dispute, such as litigation and provisional attachment, and used KRW 42 million among them as attorney fees, and kept it in custody, and the Plaintiff did not receive the gift tax from the heir, and the Plaintiff did not receive the gift tax from the heir, and the Plaintiff did not receive the gift tax from the heir under the condition that the Plaintiff continued to sell the instant real estate from the heir.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) In a lawsuit seeking the revocation of disposition imposing gift tax, insofar as the deposit in the name of a person who is recognized as a donor by the tax authority is revealed to have been withdrawn and deposited in a deposit account in the taxpayer’s name, such deposit is presumed to have been donated to the taxpayer. Thus, barring special circumstances, such as withdrawal of such deposit and deposit in the taxpayer’s name, etc. were made for purposes other than donation, the need to prove such fact is the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov. 13

(2) As seen earlier, as long as KRW 500,00,000, which is part of the real estate purchase price of the instant real estate owned by the netA, was deposited in the Plaintiff’s account, it is reasonable to deem that the netA donated the instant amount to the Plaintiff. In light of the following circumstances acknowledged by comprehensively considering the overall purport of the pleadings, the Plaintiff’s assertion to the effect that the instant amount was merely an amount of money kept by the Plaintiff for the purpose of appointing a lawyer on behalf of the netA, in light of the following circumstances:

(A) It is difficult to understand in light of the empirical rule that the net AA grants the Plaintiff KRW 500 million to the Plaintiff as a lawyer’s fee for damages lawsuit, etc., the amount of which is merely KRW 1.3 billion.

(B) The Plaintiff asserted that the Plaintiff paid KRW 42 million out of the above KRW 500 million as a lawyer’s fee, but there is no evidence to acknowledge it. Rather, it appears that the Plaintiff deposited KRW 121,650,00 from the bank account of the net Acs. on March 16, 2006 when several months elapsed from the date of the deposit of this case, and transferred KRW 80,000 among them to the attorney’s highestF as a lawyer’s fee.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.