Time of donation when the donation of funds for acquiring property is presumed;

In case where a person without a certain occupation or income acquires a property, unless there are special circumstances, it is presumed that the fund is donated only when he acquired the property.

Article 45 of the Inheritance Tax and Gift Tax Act: Estimated donation of funds for acquiring property

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of gift tax of KRW 52,248,00 against the Plaintiff on June 7, 2006 is revoked.

1. Details of the disposition;

A. On February 11, 2004, the Plaintiff purchased (hereinafter referred to as the “instant sales contract”) 50,000,000 won (the contract date, intermediate payment of KRW 220,000,000: KRW 275,000,000 for the remainder of February 20, 2004: KRW 275,000 for the intermediate payment of KRW 23,200,000 for the O-O apartment located in O-O-O (hereinafter referred to as the “instant apartment”).

B. The Defendant: (a) donated KRW 300,000,000 on April 23, 2004 from KimO, a husband, and KRW 250,00,00 on February 22, 2005, and collected the acquisition and repayment fund of the instant apartment; (b) applied Article 45(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “the Act”), and imposed KRW 52,248,00 on the Plaintiff on June 7, 2006.

[Reasons for Recognition] Unsatisfy, Gap evidence 3, Eul evidence 3-2, Eul evidence 1, 2, 5-2

2. Determination on the legitimacy of the disposition

A. The plaintiff's assertion

원고는 김OO으로부터 2000. 4. 17.부터 2000. 5. 23.까지 원고 명의의 OO증권 계좌(XXXXXXX-XX, 이하 '이 사건 증권계좌'라 한다)로 256,164,390원을, 2000. 12. 11.부터 2001. 2. 15.까지 사이에 원고 명의의 △△은행 계좌(XXX-XX-XXXX-XXX, 이하 '이 사건 은행계좌'라 한다)로 101,097,900원을, 2002. 12. 6. 같은 계좌로 200,000,000원을 각 증여받았고, 이를 통하여 이 사건 아파트를 구입한 것으로서 위와 같은 증여 당시에는 배우자 간 증여재산 공제액이 500,000,000원이었으므로 이를 공제한 나머지에 대하여만 과세를 하여야 한다.

(b) Related statutes;

Attached Form is as shown in the attached Form.

(c) Fact of recognition;

1) KimO was employed as a public official from November 1, 1969 to March 31, 200, and retired from office. Around that time, △△△ Dong operated a commercial-level office in △△ Dong from around 1999, and the Plaintiff is a professional supervisor residing in Seoul after 199 and has no particular income source until now.

2) From April 17, 200 to May 23, 2000, KRW 256,164,390 was deposited from KimO in the instant securities account, and KRW 248,617,736 was deposited on May 30, 200. However, the opening point and issuing point of the passbook of the instant securities account are △△△△, which is the location of KimOO.

3) The bank account of this case was opened on December 11, 200, and the deposit management point was established as △△△ likewise. The deposit management point was deposited KRW 101,200,000 on February 5, 2001, and KRW 86,500,000 on February 15, 2001, and KRW 13,500,000 on December 15, 2001, and deposited KRW 200,000 from KimO on December 6, 2002.

4) Regarding the purchase price of the instant apartment, KRW 55,00,000, the down payment was paid through KRW 47,000,000 that was withdrawn from the instant securities account, and KRW 289,000,000,000, which was subsequently changed in the terms and conditions of the initial purchase and sale contract, was the seller’s succession to a seller’s loan to ○○ Bank. The remainder of KRW 214,00,000,000, which was paid on April 23, 2004 through the 206,50,000, which was withdrawn from the instant securities account. The said loan obligation was repaid in full from the instant bank account on February 22, 2005 to KRW 250,000.

5) Since the opening of the instant securities and bank account, △△△, a bank account opened, mainly from time to time. On June 29, 2005, KimO purchased OOO-dong OO-dong OO-dong OO apartment premises at KRW 825,00,000, and paid a significant portion of the purchase price through the instant bank account from July 1, 2005 to August 19, 2005.

[Reasons for Recognition] Each entry of Gap evidence, Gap evidence Nos. 1, 4, 5, 7, 9, and Eul evidence Nos. 2 through 5 (including above numbers)

D. Determination

Article 45(1) and (2) of the Act provides that in cases where it is difficult to recognize that a property was acquired by a person with a financial ability in view of occupation, age, income, property status, etc., or where it is prescribed by the Presidential Decree, the acquisition and repayment funds of the property shall be presumed to have been donated to the person acquiring the property or the debtor when the property was acquired, or when the debts were repaid, and it shall be deemed to have been donated

As a matter of principle, the fact of donation of property, which is a requirement for the imposition of gift tax, is proved by the tax authority. If a person has a certain occupation and a considerable amount of income at the time of acquisition of the property, or a person who actually had a substantial income therefrom, barring any special circumstance, the part of the fund for acquisition of the property, which was not presented clearly cannot be deemed to have been donated to another person, unless there is any special circumstance. However, if a person without a certain occupation or income, is not a site for financing that makes it possible for him/her to obtain the property, and if his/her lineal ascendant or spouse, etc. have a financial ability to make a donation, it is reasonable to presume that the fund for acquisition was donated from a person with a financial capacity (see, e.g., Supreme Court Decisions 9Nu9874, Sept. 26, 1997; 97Nu9239, Nov. 14, 197). 206.

However, in light of the above acknowledged facts and the occupation, age, income and property status of the Plaintiff and KimOO, etc., even after the date of donation of the Plaintiff’s assertion, the donee still has no specific occupation or income, while there are sufficient financial capabilities to donate property to KimO, a donor. Thus, barring any special circumstance, it can be presumed that the Plaintiff’s acquisition of the apartment of this case and repayment of the loan obligation can be presumed to have been donated each time when the Plaintiff acquired the apartment of this case and repaid the loan obligation, barring any special circumstance.

The plaintiff alleged that the time of receiving the donation of the acquisition fund of the apartment of this case was when the money was deposited into the securities account of this case and the bank account of this case at the time of the plaintiff's assertion. However, as seen in the facts of recognition, the plaintiff did not separately manage it after the deposit of each of the above money into the above account under the plaintiff's name. Rather, after the deposit of each of the above money was made at the time of the plaintiff's assertion, the KimO continued to use the above each of the above accounts and acquired separate real estate in its name through the above funds of each of the above accounts. In addition to the above account remittance, there seems to be no special circumstance to deem that the plaintiff received each of the above funds from KimO at the time of each of the above account transfer, other than the above account remittance, there is no other special circumstance to see that the plaintiff received each of the above funds from the bank account of this case at the same time, and there was a difference between the time of the opening of the securities account of this case and the bank account of this case, and the time of the purchase of each of this case.

3. Conclusion

Thus, the plaintiff's claim is dismissed for lack of reason.

Related Acts and subordinate statutes

former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007)

Article 45 (Presumption of Donation of Funds, etc. for Acquisition of Property)

(1) Where it is difficult to recognize that a person acquired the property by his own means in view of his occupation, age, income and property status, etc. as prescribed by Presidential Decree, the funds for acquiring the property shall be presumed to have been donated to the person who acquired the property at the time of acquiring the property,

(2) Where it is difficult to recognize that a debtor has repaid (including partial repayment; hereafter in this paragraph, the same shall apply) his/her debts by his/her own means in view of his/her occupation, age, income, property status, etc., as prescribed by Presidential Decree, the relevant repayment fund shall be presumed to have been donated to the relevant debtor at the

(3) The provisions of paragraphs (1) and (2) shall not apply to cases where the relevant acquisition fund or repayment fund falls below the amount as prescribed by the Presidential Decree in consideration of occupation, age, income, property status, etc. and where there exists sufficient vindication on the source of the relevant acquisition fund or repayment fund.

Article 53 (Gift Property Deductions)

(1) In case where a resident receives a donation from a person falling under any of the following subparagraphs, the amount according to the classification of the following subparagraphs shall be deducted from the taxable amount of gift taxes. In this case, if the sum of the amount to be deducted within 10 years prior to the relevant donation and the amount to be deducted from the relevant donation amount exceeds the amount stipulated in the following subparagraphs, the relevant excessive portion shall not be deducted:

1. Three hundred million won, where a donation is received from a spouse;

former Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002)

Article 53 (Gift Property Deductions)

(1) In case where a resident receives a donation from a person falling under any of the following subparagraphs, the amount according to the classification of the following subparagraphs shall be deducted from the taxable amount of gift taxes. In this case, if the sum of the amount to be deducted within 10 years prior to the relevant donation and the amount to be deducted from the relevant donation amount exceeds the amount provided for in the following subparagraphs, the relevant excessive portion shall not be deducted:

1. 50 million won, where a donation is received from a spouse;