Seocho 2012west 5275 ( November 20, 2014)

Money deposited by an ancestor shall not be deemed as non-taxable living expenses under social norms.

Considering that the amount of income for the preceding five years of the Plaintiff, the current status of holding real estate and stocks, and the balance to the Plaintiff’s other deposit accounts before and after the date of account transfer, the amount deposited by the decedent to the Plaintiff cannot be deemed as the living expenses, etc. of the dependent

Article 31 of the Inheritance Tax and Gift Tax Act

Seoul Administrative Court 2015Guhap54926

○○○ 2

The director of the tax office.

March 18, 2016

May 13, 2016

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

The Defendant’s imposition of KRW 858,560,166 of the inheritance tax on September 14, 2012 against the Plaintiff South ○○, the imposition of KRW 193,859,270 of the gift tax on August 14, 2012 against the Plaintiff New ○○, and the imposition of KRW 200,524,620 of the gift tax on the Plaintiff’s New Manton on August 21, 2012 shall be revoked.

1. Details of the disposition;

A. On April 8, 2011, the Plaintiffs are the inheritors of Dok-si (hereinafter “the decedent”). On October 31, 2011, the Plaintiffs filed a return on the tax base of inheritance on KRW 25.69,741,7410,7,120 of the taxable value of inherited property; KRW 5.82,610,800 of the deductible value of inherited property; KRW 19.87,1320 of the tax base; KRW 8,320 of the tax amount paid; KRW 8.52,808,744 of the tax amount of inheritance.

B. (1) From November 12, 2004 to April 1, 2011, the Defendant: (a) deemed that 1.985 million won deposited from the account of the inheritee’s deposit to the account in the name of the Plaintiff in South ○○○ was donated from the inheritee; and (b) deemed that 293 million won deposited from the account of the inheritee’s deposit to February 22, 201, which was deposited from the account in the name of the Plaintiff ○○○○, was donated from the inheritee; (c) considered that 10 million won deposited from the account of the inheritee’s deposit to the account in the name of the deceased was donated from the inheritee; and (d) considered that ○○○ paid the Plaintiff’s guaranteed debt to the Plaintiff 1,000,000 won to the Plaintiff 2,000 won and 3,0000 won paid from the Plaintiff 1,000,0000 won to the Plaintiff 1,000 won and 13,0000.

C. The Plaintiffs filed a petition for adjudication on November 14, 2012. On November 20, 2014, the Tax Tribunal rendered a decision to rectify the tax base and tax amount of inheritance tax and gift tax according to the results of a reinvestigation as to whether the amount of KRW 1.532 billion deposited in the account in the name of the Plaintiff ○○○ for the period from November 12, 2004 to June 28, 201, and from June 28, 2006 to April 1, 2011, based on the evidence of financial evidence, etc., by the decedents deposited into the account in the name of the Plaintiff ○○○ for the period from June 28, 2004 to April 1, 201.

D. Accordingly, the director of the Seoul Regional Tax Office conducted a reinvestigation. On January 15, 2015, the defendant received a notice of the result and corrected the aggregate of the inheritance tax amount on the plaintiff South ○○ as KRW 858,560,156, and the sum of the amount of gift tax on the plaintiff South ○○ as of KRW 40,828,226, respectively (hereinafter referred to as "each disposition of this case") by reducing the amount of gift tax on the plaintiff South ○○ by KRW 40,828,26, respectively (hereinafter referred to as "the disposition of this case").

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 4 (including the relevant branch numbers), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) The instant guaranteed liability KRW 100 million is a debt that is unable to exercise the right to indemnity against the principal debtor, and thus, it is unlawful to exclude it from the value of inherited property (hereinafter “the first assertion”).

2) On October 29, 2007, November 26, 2007, and January 27, 2007, which the decedent deposited into the Plaintiff’s account through the Plaintiff’s account on December 30, 2008, on December 4, 2007, since the amount of KRW 20 million deposited into the Plaintiff’s account on January 30, 2008 constitutes non-taxable daily expenses under social norms, imposing gift tax on the Plaintiff’s New○ constitutes unlawful (hereinafter “the second assertion”).

3) Since the decedent's transfer from December 10, 2007 to February 27, 2008 to the account of the Plaintiff New ○○○○, KRW 175 million, the decedent, through the account of the Plaintiff New ○○○○, invested in or lent to the △△△ (hereinafter referred to as "Seoul △△△"), it is unlawful to impose gift tax on the Plaintiff New ○○ (hereinafter referred to as the "third argument").

4) The amount of KRW 100,000,000,000,000 deposited by the decedent on November 12, 2004, to the account of the Plaintiff Shin Mandong, which was collected from the Plaintiff’s loan to the decedent. As such, imposing gift tax on the Plaintiff Shin Mandong (hereinafter “the fourth assertion”).

5) On September 14, 2009, the amount of KRW 300 million paid by the Plaintiff Nam ○○ on the part of the Plaintiff Shin Mandong on September 14, 2009 was borrowed from the Plaintiff for the purpose of the Plaintiff’s new knives transfer tax, and thereafter repaid it to the Plaintiff Nam ○○. Accordingly, imposing gift tax on the Plaintiff Shin Man

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) As to the first argument

A) Article 14(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013) provides that “where inheritance commences due to the death of a resident, the amount of debts related to the decedent or the inherited property as of the date of commencing the inheritance shall be deducted from the value of the inherited property.” Here, the value of the inherited property refers to the amount of debts that the decedent is deemed to have to have been ultimately borne by the decedent at the time of commencing the inheritance.

Therefore, in cases where a debtor bears a joint and several liability for a third party at the time of commencement of inheritance or is liable for a surety's obligation for a third party, if the principal debtor is in an insolvent condition, and it is deemed that there is no possibility of repayment even if the principal debtor exercises a right to indemnity against the principal debtor, the amount of such debt may be deducted from the value of inherited property. In such cases, whether the principal debtor is in an insolvent condition at the time of commencement of inheritance can be objectively determined as a situation in which it is impossible to recover a debt due to the circumstances, such as bankruptcy, rehabilitation, corporate reorganization, compulsory execution, etc., or the commencement of business closure, missing, or execution of punishment, etc., for a considerable period of time when the principal debtor continues to have been in excess of his/her debt, and there is no other possibility that the principal debtor can receive a loan differently, and as such, the burden of proof as to the existence of such reason should be determined as the taxable value of inherited property on the part of the person liable for tax payment (see, e.g., Supreme Court Decision 2004Du836384).

B) The fact that △△△ borrowed KRW 100 million from the Han Bank Co., Ltd. (hereinafter referred to as "one bank"), and the fact that the decedent set up a pledge of KRW 100 million on one bank's account as a security for the above loan obligation is not in dispute between the parties, or that the evidence No. 1 and No. 1 are not in dispute between the parties, and that the whole purport of the arguments No. 1 and No. 1 is acknowledged.

다) 원고들은, 주채무자인 이◇◇가 개인 파산 상태이고 주식회사 ▲▲미디어(이하 '▲▲미디어'라 한다)는 결손법인으로서 이◇◇가 보유한 ▲▲미디어 주식은 환가가치가 없으므로, 주채무자인 이◇◇에 대한 구상권 행사가 불가능하다고 주장한다. 그러나 을 제5호증의 1 내지 4의 각 기재에 변론 전체의 취지를 더하여 알 수 있는 다음과 같은 사정, 즉 ① ▲▲미디어의 2011 사업연도부터 2013 사업연도까지 법인세 과세표준이 '-156,865,172원 → -79,130,728원 → -2,903,699원'으로 점차 증가하고 있는 점, ② 이◇◇가 액면가액 5,000원인 ▲▲미디어의 주식 10만 주를 보유하고 있는 점 등에 비추어 보면, 원고들이 주장하는 사정만으로는 주채무자인 이◇◇가 변제불능의 무자력 상태에 있다고 보기 부족하고, 달리 이를 인정할 만한 증거가 없다.

D) Therefore, it is justifiable that the Defendant’s failure to deduct KRW 100 million from the value of the inherited property as a surety of the inheritee. This part of the Plaintiffs’ assertion is without merit, and the inheritance tax imposition disposition against the Plaintiff South ○○ is lawful.

2) As to the second argument

A) Article 46 subparag. 5 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) provides that no gift tax shall be imposed on the amount corresponding to the amount prescribed by the Presidential Decree, such as interest contributed money and goods, medical expenses, dependents’ living expenses, educational expenses, and other similar things recognized under social norms. Article 35(4)2 and 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010) delegated by the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Act No. 22042, Feb. 18, 2010). Article 46 subparag. 5 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010). Meanwhile, according to Articles 974 subparag. 1 and 975 of the Civil Act, a lineal blood relative has an obligation to provide support only if one’s self-help or self-help.

나) 갑 제1호증의 기재에 변론 전체의 취지를 더하여 알 수 있는 다음과 같은 사정, 즉 ① 원고 신○○은 2004년부터 2008년까지 근로소득, 이자소득, 배당소득을 합하여 매년 평균 약 1억 4,000만 원의 소득을 얻은 점, ② 원고 신○○은 2007년말경 서울 ○○구 ○○동 000-0 ○○○ 000호 아파트, 강원 ○○군 ○○면 ○○리000-0, 000-0 토지(전), 주식회사 ♤♤ 주식 2,792,895주 등 합계 44억 3,033만여 원의 재산을 보유한 점, ③ 피상속인의 계좌에서 원고 신○○의 계좌로 500만 원씩 이체된 2007. 10. 29., 2007. 11. 26., 2007. 12. 27., 2008. 1. 30. 각각 원고 신○○의 다른 예금계좌에 잔고가 존재한 점 등을 고려하면, 원고 신○○은 위 이체일 무렵 자력으로 생활을 유지할 수 있었다고 할 것이므로 피상속인에게 2007. 10. 29.부터 2008. 1. 30.까지 원고 신○○에 대한 부양의무를 이행할 책임이 있었다고 보기 어렵다. 따라서 피상속인이 위 기간 동안 원고 신○○에게 지급한 2,000만 원은 사회통념상 인정되는 피부양자의 생활비 등으로서 증여세가 비과세되는 경우에 해당한다고 할 수 없다.

C) This part of the Plaintiff New ○○○’s argument is without merit, and each imposition of KRW 3,387,60 on October 29, 2007 against the Defendant’s New ○○○ on the gift (including additional taxes), KRW 3,370,80 (including additional taxes) on November 26, 2007, KRW 3,370,80 on gift tax on the gift on December 27, 2007, KRW 3,352,80 (including additional taxes) on the gift on the gift on December 27, 2007, and KRW 3,332,400 on the gift on January 30, 208 is legitimate.

3) As to the third argument

A) In a lawsuit seeking revocation of disposition imposing gift tax, inasmuch as the deposit of a person recognized as a donor by the tax authority is found to have been withdrawn and deposited in a deposit account, etc. in the taxpayer’s name, 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 taxpayer’s name, etc. were made for other purpose than donation, the need for proof thereof is the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov. 13, 2

B) The fact that the decedent transferred the amount of KRW 100 million on December 10, 2007, KRW 50 million on January 31, 2008, KRW 50 million on February 27, 2008, respectively, from his own deposit account to Plaintiff New ○○○○, as well as KRW 175 million on December 10, 2007, as there is no dispute between the parties. Thus, the above KRW 175 million is presumed to have been donated to Plaintiff New ○○.

Therefore, the above KRW 175 million needs to be proved that the decedent would make an investment in or lend to the △△△△△ through the Plaintiff’s deposit account in New○○○○.

다) 그런데 갑 제1호증, 을 제6호증의 각 기재에 변론 전체의 취지를 더하여 알 수 있는 다음과 같은 사정, 즉 ① 원고 신○○은 2007. 11. 21.부터 2008. 2. 29.까지☆☆에 2억 6,500만 원을 지급하였는데, 이에 관하여 ☆☆의 계정별 원장 적요란에 '대표이사 가수금 입금', '신○○ 대표이사 가수금 입금', '신○○ 가수금 입금', '신○○ 이사 차입금' 등이 기재되어 있고 피상속인에 관한 언급은 없는 점, ② 원고 신○○이 피상속인으로부터 이체받은 돈은 1억 7,500만 원이나 ☆☆에 지급한 돈은 2억 6,500만 원으로 양자 간에 차이가 있는 점, ③ 원고 신○○은 피상속인으로부터 1억 7,500만 원을 지급받기 전인 2007. 11. 21.부터 2007. 12. 7.까지에도 ☆☆에 1억 700만 원을 이체한 점, ④ 2007. 12. 10. 이체된 1억 원 중 4,200만 원이 원고 신○○의 생활비 등으로 사용된 것으로 보이는 점 등에 비추어 보면, 을 제7호증의 기재와 증인 이♧♧의 증언은 그대로 믿기 어렵고, 달리 피상속인이 원고 신○○을 통하여 ☆☆에 1억 7,500만 원을 투자 내지 대여하였다는 점을 인정할 만한 증거가 없다.

D) Therefore, this part of the Plaintiff New ○○○’s assertion is without merit, and each imposition of KRW 67,260,000 (including additional tax) on December 10, 2007 against Plaintiff New ○○○○, the Defendant’s imposition of KRW 33,324,00 (including additional tax) on January 31, 2008, and KRW 16,581,00 (including additional tax) on the gift tax on February 27, 2008 is legitimate.

4) As to the fourth argument

A) The fact that the decedent transferred KRW 100 million to the Plaintiff’s deposit account at his own deposit account on November 12, 2004 does not conflict between the parties, and thus, the above KRW 100 million is presumed to have been donated to the Plaintiff’s new shot. Therefore, the above KRW 100 million is deemed to have been donated to the Plaintiff’s new shot. Therefore, the need for proof on the fact that the Plaintiff’s new shot was returned to the decedent.

B) From November 28, 2002 to October 27, 2003, the amount of KRW 134,527,542 was withdrawn five times from the account of the plaintiff salknum, and the fact that the plaintiff salknum entered the Republic of Korea on July 21, 2002 after leaving the Republic of Korea on March 7, 2004 can be recognized by taking into account the dispute between the parties, the evidence No. 1, No. 1, No. 1, and the fact inquiry results with the Seoul Immigration Office of this court, and the whole purport of oral argument. However, there is no other evidence to acknowledge that the above facts alone lent KRW 134,527,542 to the defendant.

C) Therefore, this part of the Plaintiff’s new knicket’s argument is without merit, and the Defendant’s imposition of gift tax amounting to KRW 60,660,00 (including additional tax) on November 12, 2004 is legitimate.

5) As to the fifth argument

A) Facts of recognition

(1) 원고 신◎◎의 남편인 안▷▷은 2009. 9. 14. 유▶▶, 조◀◀과 사이에 서울 ○○구 ○○동 000-0 ○○○○○○ 제 000동 000호에 관하여 보증금 6억 3,000만 원, 임대차기간 2009. 9. 15.부터 2011. 9. 14.까지인 임대차계약을 체결하고, 조◀◀에게 계약금 500만 원을 지급하였다.

(2) On September 14, 2009, the Plaintiff South ○○ paid KRW 300 million to the Plaintiff’s new knives.

(3) 안▷▷은 2009. 9. 15. 임대인 유▶▶, 조◀◀에게 보증금 잔금 6억 2,500만 원을 지급하였다.

(4) On June 22, 2012, after the commencement of inheritance, the Plaintiff’s knives transferred KRW 300 million to the account of the Plaintiff Southern○○.

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

B) In addition to the aforementioned facts and the overall purport of the arguments, the following facts revealed: (a) the Plaintiff South ○○○, who paid KRW 300 million to the Plaintiff Newly Inserted by Presidential Decree No. 21348, Sep. 14, 2009; (b) the Plaintiff Mandong and the Plaintiff South ○○, who did not prepare a document proving the loan for consumption, such as the Plaintiff Mandong and the loan certificate; and (c) the inheritance tax investigation on the Plaintiffs was conducted on May 4, 2012; and (d) the time when the Plaintiff Mandong transferred KRW 300,000 to the Nonparty ○○ on September 14, 2009, is presumed to have actually donated the said KRW 300,000 to the Plaintiff Mandong.

C) Therefore, this part of the Plaintiff’s new knives claim is without merit, and the Defendant’s imposition of gift tax on September 14, 2009 on the Plaintiff’s new knives of knives (including additional tax) is legitimate.

3. Conclusion

The plaintiffs' claim of this case is dismissed in entirety as it is without merit, and the costs of lawsuit are assessed against the losing plaintiffs. It is so decided as per Disposition.