(영문) 서울고등법원 2008. 12. 30. 선고 2008누19071 판결

Even if there is a certain occupation or income, the presumption of donation is lawful, and there is no evidence to acknowledge the plaintiff's assertion, even if a person who has acquired a property considerably larger than the income amount fails to take a financing place to obtain the property.

The decision

The contents of the decision shall be the same as attached.

Related statutes

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

Text

1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The judgment of the first instance shall be revoked.

The Defendant’s disposition of imposition of KRW 1,152,457,470 on July 14, 2006 against the Plaintiff shall be revoked.

Reasons

The reasoning for this Court's explanation is as follows, except for the addition of 10th and next table of the judgment of the court of first instance to '(unit: .... the share ratio paid)' between the court of first instance and the next table(s). Thus, it is identical to the reasoning of the judgment of the court of first instance. Thus, it is also accepted in accordance with Article 8(2) of the Administrative Litigation Act and

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

[Seoul Administrative Court 2007Guhap25763, 2008)]

Text

1. The plaintiff's claim is dismissed.

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

Purport of claim

On July 14, 2006, the Defendant revoked the disposition of imposition u3000, u300 won on the Plaintiff, as stated in the attached Table No. 1,152,457,470.

Reasons

1. Details of the disposition;

The following facts shall not be disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry of Gap evidence 1 through 7, Gap evidence 1-2, Eul evidence 1-1 through 7, Eul evidence 2 and 3:

A. As a result of the tax investigation against the plaintiff, when the plaintiff acquired real estate, stocks, etc. as listed in the table 1 through 5 below, the defendant presumed that the plaintiff received 2,370,253,019 won (hereinafter referred to as "value of dispute ①") which is the acquisition fund from the honorary chairperson of ○○○, a corporation (hereinafter referred to as "○○"). In acquiring real estate as listed in the table 6 below, the defendant was presumed to have received 489,056,870 won (hereinafter referred to as "value of dispute ②") from ○○ on July 14, 2006, the defendant imposed and notified 1,152,457,470 won (hereinafter referred to as "disposition in this case").

(unit: Won)

No.

Time of donation

Value of donation

Notice Tax Amount

non-higher

November 14, 1994

201,029,812

80,040,650

(1) Funds for acquiring ○○ shares

8.28

197,423,925

15,737,550

(1) Funds for acquiring ○○ shares

November 14, 1997

460,769,820

137,871,710

○○○○○ APT0-000 Acquisition Funds

27, 1998

745,142,462

357,126,370

(1) Funds for acquiring ○○ shares

December 31, 2004

765,887,00

39,206,460

○○ Stock Acquisition Fund

Sub-committees

5 Cases

2,370,769,180

1,029,982,740

204.07.06

423,769,180

103,900,350

△△△△△-000 Balance

o October 26, 2004

65,287,690

18,574,380

△△△△△-000 Registration Expenses

Sub-committees

2 Cases

489,056,870

122,474,730

Total

7 Cases

2,859,309,889

1,152,457,470

B. On October 4, 2006, the Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the National Tax Tribunal on October 4, 2006, but was dismissed on April 20, 2007.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff had temporarily managed part of ○○○’s funds in personal postal services, the Plaintiff’s property acquired by the Plaintiff cannot be presumed to have been donated to ○○○○○, and there was no special donation between the Plaintiff and △△○○○○. At the time of April 1994, the issue ① amount used to acquire property was not related to ○○○, but the issue ② was partially withdrawn from △△△△△△△△△△△△△△’s funds, which was managed in the Plaintiff’s name, was not donated to ○○○, but was subsequently sold to △△△△△△△△△○○○, 00, and was subsequently sold to △△△△△△△△△△△○, which was subsequently sold to ○○○, and thus, it was unlawful to presume that each of the above amounts was donated from △△△△○ to have been transferred to ○ for the same period from 3.2 billion won to 3.2 billion won (in particular, from 199 to 9.99.9).

(b) Related statutes;

Article 81 Prohibition of Abuse of Right of Tax Investigation

(1) Any tax official shall conduct a tax investigation within the minimum limit necessary for proper and fair taxation and shall not abuse the right of tax investigation for any other purpose.

(2) A tax official shall not conduct a reinvestigation of the same tax items and taxable periods except in cases where there are evident data corroborating a suspicion of tax evasion, where it is necessary to conduct an investigation on the opposite contractual party, where there are errors in connection with two or more business years, or where there are other similar cases as prescribed by the Presidential Decree (amended by Act No. 8830, Dec. 31, 2007).

Inheritance Tax and Gift Tax Act

Article 45 Presumption of Donation of Funds, etc. for Acquisition of Property

(1) Where it is difficult to recognize that a person acquired the relevant property by his/her own means in view of his/her occupation, age, income, and property status, as prescribed by Presidential Decree, the acquisition fund of the relevant property shall be presumed to have been donated to the person who acquired the relevant property, and

(2) Where it is difficult to recognize that a debtor has repaid his/her debts (including partial repayment; hereafter the same shall apply in this paragraph) by his/her own means in light of his/her occupation, age, income, property status, etc., as prescribed by Presidential Decree, the relevant repayment fund shall be presumed to have been donated to the relevant debtor when the debtor

(3) The provisions of paragraphs (1) and (2) shall not apply where the relevant acquisition fund or repayment fund falls below the amount prescribed by the Presidential Decree in consideration of the occupation, age, income, property status, etc. and where there is a sufficient vindication on the source of the relevant acquisition fund or repayment fund.

Article 45 Presumption of Donation of Funds, etc. for Acquisition of Property

(1) Where it is difficult to recognize that a person acquired the property by his/her own means in view of his/her occupation, age, income, property status, etc., as prescribed by Presidential Decree, the purchaser of the property shall be presumed to have donated

(2) Where it is difficult to recognize that a debtor has repaid his/her debts (including partial repayment; hereafter the same shall apply in this paragraph) by his/her own means in light of his/her occupation, age, income, property status, etc., as prescribed by Presidential Decree, it shall be presumed that the debtor has received a donation

(3) The provisions of paragraphs (1) and (2) shall not apply to cases where the relevant acquisition fund or repayment fund does not exceed the amount prescribed by the Presidential Decree in consideration of occupation, age, income, property status, etc. and where sufficient vindication is made on the source of acquisition fund or repayment fund (amended by Act No. 7010, Dec. 30, 2003).

Article 45 Presumption of Donation of Funds, etc. for Acquisition of Property

Where it is difficult to recognize that the property was acquired by its own means in view of occupation, gender, age, income, property status, etc., as prescribed by Presidential Decree, the purchaser of the property shall be presumed to have donated the acquisition fund to another person (amended by Act No. 5582 of Dec. 28, 1998).

34.6Presumption of donation of funds to acquire property

Where it is difficult to recognize that the property was acquired by its own means in view of occupation, gender, age, income, property status, etc. as prescribed by Presidential Decree, the purchaser of the property shall be presumed to have received a donation from another person (amended by Act No. 5193 of Dec. 30, 1996).

Enforcement Decree of Inheritance Tax and Gift Tax Act

Article 34 Presumption of Donation of Funds, etc. for Property Acquisition

(1) The term "cases as prescribed by the Presidential Decree" in Article 45 (1) and (2) of the Act means cases where the aggregate of the amounts verified under the following subparagraphs falls short of the value of the acquired property or the amount of repayment of debts: Provided, That this shall not include cases where the amount not attested falls short of the smaller of the value of the acquired property or the amount equivalent to 20/100

1. The amount of income which has been reported or received the taxation (including the cases of non-taxation or reduction or exemption; hereafter the same shall apply in this Article);

2. The value of inherited or donated property which has been reported or received a taxation;

3. The amount of money or liabilities received in return for the disposal of the properties, and used directly for the acquisition of the properties or the redemption of such obligations;

(2) The term "amount prescribed by Presidential Decree" in Article 45 (3) of the Act means the amount determined by the Commissioner of the National Tax Service in consideration of the age, household, occupation, property status, social and economic status, etc., in which the total amount of the funds for acquiring the relevant property or the funds for repayment of debts is not less than 30

Article 34 Where it is difficult to recognize that the property was acquired with its own funds

1. The amount of income which has been reported or received the taxation (including the cases of non-taxation or reduction or exemption; hereafter the same shall apply in this Article);

2. The value of inherited or donated property which has been reported or received a taxation;

3. The amount of money or liabilities received in return for the disposal of the properties, and used directly for the acquisition of the properties or the redemption of such obligations;

4. Deleted;

(2) "Amount prescribed by Presidential Decree" in Article 45 (3) of the Act means the amount determined by the Commissioner of the National Tax Service in consideration of the age, household, occupation, property status, social and economic status, etc., of which the total amount of the funds for acquiring the relevant property or the funds for repayment of debts is not less than 30 million won within ten years before or after the date of property acquisition (amended by Presidential Decree No. 18177, Dec. 30,

Article 34 In cases where it is difficult to recognize that a person acquired property by its own power

For the purpose of Article 45 (1) and (2) of the Act, the term “cases as prescribed by the Presidential Decree” means cases where the sum of the amounts verified under the following subparagraphs falls short of the value of the acquired property or the amount of the repayment of debts: Provided, That this shall not include cases where the amount not attested falls short of the smaller of the value of the acquired property or the amount equivalent to 20/

1. The amount of income which has been reported or received the taxation (including the cases of non-taxation or reduction or exemption; hereafter the same shall apply in this Article);

2. The value of inherited or donated property which has been reported or received a taxation;

3. The amount of money or liabilities received in return for the disposal of the properties, and used directly for the acquisition of the properties or the redemption of such obligations;

4. Amount recognized by the head of the National Tax Service as the source of funds is proven as a result of an investigation conducted according to the standard determined by the Commissioner of the National Tax Service in consideration of age, household, occupation, property status, social and economic status (amended by Act No. 15971 of Dec. 31, 1998).

Article 34 Where it is difficult to recognize that the property was acquired with its own funds

For the purpose of Article 45 of the Act, the term “case as prescribed by the Presidential Decree” means the case where the sum of the amounts evidenced under the following subparagraphs falls short of the value of the acquired property: Provided, That this shall not include the case where the amount not attested falls short of 20/100 of the value of the acquired property (in case where the value of the acquired property exceeds one billion won, it shall be 5/100 for the excessive amount) or

1. The amount of income which has been reported or received the taxation (including the cases of non-taxation or reduction or exemption; hereafter the same shall apply in this Article);

2. The value of inherited or donated property which has been reported or received a taxation;

3. The amount of money or liabilities received in return for the disposal of the properties, and used directly for the acquisition of the properties or the redemption of such obligations;

4. Amount recognized by the head of the National Tax Service as the source of financing is proven as a result of an investigation conducted in accordance with the standard determined by the Commissioner of the National Tax Service in consideration of age, household, occupation, property status, social and economic status (amended by Act No. 15509 of Nov. 10, 1997).

Article 63-2 Prohibition of Overlapping Investigation

The term "other cases similar thereto, which are prescribed by the Presidential Decree" in Article 81-4 (2) of the Act means the cases falling under any of the following subparagraphs:

1. Where a general investigation is conducted against a person suspected of evading tax through speculative investment in real estate, intermediary transactions, transactions without authentic documentation, etc., leading to disturbance of economic order;

2. Re-audit for the handling of all kinds of assessment data, or confirmation investigation for determination of the national tax refund and re-revision without recourse to field investigation for tax disposition pursuant to the provisions of Articles 81-5 and 81-9 of the Act (amended by Presidential Decree No. 20516, Dec. 31, 2007).

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the following facts: Gap evidence 1, 2, 3, 14, 6-1, 2, 3, 1, 8-1, 2, 2, 2, 17 through 25, 3, 3 through 25, 3 through 7, 8-1, 2, 11, 17, 18-1 through 5, 19, 20, 22 through 27, and part of the evidence of Eul evidence of 12 through 16:

(1) 원고는 1993. 6. 경 ○○통상 주식회사에서 운송부장으로 근무하다 퇴직한 이후 원고 명의의 차명계좌를 개설하여 ○○의 회장인 임○○의 재산관리를 하여 왔고, 1993. 6. 1.부터 폐기물처리업체인 주식회사 △△(변경 전 상호 : 주식회사 0⏏⏏, 이하 '△△'라고 한다)를 설립하여 운영하여 왔는데, 사업연도별 △△의 주주구성내역은 다음과 같다.

Name of shareholders

1993

1994

Above 1995 up to 1997

1998

200

Plaintiff

50 (25.0)

150(37.5)

190(47.5)

398 (9.5)

400(100)

○○○○○ (main)

100 (50.0)

190(47.5)

( principal)○○○○○

30 (15.0)

60 (15.0)

(m)○ food

20 (10.0)

Park ○

120(30.0)

2(0.5)

west ○

30 (7.5)

guidance.

200(100)

400(100)

(2) The details of the Plaintiff’s income reported during the period from around 1983 to 1993 are as follows. The real estate rental income is the total amount of income, and the labor (retirement) income is the total amount of income.

(unit: KRW 00,000,000 or less)

Real estate rental income

Wage and salary income

Retirement income; and

guidance.

237

281

(3) The Plaintiff stated to the effect that the details of the acquisition and transfer of real estate from around 1981 to around 1993 are as follows. On February 2, 2006, ○○○○○○○-dong, 00-2, and one lot of land sold to the Plaintiff on August 2, 1991, in the course of the investigation conducted by the 0 country investigating ○○ Regional Tax Office on February 2, 2006, ○○○○○○○-dong, 00-2, and one lot of land, which were sold to the Plaintiff (the Plaintiff asserted that the sales price of each lot of land was KRW 667,00,000 as income source of property acquisition fund, but the Defendant did not accept the above assertion

J. J. J. land

Date of acquisition

Transfer Date

non-higher

○○. ○○○. ○.000-109 Housing

october 30, 1978

December 15, 1982

○○. ○○○. ○.000-12 Housing

oly 16, 1982

october 26, 1987

○○.○○. ○○.00. ○○○○○○ (A) 00-○○○○

on 16, 1997

8.08.30

○○○.○○○.○○○.○○○○○○○○○○○○○○○○ (A) 0-145.

oly 16, 1988

For lease;

○○.○○○.○○○.○○○○○○○○○○○○○ (A) 00-701

8.25. 1998

o October 04, 1993

○○.○○.○○○○.00 ○○○○○○ Condominium ○-000 (Shares 1/5)

october 1991

oly 21, 1994

○○.○○. ○○.000-3 Site 69 square meters

october 02, 1991

October 01, 1992

Trust Property ①

○○.○○. ○○.000-2 Site 70 square meters

october 02, 1991

.28, 1993

Trust Property ②

○○. ○○○00-9 ○ Officetel 1511

oly 1992

For lease;

○○.○○. ○○.00 ○○○○○○○ (A) 0-1203

o October 08, 1993

After the residence

(4) The Plaintiff submitted an application for subscription and a statement of transactions by asserting that ○○ Securities Company’s account (Account Number 000-000-00-0000) shall be recognized as income source for property acquisition in respect of the certificate of deposit under a bearer transaction through an account (Account Number 00-00-000), but the Defendant did not regard it as the borrowed account of ○○○○.

(unit: KRW 00,000,000 or less)

Classification

acquisition

Transfer

December 05, 1991

03.03.03

guidance.

03.03.03

oly 30, 1992

guidance.

Amount

907

432

1,339

942

446

1389

(5) The details of the savings account in the name of the Plaintiff and the Plaintiff’s name are as follows. Under the Defendant’s investigation, the account No. 1 to 14 of the Plaintiff’s name in the savings account is the Plaintiff’s account; the account No. 21 to 28 of the Plaintiff’s name is the maximum ○○○ account; and the Plaintiff’s account No. 31 to 45 of the Plaintiff’s name was confirmed to be the borrowed name account (However, for the account No. 51 in the Plaintiff’s name, the Defendant reported that the account No. 51 in the name of the Plaintiff was the borrowed name account of 00, while the Plaintiff asserted that it was the principal’s account rather than the borrowed name account)

No.

Financial Institutions

Points of Opening

Account Number

No.

Financial Institutions

Points of Opening

Account Number

○

○ ○

00000-00-00000

Do Governor

○○○○○

000-00000-00-0000

○

○ ○ Business Department

00000-00-00000

Do Governor

○ ○

000-00000-00-0000

○

○ ○ Business Department

00000-00-00000

Do Governor

○ ○

000-00000-00-0000

○

○ ○ Business Department

00000-00-0000

Maternus

○

0-00-00-0000

Do Governor

○ ○

000-00000-00-0000

Do Governor

○ ○

000-00000-00-0000

Do Governor

○ ○ Business Department

000-00000-00-0000

Do Governor

○ ○

000-00000-00-0000

Do Governor

○ ○ Business Department

000-00000-00-0000

Do Governor

○ ○

000-00000-00-0000

Do Governor

○○○○○

000-00000-00-0000

Do Governor

○ ○

000-00000-00-0000

Do Governor

○○○○○

000-00000-00-0000

Do Governor

○

000-00000-00-0000

Do Governor

○○○○○

000-00-00000

Do Governor

○

000-00000-00-0000

Do Governor

○ ○

000-00000-00-0000

Do Governor

○ ○

000-00000-00-0000

Do Governor

○

000-00-00000

Doz.

○

000-00000-00-0000

Doz.

○

000-00000-00-0000

Doz.

○

000-00000-00-0000

Doz.

○○○○○

000-00000-000000

Doz.

○

000-00000-000000

Do Governor

○○○○○

000-00000-00-0000

Doz.

○

000-00000-000000

Do Governor

○○○○○

000-00000-00-0000

Doz.

○

000-00000-000000

Do Governor

○○○○○

000-00000-00-0000

Doz.

○

000-00000-000000

Do Governor

○○○○○

000-00000-00-0000

Doz.

○

000-00000-000000

Do Governor

○○○○○

000-00000-00-0000

▲▲

○○ ○

000-00-00000

(6) The details of the Plaintiff’s acquisition and gift of property after 194 are as follows.

(unit: KRW 00,000,000 or less)

Acquisition (Gift) Property;

Acquisition (Gift value)

Date of acquisition (donation)

non-higher

( state) 60,000 shares of △△△

300

May 6, 1994

Property 1

( state) 40,000 shares of △△△

220

November 14, 1994

Acquired Property ②

( state) 40,000 shares of △△△

243

August 28, 1995

Acquired Property III

○○○○○ (A) 0-105

650

November 14, 1997

Acquisitiond Property No.

(State) △△△ 208,00 shares

767

February 27, 1998

p. acquisition property =

(m)○○○○○○○ Shares 10,000 shares

May 31, 1999

Acquisitiond Property*

(State) 2,000 shares of △△△

o October 20, 200

No. 90

Cash (referred to donees: wifes and funerals)

300

April 20, 2005 and July 16, 2003

Property 1

○○. ○○. ○○. ○○.000-3

○○○ ○ 000-804

282

August 11, 2003

Acquisitiond Property Act

Cash ( Testamentary donee: person)

415

December 24, 2003 and February 6, 2004

Gift ②

○○. ○○. ○.000-3

△△△△△△ (A) ○-401.40

851

.31, 204

취득재산⑨

△△△△△ (A)-2506

1,132

o October 28, 2004

Acquisition Property Offense

○○ and total shares 521,000 shares

1,754

December 13, 2004 to December 28, 2004

취득재산⑪

Total amount of property acquired (excluding donated property)

6,313

(7) After 194, the Plaintiff’s income details are as follows. The interest income amount is generated from the account No. 1-14 in the Plaintiff’s name, except that accrued from the account No. 31-51, which the Defendant recognized as the borrowed name account in the table of paragraph (5) above.

(unit: 1,000 won or less)

Year

Labor income amount;

Real Estate Rental Income Amount

Interest income amount

guidance.

1994

43,445

1,832

250

45,528

1995

58,628

10,900

1,098

70,622

1996

69,684

15,600

219

85,504

1997

68,897

15,600

4,412

8,909

1998

71,819

15,600

1,850

89,270

199

80,095

15,600

4,884

100,580

200

104,256

23,600

78,329

206,186

201

126,187

40,800

149,597

316,585

202

155,747

41,000

280,450

477,197

203

175,934

43,200

351,447

570,582

204

230,915

39,100

203,823

473,838

guidance.

1,185,608

262,832

1,076,366

2,524,806

(8) 피고는 위 (6)항 기재 취득재산의 취득금액 원천에 대한 세무조사를 하면서 아래 표와 같이 부족액을 산정하여, 취득재산②~취득재산⑤, 취득재산⑩ 및 취득재산⑪의 취득시 취득자금 소득원천이 부족하거나 임○○의 예금계좌에서 인출된 자금으로 지급된 것에 대해 이를 임○○으로부터 각각의 취득일에 증여받은 것으로 추정하여 이 사건 처분을 하였다[위와 같이 산정함에 있어, 원고의 소득금액은 직전 취득재산 취득일이 속하는 달로부터 당해 취득재산 취득일이 속하는 달까지의 기간 동안 발생한 각 종 소득을 합산하여 계산하였고(그러나 자금출처가 확인되지 않은 채 원고 명의의 계좌에 입 ・ 출금된 금액은 임○○을 위해 관리하는 자금으로 보아 원고의 소득금액 산정에서 제외하였고, 2000. 3. 16.경부터 2004. 2. 16.까지 3차례에 걸쳐 △△로부터 지급 받은 배당소득 8,173,000,000원은 2004. 말경 기준으로 잔액이 8,005,000,000원인 것으로 나타나 거의 사용되지 않은 것으로 보고 원고의 소득금액 산정에서 제외하였다), 부족액은 재산의 취득가액에서 취득자금의 원천(소득금액에 이월자금 및 기타를 합한 금액)을 차감하여 산정하였으며, 부족액의 △는 취득자금의 원천이 취득가액보다 큰 경우로 다음 취득재산의 취득자금 원천에 포함시켰는데, 다만 취득재산⑨는 증여재산②와 더불어 그 취득자금의 원천이 2002. 6. 17. 임○○, 임▲▲, 임⏏⏏에게 △△의 주식 400,000주를 양도한 대금 중 일부인 것으로 보고 별도의 취득자금 과부족을 계산하지 않았으며, 취득재산⑩은 그 잔금과 등기비용을 임○○ 명의의 게좌에서 출금하여 지급 하였으므로 부족액 여부와 상관없이 직접적인 현금 수증액으로 보아 증여추정 금액에 포함시켰다.]

(Units: Won, less than Won, but not less than single acquired property * acquired property e.g., violation of property law)

Property acquired;

Date of acquisition

Acquisition Value

Amount of income;

Funds Carried-over

Other

Shortage

Property 1

May 6, 1994

1,221,051,556

837,497,326

383,554,230

Acquired Property ②

November 14, 1994

20,000,000

18,970,188

201,029,812

Acquired Property III

August 28, 1995

246,000,000

48,576,075

197,423,925

Acquisitiond Property No.

November 14, 1997

650,000,000

189,230,178

460,769,822

p. acquisition property =

February 27, 1998

767,400,000

2,257,538

745,142,462

Acquisitiond Property*

May 31, 1999

115

△65

No. 90

o October 20, 200

216

150

△△371

Acquisitiond Property Act

August 11, 2003

282

1,188

371

△△,027

Acquisition Property Offense

o October 28, 2004

1,197

592

1,027

489,056,870

△△911

취득재산⑪

December 28, 2004

1,754,254,455

76,729,559

911,637,896

765,887,00

(9) Meanwhile, the source of the funds for acquiring the property claimed by the Plaintiff is as follows (In particular, the Plaintiff alleged that there was inherited property as income source that acquired the financial property of unregistered bonds, etc., but did not submit specific evidentiary materials, etc.

(unit: KRW 00,000,000 or less)

Type of income;

Time of occurrence

Details

Amount

Jinay

Wage and salary income

1978-1998

-○○○, State △△△△,

611

Transfer of Real Estate

92.9.9

oly 1, 1993

7. 1994

-transfer of real property ○○

317

350

Trust Property ①

Trust Property ②

Deposits, etc.

May 1992

March 27, 1995

-○○ Securities-registered CDs

-▲▲은행 예금

1,389

475

192.3.10

March 24, 1995

Total

3,192

(10) Meanwhile, during the period from April 25, 2002 to June 5 of the same year, the Defendant was found guilty of the suspension of the execution of 2 years from Seoul High Court from January 18, 2005 to June 4, 1998. However, on December 27, 2002, the Plaintiff was found to have conducted an investigation of the capital source of the corporate tax and the gift tax by △△△△△△△△△△, in collusion with ○○ District Court 2002Da380 on December 27, 2002, and then embezzled the corporate tax by managing ○○○○ in order to cut off the ○○○○’s capital from the ○○○○, and thereafter, he was found to have been convicted of the Defendant for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and investigated the Plaintiff’s corporate tax from October 18, 2005 to June 3, 206.

D. Determination

(1) Article 45(1) of the Inheritance Tax and Gift Tax Act provides that the acquisition fund of the pertinent property shall be presumed to have been donated to a person who acquired the relevant property where it is difficult to recognize that the property was acquired by his own means in view of his occupation, age, income, property status, etc.

Therefore, as a matter of principle, the fact of donation of property, which is a requirement for the imposition of gift tax, is proved by the tax authority. Thus, if the tax authority establishes a certain occupation and a person who has a substantial financial power at the time of the acquisition of the property and had a substantial income therefrom, barring any special circumstance, it cannot be presumed that the portion of the fund required for the acquisition of the property was donated to another person, which was not clearly presented the source of the fund for the acquisition of the property, unless there is a special reason. However, if a person who has no occupation or income does not have any financial ability to make a donation to a lineal ascendant or his spouse, etc., and if there is any financial ability to make a donation, it shall be reasonable to presume that the fund for the acquisition was given by the person who has a financial power, and even if there is a certain occupation or income, it shall be deemed that the person who has acquired the property is not able to obtain the loan from the person who has a certain occupation or income. The same applies even if there is a certain occupation or income, the same applies to the case where the person who can not obtain the land concerned.

(2) First of all, the following circumstances revealed only the ○○○○○○○○○○ Foundation’s ○○○○○○ Foundation’s acquisition of the Plaintiff’s assets, namely, (1) the Plaintiff alleged that the Defendant had calculated the amount of △△○○○○○○○○○○○○○○○○○○ Foundation’s assets by unfairly reducing the Plaintiff’s income. However, in light of the Plaintiff’s long-term management of the △○○○○○○○○○○○○○○○ Fund, it appears that the Plaintiff’s assets were not temporarily deposited into the Plaintiff’s account without confirming the source of the funds. In particular, the Plaintiff’s failure to prove the existence and amount of the △○○○○○○○○○○○○○○○○○○○○○○○○○○ Foundation’s assets, including a large amount of income generated from the Plaintiff’s assets acquired at the time of 60 billion won, and it appears that the amount of △○○○○○○ Foundation’s assets was very high.

(3) Next, in a lawsuit to revoke a disposition imposing gift tax, the director’s deposit is presumed to have been donated to the taxpayer because the director’s deposit in the name of the person who is recognized as a donor by the tax authority in the lawsuit to revoke the disposition of revocation of the disposition of revocation of the gift tax is proved to have been deposited in the bank account in the name of the taxpayer. Thus, if there are special circumstances, such as the withdrawal of such deposit and the deposit in the name of the taxpayer, which is made for the purpose other than donation, the taxpayer requires proof (see Supreme Court Decision 9Du4082, Nov. 13, 2001). According to the above facts of recognition, it should be presumed that the director’s deposit is presumed to have been donated to the Plaintiff from the borrowed account of the Y○○○○○ to have been deposited in the balance of the

As to this, the plaintiff asserts to the effect that such withdrawal and payment were made for loan purposes, not for donation, but for loan purposes. However, in light of the plaintiff's financial standing at the time, the statement in Gap evidence No. 27 is difficult to believe, and there is no other evidence to acknowledge the plaintiff's above assertion.

(4) Article 81-4 (2) of the Framework Act on National Taxes provides that "where a tax official has evident data to acknowledge a consultation on tax evasion, where it is necessary to investigate a transaction partner, where there are errors in connection with two or more business years, or in other similar cases prescribed by the Presidential Decree, a reinvestigation may be conducted for the same items of tax and the same taxable period." According to the above facts of recognition, it is reasonable to deem that the defendant is a legitimate investigation permitted under the above provision of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) since the defendant was found guilty on the crime of embezzlement of ○○ by means of managing ○○ by making a collaborative company in collusion with the plaintiff after establishing the collaborative company, and making it final and conclusive as a crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with regard to the crime of embezzlement of ○○○ after the plaintiff acquired the shares of △△○ by using

(5) Therefore, the Plaintiff’s assertion is without merit, and the instant disposition is legitimate, which is presumed to have been given a gift due to the issue ① and ② amount.

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.

심급 사건

-서울행정법원 2008.06.25.선고 2007구합25763

서울고등법원 2008.12.30.선고 2008누19071

-대법원 2009.04.09.선고 2009두2085

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