early 2009 Swiss056 ( August 24, 2009)

propriety of this disposition by donation of any deposit withdrawal amount

Inasmuch as deeming that the father of the Plaintiff’s father managed funds through the borrowed name account accords with social norms, the disposition authority determined that the disposition authority did not err by withdrawing the acquisition time of donated property from the Plaintiff’s own account and regarding the date of actual use and imposing the gift tax on the Plaintiff.

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

Ma-○

[Court of origin]

Head of the District Tax Office

1. The plaintiff's claims are all dismissed.

2. The plaintiffs shall bear the litigation costs.

The Defendant’s imposition of gift tax of KRW 35,943,755 against the Plaintiff Jeong-A on November 13, 2008 and the imposition of KRW 37,619,260 as gift tax against Plaintiff Jeong-B shall be revoked.

1. Circumstances of dispositions;

A. On May 31, 2002, the Plaintiffs reported that the Defendant, his father, ○○○○-dong 440-1, and 6,607 square meters (hereinafter “instant land”) were donated one-half shares of the Plaintiff’s 1/2 shares. On August 26, 2002, the Plaintiffs withdrawn from the modern securities account in the name of the Plaintiff, and paid each gift tax of KRW 89,530,650 and KRW 93,580,650 (hereinafter “the instant amount”).

B. On November 13, 2008, the Defendant: (a) deemed that the amount of gift tax of this case paid by the Plaintiffs on August 26, 2002, was donated to regularCC; and (b) imposed KRW 35,943,755 on the Plaintiff Jeong-A as gift tax on the amount of gift tax of this case pursuant to Articles 4, 36, and 45 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”); and (c) imposed KRW 37.60 on Plaintiff Jeong-B (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without any dispute, Gap 1-5 evidence, Eul 1-2 evidence (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

From August 31, 1985 to May 8, 1991, the plaintiffs donated 60,140,000 won and 58,640,000 won (hereinafter collectively referred to as "the total sum of the above amounts") respectively from Jeong-CC and their relatives (hereinafter referred to as "YCC, etc.") to 60,140,00 won, and increased the amount by saving them in high interest products, and again deposited the above subscription amount and the interest amount in the above modern securities account into the above modern securities account, and managed funds through the sale of stocks and bonds, etc., and then withdrawn 89,530,580,000 won from the modern securities account to 80,200,000 won, and the period of taxation of the above amount of gift tax was not later than the 20,2002.8,000,0000 won and the amount of gift tax was more than the 20,000,000 won.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

Article 45(1) of the former Inheritance Tax and Gift Tax Act and Article 34(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17459G, Dec. 5, 2002; hereinafter referred to as the “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”) stipulate that, solely on the basis of the circumstance where the opening of a financial account in the name of a family member is possible without any means to obtain the transaction fund under the name of a child who has no income without any means to do so, a substantial transfer of ownership arising from the donation from his/her father’s child may not be readily concluded to have been made (see Supreme Court Decision 93Nu2643, Aug. 24, 1993). In addition, Article 45(1) of the former Inheritance Tax and Gift Tax Act and Article 34(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17459, Dec. 5, 20

From August 31, 1985 to May 8, 1991, the amount of the instant deposit was deposited in the bank account under the Plaintiffs’ name. However, at the time of the first deposit with the tax authority, the Plaintiffs were not aged 4 through 2, and at the time of the payment of the amount of the instant gift tax, the Plaintiffs were under the age of 21 to 19 years, and there is no dispute between the parties as to the fact that there was no particular income or occupation. As above, it cannot be concluded that the actual ownership of the instant deposit amount was transferred to the bank account under the Plaintiffs’ name from August 31, 1985 to May 8, 1991, and that the deposit account was made under the Act on Real Name Financial Transactions and Guarantee of Secrecy with the intention of 108 shareholders’ deposit account under the Act on Real Name Financial Transactions and Guarantee of Secrecy, not with the intent of 208 shareholders’ deposit account under the name of 198 shareholders.

Rather, in light of the above facts, since the actual ownership of the pertinent input amount and the amount equivalent to the interest thereof is still presumed to be the person opening the financial account or the contributor of the financial account, it is reasonable to view that the above amount of gift tax was donated by the Jung-CC on August 14, 2002, under the latter part of Article 23 subparag. 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17459, Dec. 5, 2002) and the latter part of Article 23 subparag. 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17459, Dec. 5, 2002). Therefore,

3.In conclusion

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