National Tax Service Review Donation 2011-001 ( October 28, 2011)

deposits in the bank account, etc. shall be presumed to have been donated to the taxpayer.

As long as it is found that a deposit in the name of a person recognized as a donor by the tax authority is withdrawn and deposited in the account in the name of a taxpayer, such deposit is presumed to have been donated to the taxpayer, the assertion that the remitted amount is not a donation because it is used in the purchase of goods, payment, payment of public charges, etc. according to

2011Guhap1011 Revocation of Disposition of Imposing gift tax

XX Kim

The director of the tax office

April 27, 2012

May 11, 2012

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 00 on the portion of donation on November 13, 2006, KRW 000 on September 11, 2006, KRW 000 on the portion of donation, ③ 000 on October 2, 2006, and KRW 000 on the portion of donation, ④ 00 on October 24, 2006, respectively, shall be revoked.

1. Details of the disposition;

A. The defendant confirmed that the plaintiff transferred KRW 000 to the plaintiff's national bank account or received 000 as a check over eight times from August 28, 2006 to November 13, 2006, as stated below from the mother both countries (the list 1), and on November 1, 2010, the defendant imposed gift tax KRW 00 on the plaintiff as to the above KRW 000 on the above KRW 00 (the "the previous disposition of this case").

B. On January 3, 2011, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service on the previous disposition of the Defendant, but was dismissed on March 28, 2011.

C. On February 1, 2012, when the lawsuit of this case was pending, the Defendant corrected the previous disposition of this case [Sigh Table 1] No. 8] to KRW 000 of the gift amount of KRW 800,000, and imposed a separate gift tax on each gift of KRW 4,5, and 7 as indicated in [Sigh Table 1]. The details are as indicated below [Sigh 2] and are specified by the method of “the First Disposition in this case” according to its number.

[Ground of Recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, Gap evidence 46, Gap evidence 47-1, 2-1, Eul evidence 1-2 through 10, Eul evidence 2-2-7, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) As to the first, second, and fourth disposition of this case

On August 19, 2005, when the Plaintiff operated the Smarket with the trade name of "Omarket" in the building owned by both countries, both countries operated the Smarket instead of the Plaintiff, in substance, on the wind that it was unable to operate the Smarket for more than one year since the traffic accident occurred on August 19, 2005. In relation to the dispositions Nos. 1, 2, and 4 of this case, the amount remitted to the Plaintiff by both countries in relation to the dispositions Nos. 1, 2, and 4 of this case was used in the purchase of goods, payment settlement, and public imposts settlement

In addition, the previous disposition of this case is an unlawful disposition by itself, and thus its entirety should be revoked. Thus, the fourth disposition of this case, which is merely partially corrected, is unlawful.

(2) As to the disposition No. 3 of this case

Of the KRW 000, which the twoA remitted to the Plaintiff, 000, was used in the repayment of the obligation to KimB of the twoA, and the remaining KRW 000 was used in the settlement of the card price of the twoA, and thus, the said KRW 00 does not have been donated to the Plaintiff.

B. Determination

(1) Relevant legal principles

In a lawsuit seeking revocation of disposition imposing gift tax, as long as the deposit in the name of a person recognized as a donor by the tax authority is revealed to have been withdrawn and deposited in a deposit account in the name of a taxpayer, such deposit shall be presumed to have been donated to the taxpayer. Thus, barring special circumstances, such as withdrawal of such deposit and deposit in the name of a taxpayer, etc. for other purpose than donation, the need to prove such fact lies on the taxpayer (see, e.g., Supreme Court Decisions 9Du4082, Nov. 13, 2001; 96Nu3272, Feb. 11, 1997).

(2) Determination as to the first, second, and fourth dispositions of this case

According to the evidence Nos. 4-1, 2, 9-1, 10, 11, 14, 17 through 20, 17-1, 2, 21 through 45-1, 26, and 1, 27 through 45-1, 2, each of the evidence Nos. 4-1, 2, 17-2, 17-2, and 1, 27-2, the Plaintiff suffered from the injury of crupted salt, etc. due to traffic accident on August 19, 2005. From September 2006 to November of the same year, the money was transferred from the Plaintiff’s bank account as the price for the goods or deposited in a check. However, it is difficult to recognize that both countries operated the above market on its own account or settled the price for the goods, etc. by using the Plaintiff’s account.

In addition, since a disposition of reduction and correction, such as partial cancellation of tax disposition, is merely a reason for reducing the purport of the claim, the Plaintiff’s assertion that the disposition of reduction and correction, such as the instant disposition, is still unlawful solely on the ground that there is an illegal reason in the previous disposition before a reduction and correction

(3) Judgment on the disposition No. 3 of this case

갑 제7호증의 1, 2, 갑 제12호증, 갑 제13호증의 1, 2의 각 기재에 의하면 2006. 10. 25. 원고의 국민은행 계좌(213-25-0012-XXXXXX)에서 김BB의 국민은행 계좌 (297002-01-XXXXX)로 000원이 이체된 사실, 2005년 1월경부터 2007년 11월 경까지의 양AA의 신용카드(KB카드)의 결제금액 합계가 000원에 이르는 사실이 인정되나, 이러한 사실만으로 양AA가 김BB에 대하여 000원의 채무를 부담하고 있었다거나 양AA가 원고에게 송금한 금액 중 000원이 양AA의 카드대금으로 지급된 것이라는 원고의 주장을 인정하기 부족하고, 이에 부합하는 듯한 갑 제8호증의 기재 및 증인 양AA의 증언은 믿기 어렵다. 원고의 이 부분 주장도 이유 없다.

(4) The theory of lawsuit

Therefore, each of the dispositions of this case, based on the premise that the amount equivalent to each of the donations mentioned in the [Sa Table 2] was donated from both countries to the plaintiff, is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.