Seoul Administrative Court 201Guhap20673 ( December 07, 2011)

early 2010west3992 (Law No. 19, 2011)

the time of deposit and the process of finding each of the deposits in this case shall be deemed to constitute the donation in advance.

(1) In the case of the division of inherited property, it is reasonable to deem that the deceased donated a deposit in light of the following: (a) the court rendered a decision that the deceased donated each deposit, but does not constitute a special benefit; and (b) the time and timing of finding each of the deposits in this case; and (c) the time and time of finding such deposits

2011Nu43784 Revocation of Disposition of Imposition of Gift Tax

XX

Head of Seocho Tax Office

Seoul Administrative Court Decision 2011Guhap20673 Decided December 7, 2011

July 6, 2012

September 7, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The disposition of imposition of gift tax of KRW 000 against the Plaintiff on October 30, 2010 shall be revoked by the Defendant.

1. Details of disposition;

The reasoning of this judgment concerning this part is as stated in Paragraph 1 of the reasoning of the judgment of the first instance except for the second instance court's second instance on October 22, 2010, which is the nine nineth day of the judgment of the first instance. It shall be cited in accordance with Paragraph 2 of Article 8 of the Administrative Litigation Act, the main text of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In order to raise funds to purchase the store of this case, the deceased borrowed KRW 000 from the HH bank on July 4, 198. After that, the deceased requested the plaintiff to assist in the repayment of the above loan. From June 15, 1990 to April 22, 191, the plaintiff residing in the U.S. transferred USD 200 to the account in the name of the plaintiff in the name of the deceased and the EE bank opened by the deceased. The deceased repaid the above loan with the money transferred by the plaintiff, and cancelled the registration of the establishment of the establishment of the neighboring bank, a mortgagee of HH bank, established at the store of this case on August 21, 191. After that, each of the above deposits of this case were sold from the deceased, each of the above deposits of this case was unlawful on the premise that the deceased's repayment of interest and interest on the deceased was made against the plaintiff.

B. Determination

1) According to the evidence Nos. 1 through 23, 3-1, 2, 7, and 9-1 through 3 of the evidence Nos. 1 to 3, the Plaintiff, residing in the United States, transferred the amount of USD 00 to the account of the Plaintiff’s SS Bank and EE Bank in the name of the Plaintiff over 23 times from June 15, 1990 to April 22, 1991. On July 4, 1988, the registration of establishment of a mortgage on the instant store was cancelled on August 21, 1991; the Plaintiff and the deceased’s property jointly succeeded to the deceased’s property transferred the amount of USD 00 to 00,000,000 to 0,000,000,000,000,000,000,000,000,000,00,00,000,00,00.

It would be recognized that 000 won was paid when '(the plaintiff) was paid 000 won when '(the 90's 000s . The 500 million won was 000 won when the bank money was not paid but the promise to recognize it was not paid only 50,000 won.' In the above lawsuit, it can be recognized that 'the net prepared by NAB' by 'the deceased' was submitted at the time of the purchase of the store of this case around 190, 'the plaintiff should not have lent 50,000 won to the deceased.'

In full view of the above facts of recognition, upon the request of the deceased, the Plaintiff remitted money to Korea in order to repay the above loans to HH bank that the deceased had borne by the deceased, and it appears that this money was repaid by the deceased with the above loans.

2) However, examining the following circumstances, in light of the Plaintiff’s remittance of money as above, as to whether the Plaintiff was a lending to the Deceased and whether each of the instant deposits was the cause of repayment for such loans, each of the instant deposits appears to have contributed to the Plaintiff in repaying the above loans, which were the financial resources for acquiring the store of this case, and the Plaintiff’s contribution to the Plaintiff is merely deemed to have contributed to the Plaintiff, and it does not appear that the Deceased made a donation to the Plaintiff. In full view of the above recognized facts and the statement of evidence No. 10, the Plaintiff’s remittance of money to the Deceased is insufficient to accept the foregoing recognition (as seen below, considering the Plaintiff’s lending of money to the Deceased, rather than lending money to the Deceased, the Plaintiff appears to have been the motive for the Plaintiff’s donation of each of the instant deposits to the Plaintiff, and thus, the Plaintiff’s assertion as to each of the instant deposits cannot be accepted.

A) Although the Deceased made each of the instant deposits after 12 to 13 years from the time when the Plaintiff remitted the said money, it appears that the Plaintiff did not have been aware that the Plaintiff specifically urged the Deceased to repay his debt, or that both parties did not recognize that the Plaintiff had a relation to the obligation of the loan, from the time when the said money was remitted to the time when each of the instant deposits was deposited (as seen in the above domains of the Deceased, the Plaintiff asserted that the Plaintiff requested the Deceased to return 000s when he paid the bank money to the Deceased, but the above contents are more than demanding the Plaintiff to repay the loan, so the Plaintiff contributed to the Plaintiff’s acquisition of the instant store rather than demanding the repayment of the loan, and thus, it appears to the purport that the Plaintiff’s share is changed later)

B) If the Deceased made each of the instant deposits with the intent to repay money borrowed from the Plaintiff, the Plaintiff appears to have known the amount and deposit to the Plaintiff after the Deceased made each of the instant deposits and notified the Plaintiff of the fact, and even if it is natural to know the Plaintiff as to the amount, the Plaintiff appears to have become aware of it after the Deceased’s death (the Plaintiff asserted that the Plaintiff was aware of each of the instant deposits at the time when the Deceased made each of the instant deposits based on the statement No. 9-1 and No. 3. However, as alleged by the Plaintiff, considering the fact that each of the instant deposits was the cause of the Plaintiff’s residence in the U.S., even if considering the fact that each of the instant deposits was the cause of the Plaintiff’s repayment, it would be natural behavior to confirm where much money was deposited even if considering the fact that the Plaintiff had been residing in the U.S. at the time, rather, the circumstance that the Plaintiff had been aware of it, by recognizing the Plaintiff’s contribution to the acquisition of the instant store, instead of the cause of repayment for the loans).

C) In the above case of the claim for the division of inherited property (Seoul Family Court 2010 Mahap199), “the Plaintiff remitted money of KRW 50,000 or KRW 000 to the Deceased around 1990. The Deceased was sentenced to a judgment that each of the instant deposits cannot be deemed to have been given to the Plaintiff on the ground that “The Plaintiff’s donation of each of the instant deposits to the Plaintiff, even though it did not constitute a special profit, by selling the said store around 1990 after the Plaintiff purchased the said money from the Plaintiff, and selling it around 203, it appears that the Plaintiff opened the Plaintiff’s account in the name of the Plaintiff and deposited KRW 00 to the Plaintiff.”

D) Upon submitting evidence No. 8-1 and No. 8-2 as evidence, the Plaintiff asserted that each of the deposits of this case was a reasonable amount for USD 000 and interest for about about about 13 years that the Plaintiff lent to the Deceased, and did not specifically claim on any of the grounds that the repayment amount was set at KRW 00,000, which is each of the deposits of this case.

E) The Plaintiff appears to have claimed that the Plaintiff lent KRW 000 to July 1990 at the trial stage of the instant disposition (it appears to have been based on the Plaintiff’s statement No. 6, which can be known as the Plaintiff’s statement, on May 14, 1990 to the household monetary trust account of HH Bank established on May 14, 1990, and on May 28, 1990, KRW 000, on a total of 34 occasions from May 14, 1990, and KRW 190 on June 19, 190, and KRW 00 on July 6, 1990, and the Plaintiff’s statement appears to have been submitted to the Plaintiff’s account No. 300 on July 14, 1990 to be consistent with the Plaintiff’s assertion that the Plaintiff’s statement was transferred to the Plaintiff’s account No. 300 on June 21, 192).

3. Conclusion

If so, the plaintiff's claim of this case shall be dismissed due to the lack of reason, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit