Whether the money transferred by the decedent to the plaintiff constitutes an advance donation

Even if the plaintiff and the deceased were married, it is reasonable to view that money 2, 3 is not deposited due to convenience of community life, entrustment and management of the plaintiff's predecessor's funds, or payment of living expenses, but donated to the plaintiff by the deceased.

Article 13 of the Inheritance Tax and Gift Tax Act

2018Guhap73348 Action Demanding revocation of a disposition of additional gift tax

Section AA

00. Head of tax office

April 12, 2019

May 17, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 00,00,000 (including additional taxes) on March 27, 2015 against the Plaintiff on November 1, 2017 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is between the husband and wife of thisA (hereinafter “the decedent”), and the decedent died on August 7, 2016.

B. On February 28, 2017, the Plaintiff filed a tax base return on inheritance tax with the taxable value of inherited property KRW 00,000,000,000, and paid the total amount of KRW 0,000,000 in inheritance tax and additional tax.

C. From June 12, 2017 to September 11, 2017, the commissioner of the Korea Regional Tax Office conducted an inheritance tax investigation with respect to the Plaintiff, and notified the Defendant of the total of KRW 272,00,000,000, which was deposited in the Plaintiff’s account as shown in the following table, by regarding the inheritee’s prior donation property against the Plaintiff. Accordingly, on November 1, 2017, the Defendant decided and notified the Plaintiff of KRW 00,000 (including additional tax) of gift tax (hereinafter referred to as “the withdrawn amount”) (hereinafter referred to as each amount is set by the sequence).

Classification

Date of trading

Withdrawal of money;

Bank

Amount

1

207.07.18

Our 1002-915-0000

10,000,000 won

207.08.16

Our 1002-915-0000

10,000,000 won

oly 22, 2007

Cit160-07750-000

10,000,000 won

208.03.20

Cit160-07750-000

20,000,000 won

208.03.20

Our 1002-915-0000

2,000,000 won

2

208.04.10

Cit160-02467-0000

100,000,000 won

3

208.09.01

New 214-01-0000

100,000,000 won

guidance.

272,00,000 won

D. The Plaintiff dissatisfied with the disposition stated in paragraph (c) and filed a request for examination with the Commissioner of the National Tax Service on March 6, 2018, but the Commissioner of the National Tax Service excluded the portion of the money No. 1 of April 26, 2018 from the pre-donation property, thereby citing only this part, and dismissing the remainder 2 and 3 of the money.

E. According to the decision of the Commissioner of the National Tax Service, the Defendant corrected the tax amount to KRW 000,000 (including additional tax) (hereinafter “the disposition of imposing gift tax remaining after the reduction”) (hereinafter “the disposition of this case”).

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 5 evidence, the purport of the whole pleadings

2. The plaintiff's assertion

The Defendant rendered the instant disposition on the premise that the decedent donated Nos. 2 and 3 money to the Plaintiff.

However, the No. 2 amount was disbursed as the hospital expenses of the inheritee or returned to the Plaintiff, and the No. 3 amount was merely deposited in the account in the name of the Plaintiff to operate the financial product of the inheritee, and thus all of the pre-donation property should be excluded. Thus, the instant disposition is unlawful.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. In a lawsuit seeking revocation of disposition imposing gift tax, insofar as the deposit in the name of a donor was withdrawn by the tax authority and deposited in a deposit account, etc. in the name of the taxpayer is presumed to have been donated to the taxpayer. Thus, barring special circumstances, such as withdrawal of such deposit, deposit in the name of the taxpayer, etc. was made for other purpose than donation, the need to prove such fact lies on the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov. 13, 2001).

However, in a case where it is found that the facts alleged to have been presumed to exist in light of the empirical rule in the specific litigation process in a lawsuit seeking revocation of a tax imposition disposition, the person liable for duty payment who disputes the illegality of the taxation disposition shall prove that the facts at issue are inappropriate to apply the empirical rule, or that there are special circumstances to exclude the application of such empirical rule in the relevant case. However, in a case where such empirical rule is not recognized, in principle, the tax authority shall prove the facts requiring taxation. In a case where a spouse’s deposit is withdrawn between the couple and the other spouse and deposits into a deposit account in the name of the other spouse, there may be various causes, such as convenient living, trust management of one spouse, and payment of living expenses to the other spouse, in addition to the donation, such circumstance alone cannot be presumed to have been a taxable fact that the relevant deposit was donated to the other spouse in light of the empirical rule (see, e.g., Supreme Court Decision 2015Du41937, Sept. 10,

Meanwhile, barring special circumstances, such as where a tax authority received a written confirmation from a taxpayer to a certain taxable fact in the course of conducting a tax investigation, it cannot readily deny the value of such written confirmation, barring any such special circumstance as where it is difficult to take the written confirmation as evidence for specific facts due to the person’s intent or lack of the content (see, e.g., Supreme Court Decision 2006Du8068, Sept. 25, 2008).

B. In full view of the following circumstances as to the instant case, it is reasonable to view that the Defendant’s donation was not made to the Plaintiff, not due to the convenience of community life, the consignment management of the Plaintiff’s decedent’s funds, or the payment of living expenses, even though the Plaintiff and the decedent’s death, due to the following circumstances, comprehensively taking account of the overall purport of the statement and arguments as to the Plaintiff’s health team, the evidence as mentioned earlier, and evidence Nos. 1 through 4, 6, and the entire purport of

① At the time of reporting inheritance tax to the tax authority, the Plaintiff reported the No. 2 Money as donated by the decedent.

② On April 29, 2008, the Plaintiff used KRW 30,000,000 for personal purposes, such as funds for purchasing financial investment instruments under the Plaintiff’s name, on May 15, 2008.

③ At the time of the tax investigation, the Plaintiff prepared and submitted a written confirmation (No. 4) recognizing that 3 money was donated by the decedents. It is difficult to find any special circumstance, such as that the said written confirmation was duly signed and sealed or its content was insufficient against the Plaintiff’s will.

④ If the No. 3 money was merely deposited in order to operate a financial product of the inheritee, it shall be deemed an inherited property of the inheritee notwithstanding its name. However, the Plaintiff did not report the No. 3 money as inherited property at the time of filing an inheritance tax. Moreover, there is no financial data supporting the fact that the No. 3 money was returned to the Plaintiff.

⑤ There is no evidence supporting the fact that the Plaintiff paid Nos. 2 and 3 to the hospital expenses or living expenses of the inheritee, and the hospital expenses of the inheritee were collected from another account that is not deposited by Nos. 2 and 3.

5. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.