Money temporarily repaid after a loan to acquire real property does not constitute a donation.

The facts of donation of property are, in principle, proven by the tax authorities, and the amount of money temporarily borrowed to acquire real estate does not constitute donation.

Article 45 of the Inheritance Tax and Gift Tax Act: Presumption of Donation of Property Acquisition Funds

2013Guhap1063 Revocation of Disposition of Imposition of Gift Tax

Maap○

○ Head of tax office

February 6, 2014

March 13, 2014

1. The Defendant’s imposition disposition of KRW 150,715,960 against the Plaintiff on October 9, 2012 is revoked.

2. The costs of the lawsuit are assessed against the defendant. The lawsuit of this case is dismissed.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff's status

The plaintiff is the representative director of the ○○○○ Co., Ltd. (hereinafter referred to as the "non-party company") and the AA's wife.

"1) 원고는 2000. 6. 20. 자신의 외환은행 계좌에 정기예금 1억 5,000만 원을 입금 하였다(이하정기예금 1억 5,000만 원'이라고만 한다). 원고는 2000. 12. 10. BBB으로부터 서울 □□구 □□동 104-5 △△빌라 C동 602호(이하 '이 사건 빌라'라 한다)를 8억 6,000만 원에 매수하고，2000. 12. 13. 소유권이전등기를 마쳤다. 원고는 2000. 12. 13. AAA로부터 9억 원을 자신의 계좌(외환은행 XXXXXXX)로 입금받아 이 사건 빌라의 매매대금을 지급하였다(이하2000. 12. 13.자 9억 원'이라 한다).",2) △△지방국세청장은 2009. 10. 29.부터 2010. 1. 29.까지 원고에 대한 자금출처 조사를 실시하여, 원고가 정기예금 1억 5,000만 원과 이 사건 빌라 취득자금 8억 6,000만 원 합계 1,010,000,000원에서 원고의 근로 및 사업소득 140,428,000원을 제외 한 869,572,000원을 AAA로부터 증여받은 것으로 판단하고, 구 상속세 및 증여세법 (2003. 12. 30. 법률 제7010호로 개정되기 전의 것) 제45조 제1항 재산취득자금의 증여 추정 규정에 근거하여 원고에게 2000. 12, 13.자 증여에 대한 증여세 253,451,000원을 부과하겠다고 세무조사결과를 통지 하였다.

"3) 원고는 위 세무조사결과에 불복하여 2010. 3. 8. 과세전적부심사를 청구하였고, △△지방국세청장으로부터 원고가 AAA에게 상환한 4억 원을 원고의 자금으로 추가로 인정하여 과세표준과 세액을 경정하라는 결정을 받았다. 이에 따라 □□세무서장은 2010. 8. 16. 위 증여가액 869,572,000원에서 4억 원을 공제한 나머지 469,572,000원만 증여가액으로 하되 증여추정 규정에 근거하여 증여세 138,039,000원을 결정・고지하였다(이하당초 처분'이라 한다).", "4) 원고는 이에 불복하여 감사원에 심사청구를 하였고，2011. 5. 10. 감사원으로부 터처분청은 2010. 8. 12. 원고에게 한 증여세 138,039,460원의 부과처분에 대하여 증여가액을 재조사하여 그 과세표준과 세액을 경정하여야 한다'는 결정을 받았다.", "5) 원고는 2012. 8. 21. 당초 처분의 취소를 구하는 소(대구지방법원 2012구합 XXXX)를 제기하였다(이하이송 전 소'라 한다).",다. 피고의 증액경정처분

1) In accordance with the re-audit decision by the Board of Audit and Inspection, the director of △△△ Regional Tax Office: (a) conducted a re-audit with the Plaintiff from June 13, 2012 to July 2, 2012; and (b) notified the Plaintiff of the result of the tax investigation that (c) KRW 150 million on a fixed deposit is deemed as the Plaintiff’s business income and earned income, and excluded from the donation amount; and (d) the Plaintiff received cash donation from only KRW 50 million, excluding KRW 400,000,000,000,000,000, which was returned to AAA account on December 13, 2000, and (e) notified the Plaintiff of the result of the tax investigation that the taxable value of gift tax would be KRW 469,572,00,000,0000, and KRW 12,676,000,00.

2) The Plaintiff filed a request for pre-assessment review on August 31, 2012, but decided non-adopted on September 20, 2012

was received.

3) In accordance with the result of the above tax investigation, the Defendant decided to increase the taxable value as KRW 50 million and the total amount of tax calculated as KRW 150,715,96, and notified the Plaintiff of the additional amount of KRW 12,676,000, which exceeds the original disposition on October 9, 2012 (hereinafter “revision disposition”).

4) According to the disposition of increase or decrease, the Plaintiff filed an application for correction with the Defendant at the head of △ District Tax Office prior to the transfer, and received the decision of correction on November 20, 2012, and received the decision of transfer from this court on March 26, 2013. The Plaintiff extended the purport of the claim by seeking revocation of the disposition of increase or decrease on December 3, 2013 after the transfer.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 6, 8 through 11, Eul evidence Nos. 1 through 6 (including additional numbers), and the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

Since the Defendant extended the purport of the Plaintiff’s claim on October 9, 2012 regarding the disposition for the correction of increase, the part seeking the revocation of the disposition for the correction of increase extends to December 3, 2013 shall be deemed unlawful, even with the filing period.

B. Determination

1) In a case where a legitimate revocation lawsuit against the initial tax imposition disposition is pending, where there exists a correction or re-decision of correction that changes the original tax imposition in relation to the same object of taxation, the grounds for revocation (actual illegality) alleged to exist in the initial tax imposition disposition, and where it is deemed that the initial disposition of correction or re-decision of correction is unlawful, the plaintiff may seek for revocation of the correction or re-decision of correction without having to go through a separate procedure for the previous trial as to the decision of correction or re-decision of correction, and in such a case, where the initial lawsuit is filed within the legitimate filing period, whether the plaintiff complies with the filing period for alteration of the purport of the request for correction or re-determination of correction (Supreme Court Decision 2010Du7796 Decided November 29, 2012).

2) As seen in the background of the disposition, the Plaintiff filed a lawsuit prior to the transfer of the original disposition through legitimate pre-trial procedure, and is dissatisfied with the increase or decrease of the purport of the claim while expanding the claim after correcting and transferring the Defendant who was subject to the increase or decrease disposition during the lawsuit. The first increase or decrease disposition, which was received from AAA with respect to the purchase fund of the loan of this case, was modified in relation to where the Plaintiff would recognize the Plaintiff’s funds to the original disposition. As to the original disposition, 90 million won as of December 13, 2000 as to the purchase of the loan of this case, the Plaintiff argued that △△△△△△ in purchasing the loan of this case, which was already owned, was temporarily borrowed from the original period of the transfer, and that it did not receive a donation from the original period of the original correction disposition, and that the Plaintiff also claims the revocation of the increase or decrease disposition within the original period of filing a lawsuit, without the need to separately revise the purport of the claim as to the increase or decrease disposition.

Therefore, the defendant's defense prior to the merits is without merit.

3. Whether the increased or decreased disposition is legitimate.

A. The plaintiff's assertion

On December 13, 200, the Plaintiff did not receive a donation of KRW 900 million from AA on December 13, 200, but temporarily borrowed KRW 900,000 from AA due to lack of liquidity, and repaid the amount of the deposit and the sale price for the lease of △△△ 301, which was previously owned by the Plaintiff.

(b) Fact of recognition;

1) 원고는 1995년부터 1998년 12월 말까지 부산 해운대구에 있는 QQQQ클럽을 동업으로 운영하면서 사업소득 96,309,000원이 있고, 주식회사 WWW의 대표 이사로 재직하면서 근로소득 44,119,000원이 있다.

2) On April 16, 1996, the Plaintiff purchased KRW 101-1 and 301,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000

3) The details of the Plaintiff’s deposit opening and termination before and after the acquisition of the instant loan are as follows.

Bank

Account Number

Date of establishment

Date of termination

Amount of termination (cost)

○ Bank

Economic Zone

June 20, 2000

June 21, 2001

150,000,000

Y Y

June 21, 2001

November 12, 2002

168,149,600

ZZ;

October 21, 1996

June 21, 2002

68,125,959

4) On January 14, 2001, the Plaintiff and its children were directors of the instant loan. On February 27, 2001, the Plaintiff and its children leased the said △△△ 301 billion lease deposit to EE in KRW 500 million. On March 28, 2001, the Plaintiff and its children deposited KRW 400 million out of KRW 500 million paid the lease deposit into the account of AA.

5) 원고는 2003년 4월 초 구속되어 2003. 5. 6. 살인 등의 공소사실로 기소되었는데, 2003. 10. 8. 수원지방법원 성남지원에서 무기징역형을 선고받고(수원지방법원 성남지원 2003고합XX)，항소하여 2004. 2. 5, 서울고등법원에서 무기징역형을 선고받았으며(서울고등법원 2003노XXXX)，2004. 5. 27. 대법원에서 상고기각 판결(대법원 2004도XXXX)을 선고받아 항소심 판결이 그대로 확정되었다.

6) On behalf of the Plaintiff, AA sold on October 3, 2003, 1.5 billion won of the foregoing △△△△△ 301, to RR, etc., and received the down payment of KRW 150 million, the intermediate payment of KRW 60 million on January 8, 2004, and the remainder of KRW 750 million on April 28, 2004, respectively.

[Reasons for Recognition] The entry of Gap evidence Nos. 3 through 7, some testimony of TT, the purport of the whole pleadings

C. Determination

1) As a matter of principle, the fact of donation of property, which is a requirement for the imposition of gift tax, is proven by the tax authority. If a person has a certain occupation and a considerable amount of income at the time of acquisition of property, and there is a person who had a substantial income therefrom, barring any special circumstance, even if the funds required to acquire the property are not presented daily, the portion not clearly presented the source of the funds required to acquire the property cannot be deemed to have been donated to another person (see Supreme Court Decision 2003Du10732, Apr. 16, 2004).

2) We examine the following facts: (a) the Plaintiff purchased the instant loan from △△△ 301, which had been previously residing in △△ 301 after the Plaintiff purchased the instant loan from her children; (b) the Plaintiff paid the lease deposit received from △ △ 301, which had been leased to her third party; (c) the Plaintiff sold the instant loan through AA on October 3, 2003; (d) the intermediate payment of KRW 60 million on January 8, 2004, and the remainder of KRW 750 million on April 28, 2004, and the Plaintiff received KRW 100,000 from her children; and (d) the Plaintiff did not appear to have received the remainder payment from △ 30,000,000,000 from the Plaintiff’s account on behalf of △ 10,000,000,0000 from her children; and (e) the Plaintiff did not appear to have received the remainder payment from 130,0.

Therefore, the fact that the Plaintiff received KRW 900,000 from AA on December 13, 2000 is insufficient to recognize that the Plaintiff received a donation from AA, and there is no other evidence to acknowledge this otherwise, and the prior adjustment disposition is unlawful on a different premise.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.