Cho High-2017-Seoul Government-158 (2017.05.02)

In a lawsuit on the imposition of gift tax, it is necessary to verify where a deposit in the name of the donor is withdrawn and deposited in a bank account in the taxpayer

As long as the deposited money in the name of a donor is revealed to have been withdrawn and deposited in the account, etc. in the name of the taxpayer, such deposit is presumed to have been donated to the taxpayer. Thus, barring special circumstances, such as that the deposit was made for other purpose than the donation, the taxpayer needs to prove

Article 45(3) of the Inheritance Tax and Gift Tax Act (Presumption of Donation of Funds, etc. for Acquisition of Property)

2017Guhap73570

AA

BB Director of the Tax Office

April 5, 2018

April 26, 2018

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

Each disposition of imposition of gift tax of KRW 83,605,50 (including additional taxes) and KRW 62,797,020 (including additional taxes) against the Plaintiff on December 2, 2016 by the Defendant shall be revoked.

1. Details of the disposition;

A. On March 19, 2015, the Plaintiff’s husband died, and the Defendant conducted an inheritance tax investigation on the Plaintiff, etc., who was the Plaintiff’s heir, from July 15, 2016 to October 17, 2016.

B. On October 10, 000, the Defendant confirmed that the Plaintiff received KRW 249,000,000 from CCC on the same day, and received KRW 225,00,000 from DD, the Plaintiff’s mother on the same day.

C. Accordingly, on December 2, 2016, the Defendant imposed and notified the Plaintiff of KRW 33,80,000,000 as gift tax of KRW 249,00,00 as gift tax of KRW 28,97,020 as well as KRW 62,797,020 as penalty tax of KRW 28,97,020 as gift tax of KRW 225,00,00 as gift tax of KRW 45,000 as gift tax of KRW 38,60,05,50 as penalty tax, and KRW 83,605,50 as gift tax of KRW 225,00 as gift tax of KRW 225,00,00 as gift tax and KRW 38,605,50 as penalty tax (hereinafter referred to as “the second disposition” of this case, and in combination with the first disposition of this case, “each disposition” of this case”).

D. On February 27, 2017, the Plaintiff dissatisfied with each of the instant dispositions, filed an appeal with the Tax Tribunal on February 27, 2017, but was dismissed on May 2, 2017.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 1 and 4, the whole pleadings

Purport

2. Whether the disposition is lawful;

A. The plaintiff's assertion

As delineated below, CCC remitted the leased deposit to the Plaintiff with the return of the leased deposit, and DD cannot be deemed as a donation because it remitted the loan, and thus, each of the dispositions of this case on different premise is unlawful.

1) In relation to the first disposition of this case, the Plaintiff resided in the offset 0,00-dong, Seoul Special Metropolitan City, Nowon-gu, 00-dong, 00-dong, 000-dong, 000-dong, Seoul (hereinafter referred to as the “instant offset apartment”) around 1996, and had 150,000-dong, Yangcheon-gu, Seoul and 00-dong, Dadong, 0000 (hereinafter referred to as the “instant wooden apartment”), and paid 500,000 or 600 won per month due to the increase in the lease price. On August 18, 2010, the CCC returned the Plaintiff the above lease deposit amount of KRW 150,000,000 or KRW 225,000,000 per month, which is the aggregate of the monthly amount paid to the Plaintiff.

2) With respect to the instant secondary disposition, the Plaintiff borrowed KRW 225,00,000 from DD on August 18, 2010 for the purchase of KRW 00,00,00,00 from D, Yangcheon-gu, Seoul, Yangcheon-gu, Seoul (hereinafter “instant apartment”). The Plaintiff’s EE repaid KRW 156,00,000, which is a part of it around February 2013, and the remainder paid KRW 50,000,000 per month to DD.

B. Relevant provisions

It is as shown in the attached Form.

(c) Fact of recognition;

1) Preparation, etc. of the Plaintiff’s certificate

A) On October 21, 2016, the Plaintiff prepared the following certificates when investigating the Defendant’s inheritance tax.

On October 21, 2016, 16:30 on October 21, 2016, I have visited the property tax and the accounts transaction details of the rental deposit and part of the account, with respect to the inheritance tax investigation (CCC).

- - Future -

1. Rental deposit (Seoul Yangcheon, 00-0, at the time of commencing an inheritance);

After the change of the lessee;

FFF 30,000,000 Won 7,000,000

GG 20,000,000 Won 3,000,000

HH 50,000,000 Won10,000,000

III 50,000,000 Won 10,000,000

J 40,000,000 Won 5,000,000

K 10,000,000 won 5,000,000 won

LL 100,00,000 won 20,000,000 won

Total 400,000,000 Won 60,000,000

The date, amount and details of transactions;

CCC 00000- 000- 00249,000,000 Won Plaintiff

DD 00000- 000- 00225,000,000 Won

The above amount of KRW 474,00,000 for the apartment (Seoul Yangcheon-gu 00 October 00, 00)

00-00 For the acquisition fund of the apartment in this case

B) On August 18, 2010, the Plaintiff and wife EE completed the registration of transfer of ownership with respect to 1/2 of the instant apartment units.

2) A real estate lease agreement between the Plaintiff and CCC

The real estate lease contract was signed on March 10, 1996 between the plaintiff and CCC, and the main contents are as follows.

1. Indication of real estate;

Location: The instant wooden apartment complex;

2. Details of the contract;

Deposit KRW 00,000

Down payment,000,000 won

The remainder of 300 million Won

Article 2 (Duration) A lessor may use and benefit from the above real estate for the purpose of lease, April 10, 1996.

By April 9, 1998, the lease period shall be delivered to the lessee, and shall be from the date of delivery to April 9, 1998.

Article 5 (Termination of Contract) Where a lease contract is terminated, the lessee shall restore the above real estate to its original state and recover it from the lessor.

In such cases, the lessor shall return the deposit to the lessee, and the lessor shall return the overdue rent or damages.

In such cases, they shall be removed and the balance shall be refunded.

CCC of a lessor

Plaintiff

Brokers

Registration number 0000-0000

Name of the office, mixed real estate;

New-dong 4, 000-0, Yangcheon-gu, Seoul;

Tel 000000

3) Plaintiff’s resident registration

The Plaintiff had a resident registration number on the instant wooden apartment from April 9, 1996 to January 1, 2002, and from November 17, 2006 to May 5, 2008, but the details of the Plaintiff’s resident registration number (Abstract) are as follows.

Serial Address and Transfer Date

1. The offset apartment of this case on January 6, 1993

2. The instant wooden apartment on April 9, 1996

3 Yangcheon-gu Seoul Metropolitan Government 1279 Ho-dong Apartment 00, 000, January 2, 2002

4 November 17, 2006 of the instant wooden apartment.

5. Distribution-type apartment 00, 00-dong, Seocho-gu Seoul Metropolitan Government 5.6 May 6, 2008

6. The apartment of this case on August 24, 2010

4) On February 15, 2013, the Plaintiff EE transferred KRW 156,00,000 to the National Bank of DD (000).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3, 6, 8, 10, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

D. Determination

1) Relevant legal principles

In a lawsuit seeking revocation of disposition imposing gift tax, as long as the deposit in the name of a person recognized as a donor by the tax authority is revealed to have been withdrawn and deposited in the account in the name of a taxpayer, such deposit shall be presumed to have been donated to the taxpayer. Thus, barring special circumstances, such as withdrawal of such deposit and deposit in the name of a taxpayer, etc. for other purpose than donation, the need to prove such fact lies on the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov. 13,

2) As to the first disposition of this case

As seen earlier, as of March 10, 196, the real estate lease agreement was concluded between the Plaintiff and CCC as of March 10, 1996, and the Plaintiff had been registered in the instant wooden apartment from April 9, 1996 to January 1, 2002, and from November 17, 2006 to May 5, 2008. However, in light of the above legal principles, the Plaintiff did not appear to have been able to be able to be able to be able to be able to be able to be able to be able to be able to be able to have paid 20 billion won to the Plaintiff during the period of 0 years prior to 20 years prior to 10 years prior to 20 years prior to 20 years prior to 20 years prior to 30 years prior to 20 years prior to 20 years prior to 20 years prior to 30 years prior to 20 years prior to 20 years prior to the instant apartment lease agreement.

3) As to the second disposition of this case

As seen earlier, the Plaintiff’s transfer of KRW 156,00,00 to the account on February 15, 2013 is recognized. However, in light of the above legal principles, the Plaintiff’s transfer of KRW 150,000 to the account on February 15, 201, including the following circumstances, i.e., ① 25,000,000,000, which can be recognized by the entire purport of each statement and argument on KRW 3,5,10,000 from the Plaintiff’s transfer of KRW 20,000,000 to the account on KRW 50,000,000 from the above transfer of KRW 20,000,000 from the Plaintiff’s transfer of KRW 20,000,000,000 from KRW 20,000,000 from the above transfer of KRW 20,000,00 from the Plaintiff’s transfer of KRW 200,005,00.

4) Sub-committee

Therefore, each of the dispositions of this case is legitimate, and the plaintiff's assertion on different premise is without merit.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed, and it is so decided as per Disposition.