Cho High Court Decision 2007Du3591 (Law No. 86, 27, 2008)

Where a donor receives a refund of the amount deposited in the donee, the donor shall not be deemed a gift.

The monetary transaction based on a deposit with the head of the Tong shall not be determined as an individual transaction, but as a whole, it shall not be readily concluded that the money deposited in each securities account was donated to each other solely on the ground that the loan certificate was not prepared.

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

1. On May 18, 2007, the imposition of gift tax on each item of the attached Form No. 1 on which the Defendant made against the Plaintiff shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On December 2, 2005, the Plaintiff, the husband, died on December 2, 2005 (hereinafter “○○”) and on June 2, 2006, from 2003 to 2005, the Plaintiff added KRW 2,676,01,41,41, which was the aggregate of KRW 1,871,10,714, which was deposited from the Plaintiff’s securities account from the Plaintiff’s securities account to the Plaintiff’s securities account during the same period from KRW 4,547,112,15, which was deposited from the Plaintiff’s securities account to the Plaintiff’s securities account during the same period, to the amount of inherited property, and reported and paid gift tax thereon.

B. During the period from 2003 to 2005, the Defendant deposited KRW 4,547,112,155 in total from the Deceased’s securities account to the Plaintiff’s securities account. The Plaintiff used the said money to purchase the full amount of shares, and confirmed that KRW 1,871,10,714 in total was deposited from the Plaintiff’s securities account to the Deceased’s securities account during the same period, and that the Plaintiff deposited the Plaintiff’s securities account from the Plaintiff’s securities account to the Deceased’s securities account, the Defendant determined and notified each of the above deposits to the Plaintiff on May 18, 2007 as gift tax (hereinafter “each of the instant dispositions”).

[Ground of Recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2-1 through 11, 14-20, 22-32, Gap evidence 7-1 through 10, Eul evidence 1-1 through 13, 13 through 19, 21 through 34, and Eul evidence 2-4, respectively.

2. Whether the dispositions of this case are proper; and

(a)the master of the plaintiff;

From 2003 to 2005, the sum of KRW 4,547,112,155, which was deposited from the Deceased’s securities account to the Plaintiff’s securities account, is the amount of temporary loan from the Deceased, and the sum of KRW 1,871,10,714, which was deposited from the Plaintiff’s securities account to the Plaintiff’s securities account during the same period, was partially repaid by the Plaintiff. Thus, even though only KRW 2,676,01,41, which constitutes the difference, was donated to the Plaintiff, the Defendant deemed that all of the money deposited from the Plaintiff and the Deceased’s securities account was donated to each other, and accordingly, issued each of the instant dispositions against the Plaintiff. Accordingly, each of the instant dispositions should be revoked as unlawful.

B. Determination

1) Comprehensively taking account of the purport of Gap evidence 1-2, Gap evidence 1-2, Eul evidence 8-1 through 7, Eul evidence 3, Eul evidence 4 and Eul evidence 4, the plaintiff used 4,57,112,155 won deposited from the deceased's securities account to the plaintiff's securities account for the purchase of all shares over 37 times from 2003 to 2005, and again deposited 1,871,10,714 won in total from the plaintiff's securities account for 41 times during the same period, and again deposited 1,871,10,714 won in the plaintiff's securities account for 41 times during the same period. As above, the plaintiff purchased shares using the money deposited from the deceased's securities account, and sold the above shares again, and the fact that the period required to deposit the money into the deceased's securities account is less than 7 months long.

2) In full view of the following circumstances that can examine the purport of the entire argument, it is reasonable to deem that only KRW 2,676,011,441, and 441, which had been donated to the Plaintiff as a gift to the Plaintiff from 2003 to 2005, the amount deposited in each of the securities accounts of the Plaintiff and the Deceased was not all donated to the Plaintiff during the same period, and only KRW 4,547,112,15, which had been deposited from the securities account of the Deceased to the Plaintiff’s securities account from the Plaintiff’s total sum deposited from the Plaintiff’s securities account to the Plaintiff’s securities account during the same period.

A) The amount of money transactions that have been repeatedly and repeatedly conducted for a long time is not to separately determine individual transactions, but to comprehensively determine all such transactions. Examining each of the above money transactions that have been repeatedly and repeatedly conducted over three years between the Plaintiff and the Deceased, it is recognized that only KRW 2,676,011,441, and 4141, which had been transferred without compensation from the Deceased during the same period, from the total sum of KRW 4,547,112,15, which was deposited from the Deceased’s securities account to the Plaintiff’s securities account from 2003 to 2005, less than KRW 1,871,00,714, which was deposited from the Deceased’s securities account, during the same period.

B) It seems reasonable to view that the general public has given another person a donation of the money necessary to purchase shares at the point of 7 days less than the short one, and again, at the point of 6 months more than the short one, to receive a donation of the money to sell the shares. In such a case, it is more natural to view that each of the above money has been given a loan rather than being given a donation.

C) In light of the fact that the Plaintiff and the Deceased were married couple, it is difficult to readily conclude that all of the money deposited as above was donated to each other solely on the ground that no loan certificate stating the interest rate or loan period was made between the Plaintiff and the Deceased at the time of the said monetary transaction.

3) Accordingly, the Plaintiff’s letter of objection pointed out is well-grounded.

3. Conclusion

The plaintiff's claim for this case is accepted because there are reasons for the plaintiff's claim.