Cho High Court Decision 201Do0459 (O6.02)

Part of the purchase amount is presumed to have been donated through a deposit account in the name of another person.

As long as the fact that part of the purchase price received by selling an apartment is recognized to have been deposited in the deposit account under the name of another person through the deposit account in the name of the plaintiff, the said money can be presumed to have been donated, and there is no submission of objective evidence to prove the fact that the purchase price or money of the apartment was lent, and thus the original gift tax

2011Guhap23405 Revocation of Disposition of Imposition of Gift Tax

Park XX

Head of the District Tax Office

October 7, 2011

November 25, 2011

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of gift tax of KRW 127,968,830, which the Defendant rendered to the Plaintiff on December 1, 2010, shall be revoked.

1. Details of the disposition;

A. On September 23, 2006, the Plaintiff’s Schatia deposited KRW 450,000,000,000 in the Plaintiff’s pro-Japanese apartment 00,000,000 (hereinafter “the apartment of this case”) in the name of the Plaintiff’s deposit passbook, and transferred KRW 450,00,000 to the Plaintiff’s deposit passbook in the name of the Plaintiff’s pro-Japanese and Red EE, after which the Plaintiff deposited KRW 450,00,000 in the name of the Plaintiff’s deposit passbook.

B. The defendant judged that the NA has donated KRW 450,000,000 to the plaintiff on December 1, 2010.

The Plaintiff determined and notified the gift tax amounting to KRW 127,968,830 (2,447,550 for the portion of donation on September 23, 2006, KRW 13,158,80 for the portion of donation on September 25, 2006, KRW 112,362,480 for the portion of donation on November 1, 2006) (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on January 17, 201, but the said claim was dismissed on June 2, 2011.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 5, 6, Eul evidence Nos. 1 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

At the time of acquiring the apartment of this case, the Plaintiff lent the apartment of this case to the IC by way of paying 311,000,000 won out of the purchase price to the IC, and thereafter, he had been residing in the apartment of this case for 4 years in consideration of the interest, etc. on the loan. Since then, the Plaintiff received 450,000,000 won from the IC in consideration of the interest on the loan, and thus, the disposition of this case on the premise that the Plaintiff received the above money from the IC was unlawful.

B. Relevant statutes

C. Determination

In a lawsuit seeking revocation of a disposition imposing gift tax, as long as the deposit in the name of a person recognized as a donor by a tax authority is revealed to have been withdrawn and deposited in a deposit 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. are made for purposes other than donation, the need to prove such deposit is the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov. 13,

In light of the above legal principles, the above money may be presumed to have been donated to the Plaintiff, inasmuch as it is acknowledged that the competent authority has deposited part of the purchase price of the apartment of this case into the deposit account in the name of the Plaintiff through the deposit account in the name of another person, in light of the following circumstances, which can be acknowledged by comprehensively considering the details of the above disposition and the statement in the evidence No. 4 as to the instant case: (i) insofar as the competent authority has deposited a part of the purchase price received by selling the apartment of this case into the deposit account in the name of another person; (ii) if the competent authority has repaid the money in the name of loan and interest, it would not be necessary to pay it to the Plaintiff by means of bypassing via the account in the name of another person; and (iii) even if the Plaintiff was paid the amount of KRW 450,00,000, more than 311,000 that the Plaintiff argued that the apartment of this case was leased, there is no other evidence to prove that the Plaintiff received the payment from the Plaintiff.

3. Conclusion

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