Cho High Court Decision 201Do3029 ( November 21, 2011)

It is presumed that the advance donation of down payment in the purchase price is presumed to have been made.

The fact that the money is presumed to have been donated to the taxpayer even if the source of money deposited in the deposit account is revealed to be a donor by the tax authority because it was received apartment down payment and deposited in the account, and it is not a donation.

2012Guhap6018 Revocation of Disposition of Imposition of Gift Tax

MaximumD

head of Dongjak-gu Tax Office

November 30, 2012

January 4, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 000 (including additional taxes) and KRW 000 (including additional taxes) of the gift tax on October 12, 2005 against the Plaintiff on July 1, 201 and December 1, 2005 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. MaximumD transferred, on July 20, 2005, 000 O-dong 00 O-dong 000 O-dong 58 206 (hereinafter referred to as "O-house") and on December 9, 2005, Seocho-gu Seoul O-dong 00 new-O apartment 00 00 dong 000 (hereinafter referred to as "O-O apartment") respectively.

B. On October 12, 2005, HF, the spouse of the least DD, withdrawn 00 won from the account under the name of the Plaintiff, and deposited 1 bank account (000, hereinafter referred to as the “instant account”) under the Plaintiff’s name, the ancillary parent of the same day. Meanwhile, the cashier’s check of 000 won at par value paid as the down payment out of the purchase price of the new OO apartment was deposited into the instant account on December 1, 2005. Of the above money, 00 won was returned to the other bank account under the Plaintiff’s name (00) opened on December 7, 2005, and withdrawn in cash on December 22, 2005.

C. On July 1, 201, the Defendant imposed and notified the Plaintiff the gift tax of KRW 00 on the gift of December 12, 2005, and KRW 000 on the gift of December 12, 2005, and KRW 000 on the gift of December 11, 2005 (hereinafter “instant disposition”).

D. The Plaintiff filed a request for judgment on August 22, 201, and received a decision of dismissal on November 21, 201 as the Tax Tribunal.

[Reasons for Recognition] The entry of Gap, Eul, Eul, Eul, and two (including household numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition based on the premise that the gift is illegal is inasmuch as the FF received a down payment from the purchase price of a new OO apartment on October 12, 2005 and deposited, managed and used in the account in the name of the plaintiff on December 1, 2005, and the instant disposition based on the premise that the gift is a gift is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As long as the facts revealed in a lawsuit seeking revocation of disposition imposing gift tax, and the deposit in the name of a donor recognized as a donor by the tax authority is withdrawn and deposited in the name of a taxpayer, such deposit is 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 are made for other purposes than gift, it is presumed that the taxpayer was donated to the taxpayer (see Supreme Court Decision 99Du4082, Nov. 13, 2001). Therefore, even if the source of money deposited in the account in the taxpayer’s name is revealed to be a donor by the tax authority, the said money is presumed to have been donated to the taxpayer.

(2) On October 12, 205, the Plaintiff’s entry into the instant account was withdrawn from the Plaintiff’s account, and the deposit amount on December 1, 2005 was presumed to have been donated to the Plaintiff’s account in accordance with the above legal principles, because the deposit amount was less than 0,000 won in the instant account, and there was no evidence to acknowledge that the deposit was made in the instant account under the name of 0,000 won, and that there was no other evidence to acknowledge that the deposit was made in the instant account under the name of 0,000 won, and that there was no other evidence to acknowledge that the deposit was made in the instant account under the name of 0,000,000 won, and that there was no other evidence to acknowledge that the deposit was made under the name of 10,000,000 won, and that there was no other evidence to acknowledge that the deposit was made under the name of 10,000,000 won in the instant account.

3. Conclusion

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