The early trial of 2015Gu3836 ( September 23, 2016)

If the gift is presumed to have been made, the burden of proving that the gift is not made.

If there are special circumstances that the amount of money of a donor recognized as a donor is clearly deposited in the bank account, etc. in the name of the taxpayer, and it is not presumed as a donation, the taxpayer has the burden of proof

Article 2 of the Inheritance Tax and Gift Tax Act

Presumption of donation of property transferred to a spouse, etc. under Article 44 of the Inheritance Tax and Gift Tax Act

2016Guhap23815 Revocation of Disposition of Imposition of Gift Tax

2017Guhap22017 (Intermediate Confirmation Lawsuit) A disposition to levy gift tax

KimA

○○ Head of tax office

July 18, 2017

August 22, 2017

1. The intermediate confirmation of this case shall be dismissed.

2. The main claim of this case is dismissed.

3. The costs of litigation shall be borne by the plaintiff (the intermediate confirmation plaintiff) by aggregating the principal lawsuit and the intermediate confirmation lawsuit.

Cheong-gu Office

The principal lawsuit: The imposition of KRW 17,253,050, which the Defendant (the intermediate confirmation Defendant; hereinafter referred to as the “Defendant”) made against the Plaintiff (the intermediate confirmation Plaintiff; hereinafter referred to as the “Plaintiff”) on January 7, 2015, is revoked.

On January 7, 2015, the Defendant’s disposition imposing gift tax of KRW 17,253,050 on the Plaintiff is invalid.

1. Details of the disposition;

A. The Plaintiff is aware of the network KimB (hereinafter referred to as “the network”).

B. As the Deceased died on June 18, 2012, on August 20, 2012, the Plaintiff filed a report on the renunciation of inheritance with the Daegu Family Court ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and received a report on the renunciation of inheritance from the said court on August 29, 2012, and did not file a report on inheritance.

C. From September 15, 2014 to October 29, 2014, the Defendant conducted an inheritance tax investigation with respect to the Deceased, and confirmed that the Plaintiff used KRW 812,487,106,106, out of the purchase price 1,90,000,000 of the Daegu-dong ○○○-dong Land and Building (hereinafter collectively referred to as “instant real estate”) transferred by the Deceased on November 29, 2010, the Plaintiff deposited KRW 947,509,202 (hereinafter referred to as “the amount of the instant entry”) to the Plaintiff’s account on the same day. Of the purchase price of the instant real estate, the Plaintiff confirmed that the Plaintiff used KRW 812,487,106, total sum of the amounts listed in the table 1 to 4 as follows, among the purchase price of the instant real estate:

D. After November 29, 2010, the Defendant decided and notified the Plaintiff of KRW 133,181,226 (including additional tax) on January 7, 2015, on the ground that the Plaintiff received advance donation of KRW 133,181,226, the remainder after deducting the total amount of KRW 814,327,976 (the sum of the amount identified by the user as a result of the investigation of the inheritance as a result of the investigation of the above inheritance and the amount indicated by No. 5) from the amount entered in the table 1 as follows (hereinafter “instant disposition”).

E. The Plaintiff, who was dissatisfied with the instant disposition, filed an objection on March 30, 2015 and filed an appeal with the Tax Tribunal on July 31, 2015, but was dismissed on September 23, 2016.

Facts that there is no dispute for recognition, Gap Nos. 1, 2, 10, and Eul No. 1 and 2 (including paper numbers)

Statement, the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The principal claim

For the following reasons, the defendant's disposition of this case is unlawful and thus should be revoked.

A) ① The amount of the instant admission was used as full as KRW 876,025,420,420, and KRW 50,000,00, and KRW 21,483,782, and the Plaintiff did not receive any donation from the deceased, among the amount of the instant admission. ② Even if there was any portion not proved as the amount of the deceased’s obligation, the amount was 876,025,420, which was the remainder of the amount of the principal and interest of the Plaintiff’s credit loans under the name of the deceased and KRW 11,697,444, which was the remainder of the amount of the Plaintiff’s debt repayment, which the Defendant recognized as the amount of the deceased’s debt repayment, and KRW 50,00,00,00,000, and KRW 21,4835,00,000,000,000,000,000.

B) The Plaintiff’s waiver of inheritance against the Deceased was accepted on August 29, 2012, and the Defendant knowingly stated that the Plaintiff’s actual share of inheritance was 18.28% on the report on the completion of inheritance tax investigation on the Deceased, which was drafted thereafter, and rendered the instant disposition on this premise. Therefore, the instant disposition was unlawful as it was based on an unlawful tax investigation.

2) Request for intermediate confirmation

As seen earlier, the instant disposition is based on an illegal tax investigation, and its defect falls under the principle of exclusion of illegally collected evidence under Article 308-2 of the Criminal Procedure Act and Article 103 of the Civil Act, which is a serious case where the provisions of a juristic act contrary to social order under Article 103 of the Civil Act are applied mutatis mutandis, and thus, is null

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) The amount borrowed or borrowed the real estate of this case, which was owned by the deceased, as security, is KRW 652,487,106,00,00 in total, total of the principal and interest borrowed from Abank six times between August 29, 2006 and July 30, 2009, and KRW 652,487,106 in total, up to three times between June 15, 2009 and October 21, 2009.

2) On October 20, 2009, the Plaintiff borrowed KRW 684,000,000 from the ○○ Saemaul Savings Depository as collateral, and repaid KRW 652,487,106, the sum of the principal and interest of loan to AA Bank of the Deceased and the loan to BB. On December 24, 2009, the Plaintiff borrowed KRW 80,000,000 from the ○○ Saemaul Savings Depository. In addition, on June 1, 2010, the Plaintiff borrowed KRW 110,000,000 from the ○○ Saemaul Savings Depository (hereinafter collectively referred to as “each of the instant loans”).

The Deceased repaid the amount of KRW 110,000,000 in total (60,000,000,000,000 in loan to A, and the amount of KRW 50,00,00 in loan to EA) borrowed from EA or EA for the extension of the instant real property.

3) The costs of interest on loans incurred in relation to the repayment of the deceased’s debts are KRW 1,840,870,870,000,000, interest on loans of KRW 684,00,000 on loans of KRW 684,00,00 on October 209 to the ○○ Saemaul Bank of Korea, 1,840,000,000 in total, interest on KRW 652,487,106, and interest on KRW 1,216,440 on loans of KRW 624,430 on June 1, 2010.

4) On October 6, 2010, the Deceased sold the instant real estate to the 1,90,000,000,000 won, and on November 29, 2010, the deceased completed the stuff and the registration of ownership transfer in the future of Park Jong-A with respect to the instant real estate. On the same day, the deceased deposited KRW 947,509,202 (the instant entry amount) out of the purchase price in the Plaintiff’s account for self-reliance of the ○○○ Saemaul Depository (Account number: ○-○○-○○).

5) On November 29, 2010, the Plaintiff repaid the full amount of KRW 876,025,420 of the principal and interest of the instant loan to ○○ Saemaul Depository as the deposit amount of the instant case, and repaid KRW 50,000,000 to BB Bank on December 8, 2010.

6) The Defendant determined that the sum of KRW 814,327,976 as stated in the above table 1 was used in the repayment of the deceased’s obligation, and issued the instant disposition to the Plaintiff on January 7, 2015 on the ground that the Plaintiff received prior donation from the deceased, on the ground that the remainder of KRW 133,181,226 was donated by the deceased.

The whole pleadings and arguments, each of Gap's evidence 2, Eul's evidence 3 through 5, which has no ground for recognition;

purport of this chapter

D. Determination on the legitimacy of an intermediate confirmation suit

Ex officio, we examine the legitimacy of the suit for intermediate confirmation of this case.

In a case where there is a dispute between the parties as to the existence of a legal relationship which is in a prior relationship with respect to the judgment of the original claim during a lawsuit, the said litigation procedure may be combined with a lawsuit seeking confirmation of the relevant legal relationship (see, e.g., Supreme Court Decisions 83Nu554, 555, Jun. 26, 1984; 2007Da178, 2007Da314, Dec. 11, 2008).

However, the content of the Plaintiff’s claim for confirmation of intermediate confirmation is related to the validity of the instant disposition based on an illegal tax investigation as one of the unlawful grounds for the instant disposition alleged in the principal claim. Therefore, it cannot be deemed a legal relationship with the principal claim of this case. Moreover, the Plaintiff may contest the validity of the instant disposition in the principal claim of this case. As such, the intermediate confirmation lawsuit of this case cannot be an effective and appropriate means to eliminate the Plaintiff’s legal risk or unstableness, and thus, there is no benefit of confirmation.

Therefore, the plaintiff's lawsuit of intermediate confirmation of this case can be seen as false or unlawful.

E. Determination on the main claim

1) As to the assertion regarding donation

A) In a lawsuit seeking revocation of the disposition imposing gift tax, insofar as the amount of money of a person recognized as a donor by the tax authority is revealed to have been deposited in a deposit account, etc. in the taxpayer’s name, such amount is presumed to have been donated to the taxpayer. Therefore, barring special circumstances, such as withdrawing such amount and deposit, etc. in the taxpayer’s name, it is necessary to prove such amount to the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov. 13, 200

As to the instant case, as seen earlier, the Plaintiff deposited KRW 947,509,202 as the Plaintiff’s deposit account out of the purchase price that the deceased sold the instant real estate owned by him, and deposited KRW 947,509,202 as the Plaintiff’s deposit amount. Meanwhile, the Plaintiff is presumed to have given the Plaintiff the remainder of the deceased’s deposit amount calculated by subtracting the amount of the Plaintiff’s debt from the total sum of KRW 814,327,976 (the net’s principal and interest of the AA bank and the loan to BB, KRW 652,487,106, the sum of the amount of the deceased’s loan and the loan to thisB bank, KRW 110,00,000,000, and interest expenses related to the Plaintiff’s loan to the BB bank, barring special circumstances.

B) As to this, the Plaintiff asserts that the amount of the instant admission was deposited in order to use it as the sum of KRW 21,483,782 (hereinafter “the deceased’s hospital expenses, etc.”), and that the Plaintiff did not receive any donation from the deceased, in order to pay KRW 876,025,420 for each of the principal and interest of the instant loans to the Plaintiff’s ○○ Saemaul Bank, which is substantially the deceased’s debt, and KRW 50,00,000 for loans to the deceased’s BB Bank.

The facts that the Plaintiff repaid the total amount of KRW 876,025,420 of the principal and interest of each of the instant loans to the deposit amount on November 29, 2010 are as seen earlier, and comprehensively taking account of the overall purport of the pleadings in the written evidence Nos. 3 through 6, it is recognized that the deceased was hospitalized in the hospital from February 2012 to May 2012 and received treatment.

However, the following circumstances revealed by taking account of the above evidence and the purport of the entire oral argument, namely, ① each of the loans of this case was loaned by the Plaintiff under his name from the ○○ Saemaul Bank, and the obligor of the establishment registration of the establishment of a neighboring real estate established to secure each of the above loans is also the Plaintiff. ② However, each of the loans of this case was 764,327,976 won (=814,327,976 - BB bank loans - BB bank loans 50,000 won) calculated by deducting the amount of the deceased’s loan from the amount of the loan of this case to be repaid by the Plaintiff, and it is difficult to readily conclude that the Plaintiff’s loan of this case was repaid in excess of the amount of the deceased’s loan of this case, and there is no objective evidence to view it as the deceased’s debt of the deceased. ③ The confirmation confirming admission and discharge, admission and the account statement and medical expenses (Evidence Nos. 3 through 6) are not sufficient to conclude that the Plaintiff’s loan of this case was repaid.

Therefore, this part of the plaintiff's assertion is without merit.

C) In addition, the Plaintiff asserts that the presumption of donation of the property acquisition fund, etc. under Article 45 of the Inheritance Tax and Gift Tax Act pursuant to the proviso of Article 34(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, among the amount entered in the instant case, that the amount not proved as the amount of the deceased’s debt repayment, is reversed.

However, Article 45 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11330, Dec. 31, 201; hereinafter the same) cited by the Plaintiff and Article 34 of the Enforcement Decree of the same Act are provisions that presumed, under certain conditions, that the person acquiring the property or the debtor has donated the property, and that the said provision does not apply to this case where the cash (cash) itself is presumed to have been donated to his/her lineal descendant. Accordingly, the Plaintiff’s assertion on this part is without merit.

D) The Plaintiff asserts that, in order to impose gift tax on the Plaintiff, the Defendant did not prove that he had the ability to prove that he had the ability to donate to the Deceased in accordance with the purport of the Supreme Court Decision 2008Du20598.

However, the Supreme Court Decision 2008Du20598 cited by the Plaintiff in order to support the above argument held as to the subject and scope of the burden of proof as to the taxation requirements pursuant to the provision on the presumption of donation on the acquisition fund of the property whose place of origin is unknown, and there is a difference in the case in which the property (cash) transferred to his lineal descendants is presumed to have been donated, and as such, the instant input amount was recognized as the Plaintiff’s deposit account based on the evidence submitted in the instant case, since it was proved that the Plaintiff sold the instant real estate, which was owned by the deceased, and received as the sales amount, was deposited in the Plaintiff’s deposit account, it shall be deemed that the Plaintiff had re

2) As to the assertion regarding illegal tax investigation

In light of the following circumstances: (a) upon examining the inheritance tax on the deceased’s entire purport of pleading No. 2, the Defendant confirmed that the deceased deposited KRW 947,509,200,000 out of the purchase price of the real estate of this case into the Plaintiff’s account; and (b) KRW 135,02,096, an amount excluding the amount confirmed as financial liabilities, etc. of the deceased, etc., out of the above purchase price of the real estate, KRW 603,770,560, which was not known to the Plaintiff within 10 years before the commencement of each inheritance; (c) based on the fact that the Plaintiff did not know that the above amount was donated to the Plaintiff; (d) based on the fact that the Plaintiff was not subject to investigation on the inheritance tax and gift tax on the deceased’s total amount of KRW 738,792,656, which was not known to the Plaintiff; and (d) based on the Plaintiff’s report on the inheritance tax and gift tax on the deceased’s total value of inherited property, the Plaintiff’s share of KRW 1867.

Therefore, this part of the prior plaintiff's assertion is without merit on different premises.

3. Conclusion

Thus, the plaintiff's lawsuit of intermediate confirmation of this case is unlawful, and thus, it is dismissed, and the claim of principal lawsuit is dismissed.

Therefore, it is dismissed. It is so decided as per Disposition.