Cho High Court Decision 2010Da1936 (Law No. 27, 2010)

a donation of cash from the spouse

In full view of the fact that the Plaintiff received cash donation from his spouse at the time of the tax investigation, it cannot be deemed that the loan, etc. was returned to his spouse, not the donation.

2010Guhap5036 Revocation of Disposition of Imposition of Gift Tax

Doz. Doz.

○○ Head of tax office

June 17, 2011

July 15, 2011

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 137,456,690 against the Plaintiff on March 8, 2010 is revoked.

1. Details of the disposition;

A. On December 28, 2006, the Plaintiff purchased the land DE-dong 497-36,38, and the gas station building on the land (hereinafter “the instant real estate”) for KRW 2.5 billion from thisB, and paid KRW 1.75 billion out of the remainder of KRW 1.85 billion following the following day in cash from the Plaintiff’s bank deposit account (065-12-0505054-4) in the name of the wife Kim F.

B. The defendant loaned KRW 1,248,698,631 out of the above KRW 1.75 billion to GGG overseas travel companies (hereinafter referred to as "GG overseas tourism"), but recognized the plaintiff's own funds received through the deposit account of KimF, but the remainder of KRW 801,301,369 (hereinafter referred to as "the issue amount of this case") is deemed to have been donated to the plaintiff from KimF, and on March 8, 2010, imposed KRW 137,456,690 (hereinafter referred to as "the disposition of this case") on the plaintiff (hereinafter referred to as "the disposition of this case"). [Grounds for recognition] The fact that the plaintiff did not dispute, Gap 1,20, and Eul 1,369, and Eul 1, respectively, the purport of the whole pleadings and arguments.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The key issue of this case is that the Plaintiff received from GG overseas tourism, GG high-speed tourism, etc. (hereinafter referred to as “GG high-speed tourism”), etc. in the deposit account of KimF, and did not receive any donation from the Plaintiff, and thus, the instant disposition should be revoked in an unlawful manner.

(b) Related statutes;

Article 2 of the Inheritance Tax and Gift Tax Act

C. Determination

(1) Unless special circumstances exist, such as where a tax authority received a written confirmation from a taxpayer to a certain taxable fact in the course of conducting a tax investigation, it may not readily deny the value of the evidence of the written confirmation, barring special circumstances, such as where the written confirmation was duly signed and sealed contrary to the intent of the author, or it is difficult to take it as supporting materials for specific facts due to insufficient details (see, e.g., Supreme Court Decisions 98Du2928, May 22, 1998; 2001Du2560, Dec. 6, 2002).

(2) If the above evidence and evidence Nos. 4-1 to 10, 2-2 and 3 were to be added to the purport of the entire pleadings, the plaintiff's remaining amount of 1,248,631 won was transferred from the KoF Bank's Deposit Account (065-13-00651-0) on December 27, 2006 to 1,248,698,631, KimF's remaining amount of 70 billion won was to be considered as 00,000 won for the plaintiff's remaining amount of 70,000,000 won for 60,000,000,000 won for 705,000,000,000 won for 10,000,000,000 won for 20,000,000 won for each of the above evidence and 3-10,000,000 won for sale and purchase.

(3) In regard to this issue, the Plaintiff received a return of money borrowed from KimF by taking advantage of KimF’s account from companies, such as GG overseas tourism, GGG high-speed tourism, etc. operated by the Plaintiff, or by paying the lessee the deposit in lieu of the deposit or the interest on the loan by paying the loan in substitution for the lessee, and the Plaintiff did not need to receive the donation in light of the Plaintiff’s financial status, and as such, submitted the testimony of ParkNN’s witness evidence as follows: (a) Party 3, 5, and 15 (including each number), Party 4-2, 4, 9, and 11, and witness ParkN’s testimony.

그러나 ① 원고가 김FF에게 대여 명목으로 KK빌딩 또는 김FF 명의의 예금계좌에 송금하였다는 210,221,917원은 2001. 1. 16.부터 2004. 2. 26.까지 3년간 누적된 금액인데다가 송금단위도 80만 원의 소액에서 7,500만 원까지 다양하고 5,000만 원 이상의 경우에는 생활비나 신용카드 등의 결제계좌로 사용하는 예금계좌로 입금된 점에서 대여로 인정하기 어렵고, ② 2004. 12. 1.부터 2006. 6. 21까지 GGG해외관광, GGG고속관광, 주식회사 QQQQ건설 등으로부터 가수금 반제를 받아 김FF에게 지급한 것이라는 l억 7,000만 원(KK빌딩 부동산의 매도계약금 중 GGG해외관광 몫), 1억 1,111만 원(KK빌딩 부동산을 담보로 한 신협대출금 이자의 대납분), 1억 2,360만 원(KK빌딩의 임차인 대한 보증금 반환분)은, 해당 가수금 반제의 상대방이 원고인지(얼마든지 다른 대표이사가 있을 수 있고, 실제로 갑 4호증의 3의 거래실적 내역표에는 예금주가 GGG관광여행사 김FF으로, 을 4호증의 매매계약서에는 GGG 해외관광의 대표이사가 서SS으로 기재되어 있다), 그것이 부부 지간인 원고와 김FF 사이에 진정한 대여 명목으로 건네졌는지도 명확하지 아니하며, ③ 2002년부터 2006년 까지 김FF의 종합소득세 내역(을 6호증)을 보면 김FF이 2005년을 제외하고는 적어도 4,900만 원 정도에서 8,600만 원까지 순소득을 올리고 있어 원고로부터 금전을 차용할 만한 뚜렷한 이유도 없었다는 점에서, 원고가 제출한 위 증거들만으로는 이 사건 쟁점액이 증여가 아닌 김FF에 대한 대여금 또는 GGG해외관광 등에 대한 가수금을 돌려받은 것이라고 인정하기에 부족하고, 그 밖에 달리 이를 인정할 만한 증거가 없다.

Therefore, the plaintiff's assertion is without merit.

3. Conclusion

Thus, the disposition of this case is legitimate, and the plaintiff's claim is dismissed as it is without merit.