Daegu District Court-2017-Gu Partnership-20127 (No. 19, 2017)

Cho High-2016-Tgu Office-336 ( November 02, 2016)

money deposited in the account shall be deemed to have been donated.

Since the money deposited in the account in the name of the plaintiff is deemed to have been reverted to the plaintiff by using the plaintiff's business fund and real estate acquisition fund, it is reasonable to impose tax on the plaintiff.

Article 2 of the Inheritance Tax and Gift Tax Act

Daegu High Court 2017Nu7093

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○ Head of tax office

Daegu District Court 2017Guhap20127

March 16, 2018

April 6, 2018

1. The plaintiff's appeal is dismissed.

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

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as stated in the reasoning of the first instance judgment, except for adding the following matters between the seven pages 2 and 3 of the first instance judgment, and therefore, it is consistent with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Details to be added; and

3) Judgment on the Plaintiff’s assertion

A) On this issue, the Plaintiff asserts that, when AA Construction Co., Ltd., which he operated, was unable to conduct financial transactions in its own name due to bankruptcy or joint and several liability, it is a key issue to deposit and use business funds raised from the bond company in the name of the Plaintiff in the account in the name of another person while closing the business and operating the BB mid-Term (B) or the “CC Development (Real Estate Development Business”) in another person’s name. Therefore, it cannot be presumed that the said money was donated merely because it was deposited in the Plaintiff’s account in light of the empirical rule.

However, unlike an account transaction between husband and wife whose presumption of gift in light of the empirical rule is not recognized in a tax lawsuit, it is presumed that all the account transaction, etc. between a partner’s death or parent consciousness is a gift (see, e.g., Supreme Court Decisions 96Nu3272, Feb. 11, 1997; 99Du4082, Nov. 13, 2001; 2003Du6290, Oct. 10, 2003; 2009Du2666, Oct. 29; 2010Du16585, Nov. 11, 2010).

In addition, in light of the aforementioned circumstances (in particular, when the key amount of the issue on September 29, 2006, which the Plaintiff did not have any particular import at the time deposited, the purchase of the land 761,500,000 won of the purchase fund on December 28, 2006 and the purchase of the land **********PC bank's opening of the PC bank in the trade name on January 1, 2007, and it seems that the fund was appropriated as the donated key amount, as the fund was appropriated), it is insufficient to recognize the Plaintiff's assertion that the issue amount is only the fund for the business of the PC by using the Plaintiff's account.

Therefore, the plaintiff's above assertion on a different premise is without merit.

B) In addition, the Plaintiff asserts that the Defendant did not clearly state the grounds for taxation of the instant disposition, and that according to Article 45(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “Inheritance Tax and Gift Tax Act”), the value of donated property is merely KRW 761,50,000,00 for purchase of land A, which is funds for property acquisition, under Article 45(1) of the said Act.

However, the Defendant issued the first instance court’s written reply on February 20, 2017, the preparatory brief on May 23, 2017, and the preparatory brief on March 12, 2018 of the first instance court’s trial, etc. on several occasions, stating that the instant disposition is imposed on the money deposited in the account held by the Plaintiff and the Plaintiff’s wife (total amount of KRW 975,00,000) as donated property under Article 2 of the Inheritance Tax and Gift Tax Act, and clearly states the grounds for taxation. Thus, the Defendant’s aforementioned assertion on a different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.