Cho-2014-China-4781 (2015.06.04)

No evidence exists to deem that there was a mutual agreement with the intention to grant property benefits by ultimately reverting them to a third party, and thus, it cannot be viewed as a donation.

No evidence exists to deem that there was a mutual agreement with the intention to grant property benefits by ultimately reverting them to a third party, and thus, it cannot be viewed as a donation.

Article 2 of the Inheritance Tax and Gift Tax Act (Gift Tax Taxables)

2015Guhap8980 Revocation of Disposition of Imposition of Gift Tax

MaO

O Head of tax office

2016.03.29

2016.04.26

1. The Defendant’s disposition of imposition of gift tax amounting to KRW 94,855,620 against the Plaintiff on June 16, 2014 is revoked.

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

Cheong-gu Office

Order 1)

1) Since there is no evidence to verify the date of disposition, it is recognized by the defendant.

1. Details of the disposition;

A. On September 1, 2009, AA sold the land and buildings located in OO-dong O-dong O-dong O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O(hereinafter referred to as the "each of the accounts of this case").

B. The Defendant deemed that the Plaintiff donated the instant money to AA on June 2014, deeming that the said money was donated by the Plaintiff.

16. The instant disposition was taken to determine and notify an OO of gift tax to the Plaintiff.

C. On September 22, 2014, the Plaintiff filed an objection against the instant disposition with the Defendant, and filed an appeal with the Tax Tribunal on September 22, 2014, but the appeal was dismissed on June 4, 2015.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 2, 3, Gap evidence 7-1, 2, Eul evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant money is a settlement amount paid by AA while arranging the relationship of claims and obligations with BB, which is the Plaintiff’s attached, and it is merely a remittance made by BB through each of the instant accounts in the name of the Plaintiff. It cannot be said that the Plaintiff did not receive a donation from AA, and that the economic value equivalent to the amount was reverted to the Plaintiff. Therefore, the instant disposition based on the premise that the Plaintiff received a donation is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

In a lawsuit seeking the revocation of a gift tax imposition, insofar as the deposit in the name of a donor recognized by the tax authority is revealed to have been deposited as 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 the withdrawal of such deposit and the deposit in the taxpayer’s name for purposes other than donation, the need to prove such fact exists under the taxpayer (Supreme Court Decision 9Du4082 Decided November 13, 2001). The fact that the instant deposit was deposited into each of the instant accounts in the Plaintiff’s name is as seen above, but the following circumstances are acknowledged through the purport of the Plaintiff’s statement and arguments (including documentary evidence attached thereto) and the entire statement of the Plaintiff’s claim that the Plaintiff received money from the Plaintiff for the first, middle, and high school, and that the Plaintiff’s account holder and the Plaintiff’s account holder were not able to be seen to have easily known that the Plaintiff had been in a relationship with the Plaintiff’s 2OB prior to the Plaintiff’s revocation of the gift.

Therefore, the disposition of this case is unlawful and the plaintiff's assertion pointing this out is with merit.

3. Conclusion

If so, the plaintiff's claim is justified.