Changwon District Court-2016-Gu 52215 ( December 19, 2017)

In case where the presumption of donation of the fund for acquiring property is applied under Article 45 (1) of the Inheritance Tax and Gift Tax Act, there is a taxpayer with the proof of anti-proof facts

In a case where a person who has no certain occupation or income does not have a site for any money to be paid for the pertinent property by a person who has no such occupation or income, and there is any such lineal ascendant or spouse, etc., it is presumed that the said money has been donated from the person who

Article 45 of the Inheritance Tax and Gift Tax Act (Presumption of Donation of Funds for Property Acquisition)

(C)The revocation of the disposition imposing gift tax

QaA

The director of the tax office of Luxembourg

Changwon District Court Decision 2016Guhap52215 Decided December 19, 2017

October 10, 2018

November 14, 2018

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The Defendant’s gift tax of 2007 against the Plaintiff on May 29, 2015

98,591,530 won shall be revoked.

1. Details of the disposition;

The reason why the court should explain this part is the same as that of the corresponding part of the judgment of the court of first instance.

Ro, Article 8(2) of the Administrative Litigation Act, and the main sentence of Article 420 of the Civil Procedure Act

(c)

2. Relevant statutes;

It is as shown in the attached Form.

3. Judgment on the plaintiff's assertion

A. Summary of the plaintiff's assertion

The Plaintiff asserts that the instant disposition is unlawful on the grounds that it is unreasonable for estimatedB to consider that the Plaintiff donated KRW 300,000,000 to the Plaintiff the purchase price of the instant land.

1) The Plaintiff was in office as a teacher at the time of acquiring the instant land from 2002 to 2007, and was able to pay the purchase price of the instant land with wage and salary income of KRW 462,891,383 (average wage of KRW 6,249,047) (average wage of KRW 2,642,319) for six years from 2002 to 2007, and the Plaintiff’s husband’s husband’s HuCC entered a large enterprise (LG electronic) from 2000 to 2007.

2) The Plaintiff transferred money exceeding KRW 300,000,000, as indicated in the [Attachment 2] List of Money Transferred by the Plaintiff to the postB, and repaid all the purchase price of the instant land.

B. Relevant legal principles

1) Article 45(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) provides that where it is difficult to recognize that the property was acquired with financial resources considering the occupation, age, income, property status, etc., as prescribed by the Presidential Decree, the acquisition fund of the pertinent property shall be presumed to have been donated to the person who acquired the property at the time of the acquisition of the property and shall be deemed to have been donated to the person who acquired the property, and shall be deemed to have been donated to the property to the person who acquired the property. This is a provision to achieve equity

2) Specifically, Article 34(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20323, Oct. 15, 2007; hereinafter the same) provides that the taxpayer can prove his/her income, ① the income reported or taxed, ② the inheritance or gift property reported or taxed, ③ the amount used directly for the acquisition of the pertinent property in money received in return for the disposal of the property, or the amount used directly for the repayment of his/her obligation in money received in return for the disposal of the property (i.e., + ② + ② + ③ the amount used directly for the acquisition of the pertinent property, or the

3) As a matter of principle, the fact of donation of property, which is a requirement for the imposition of gift tax, is a matter to be proved by the tax authority. Thus, if a person who had a substantial refluence with a certain occupation at the time of acquisition of the property and had a substantial income therefrom, barring any special circumstance, if the funds required for the acquisition of the property are not presented daily, the portion of the funds required for the acquisition of the property, which was not presented clearly cannot be deemed to have been donated to another person, barring any special circumstance. However, if a person without a certain occupation or income, is not a site to obtain funds, and his lineal ascendant or spouse, etc., if there is a sufficient refluence to make a donation, it shall be reasonable to presume that the said funds were donated from the person having a refluence. As such, in order to estimate the donation, the tax authority must prove that the donor had a refluence to donate the property, as well as that there was no certain occupation or income (see, e.g., Supreme Court Decision

C. Whether the defendant's presumption of gift is legitimate

In light of the facts without dispute, comprehensively taking into account the following circumstances acknowledged by Gap's evidence Nos. 1, 3, 11, 12, 13, 15, 16, 30, 39, Eul's evidence Nos. 5, 6, 8, 10, and 11 (including each number; hereinafter the same shall apply), and the overall purport of pleadings, it is reasonable to deem that the plaintiff was paid the purchase price for the land by the estimatedB who acquired the land of this case without any special re-payment, and thus, it is legitimate to deem that the subsequentB was paid the purchase price for the land of this case by the plaintiff under Article 45 (1) of the former Inheritance Tax and Gift Tax Act.

1) There is no evidence to acknowledge that the Plaintiff paid part of the purchase price of the pertinent land to the seller KimD at the time of the acquisition of the instant land, and the subsequent B seems to have paid the full purchase price to KimD.

2) On January 15, 2014, the postB submitted to the Busan Regional Tax Office a certificate (Evidence No. 10) recognizing that the land of this case was acquired with a loan from the postB, and donated the money equivalent to KRW 300,000,000 to the Plaintiff. The above certificate was written by the postB’s free will, and is written by the date and time of donation, method of donation, etc., and thus, it cannot be easily denied the value of evidence (the plaintiff asserted that the above certificate was written by coercion (the plaintiff asserted that the document was written by coercion, but the document was submitted by the plaintiff (the plaintiff, June, 18, 2018), and the postB received emergency treatment with a urine, etc. at the time of investigation by the National Tax Service was prepared on February 4, 2014, and thus, it cannot be deemed that there was no evidence to prove otherwise by the document No. 20) and No. 20 of the above certificate.B.

3) The Plaintiff asserted that HuCC and her spouse had raised a considerable amount of income as a teacher and a large company member. However, the Plaintiff did not submit any materials to prove the existence of the funds at the time of acquiring the instant land after deducting the principal’s living expenses, such as his housing expenses, etc., and the Plaintiff did not pay a loan amount of KRW 19,00,000 to the Korean Teachers’ Credit Union on February 13, 2005, and repaid all of them on February 17, 2006. At the time of acquiring the instant land, the Plaintiff was liable for the loan amount of KRW 26,50,000 on June 9, 2006 (Evidence No. 12-1 and 39). Even if the income of HuCC is somewhat larger than the Plaintiff, it is difficult to view that the Plaintiff and HuCC married to the extent that the Plaintiff had acquired the instant land at the time of acquiring the said land.

4) On the other hand, RB had held seven parcels of real estate at the time of the acquisition of the instant land, from 200 to 2007, and had business income reached KRW 4,290,765,350 (Evidence A, No. 5, and No. 8) while at the time of the acquisition of the instant land, RB’s liabilities at the time of the acquisition of the instant land amounting to KRW 68,650,00 in total, KRW 40,000 in total, and KRW 40,000 in total (Plaintiff No. 5, Nov. 6, 2017; evidence No. 5, No. 2014, May 6, 2014). In light of the fact that the purchase price of the instant land was sufficient to pay the purchase price of the instant land to the local council members at the time of the nationwide election from each of the six instancess of 2010 to 1B.

5) The Plaintiff also recognized that, even though it appears natural for the Plaintiff to pay the interest on the loan to which the instant land was loaned as security, the Plaintiff is paying the interest on the instant land up to the present day (Article 11 and 13 of the Plaintiff’s preparatory document dated November 6, 2017 and evidence No. 11). If the Plaintiff acquired the instant land by lending money from the estimatedB, it would be difficult for the Plaintiff with a stable income to pay the interest on the loan, but the reason why the prospectiveB continued to pay the interest on the loan is not reasonably explained.

D. The plaintiff's reflective proof

1) As to the Plaintiff’s assertion of repayment

A) As long as the Defendant’s presumption of gift is lawful, the Plaintiff is liable to reverse the presumption by reflective evidence. As seen earlier, the Plaintiff borrowed the purchase fund from B at the time of the purchase of the instant land, and thereafter, the Plaintiff paid 300,000,000 won or more as stated in the attached Table 2.

B) According to this court's order to submit financial transaction information to ○○ Agricultural Cooperative, each money has been deposited in the name of the plaintiff or HeCC on the date indicated in attached Table 2, as alleged by the plaintiff (**************-********). However, considering the following circumstances acknowledged by each of the above evidence and the evidence stated in attached Table 2, the remittance details are insufficient to recognize that the plaintiff borrowed the purchase price from PB at the time of acquisition of the land of this case or paid the purchase price from PB for the repayment of the purchase price borrowed from PB, and there is no other evidence to acknowledge this otherwise.

① The Plaintiff acquired the instant land on September 29, 200, with the permission to construct a new gas station on the instant land from October 2, 2007 to December 19, 2008 (hereinafter “instant gas station building”) and carried out the construction of a new gas station with the total floor area of 21.3 square meters on the instant land from October 2, 2007 (i.e., 0., 200, 100, 200, 100, 200, 100, 200, 100, 200, 100, 200, 70, 200, 10, 200, 10, 20, 10, 10, 20, 10, 20, 20, 10, 10, 15, 10, 207, 207, 10, 205, 18, 1.

② 추BB는 2014. 1. 3. 허CC에게 ▽▽시 ▼▼동 ●●●-●, ●●●-, 토지 및 그 지상 건물을 350,000,000원에 매도하고, 허CC은 같은 날 위 부동산에 관한 소유권이전등기를 마쳤으므로(을 제12호증), 별지2 내역표 중 추BB가 허CC에게 위 부동산을 매도한 무렵인 2013. 11. 12.부터 2014. 2. 28.까지 추BB에게 송금된 돈 총153,600,000원은 위 토지 및 건물의 매매대금일 가능성을 배제할 수 없다(실제 추BB 명의 농협 계좌에는 입금인이 2014. 1. 6.자 17,000,000원은 '허CC취득ta'로, 같은 날 5,000,000원은 '채권값'으로, 2014. 1. 29.자 11,000,000원은 '허CC매매금'으로 각 표시되어 있다).

③ The Plaintiff asserts that each money indicated in the separate sheet No. 2 is the amount paid by PB by borrowing the purchase price of the instant land from PB. However, in light of the following: (a) the repayment period has exceeded seven years, and the repayment period or amount is excessively indefinite; (b) the Plaintiff paid a large amount of money to PB; (c) the Plaintiff’s obligation of loans in the name of PB, which was secured by the instant land, was not fully repaid; and (d) on September 8, 2011, the Plaintiff’s MaE assumed the above loan obligation from PB from PB to the obligor and changed the obligor into MaE (Evidence No. 9 and 10). In light of the foregoing, each money listed in the separate sheet No. 2, is difficult to deem that the Plaintiff repaid the money borrowed from PB.

④ In addition, the Plaintiff asserted that the sum of KRW 356,250,000, transferred from August 29, 2007 to January 19, 2015, would have repaid the purchase price of the instant land, and this court is difficult to believe that the Plaintiff’s assertion itself is inconsistent, such as the Plaintiff’s assertion that the sum of transferred KRW 391,80,000,000, transferred from August 29, 2007 to September 10, 2014, in addition to the new details of remittance, excluding the details of remittance, was repaid.

⑤ 한편, 을 제17호증의 기재에 의하면 추BB는 2013. 2. 28.경부터 현재까지 원고로부터 이 사건 주유소 건물을 임차하여 '△△주유소', '◆◆제2주유소' 상호로 주유소를 운영하고 있는 점, 이 법원의 ◇◇농협에 대한 금융거래정보제출명령에 의하면 원고와 추BB 사이에는 원고가 주장하는 금전거래내역 외에도 다수의 금전거래내역이 있고, 원고는 그중 일부만 추려서 이 사건 토지 매수대금의 변제금이라고 주장하고 있는 점 등에 비추어 보면, 원고와 추BB 사이에 발생한 다수의 금전거래내역에는 위 주유소의 임차 및 운영과 관련된 돈도 포함되어 있는 것으로 보인다.

⑥ 원고는 이 사건 주유소 건물의 신축대금을, ⓐ 별지2 내역표 기재 각 돈 합계 391,800,000원에서 이 사건 토지의 매수대금 330,000,000원을 공제한 나머지 61,800,000원, ⓑ 원고가 이 사건 토지 취득 이전에 한국교직원공제회로부터 차용하여 추BB에게 빌려 준 합계 45,500,000원(= 2005. 2. 23.자 19,000,000원 + 2006. 6. 9.자 26,500,000원), ⓒ 이 사건 주유소 건물의 신축공사대금 관련 부가가치세 환급금 17,000,000원, ⓓ 이 사건 주유소 건물의 전세보증금 50,000,000원, ⓔ 개인 사채 40,000,000원, ⓕ ◎◎석유판매(주)로부터 받은 지원금 50,000,000원 합계 264,300,000원(= ⓐ + ⓑ + ⓒ + ⓓ + ⓔ + ⓕ)으로 마련하였다고 주장한다. 그러나 위 각 돈 중 ⓑ항은 이 사건 주유소의 신축공사 기간과 맞지 않고, ⓔ항은 추BB가 차용한 사채이며(갑 제32호증), ⓕ항은 이 사건 주유소 건물이 아니라 주유소 시설(주유기, 포스 단말기) 및 석유대금에 관한 지원금이고(갑 제34, 35호증), 나머지 ⓐ, ⓒ, ⓓ항은 달리 이 사건 주유소 신축공사대금으로 사용되었음을 인정할 만한 증거가 없다.

2) As to the Plaintiff’s assertion that gift tax is not imposed

A) The Plaintiff asserts that, even if the estimatedB received a loan from the bank and donated the purchase price of the instant land to the Plaintiff, the gift tax taxable amount does not accrue until the subsequentB or a third party actually repaid the bank’s loan. As such, the presumption of donation is unlawful.

B) However, according to the Plaintiff’s assertion, in a case where a donor lends money from another person to a donee himself/herself, the donor’s position leads to an unreasonable conclusion that the donor does not receive a donation until he/she has repaid the money borrowed from another person.

4. Conclusion

Therefore, the judgment of the first instance court is just and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.