National Tax Service Review Donation 2012-005 (201.03.08)

(2) the Corporation shall have the right to dispose of the money in advance and shall be subject to prior donation property

If it is found that the deposit is deposited in the bank account, etc. in the taxpayer's name, the deposit shall be presumed to have been donated to the taxpayer, and the transfer money shall have been used by withdrawing the transferred money on the same day, etc., and it shall be deemed that the plaintiff had the right to dispose of it.

2012Guhap1575 Revocation of Disposition of Imposition of Gift Tax

XX

Head of the Pakistan Tax Office

September 4, 2012

October 9, 2012

1. Of the instant lawsuits, the part of the claim for revocation of the gift tax imposition disposition against the Jeong among the instant lawsuits shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

On January 2, 2012, the Defendant revoked each imposition of KRW 000 on the aggregate of the gift taxes imposed on the Plaintiff and KRW 000 on the Plaintiff’s spouse on the same day.

1. Details of the disposition;

A. On January 25, 2008 and October 9, 2009, 200 won (hereinafter collectively referred to as “the instant loan”) were loaned from the North Korea Agricultural Co., Ltd. as collateral for one’s own real estate (hereinafter referred to as one’s own real estate) from North Korea, and then transferred the total amount of KRW 000 (hereinafter referred to as “the instant money”) to the Plaintiff’s account as follows, and the Plaintiff’s spouse’s account (hereinafter referred to as “the instant money”).

B. On November 1, 2009, as the YellowA died on November 1, 2009, successors, including the Plaintiff, reported and paid KRW 000,000, which included 80% of the above loans, as estimated inherited property 2).

C. However, on January 2, 2012, the Defendant: (a) determined that yellowA transferred the instant loan to the Plaintiff and JeongA; (b) imposed a gift tax of KRW 000 on the Plaintiff (hereinafter “instant disposition”); (c) imposed a gift tax of KRW 000 on the Plaintiff; and (d) imposed a gift tax of KRW 000 on the Plaintiff on the same day (hereinafter “instant disposition”); and (c) imposed a gift tax of KRW 00 on the Plaintiff. The content is as follows.

[Reasons for Recognition] Facts without dispute, Gap evidence 4, Eul evidence 1-4, Eul evidence 2, Eul evidence 3-1-2, Eul evidence 4-1-3, Eul evidence 5-1-4, and the purport of the whole pleadings

2. Whether the part of the instant lawsuit claiming revocation of the gift tax imposition and disposition against Jeong among the instant lawsuits is legitimate

A. The defendant's main defense

The plaintiff is not the other party to the disposition imposing gift tax on the regularA, and is not the standing to sue who can claim the revocation of the above disposition as the spouse of regularA.

B. Determination

Even a third party, who is not the direct counter-party to an administrative disposition, has a legal interest in seeking the revocation of the administrative disposition, the standing to sue is recognized. The legal interest here refers to a case where there is a direct and specific interest protected by the relevant laws and regulations and relevant laws and regulations. Provided, That the case where it is merely an indirect or factual interest, such as the abstract, average, and general interest commonly owned by the general public as a result of the protection of public interest, does not constitute a legally protected interest (see Supreme Court Decision 2006Du330, Mar. 16, 2006).

With respect to this case, the Plaintiff is the spouse of the Plaintiff, who is not the other party to the imposition disposition of the gift tax against the Plaintiff, and the Plaintiff is not the party to the imposition disposition of the gift tax against the Plaintiff, but the benefits infringed upon by the Plaintiff are either indirectly or factually and anti-private interests, and it is difficult to view it as constituting a specific interest protected directly by the relevant laws on the basis of the imposition disposition of the gift tax against the Plaintiff. Therefore, it cannot be said that the Plaintiff’s legal interest was infringed upon due to the imposition disposition

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant money was loaned by YellowA, the father of the Plaintiff, as collateral, by the Plaintiff’s lending of the real estate to the Plaintiff. The Plaintiff used the real estate as the living costs of YellowA while keeping it on behalf of YellowA, and the Plaintiff inherited the said real estate due to the death of YellowA, the Plaintiff succeeded to and repaid all the obligations of the said loan. The instant money was kept by the Plaintiff, and it was not a prior donation by the Plaintiff. Accordingly, the Defendant’s disposition of this case, which imposed the gift tax on the Plaintiff by deeming it as a prior donation, is unlawful.

B. Relevant statutes

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

C. Determination

In a lawsuit seeking revocation of a 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 for other purpose than donation, the burden of proof on such deposit lies with the taxpayer (see, e.g., Supreme Court Decisions 9Nu3272, Feb. 11, 1997; 9Du4082, Nov. 13, 2001).

As to the instant case, since the fact that the instant money, which is part of the instant loan, was deposited in the Plaintiff’s account is equal as seen earlier, it is reasonable to deem that the instant money was owned by the Plaintiff, barring any special circumstance.

Therefore, the evidence submitted by the Plaintiff alone is insufficient to recognize the fact that the Plaintiff was in custody of the instant money for the purpose of using it for the daily expenses of the YellowA as alleged by the Plaintiff. Rather, the fact that the Plaintiff reported the instant money to the estimated inherited property including the portion of the disposed property prior to the commencement of inheritance, not the original inherited property, by filing an inheritance report, including the portion of the disposal property prior to the commencement of inheritance, as seen earlier. In full view of the purport of the entire pleadings in each statement in subparagraph 4-2 and 3, the Plaintiff appears to have used the Plaintiff’s credit card payment, water supply and drainage fee, and newspaper subscription fee, etc. among the instant money transferred by the YellowA from October 26, 2009, and KRW 00 transferred to the Plaintiff on October 29, 209, which was used for the purpose of using it for the Plaintiff’s credit card payment, water supply and drainage fee, and newspaper subscription fee payment, and if so, it was recognized that the Plaintiff had the right to dispose of the instant money.

Ultimately, insofar as there is no evidence to deem that the transfer of the instant money was carried out for any purpose other than donation, it is reasonable to deem that the instant money was the donated property to the Plaintiff. Therefore, the Plaintiff’s assertion on a different premise is without merit.

4. Conclusion

Therefore, the part of the claim for the revocation of the gift tax imposition against Jeong among the lawsuit of this case is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.