Examination Inheritance 2014-007 (Oc. 10, 2014)

deposits deposited in the name of the donor to the donor shall be presumed to have been donated to the taxpayer.

As long as the bank account in the name of a person recognized as a donor by the tax authority is withdrawn and deposited in the account in the name of a taxpayer, such deposit is presumed to have been donated to the taxpayer.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 name of a taxpayer, etc. are conducted for any purpose other than donation, the taxpayers need to prove such deposit.

Article 47 of the Inheritance Tax and Gift Tax Act

2014Revocation of revocation of disposition imposing gift tax, etc.

The person taking charge of the action of the deceased AAA

1. BB

2. CCC;

3.D;

O Head of tax office

April 30, 2015

June 4, 2015

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 000 (including additional taxes) and KRW 0000 (including additional taxes) of the gift tax for the year 2008 on January 2, 2014 against AA shall be revoked in all.

1. Details of the disposition;

(a) Marriage relationship and death of AA and EE;

1) AA was married to FF in around 1942, and had been married to FF and the Plaintiffs, and, in around 1955, the FF would have been married to FF. After which, around November 1973, AA had married to EE and thus maintained a married couple’s community life by August 1, 2008 where the EE died. At the time of marriage, AA had married to FH and HH and ASEAN JJ, KK, LLL (hereinafter “HH, etc.”).

2) AA filed the instant lawsuit on March 28, 2014, and died on August 18, 2014, and the Plaintiffs, the heir of the deceased AA, taken over the instant lawsuit (the head of Nam GG died of the enemy).

(b) Money deposited in a bank account of AA prior to the creation of the EE;

1) Proceeds from the disposal of land owned by EE:

A) On December 31, 2002, EE concluded a sales contract with a price of KRW 0 billion as to OM-dong 784-1 large 515.7 square meters (hereinafter “instant MM-dong land”) on the O-si OM-dong 784-1, OM-dong, which is one’s own ownership, and completed the registration of ownership transfer for the buyer on December 31, 2012.

B) On December 2, 2002, KRW 00 billion out of the purchase price of the instant land in MMdong was deposited in cash in the Nbank Account (Account Number**********************) of AA, and deposited in cash again on December 23, 2002. On December 31, 2002, the remainder of the purchase price of the instant land in MMdong was deposited in another N Bank Account (Account Number:***********************************) of AA, and was deposited in a cashier’s check on the same day (hereinafter referred to as “one point in dispute”).

C) On the other hand, on December 31, 2002, the N Bank Account (Account Number:*****************) deposited on a cashier's check.

2) QQ노블카운티 보증금 관련

가) EEE는 2003. 3. 14. 사회복지법인 QQ공익재단이 운영하는 실버타운인 QQ노블카운티에 입주하기 위하여 위 재단과 사이에 보증금을 0억 0000만 원(계약금 0000만 원, 잔금 0억 0000만 원)으로, 입주자를 EEE와 AAA 두 명으로 정하여 입주계약(이하 '이 사건 입주계약'이라 한다)을 체결하였다.

B) On March 14, 2003, NFE’s account (Account Number:****************) deposited in KRW 0 million as a down payment under the instant occupancy contract. On May 2, 2003, the said NF bank account was deposited in cash and paid as the remainder under the instant occupancy contract.

C) However, EE terminated the occupancy contract of this case on May 13, 2008, and accordingly, on May 15, 2008, KRW 0000,000,000, such as restoration expenses, was deducted from the deposit amount of KRW 000,000 under the occupancy contract of this case on May 15, 2008, was returned to the PP bank account (Account number:************) of EE.

D) After May 19, 2008, KRW 00 million was deposited in cash from the above PP bank account of the EE on a cashier's check, and KRW 00 million was deposited in the PP bank account of the AA on the same day (number: account number:*********************)*), and KRW 0 million was deposited in the NB bank account of the AA (Account number:**********************)* (hereinafter referred to as the "second dispute amount").

(c) Money deposited in the Plaintiff DoD account from the account of the EE;

1) On July 18, 2008, from the Ro Bank Account (Account Number:************************) on deposit in the DoD's N Bank Account (Account Number:**************) on that day.

2) On the same day, the EE's PP bank account (Account Number:********************) deposited in another PP bank account (Account Number:******************) of DD on the same day.

(d) Lawsuit between H and AA;

On September 208, 2008, after the death of the EE, HH et al. filed a lawsuit seeking monetary payment due to inheritance recovery (hereinafter referred to as "related civil lawsuit") with the OO District Court 2008Gahap167000, which was after the death of the EE, and on February 2, 2009, conciliation was concluded with the following contents:

Conciliation Provisions

1. AA shall own a H, etc. as a waiver of inheritance or an inheritance agreement with respect to a house of 94-2 square meters and above ground of OO-gu OO-dong 94-2, 128.3 square meters and above ground.

2. The monthly rent claims and the obligation to refund lease deposit from February 2009 for each of the real estates stated in paragraph (1) shall revert to HH, etc.

3. AA shall transfer to the J a deposit claim (assumed payment) against the N Bank (Account Number: 8************, deposit claim (assumed payment) of the NA and notify the above bank of the assignment of the above deposit claim (assumed payment) (as long as the above bank does not consent to the assignment of the above claim, AAA shall pay to the JJ an amount equivalent to the payment with the above maturity payment by May 27, 2009, and as soon as the above payment date was due, in addition to the amount calculated by the ratio of 20% per annum from the next day to the full payment date).

4. HH et al. shall immediately take the procedure of withdrawal and cancellation of provisional seizure against each claim of heading 2008Kahap2571 and 2008Kahap2572.

5. The remainder of HH and other claims shall be waived.

(e) Imposition of inheritance tax and gift tax on AA;

1) On January 2, 2014, the Defendant imposed a gift tax of KRW 000 (including additional tax of KRW 000) and an inheritance tax of KRW 000 (including additional tax of KRW 000) on AA (hereinafter “each of the instant dispositions”).

2) In the case of gift tax among each of the dispositions in this case, the amount of KRW 000,000 remaining after deducting the amount of KRW 000,000 which AA decided to return to HH pursuant to the conciliation provisions established in the relevant civil litigation from among the second dispute amount of KRW 00,000 deposited in the account of AA on May 19, 2008 (===00,000 - 000), which is within 10 years before May 19, 2008, and the amount of KRW 50,000 won deposited in the account of AA around December 19, 2002 [see, e.g., Article 47 (2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9269 of Dec. 26, 2008; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act} shall be the taxable amount calculated by deducting the amount of KRW 600,000.

3) Among the dispositions of this case, in the case of inheritance tax, ① OO-dong 166-1 O apartment 101 O-dong 303, 100 million won, ② 'O-dong 94-2, 128, and 1200 square meters under the supplementary assessment method under Articles 60(3) and 61 of the former Inheritance Tax and Gift Tax Act (= land 000 + building 000 won + building 000 won), ③ '100 won under the adjustment provisions established in the related civil procedure that AA shall return H et al. to H et al. (see the above 00 won + 00 won + 00 billion won property value donated to the heir or the heir of the above 00 billion won + 00 billion won (see the above property value donated to the heir or the heir of the above 00 billion won)

[인정근거] 다툼 없는 사실, 갑 제1 내지 13호증(각 가지번호 포함, 이하 같다), 을제1 내지 5호증의 각 기재, 이 법원의 QQ노블카운티에 대한 사실조회결과, 이 법원의 NN은행, PP은행, RR은행에 대한 각 금융거래정보제출명령에 대한 회신결과, 변론 전체의 취지

2. Determination on the legitimacy of each of the dispositions of this case

A. The plaintiffs' assertion

For the following reasons, the first and second issues cannot be deemed as having been donated by AE, and each of the dispositions in this case is unlawful.

1) As to the first issue amount:

AAA had a considerable re-existence, such as the operation of a pre-repaid store or beauty art room before and after a person remarried with the EA. Since the instant land was highly probable that the income acquired by AA was the ownership or that at least the money of AA was used as the acquisition fund, it cannot be presumed that the first issue amount is a donation. Furthermore, the first issue amount cannot be presumed to be a donation, in addition, since the price of the sale of the instant land sold was deposited in the bank account of AA, and the EE was deposited in the bank account of the EE on December 31, 2012, and was entirely used after it was deposited into the bank account of the EE, and then the EE was entirely used. Accordingly, the first issue amount cannot be deemed to have been donated by AA.

2) As to the second issue amount:

The amount of No. 2 dispute was deposited into the bank account of AA, and KRW 00 million was transferred to the other bank account of AA, and thereafter, it did not appear that the said amount was disposed of in the bank account of AA, and the Defendant did not prove that the said amount was attributed to AA. As such, the amount of No. 2 dispute cannot be deemed to have been donated. Even if the amount of No. 2 dispute was reverted to AA, it cannot be deemed that the said amount was originally paid the money of the AA at the time of entering into the occupancy contract of this case in the name of EE, which was the money originally operated by AA, and was returned or received at least the money of the AA and EE at least the public property of AA and EE.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In a lawsuit seeking the revocation of disposition imposing gift tax, insofar as the deposit in the name of a person 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. were made for other purpose than donation, the need to prove such fact is the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov. 13,

However, as seen above, the first (00 billion won) amount, among the proceeds from the disposal of the land in this case owned by EE, was deposited in the bank account in the name of AEA, and after the termination of the occupancy contract in this case concluded under the name of EE, the deposit was returned to the bank account in the name of EE, and the second (00 billion won) amount was deposited in the bank account in the name of AE, so in light of the above legal principles, it is presumed that AA received the first (1) and second (2) amount from EE in the light of the above legal principles.

2) In relation to this, the Plaintiff asserted that the amount of No. 1 and No. 2 dispute cannot be deemed to have been donated from the EE, as described in the above A. A. However, in full view of the following circumstances, it is insufficient to deem that the testimony of No. 14 and No. 15 and the witness BB, SB, and TT solely based on each of the testimony of No. 14 and No. 15 and the witness BB, SS, and TT have been deposited into the bank account of the AA for any other purpose than donation.

A) Article 830(1) of the Civil Act provides that "The property which one side of the father has prior to marriage and the property acquired in his/her own name during marriage shall be its unique property." Under our legal system that adopted a separate marital separation system, the property acquired by one side of the husband and wife in his/her own name during marriage and the property acquired in his/her own name during marriage shall be presumed to be his/her unique property, and the other party's cooperation was made in acquiring the property during marriage or there was a co-help in marriage in the marriage (see, e.g., Supreme Court Decisions 97Nu707, Jun. 12, 1998; 98Du15177, Dec. 22, 198). However, it is reasonable to view that EE had already acquired the ownership of the land in this case prior to marriage with AAA, and since all of the deposit money under the occupancy contract in this case was returned from the bank account in part of the purchase price of the land in this case as part of the 2 M&1 in the contract.

B) In light of the fact that the witness BB, SS, and TT appeared as witness in this court and testified to the effect that AA had a considerable re-defense in the course of operating a pre-redivation, beauty room, etc., but there was no registered business operator in the name of EA, and that BB testified that “E is aware that it was operated thoroughly and independently with AA even after re-explication,” the witness BB testified that “E is aware that it was operated thoroughly in connection with the mutual relationship with AA.”, it is insufficient to recognize that the testimony of each of the above witnesses as stated in the evidence Nos. 14 and 15 and the testimony of the above witness alone at the time of entering into the occupancy contract of this case was re-refilled to the extent that AA alone can bear KRW 00 million, or that AA actually bears the above deposit.

C) With regard to the first dispute amount, the plaintiffs argued that the 200 billion won deposited in the account of the 1.2. and 3 billion won deposited in the account of the 2.3 billion won deposited in the 2.0 bank account of the 2.1 billion won deposited in the 2.3 billion won bank account of the 2.0 billion won deposited in the 2.3 billion won bank account of the 2.0 billion won deposited in the 2.3 billion won bank account of the 2.1 billion won deposited in the 2.3 billion won bank account of the 200 billion won bank account of the 2.3 billion won deposited in the 2.00 billion won account of the 2.3 billion won bank account of the 2.0 billion won deposited in the 2.3 billion won account of the 201 billion won bank account of the 2.3 billion won bank account of the 201 billion won bank account of the 2.3 billion won bank account of the 2.00 billion won bank account of the 201.

D) With regard to the 2nd issue amount, the plaintiffs were deposited at the bank account of the 2nd issue amount, and the 2nd issue amount was deposited at the bank account of the 2nd issue amount, and then deposited at the 2nd issue amount to the other bank account of the A, and thereafter, the 2nd issue amount did not appear, and the defendant did not prove that the 2nd issue amount was attributed to the 2nd issue amount. Thus, the 2nd issue amount cannot be deemed to have been donated to the 2nd issue amount. However, according to the legal principles as seen in the above 1nd issue, the 2nd issue amount was deposited at the bank account of the E and then deposited at the bank account of the CE, and the 2nd issue was presumed to have been donated in itself, and the 2nd issue was actually made for other purpose than donation, and there is a lack of proof for the 2nd issue to the plaintiffs.

E) The Plaintiffs asserts to the effect that it is unreasonable to hold the Plaintiffs with strict burden of proof on the grounds that the 1 and 2 disputes were over a considerable time after deposit into the bank account of AE, and that the health condition of AA was insufficient at the time of the filing of the instant lawsuit. However, Article 53(1)1 of the former Inheritance Tax and Gift Tax Act provides for a spouse’s donated property deduction system by taking into account the fact that the 1 and 2 disputes were not rare when the 1 and 2 cases where the 1 and 2 disputes were acquired under one’s name, or where the 1 and 2 spouses were formed through mutual cooperation between husband and wife while living together, or where the 1 and her spouse’s contribution to the formation of common property (which is most difficult to prove as objective evidence), and that the 600 million won was deducted as donated property in calculating the tax base of the gift tax of AE, even if it appears that the 1 and 53(1)1 of the former Inheritance Tax and Gift Tax Act actively contributed to the increase of property by the 2000.

3) Therefore, the plaintiffs' above assertion is without merit.

3. Conclusion

Therefore, each of the claims by the plaintiffs in this case is dismissed as it is without merit, and it is so decided as per Disposition.