Cho Jae-2017-west-163 (Law No. 15, 2017)

The assertion that the donor supported and received the consideration does not constitute a ground not regard as a gift.

Although a witness has supported a donor (mother) and has repaid the loan on behalf of the donor, he/she is insufficient to prove it, and it shall not be deemed that the donated property is the consideration for support.

Article 2 of the Inheritance Tax and Gift Tax Act

Incheon District Court-2017-Gu Partnership-828 (Law No. 13, 2018.09)

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○○ Head of tax office

August 16, 2018

September 13, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The imposition of gift tax of KRW 55,126,99 (including penalty tax) imposed on the Plaintiff on August 12, 2016 by the Defendant shall be revoked.

1. Details of the disposition;

원고와 원고의 어머니인 망 조☆옥(이하 '피상속인'이라 한다)은 2011. 10. 12. 서울 노원구 월계동 ★★아파트 AAA동 AAAA호(이하 '이 사건 아파트'라 한다)를 400,000,000원에 매수하고, 2011. 12. 5. 이 사건 아파트 중 각 1/2 지분에 관하여 위 매매를 원인으로 한 소유권이전등기를 마쳤다. 피상속인은 2015. 2. 14. 사망하였고, 원고와 원고의 동생인 이○식이 피상속인의 공동상속인이 되었다.

◆◆세무서장은 원고가 이 사건 아파트 중 1/2 지분을 매수하면서 피상속인으로부터 그 매매대금 200,000,000원(이하 '이 사건 취득자금'이라 한다)을 증여받은 것으로 보아 이 사건 취득자금을 상속세 과세가액에 포함하여 2016. 8. 5. 원고에게 상속세 61,543,630원을 결정ㆍ고지하였고, 피고는 원고가 2011. 12. 5. 피상속인으로부터 이 사건 취득자금을 증여받은 것으로 보아 2016. 8. 12. 원고에게 2011년 귀속 증여세 55,126,990원(가산세 포함)을 결정ㆍ고지하였다(이하 '이 사건 처분'이라 한다).

【Reasons for Recognition】 Entry of Evidence Nos. 1 and 4, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In 203 and 2004, an inheritee extended KRW 70,000,00 from the National Agricultural Cooperative Federation. On April 12, 2006, the Plaintiff repaid the above loan obligations on behalf of the inheritee. In addition, the Plaintiff continued to support the inheritee while living together with the inheritee since 2006. The amount of the instant acquisition was paid by the inheritee for the payment of the said loan obligations by subrogation, the amount equivalent to the interest thereof, and the expenses incurred in supporting the inheritee, etc. The Plaintiff did not receive a donation from the inheritee. Accordingly, the instant disposition was unlawful.

(b) Related statutes;

former Inheritance Tax and Gift Tax Act (Amended by Act No. 11130, Dec. 31, 2011)

Article 2 (Gift Tax Taxables)

(1) Gift tax shall be levied, as prescribed by this Act, on any of the following donated property as of the date of donation due to donation by a third party (excluding donation becoming effective due to the death of a donor; hereinafter the same shall apply):

1. Where a person to whom property has been donated (hereinafter referred to as a " donee") is a resident (including a non-profit corporation, the head office or main office of which is located in Korea; hereafter the same shall apply in this paragraph and Articles 54 and 59), all the property donated to the resident;

(3) The term "donation" in this Act means a gratuitous transfer (including transfer of tangible or intangible property at a remarkably low price) of any tangible or intangible property, the economic value of which can be calculated, in a direct or indirect manner, regardless of the name, form, purpose, etc. of such act or transaction, or an increase in the value of another person's property by contribution.

(c) Fact of recognition;

1) On April 6, 2001, an inheritee succeeded to 683-14 Gongung-dong, Seoul Special Metropolitan City (hereinafter referred to as "Gongung-dong Housing"), which was owned by his spouse, and continued to reside at the same place. The decedent obtained from the National Agricultural Cooperative Federation the loans of KRW 10,000,000 on December 29, 2003 as security, and KRW 60,000,000 on September 23, 2004 (hereinafter referred to as "the instant loans"). The loans were deposited from the lending account to another account of the decedent on December 29, 2003; the loans were transferred from the lending account to the account of the decedent on September 23, 2004; the loans were transferred from the lending account to the account of the decedent on September 29, 200, KRW 2000,000,000,000 on September 23, 2004;

2) On January 26, 2003, i.e., the Plaintiff’s husband, opened and operated the clothing store in Gangseo-si, and died on January 3, 2006, and thereafter the Plaintiff’s maximum marcing service was closed on April 12, 2006. The maximum marcing service provider, on April 12, 2006, remitted KRW 75,000,00 to the deposit account in the name of the largest marc. on April 12, 2006. Of these, KRW 70,864,273 was repaid in total, including the principal and interest, etc. of the instant loan, and KRW 70,864,273 was repaid on the same day (the interest on the instant loan prior to that date was paid every month through the Yungwonng-won branch near the domicile of the least marcian).

3) On April 28, 2006, 2006, when the Plaintiff resided with the least Yeung City as well as the Yeung City, and transferred the Yeung Si’s house on September 16, 201. On November 30, 2011, the inheritee disposed of the Yeung-dong house in KRW 1,386,00,000, and on December 5, 201, the Plaintiff acquired each of the instant apartment units from the Plaintiff on December 5, 2011. The Plaintiff transferred the instant apartment units to the instant apartment on April 19, 2012.

4) 피상속인이 공릉동 주택을 소유하던 당시에 그 1층에는 2세대의 임차인들이 거주하였다. 피상속인의 예금계좌에는 임차인 박●선으로부터 2003. 9.부터 2004. 1.까지 매월 500,000 ~ 590,000원, 임차인 김◎영으로부터 2008. 4.부터 2010. 6.까지 매월 약 200,000원, 임차인 김◇월로부터 2010. 2.부터 2011. 11.까지 매월 440,000 ~ 470,000원이 입금되었고, 2009. 6. 25. 예금만기이자 535,315원, 2011. 7. 4. 예금만기해지금 10,390,819원이 입금되었으며, 그 외에도 수시로 현금 및 수표가 입금되거나 전기ㆍ수도ㆍ가스요금, 재산세 등이 출금되었다.

5) The details of the property reported by the Plaintiff and Lee Jong-sik, etc. as donated from the inheritee or confirmed by the tax authority’s investigation are as follows.

[Reasons for Recognition] Entry of Evidence Nos. 2 through 4, the purport of the whole pleadings

D. Determination

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax may not be readily concluded to be an illegal disposition that failed to meet the taxation requirement, unless the other party proves that the pertinent facts at issue were not eligible for application of the empirical rule, unless it is proved that the facts at issue were proved in light of the empirical rule in the specific litigation process (see Supreme Court Decisions 97Nu13894, Jul. 10, 1998; 97Nu13894, Jul. 11, 2002).

13. See, e.g., Supreme Court Decision 2002Du6392.

Comprehensively taking account of the following circumstances known from the above facts, it is reasonable to view that the Plaintiff received the instant acquisition money from the inheritee free of charge. Therefore, the instant disposition that the Plaintiff deemed that the acquisition money was donated from the inheritee is lawful.

① At the time of April 12, 2006, the instant loan appears to have been repaid with the money deposited in the bank account of the Plaintiff’s husband who died at the time of the loan, and the interest on the instant loan appears to have been paid from the time of the loan to the day of the loan to the day of the repayment. As such, it seems to be due to the fact that the instant loan, which was extended under the name of the first inheritee, was actually attributed to the Plaintiff and the largest e-mail, while closing down the instant loan business.

② Even if the Plaintiff, while residing with the decedent on April 28, 2006, took account of the fact that the electricity, water, and gas charges, etc. were paid in the deposit account of the decedent, and at the time when the decedent resided in the official rolling Dong house with the Plaintiff, the Plaintiff owned the official rolling Dong house with a considerable property value, even though they were old, and there was a separate deposit income, and the Plaintiff alleged that there was a separate deposit, but there was no evidence to acknowledge that there was no support expense of at least KRW 800,000 per month for the decedent, it is difficult to view that even if the Plaintiff, while residing with the decedent, was deemed to have partially borne the living expenses, it would be on the premise of settlement or significantly exceeded the level of support obligation under Article 974 of the Civil Act. There is no evidence to deem that there was an agreement between the decedent and the Plaintiff to settle the living expenses paid by the Plaintiff on behalf of the decedent.

3. Conclusion

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