It is not sufficient to prove that there was a loan as well as not only the burden of proving that the loan was repaid.

Since there is no specific assertion or proof as to the timing and amount of recovery, etc., the instant disposition of taxation based on the legal principles of presumption of donation cannot be deemed unlawful.

Article 31 (Scope of Donated Property)

2014Guhap32138 Revocation of Disposition of Imposition of Gift Tax

KimA

The director of the Southern Incheon District Office

on October 28, 2015

on 015 07 09

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of gift tax of KRW 5,108,40 against the Plaintiff on January 1, 2014 is revoked.

1. Details of the disposition;

A. The Plaintiff is an early club of the ChoA and ChoA is the mother of the Plaintiff, and on February 11, 2009, the ChoA transferred ○○ Won to the Plaintiff by account transfer. On the same day, the Plaintiff transferred ○○○ and the Plaintiff’s father to the Lee KimCC on the same day. On April 14, 2010, the Plaintiff transferred ○○○ Won to the Plaintiff on the same day.

B. On January 1, 2014, the Defendant deemed that ChoA donated the said KRW ○○○○○○○ to the Plaintiff, and imposed a gift tax of KRW 5,108,400 on the Plaintiff (hereinafter “instant disposition”).

C. On February 20, 2014, the Plaintiff, who was dissatisfied with the instant disposition, filed a request for review with the National Tax Service, but was dismissed on May 26, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-3, Eul evidence Nos. 1-4 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

ChoA and KimCC jointly purchased each of the instant land at ○○○○○ Dong, ○○○○○, 031 square meters and 50 square meters (hereinafter “each of the instant land”). KimCC held title trust with ○○○○○, each of the instant land. Since then, ChoCC transferred each of the instant land to ○○○, and received ○○○○○, and transferred the said money to the Plaintiff and the Plaintiff’s family members for the settlement of the said money. Even if the title trust was not a title trust, it may be deemed that KimCC lent half of the purchase price of each of the instant land to ○○○, ○○, ○○, and 50 square meters, and that ○○○, ○○○, each of the instant land was donated to ○○. Accordingly, the instant disposition imposing tax should be revoked on the premise that the transfer of the money to ○○, based on the premise that the transfer was a donation to the Plaintiff.

(b) Fact of recognition;

1) On April 3, 2003, the MediationA completed the registration of ownership transfer on each of the instant land under its own name on the grounds of sale and purchase as of March 9, 2003, and on October 28, 2008, transferred each of the instant land to ○○○○○ upon consultation, and received the said purchase price from ○○○○.

2) The process of reporting, rectifying, and administrative litigation on the transfer income tax on the transfer of each of the instant lands by Article A to the effect that the transfer of each of the instant lands is made is as follows:

① On December 31, 2008, when filing a preliminary return of capital gains tax on the instant land based on the actual transaction price, ChoA reported that the instant land purchased and owned each of the instant land from E to ○○○○○○○○, and transferred it to ○○○○ upon consultation.

② However, on November 1, 2009, the director of the tax office of the Si interest and the director of the tax office denied the actual transaction price reported by the MediationA, and recognized the ○○○ source confirmed as being paid to the EE on the financial transaction statement submitted by the MediationA as the acquisition price and notified the MediationA of KRW 278,676,480 for the transfer income tax of the year 2008.

③ Accordingly, the conciliationA filed a lawsuit claiming invalidation of the disposition imposing capital gains tax under the Suwon District Court 201Guhap6296, stating that the actual acquisition value of each of the instant lands was ○○○ Won, and that the money that did not appear in the details of financial transactions was borrowed from KimCC. However, the said court dismissed the claim of the conciliationA on the grounds that there was any circumstance to determine the acquisition value of KRW 188,40,000 on February 16, 2012, and that even if there was any defect, the said defect does not constitute a cause for invalidation of the disposition imposing capital gains tax. The said judgment became final and conclusive on September 14, 2012 through the appellate court (Seoul High Court 2012Nu8399).

3) Meanwhile, the Republic of Korea filed a lawsuit against B on April 14, 2010 between A and B by the Incheon District Court Decision 2010Kahap10326, which claimed revocation of the gift agreement between B and AB on April 14, 2010. The said lawsuit was concluded upon confirmation of the decision of recommending settlement that B shall pay 152,694,535 won to the Republic of Korea, and the B paid the above KRW 152,694,535.

[Ground of recognition] Facts without dispute, each evidence mentioned above, Gap evidence Nos. 2 through 5, evidence Nos. 7-1 through 3 and 9, the purport of the whole pleadings

C. Determination

The burden of proving the existence of the taxation requirement is against the tax authority, but if the facts alleged in light of the empirical rule are revealed in the course of a lawsuit, it cannot be deemed an illegal disposition that failed to meet the taxation requirement against the disposition imposing tax unless it proves such circumstances (see, e.g., Supreme Court Decision 89Nu6006, Apr. 27, 1990). In a lawsuit seeking the revocation of the imposition of gift tax, as long as the deposit in the name of the person who is recognized as a donor by the tax authority as the donor is withdrawn and the deposit is made in the name of the taxpayer, the deposit shall be presumed to have been donated to the taxpayer. Thus, if there are special circumstances, such as withdrawal of such deposit and the deposit in the name of the taxpayer is made for any other purpose than gift, it is necessary to prove such fact to the taxpayer (see, e.g., Supreme Court Decision 96Nu3272, Feb. 11, 197).

In light of the above legal principles, the Plaintiff is presumed to have been donated the above ○○○○○○ upon the Plaintiff’s account on February 11, 2009. In light of the above legal principles, the Plaintiff bears the burden of proving that the said money was received from the disposal price of the real estate property held in title trust or collected the loan for other purposes than donation.

However, in light of the following circumstances, the Plaintiff failed to bear the burden of proof in light of the respective descriptions of Nos. 3, 2, 4, and 5 and the purport of the entire pleadings.

① According to the above Suwon District Court Decision 201Guhap6296, May 1, 201, 200: (a) “EE” reported to 650,000,000 won the acquisition value of each of the instant lands, along with a sales contract stating that the sales price was 650,000,000 won; (b) in the process of the on-site investigation by the director of the Sihnung Tax Office, EE did not present a sales contract and did not memory the sales price; (c) at the time, EE reported the sale of each of the instant lands to Da; (d) the sales contract submitted by 77,50,000 won was stated as the sales price was 77,00,000 won; and (d) it was difficult to find that 300,000 won was the actual sale price of each of the instant lands was 18,400,000 won, and 300,000 won was the actual sale price of each of the instant land.

② In the above Suwon District Court case No. 2011Guhap6296, Suwon District Court stated, unlike the Plaintiff’s title trust assertion, that it borrowed part of the purchase price from KimCC and paid the purchase price, and that the ICF of the ICE who participated in the contract was present as a witness in the above lawsuit and testified that the ICF borrowed part of the purchase price from KimCC. This also presented a written reply to the effect that the money transferred from the IC was the money lent to the Plaintiff’s husband and wife in the lawsuit for the revocation of a fraudulent act against oneself. Meanwhile, the IC and this GG (MH’s ancillary) testified to the effect that the Plaintiff’s family members lent the money to the IC husband and wife. Meanwhile, the testimony was presented as a witness to the effect that it conforms to the Plaintiff’s assertion of title trust, but it is difficult to believe that it is inconsistent with the statement of the IC in the preceding lawsuit, as it is in front.

③ According to the copy of each financial institution transaction (Evidence 8-1 through 15 of the Evidence A), it may be recognized that the sum of KRW 60 million on February 25, 2013, which was the date of the conclusion of the sales contract between the Mediation Committee and the EE, KRW 50 million on March 14, 2013, which was the date of intermediate payment, and KRW 1.5 million on April 2, 2003, which was the outstanding payment date, was withdrawn or borrowed from the Plaintiff’s account on April 2, 2003, but there is no evidence to support that the said sum was paid to the Mediation Committee or EE.

④ Furthermore, even if part of the above money was actually paid to ChoA or KE, according to the evidence as seen earlier, it appears that KimCC loaned part of the purchase price of each of the instant land to ChoA, and it is likely that ChoA would have been ○ Bank Co., Ltd. on April 14, 2003, and on October 23, 2006, ○○○ Association created a collateral security right on each of the instant land and repaid the loan to KimCC. In this respect, there is no room to deem that the Plaintiff received 35,00,000 from ChoA to have collected part of the loan to KimCC, but the Plaintiff failed to assert and prove the specific collection schedule, such as the time of collection of the loan and the collected amount.

⑤ Article 278,676,480 of the capital gains tax imposed as above was not paid. Korea filed a lawsuit for the revocation of fraudulent act against this BB, which received KRW 400,000,000 from ChoA, with the Incheon District Court 2010 Gohap10326, and this person paid KRW 152,694,535 of the said money to the Republic of Korea. However, as the Plaintiff’s assertion, if there were 1/2 shares in title trust with respect to each of the instant land, the amount of KRW 1,060,814,90 received from the Korea Land and Housing Corporation after deducting KRW 278,676,480 of capital gains tax from KRW 782,138,510 of the remainder after deducting KRW 1/2,391,069,2550 of the capital gains tax from the Korea Land and Housing Corporation, it is doubtful that the Plaintiff and the BCC paid KRW 500,500,500.

④ Although ChoA received the transfer proceeds from ○○ Corporation around October 28, 2008, it is difficult to view that the Plaintiff paid 105,000,000 won to the Plaintiff and the Plaintiff’s family members for a total of KRW 105,00,000 on February 11, 2009, which was four months thereafter, without paying 1/2 of the transfer proceeds to the Plaintiff, and that the Plaintiff paid 400,000,000 won to ○B from April 14, 2010, which was one year and two months thereafter.

7) The Plaintiff, as evidence of title trust, testified that the KimCC was the purchaser of each of the instant lands, and presented a sales contract (Evidence A (Evidence A2) dated February 25, 2003, the purchase price of which is KRW 512,60,000. However, the Plaintiff’s signature and seal on the contract does not appear, and the authenticity of the contract is doubtful as it is around March 201, and the period for submission is suspected of being true. The rightF testified that, in the instant lawsuit, the Plaintiff borrowed KRW 200,000 from KimCC to borrow KRW 20,000,000 from KimCC in the name of the buyer, and later the remainder payment is completed in the name of ChoCC, and eventually, it is insufficient to recognize that the instant contract alone was concluded with the buyer to jointly purchase each of the instant real estate and registered the ownership transfer in the name of ChoCC in the name of ChoCC.

In short, in light of the relationship between the plaintiff, KimCC, and MediationA, and the financial status of the MediationA, etc., there are no many aspects that the MediationA would be deemed to have paid 35,000,000 won to the plaintiff for the purpose of donation immediately without any prior consideration, and furthermore, it cannot be said that the disposition of this case is unlawful in light of the legal principles of presumption of donation, since there is no evidence that the plaintiff did not bear the burden of proving that the consideration was a title trust or loan, and that there was a loan, as well as that there was no specific assertion and proof as to the timing of collection and the amount of collection.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.