Cho High Court Decision 2010No4022 ( November 25, 2011)

Property donated in advance by a decedent shall not be considered as consideration for domestic labor, etc.

As long as it is found that a deposit in the name of a person recognized as a donor by the tax authority is withdrawn and deposited in a bank account in the name of a taxpayer, such deposit is presumed to have been donated to the taxpayer. Therefore, the assertion that the deposit was paid in return for household labor or paid during the management of the deposit for medical expenses, living expenses,

2010Guhap43198 Revocation of Disposition of Imposition of Gift Tax

Song XX

Head of Eastern Tax Office

November 24, 2011

January 19, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of gift tax of KRW 185,480,460 against the Plaintiff on September 6, 2010 is revoked.

1. Details of the disposition;

A. On August 20, 2005, the Plaintiff: (a) entered into a sales contract with the KimB on August 20, 2005, with the content that: (b) the Plaintiff would sell the Mari-gu Sori-gu Sori-gu Sori-dong-dong 000 XX apartment 000,000 (hereinafter “the instant real property”) for KRW 630,000; (c) around that time, the Plaintiff received down payment of KRW 63,000,000 for intermediate payment and intermediate payment of KRW 100,000 with the deposit account in the name of the Siri-A-si.

B. On September 21, 2005, the Plaintiff withdrawn a total of KRW 190,000,000, including down payment and intermediate payment pursuant to the above sales contract, from the account opened in the name of the network Song-A. The Defendant deemed that the Plaintiff received the said withdrawal from the network Song-A, and thus imposed KRW 44,849,700 on the Plaintiff on January 5, 2010. The Plaintiff paid the said withdrawal on January 20, 2010.

C. Since then, as a result of the Plaintiff’s reinvestigation of inheritance tax, the Defendant confirmed that on November 17, 2005, the remainder of KRW 467,000,000 out of the sales amount of the instant real estate was deposited into an account under the Plaintiff’s name, not the account under the name of the Plaintiff, but the amount of the instant purchase (hereinafter “instant purchase amount”), and that on September 6, 2010, the Plaintiff additionally imposed KRW 185,480,460 on the Plaintiff on the ground that the Plaintiff was donated the instant purchase amount by the Plaintiff, deeming that it was donated the instant purchase amount by the Plaintiff, and thus, the Plaintiff additionally imposed KRW 185,480,460 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not receive a donation from the Plaintiff. In other words, the Plaintiff had resided with the Plaintiff from around 1968 without marriage as a relative of the Plaintiff, while living with the Plaintiff. Of the purchase price of the instant real estate, KRW 467,00,000, out of the remainder of the purchase price of the instant real estate was paid for the Plaintiff’s household labor or was paid to the Plaintiff’s account in order to use the Plaintiff’s medical expenses, living expenses, etc., the amount was limited to the amount paid to the Plaintiff’s account in the name of the Plaintiff. After that, the Plaintiff would be used as the medical expenses, living expenses, etc. of the Plaintiff and KRW 100,000,000, which were currently used as the current amount of KRW 100,000,000, out of the purchase price of the instant real estate.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) In a lawsuit seeking revocation of disposition of revocation of gift tax, as long as the deposit in the name of a person who is recognized as a donor by the tax authority is revealed to have been withdrawn and deposited in the account under 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, the need to prove it is the taxpayer (see, e.g., Supreme Court Decision 99Du4082, Nov. 13, 2001).

(2) As seen earlier, as long as the balance of KRW 467,00,000 out of the real estate purchase price of the instant real estate owned by the network Song-A deposited in the Plaintiff’s account on November 17, 2005, it is reasonable to view that the Plaintiff donated the amount to the Plaintiff. The Plaintiff’s assertion to the effect that, in full view of the following circumstances, the amount of the instant purchase price was either paid for the Plaintiff’s household labor or was managed for the Plaintiff’s medical expenses, living expenses, etc., and that the amount of the instant purchase price was merely paid for the purpose of the Plaintiff’s use of the Plaintiff’s medical expenses and living expenses, etc., it is difficult to accept.

(A) In addition, there is no evidence to acknowledge that the amount of the instant deposit was deposited in return for the Plaintiff’s household work. The Plaintiff’s assertion used the amount received in return for the Plaintiff’s household work for the medical expenses, etc. of the network dispatchingA, and managed it to use the balance as the marriage fund of the network dispatchingCC. Moreover, even though the Plaintiff asserted that most of the instant deposit amount was paid in the network dispatchingA’s medical expenses, living expenses, etc., it is difficult to accept it in itself. On the other hand, the Plaintiff did not submit evidence of its payment. On the other hand, 40 million won out of the instant deposit amount was deposited into the Plaintiff’s National Bank Adong branch account on November 17, 2005 for the purchase of repurchase agreement bonds, and was terminated on November 28, 2005. On the same day, it was terminated and terminated, and it continued to have been deposited in the Plaintiff’s national bank type deposit in the name of the Plaintiff’s national bank account under the name of the Plaintiff (hereinafter “Plaintiff’s national bank type”).

(B) On September 21, 2005, the Plaintiff withdrawn a total of KRW 190,000,000, including down payment and intermediate payment, from the account opened in the name of the Siura, and received a disposition from the Defendant to impose gift tax of KRW 44,849,70 on the said withdrawn amount, the Plaintiff paid the amount without raising any objection. The amount of the instant entry is the remainder of the sales amount of the instant real estate.

(C) In light of the fact that, around July 2005, the network operator around the month when the Plaintiff disposed of the instant real estate, the Plaintiff donated the land located at OOri 00-0, both of which were owned by the Plaintiff and the Plaintiff’s donation from the network operator. Furthermore, it is difficult to conclude that the network operator’s medical expenses and the family’s living expenses were paid out of the deposit amount in this case, taking into account that the network operator owned a large number of real estate and disposed of a part of the real estate during the period from around 2000 to 2005.

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.