Cho Jae-chul2010-Gu3959 ( October 31, 2011)

In order to reverse the presumption of gift, the source of property acquisition fund must be proved.

It is presumed that the issue amount is donated from the disposal agency by preparing and submitting a written confirmation of the fact that the acquisition fund was donated, and it is proved that the fund was used as the acquisition fund of the property in question, and that it is proved that the fund was used as the acquisition fund of the property in question.

2011Guhap1766 Revocation of Disposition of Imposition of Gift Tax

XX

Head of Namgu Tax Office

December 23, 2011

February 8, 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 9,834,710, and KRW 115,908,390, and KRW 50,823,210, which was reverted to the Plaintiff on February 3, 2005, which was reverted to the Plaintiff on March 4, 2005, is revoked.

1. Details of the disposition;

A. On February 2, 2004, the Plaintiff jointly purchased buildings of 1,861,229,176 m2 and 1,86 m2 and 200-00 m2 and 347.2 m2 m2 and 5 m2 m2, such as 00-0 m2 and 858.8 m200 m2, and 1,861,229,176 m2 and completed the registration of ownership (each co-owned share 1/3).

B. On November 8, 2004, the Plaintiff purchased 000 m200 m2 and 793 m20 m20 m20 m2 (hereinafter collectively referred to as “second real estate in this case”) in total for 145,000 m20 m20 m2.

C. On May 31, 2005, the Plaintiff entered into a lease agreement with the Daegu-gu AAAAdong apartment 000 Dong 000,000 (hereinafter “Lease deposit claim”) as KRW 130,000,000 (hereinafter “third real estate”).

D. From April 20, 2010 to May 28, 2010, the commissioner of Daegu Regional Tax Office recognized the Plaintiff’s share of KRW 355,602,00 among the acquisition funds of the Plaintiff’s property of the first real estate of this case, KRW 82,375,000 as part of the acquisition funds of the second real estate of this case, and KRW 567,97,000 as the sum of KRW 130,00,000 as the acquisition funds of the third real estate of this case (hereinafter “instant key amount”), and notified the Defendant of the fact that the Plaintiff was donated from the DeputyCC, and on September 10, 2010, the Defendant dismissed the Plaintiff’s share of KRW 176,566,310 as the gift tax (= KRW 9,834,710 as the gift tax reverted on February 34, 2005 + KRW 3105,81.38,2015.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1-5, Gap evidence 2-2-4, Gap evidence 3, Gap evidence 4-1-3, Gap evidence 5-1-2, and the purport of the whole pleadings

2. The grounds for illegality of the disposition asserted by the Plaintiff are as follows.

A. The Plaintiff’s application of the presumption of donation under Article 45 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “former Inheritance Tax and Gift Tax Act”) is unlawful since it had certain occupation, income, and assets at the time of acquiring the instant real estate No. 1, 2, and 3.

(b) Even if the provision on the presumption of domestic donation applies, the presumption of domestic donation should be reversed so long as the source of funds for the first, second, and third real estate of this case is sufficiently proven by the plaintiff's income and property.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Facts of recognition;

A. From March 28, 2001 to May 1, 2004, the Plaintiff was the representative of the △ Industrial Complex Co., Ltd. (hereinafter referred to as the “△ Industrial Complex”). From February 2, 2004 to February 2, 2004, the Plaintiff is running the business of leasing the instant Type 1 real estate jointly with the previousA and the changedB who are co-owners.

B. From 1998 to 2008, the Plaintiff reported income while carrying on the △ industrial company and real estate rental business as stated in the above paragraph (a) are as follows.

C. The ChoCC (the Plaintiff’s division) operated the △△△ Group from May 25, 1973 to June 16, 1993, and operated the △△ Group on October 28, 1995 by opening and operating the YY Motor Vehicle Maintenance Industry Group, and operated the YYA on March 2001 after converting it into the YYA company, and was in office as the chief director via the YB Saemaul Fund. Meanwhile, the CC sold real estate four times from March 1997 to June 2003 and did not newly acquire other real estate. The standard market price of the above real estate sold is KRW 1,172,693,000 in total.

D. As stated in the above sub-paragraph (b), the Defendant recognized the Plaintiff’s real estate rental income of KRW 56,834,00 from 198 to 2003 and KRW 6,951,00 from 204 as the source of the funds for acquiring the instant real estate. The Plaintiff’s real estate rental income after December 26, 2005 was determined as the source of the funds for acquiring the instant real estate, which the Plaintiff acquired on December 26, 2008, SSS0 E 00 E 000,000 (hereinafter “the instant real estate”). The real estate in this case was not subject to gift tax).

E. On May 19, 2010, the Plaintiff prepared and submitted to the Defendant a written confirmation proving that the Plaintiff was not 130,600,000,000 each donated money with the acquisition fund of the instant real estate No. 1 from ChoCC, with the acquisition fund of the instant real estate No. 35,601,985 won; KRW 50,000 with the acquisition fund of the instant real estate No. 2 real estate; and KRW 76,90,000 with the repayment fund of the instant loan related to the acquisition of the instant real estate No. 2 real estate; and KRW 130,000 with

F. In imposing gift tax on other co-owners of the instant real estate No. 1, the Defendant: (a) imposed gift tax on the amount of shortage in funding on the former, a co-owner; (b) on November 17, 2010, the former filed a request with the Tax Tribunal for a trial on the tax appeals on the said insufficient amount (e.g., the latter was dismissed on November 11, 201; and (c) was no longer dismissed on the appeal procedure); and (b) on the former, a co-owner, the latter did not impose gift tax on the latter, deeming that the source of acquiring funds is recognized as having been operated for more than 200-0 from the Daegu-dong H2

[Basis] Facts without dispute, Gap evidence 6-1, 2, Eul evidence 5-1, 2, Eul evidence 6-1, 6-1, 2, Eul evidence 7-1, 7-4, Eul evidence 8, and the purport of the whole pleadings

5. Determination

A. Judgment on the Plaintiff’s assertion No. 2. A

(1) According to Article 45(1) of the former Inheritance Tax and Gift Tax Act and Article 34(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010), where it is difficult to recognize that a person acquired the pertinent property by his/her own means in view of his/her occupation, age, income, and property status, etc., (i) the returned or taxed income amount, (ii) the value of the inherited or donated property, (iii) the amount of money received by the person who acquired the pertinent property or received by himself/herself in return for the disposal of the relevant property, and (iv) the amount of money used directly for the acquisition of the pertinent property or for the repayment of the obligation is less than

The facts of donation of property, which is a requirement for the imposition of gift tax, are proved by the tax authority, and where the tax authority fails to clearly prove the source of part of the fund in the course of the transaction, such as purchase of real estate by a person with a certain occupation and a considerable financial capacity, it shall not be presumed that the fund was donated from his/her spouse or lineal ascendant without any proof. However, in order to reverse such presumption, if a person without a special occupation or property fails to prove the source of the fund in question, and if his/her lineal ascendant, etc. has the financial capacity to give a donation, it is reasonable to presume that he/she received a donation of the property from the person with the financial capacity. This legal principle also applies to cases where even though a certain occupation has income in question, it is objectively evident that the amount of income or other financial status is extremely poor than the value of the property in question and it is impossible to prepare the property with the income or re-performance (see, e.g., Supreme Court Decision 90Nu6071, Oct. 26, 1990).

(2) As seen earlier, the income reported by the Plaintiff from 198 to 2004 alone is insufficient to acquire the instant real estate 1, 2, and 3. The ChoCC engaged in business activities from May 25, 197 to March 2001, and the Plaintiff sold real estate equivalent to KRW 1,172,693,00 from March 25, 197 to June 2003 and did not acquire new real estate. As such, it is reasonable to deem that the Plaintiff had the financial power to donate the instant key amount to the Plaintiff without any special property. Accordingly, it is lawful to apply the gift presumption provision under Article 45 of the former Inheritance Tax and Gift Tax Act to the Defendant, and the Plaintiff’s assertion is without merit since it proves the source of the funds assumed to reverse the said presumption, while it proves that the funds were used to acquire the pertinent property.

B. Judgment on the Plaintiff’s assertion No. 2.B.

(1) Of the funds for acquiring real estate No. 1 of this case, the amount equivalent to the Plaintiff’s share

The Plaintiff asserted that: (a) the Plaintiff solely acquired KRW 547,00,000,00 for the acquisition fund of KRW 1,861,229,00 for the instant real estate 1 + KRW 547,00,000 + KRW 1,100,000 + KRW 14,229,00 for the lessee of the instant building among the instant real estate 1); (b) the Plaintiff jointly acquired the secured debt of KRW 1.1 billion for the secured debt of the right to collateral security established on the instant real estate 1; and (c) the variableB jointly acquired the secured debt of KRW 1.1 billion for the instant real estate 1; and (d) the Plaintiff paid KRW 14,229,00 for the remainder of the acquisition fund.

According to the plaintiff's assertion, Gap evidence No. 11 (the agreement; hereinafter referred to as "the agreement of this case") and witness Eul's testimony are hard to believe and there is no other evidence to acknowledge the plaintiff's assertion in light of the following. ① According to the plaintiff's assertion, the plaintiff's funds for acquiring real estate of this case are not equally divided (the plaintiff's 561,29,000, 547,000, 750,000, 2000, 100, 2000, 100, 2000, 10,000, 2000, 10,000, 10,000, 200, 10,000, 20,000, 20,000,000,000,000,000,000,00,000,00,000,00,000 won.

(2) 82,375,000 won out of the funds to acquire the second real estate of this case

The Plaintiff asserts that the source of KRW 145,800,000 from the acquisition fund of the second real estate of this case was ① KRW 63,425,00,000 from 201 to 2003, ② around November 1, 2004, the Plaintiff paid KRW 76,90,000 from the Plaintiff’s savings depository loan to KRW 76,90,00, and KRW 20,078,538 from the Plaintiff’s deposit deposit in the name of the Plaintiff, and the above loans and deposits borrowed from the Plaintiff’s friendship to the amount of KRW 20,078,538 from the Plaintiff’s deposit and the increased amount of lease deposit.

Although the Defendant recognized that the Plaintiff’s wage and salary income from 2001 to 2003 and the real estate rent income from the first real estate in 2004 as the acquisition fund of the second real estate in this case, the Defendant recognized only the amount yet to be proven as the key amount in this case, as seen earlier. Accordingly, the Defendant examined the loan and time deposit in the Plaintiff’s name as the acquisition fund of the second Gententsan as follows.

According to the evidence No. 7-3 and No. 10, the plaintiff's bank account No. 20,000 won was deposited on September 1, 2003 under the plaintiff's name (Account Number 214-04-0000-0), and 20,078,538 won was deposited on September 8, 2004. On November 1, 2004, the plaintiff's bank account No. 76,90,000 won was loaned to the defendant with a loan within the scope of BB Saemaul Depository's household deposit savings (Account Number 214-500,000-0). However, in light of the fact that the plaintiff's loan No. 20,000 won was not set up on the loan No. 70,000 won, the plaintiff's new loan No. 200,70,000 won was not set out on the loan No. 30,50,000 won.

(3) The acquisition fund of the third real estate in this case

The Plaintiff asserts that ① the source of funds for the third real estate in this case was KRW 30,007,964 in the name of the Plaintiff, which was terminated on May 17, 2005, and ② the lease revenue was KRW 55,794,000 in the name of the Plaintiff, which was terminated on February 1, 2004 or June 30, 2005.

First, according to the evidence No. 8, 30,07,964 won in the name of the plaintiff who was terminated on May 17, 2005, the deposit of BB Saemaul Depository was deposited with BB Saemaul Depository deposit (Account No. 2114-04-0000-0) in the name of the plaintiff, May 14, 2004, and 30,007,964 won was terminated on May 17, 2005 and deposited with 30,007,964 won was recognized, but the seal of BB Saemaul Depository was affixed in the above deposit account (Evidence No. 8, Eul No. 17), and the plaintiff did not have any other evidence to acknowledge the deposit of this case from the plaintiff on May 19, 2010, and the plaintiff did not have any other evidence to acknowledge the deposit of this case.

Next, the Plaintiff’s assertion that the rental income from February 1, 2004 to June 30, 2005 from February 1, 2004 to June 30, 2005 was recognized as the Plaintiff’s acquisition fund of real estate No. 2. The Defendant recognized the Plaintiff’s real estate rental income from February 1, 2004 to the Plaintiff’s real estate No. 6,951,000. The remainder of the rental income is recognized as the acquisition fund of real estate other than the instant case, and therefore, the Plaintiff’s assertion

(4) Sub-determination

Therefore, the key issue amount of the instant case out of the acquisition funds of the first, second, and third real estate of this case is deemed to have been donated by the ChoCC, and thus, it is lawful for the Defendant to take the instant disposition.

6. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.