Whether a donation is made in case a deposit in the name of the donor is withdrawn and deposited in the name of the taxpayer.

In the lawsuit of revocation of disposition imposing gift tax, the deposit is presumed to have been donated to the taxpayer, so long as it is proved that the deposit in the name of the person recognized as a donor by the tax authority is withdrawn and deposited in the name of the

Article 2 of the Inheritance Tax and Gift Tax Act

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

Gift tax of 11,870,250 won (issuance Number 59) for the Plaintiff on October 1, 2006, the Defendant’s gift tax of 2004

Each disposition of imposition of KRW 1,396,200 (issuance Number 60) shall be revoked.

1. Details of the imposition;

A. On August 13, 2004, ○○○○ (the mother of the Plaintiff died on March 13, 2005, hereinafter “the decedent”) sold KRW 696,000,000, out of KRW 816,000,000 paid as the purchase price, to the next ○○○○○○○ Deposit Account (Seoul 46312-56-4601) in 2004.

B. Of the above money, KRW 10,00,000 on September 3, 2004, and KRW 10,000,000 on September 15, 2004 deposited into the Plaintiff’s account under the name of the Plaintiff. On September 14, 2004, the cashier’s checks of KRW 110,00,000 on the face value deposited from the said Nonghyup account were the deposit money of KRW 637,30,302, 902 (hereinafter “the apartment of this case”), which was endorsed by the Plaintiff, were paid to ○○○○○○○ of the said apartment (the lessee’s name under the lease agreement granted by the fixed date is the Plaintiff’s spouse, and ○○○ is the above apartment house).

C. While the Defendant was investigating ○○○○○’s place of using the funds for the property disposed of prior to the commencement of inheritance, the Plaintiff deemed to have donated KRW 110,00,000,000, which was transferred from the account of the inheritee from the inheritee to the account of bank cashier’s checks in the name of the Plaintiff, and on October 1, 2006, the Plaintiff decided and notified the Plaintiff of KRW 11,870,250 (issuance Number 59) and KRW 1,396,200 (issuance Number 60) on the gift tax on KRW 110,00,000 (hereinafter “instant disposition”).

D. On May 28, 2007, the Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service as a donation of 2007-037, but the Commissioner of the National Tax Service dismissed the said request on July 23, 2007.

[Grounds for Recognition] Unsatisfy, A1-1, 2, 2, 3

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In order to close down the last life before the death as the head of an old church, the decedent leased the apartment of this case with the Plaintiff who was in the last life as the head of a church and in the form of a church assembly, and formed a lease contract with the name of ○○○○, a member of the right to lease on a deposit basis. However, the Defendant deemed that the Plaintiff was donated KRW 125,00,000 from the decedent and imposed gift tax on the Plaintiff, and thus, the instant disposition was unlawful.

B. Relevant statutes

【Constitution

Article 38 (Duty to Pay Taxes) All citizens shall have the duty to pay taxes under the conditions as prescribed by Act.

m. Inheritance Tax and Gift Tax Act

Article 2 (Gift Tax Taxables)

(1) Where any donated property falls under any of the following subparagraphs as of the date of donation due to a donation by a third party (excluding donation becoming effective due to death of a donor; hereafter the same shall apply), gift tax shall be levied on such donated property, pursuant to this Act:

1. Where a person who acquires property by donation from a third party (hereinafter referred to as " donee") is a resident (including a non-profit corporation, the head office or main office of which is located in Korea; hereafter in this paragraph and Articles 54 and 59, the same shall apply), all donated property received, as a donation, by the resident;

Article 4 (Gift Tax Liability)

(1) The donee shall be liable to pay the gift tax pursuant to this Act: Provided, That where the donee is a profit-making corporation, the gift tax payable by the profit-making corporation concerned shall be exempted, but where the profit-making corporation, the title holder of the gift tax under Article 45-2, is exempted from the gift tax, the actual owner

(2) Where a donee is a non-resident as of the date of donation, he/she shall be liable to pay gift tax only on donated property within Korea.

(3) In applying the provisions of paragraphs (1) and (2), when the donee is deemed incapable of paying the gift tax, which are the cases falling under the provisions of Articles 35 through 37, and 41-4, all or part of the gift tax equivalent thereto shall be exempted.

(4) Where a donee falls under any of the following subparagraphs, a donor shall be jointly and severally liable to pay the gift tax to be paid by the donee: Provided, That this shall not apply to cases falling under the provisions of Articles 35, 37 through 41, 41-3 through 41-5, 42 and 48 (limited to cases where a contributor is not responsible for the operation of the relevant public-service corporation and prescribed by Presidential Decree):

1. Where it is difficult to secure a taxation right because the domicile or residence is unclear;

2. Where it is deemed difficult to secure a gift tax claim even if the relevant taxpayer is in arrears and is unable to pay the gift tax.

(5) In cases falling under paragraph (2) and Article 45-2, the donor shall be jointly and severally liable for payment with the donee even though the donee does not fall under any subparagraph of paragraph (4).

(6) Where the gift tax is to be paid to the donor pursuant to paragraph (4), the head of tax office shall notify the donor of the reason.

Article 31 (Gift of Donated Property)

(1) Gift property under the provisions of Article 2 shall include property belonging to the donee, all articles having economic trainable in money and all de facto or de facto rights having property value.

C. Determination

(1) In a lawsuit seeking the revocation of disposition imposing gift tax, insofar as the deposit in the name of a person who is recognized as a donor by the tax authority is revealed to have been withdrawn and deposited in a deposit account 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., it is necessary to prove this to the taxpayer (see Supreme Court Decision 99Du4082, Nov. 13, 2001).

According to the above facts, as long as the deposit in the name of the deceased was withdrawn and deposited into the deposit account in the name of the plaintiff, or the plaintiff's spouse was paid with the deposit money in the real estate lease that became the tenant, the above amount is presumed to have been donated to the plaintiff. Thus, barring special circumstances, such as that the transfer of the above amount was made for other purpose than the donation, the need to prove

(2) In light of the fact that the lessee of the instant lease agreement was the ○○○○○, the Plaintiff’s spouse, and the real estate lease agreement (A10), which was voluntarily prepared and obtained a fixed date, was electronically made with the signature of the lessor and the seal of the lessee ○○○○○○, and the real estate agent’s confirmation and explanation attached thereto, while the real estate lease agreement (A6-1) claimed by the Plaintiff as the object of real estate brokerage was made with the seal of the lessor ○○○○○ and the seal of the inheritee, but the real estate agent’s title was affixed to the seal of the lessor ○○○○○ and the seal of the inheritee, but the real estate agent’s title was empty. In light of the fact that the ○○○○ stated that the decedent was hospitalized for a long time at the Daejeon Hospital except for the period of temporary hospitalization at the time of the inheritance investigation, the evidence submitted by the Plaintiff (a) was insufficient to acknowledge that the money was transferred to the Plaintiff for the purpose of the said lease.

In addition, in light of the fact that the above amount of KRW 15,00,000 was deposited into the account under the name of the plaintiff, and the plaintiff endorsed the above amount of KRW 110,000,000 on the cashier's checks, and that there are no special circumstances to give a donation to ○○, a son, who is not the plaintiff, who is an infant of the deceased, does not seem to have been ○○, even if the name of the tenant is ○○○, the other party to the donation is presumed not to be ○○, but to be the plaintiff).

(3) Therefore, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.