Whether the presumption of donation of funds acquired by the spouse is legitimate

A family owner with no business income or wage and salary income, and her husband has wage and salary income and real estate rental income. Even if the money deposited from the deposit account opened in the name of the Plaintiff was used as the fund for acquiring commercial buildings and apartment co-ownership shares, it is difficult to view it as the Plaintiff’s unique property.

Article 34 (Presumption of Donation of Funds Acquired Property)

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of gift tax of KRW 60,797,730 against the Plaintiff on September 5, 2005 is revoked.

1. Details of the disposition;

A. On June 10, 2003, the Plaintiff respectively acquired 1/2 shares in 347,50,000 won among ○○○○○○-dong 666 ○○○○○○○-dong 104, and 380,000 won for 104 shares in ○○-dong 54 ○○-dong 125,1703.

B. On September 5, 2005, the Defendant rendered the instant disposition imposing gift tax of KRW 60,797,730 on the Plaintiff on the ground that the Plaintiff, as a professional supervisor, was donated KRW 340,00,00 among the acquisition fund of the said commercial building and KRW 259,742,110 among the acquisition fund of the said apartment building and the acquisition fund of the said apartment co-ownership by his spouse.

[Reasons for Recognition] : In the absence of dispute, Gap evidence 1, Eul evidence 1 and 5 each entry in 1, 2

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) 원고는 2001.8.14.부터 2002.12.31까지 사이에 가입한 ◆◆은행 예금계좌 외 16개 예금계좌를 2003.2.14.부터 2004.1.14까지 사이에 해지하여 출금한 491,000,000원으로 이 사건 상가를 취득하였고, 2003.1.2.부터 2004.3.15.까지 사이에 가입한 프라임 예금계좌 외 10개 예금계좌를 2004.1.2.부터 2005.6.3.까지 사이에 해지하여 출금한 305,000,000원과 2003.10.8. 예금을 담보로 하여 □□은행으로부터 대출받은 40,000,000원을 합하여 이 사건 아파트 공유지분을 취득하였는바, 이와 같이 취득자금의 출처가 분명함에도 원고가 이를 증여받은 것으로 보니 이 사건 처분은 위법하다.

(2) Financial assets formed in the process of forming an economic community and running community by the Plaintiff couple are common property of couple and couple in that the Plaintiff made an effort to increase the value of public property by actively engaging in financial transaction activities, etc. Accordingly, the instant disposition based on the premise that each of the above deposits is unique property of △△△ is unlawful.

(b) Related statutes;

m. Inheritance Tax and Gift Tax Act

Article 2 Gift Tax Taxables

(1) In case where, owing to a third party donation (excluding the donation becoming effective upon the death of a donor; hereinafter the same shall apply), there exists donated property on the donation date falling under one of the following subparagraphs, the gift tax shall be levied, pursuant to this Act, on such donated property:

1. Where a person to whom property has been donated (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 the same shall apply in this paragraph and Articles 54 and 59), all of the donated property, as a donation, by the

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 own means in view of his occupation, age, income and property status, etc. as prescribed by Presidential Decree, the funds for acquiring the property shall be presumed to have been donated to the person who acquired the property at the time of acquiring the property,

(2) Where it is difficult to recognize that a debtor has repaid (including partial repayment; hereafter in this paragraph, the same shall apply) his/her debts by his/her own means in view 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 at the

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

【Enforcement Decree of the 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 sum of the amounts evidenced by the following provisions 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 20/100

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 the 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

C. Determination

(1) According to the provisions of Article 45(1) of the Inheritance Tax and Gift Tax Act, where it is difficult to recognize that a person acquiring the pertinent property acquired the property by his own means by considering his occupation, age, income, property status, etc., as prescribed by the Presidential Decree, the acquisition of the pertinent property shall be presumed to have been donated to another person at the time of acquisition by the said property. According to the main sentence of Article 34(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, where the amount of income (including a case of non-taxation or reduction; hereinafter the same shall apply) reported or taxed (including a case of non-taxation or reduction), the value of inherited or gift tax (title 1); the amount of money or debt received in return for the disposal of the property; and where the sum of money used directly for the acquisition

According to the records, Gap 1, 5 through 8, 10, 11, and Gap 9-1, 2, and 2, each of Gap 1, 5 through 8, 10, 11, and Gap 9-1, 2, the fact that the plaintiff terminated 28 savings accounts under its name between August 14, 2001 and March 15, 2004 and deposited 796,00,000 won. However, considering the whole purport of the arguments in Gap 1,2,12,13, 14, 2, 3-1, 3-2, it is difficult to see that the plaintiff acquired real estate under the name of Do 10,000,000 won, and it is difficult to see that the plaintiff 1,200,000 won and the apartment house, which is the husband of the plaintiff, acquired real estate under the name of Do 1,305,198.

(2) Furthermore, if it is proved that the above financial property is the public property of the Plaintiff and this financial property, and that the Plaintiff made an active effort to increase property, it shall be deemed that it is the joint ownership of both parties. However, the mere fact that the Plaintiff’s cooperation was made or there was an assistance in marriage life does not constitute joint ownership of both parties of the Plaintiff.

It is insufficient to recognize that the Plaintiff actively endeavored to increase property beyond the level of cooperation on the sole basis of the descriptions of Gap's 2,5 through 8,10 through 14,16,17, and Gap's 15-1 through 3. The plaintiff's assertion is without merit, since there is no other evidence to support this otherwise.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is dismissed without any justifiable reason, and it is so decided as per Disposition.

[Seoul High Court 2007Nu16983 ( December 28, 2007)]

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. Each disposition of KRW 60,797,730 against the plaintiff on September 5, 2005 by the defendant shall be revoked.

The court's explanation on this case is as follows: 2.7, 21, 4.21, 5.4, and 5 of the judgment of the court of first instance; 4.00,000 won in total by cancelling the 28 deposit accounts under its name between January 2, 2003 and June 3, 2005, and 4.0,000 won in total from the financial institutions twice, and 4.0,000 won in total from the financial institutions are the same as the reasons of the judgment of the court of first instance, except for the case where the court of first instance is used as the "gladum", and the "gladumumum" from the "Plaintiff" to the "gladum" of the 4.16 to June 4.17, 2005," respectively, and it is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

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