In case where the presumption of donation of the fund for acquiring property is applied under Article 45 (1) of the Inheritance Tax and Gift Tax Act, there is a taxpayer with the proof of anti-proof facts

It is reasonable to presume that a person who has no certain occupation or income does not have a site for financing the relevant property, and if his lineal ascendant or spouse, etc. has any financial ability to give a donation, it is reasonable to presume that such acquisition fund has been given a donation from the person having such financial ability.

Donation presumption of inheritance tax and gift tax property acquisition funds, etc.

2016Guhap52215 Revocation of Disposition of Imposition of Gift Tax

추〇〇

Head of △ District Office

November 14, 2017

December 19, 2017

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 KRW 98,591,530 against the Plaintiff on May 29, 2015 is revoked.

1. Details of the disposition;

가. 원고는 2007. 5. 10. ◎◎ ◎◎군 ◎◎면 ◎◎리 ●●● 전 2,034㎡, 같은 리 산★★★-★ 임야 122㎡(이하 '이 사건 토지'라 한다)를 소외 김AA으로부터 3억 원에 매수한 후 2007. 6. 7. 잔금을 지급하고 소유권이전등기를 경료받았다. 원고는 2007. 6. 7. 원고의 부 추BB가 △△△축산업협동조합으로부터 2억 3,000만 원을 대출받는 것에 대하여 이 사건 토지에 관하여 채권최고액 429,000,000원, 채무자 추BB, 근저당권자 △△△축산업협동조합으로 된 근저당권을 설정하여 주었다. 추BB는 대출받은 돈 230,000,000원을 김AA에게 지급하였다.

나. ▲▲지방국세청은 2013. 10. 8.부터 2014. 2. 14.까지 추BB에 대한 개인통합조사를 한 후에 추BB가 원고에게 이 사건 토지의 취득자금 3억 원을 모두 증여하였다고 추정한 과세자료를 피고에게 송부하였다.

C. On May 29, 2015, the Defendant determined and notified the Plaintiff on June 7, 2007 that the taxable value of donated property is KRW 300 million, and the donation date is June 7, 2007, KRW 49,248,980 of the principal tax of gift tax in 2007, and KRW 49,342,550 of the penalty tax, and KRW 98,591,530 of the penalty tax (hereinafter “instant disposition”).

D. The Plaintiff filed an objection to the instant disposition and decided to conduct a reinvestigation, but the Plaintiff’s assertion was not adopted, and the Plaintiff filed a tax appeal on April 4, 2016, but was dismissed on May 30, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, Eul evidence Nos. 1, 2, 6, and 7 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Judgment on the plaintiff's assertion

A. Summary of the plaintiff's assertion

The Plaintiff asserts that the instant disposition is unlawful on the following grounds that it is unreasonable for estimatedB to be deemed to have donated KRW 300 million to the Plaintiff as the purchase price of the instant land.

1) The Plaintiff was in office as a teacher at the time of acquiring the instant land from 2002 to 2007, and was 190,247,000 won (average wage 2,642,319 won) for six years from 2002 to 2007, and the Plaintiff’s husband’s husband’s HuCC went to a large enterprise from 2000 to 2007, and had sufficient ability to pay the purchase price of the instant land as earned income (average wage 6,249,047 won).

2) The Plaintiff, as set forth below, remitted money exceeding KRW 300 million to the postB, and repaid the purchase price (e.g., omission).

B. Relevant legal principles

1) Article 45(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8347 of Jan. 1, 2008; hereinafter “the Inheritance Tax and Gift Tax Act”) provides that where it is difficult to recognize that the property was acquired by its own means in view of its occupation, age, income, property status, etc., as prescribed by the Presidential Decree, the acquisition fund of the pertinent property shall be presumed to have been donated to the acquisitor of the property at the time of the acquisition of the pertinent property and shall be deemed to be the donated property of the acquisitor of the property. This provision reflects the social phenomenon in which the donation between family members is closely made, the tax authority is

2) Specifically, Article 32(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20323, Oct. 15, 2007; hereinafter the same) provides that the person liable for tax payment can prove his/her income; (1) the income already reported or taxed; (2) the inheritance or gift property reported or taxed; (3) the amount used directly for the acquisition of the pertinent property in money received in return for the disposal of the property; and (2) the amount used directly for the repayment of his/her obligation in money received in return for the disposal of the property; and (3) the sum used directly for the repayment

3) As a matter of principle, the fact of donation of the property, which is a requirement for the imposition of gift tax, is proven by the tax authority. If the tax authority has had a certain occupation and a considerable amount of income at the time of acquisition of the property, and the funds required for the acquisition of the property cannot be presented daily, barring any special circumstance, the portion of the funds required for the acquisition of the property 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 does not have a land to receive funds for the acquisition of the property, and his lineal ascendant or spouse, etc. has a financial ability to receive the donation, it shall be reasonable to presume that the funds for the acquisition have been donated from the person with a financial power, and as such, in order to estimate the donation, the tax authority should prove that the donor has a financial ability to donate the property, as well as that there is no certain occupation or income (see, e.g., Supreme Court Decision 2003Du10732, Apr. 16, 200

C. Whether the defendant's deemed donation is legitimate

Therefore, according to the above legal principles, I first examine whether it is legitimate that the subsequentB made the gift to the Plaintiff. Considering the following circumstances, the Defendant’s deeming that the subsequentB donated the purchase price of KRW 300 million to the Plaintiff is lawful as it was in accordance with Article 34(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

1) 을 제10호증에 의하면, 추BB는 2014. 1. 15. ▲▲지방국세청에 이 사건 토지자금을 원고에게 증여하였음을 인정하는 확인서를 제출하였다.

2) Although the Plaintiff asserted that she and her spouse had raised a considerable amount of income as a teacher and a company member of a large enterprise, the Plaintiff did not submit any supporting material as to whether she had funds at the time of acquiring the instant land after deducting living expenses, such as the principal’s housing expenses, etc., and there was no evidence of bearing some of the purchase price even when acquiring the instant land.

3) On the contrary, comprehensively taking account of the overall purport of the arguments as indicated in the evidence No. 1, No. 5, No. 6, and No. 8-1 through No. 7, PB held seven real estate at the time of the instant disposition. From 2000 to 2007, PPB had operated a gas station, thereby reaching KRW 4,290,765,350, and comprehensively taking account of the overall purport of the pleadings in the statement No. 10, No. 2010, No. 10, and No. 2014, No. 5 and No. 6, No. 2014; and in light of the fact that the statement No. 10, No. 2010, No. 2010, No. 2014, May and No. 2014, No. 2016, May 1, 2014, it appears that

4) The Plaintiff also recognized that the estimatedB has paid the interest on the instant loan up to the date (see, e.g., Article 7 of the preparatory brief dated November 6, 2017). If the Plaintiff acquired the instant land by lending money from the estimatedB, it would be natural for the Plaintiff with a stable income to pay the interest, but the reason why the estimatedB has continued to pay the interest on the loan is not reasonably explained.

5) Therefore, it is reasonable to presume that the subsequentB donated KRW 300 million to the Plaintiff, as the Plaintiff, who had no special self-sufficiency, acquired the instant land and the denyingB, who had a self-sufficiency, paid the purchase price by obtaining a loan from the bank.

D. The plaintiff's reflective proof

1) As long as the Defendant’s deemed donation is lawful, the Plaintiff is liable to reverse the presumption by means of a counter-proof, and the Plaintiff asserts that the Plaintiff repaid the purchase fund from the postB.

살피건대, 갑 제2호증의 1 내지 8의 각 기재에 의하면, 원고는 앞서 본 표의 기재와 같이 추BB에게 돈을 송금한 사실은 인정되기는 한다. 하지만, 위 증거들만으로는 원고가 자신이나 남편 허CC의 원천자금으로 추BB에게 송금한 것인지가 불분명하여, 그 송금내역만으로는, 이를 원고의 추BB에 대한 대여금을 변제한 것이라고 인정하기 부족하고 달리 이를 인정할 증거가 없으므로, 원고의 이 부분 주장은 이유 없다. 오히려 을 제12호증의 기재에 의하면, 추BB는 2014. 1. 3. 허CC에게 ▼▼시 ▼▼동 162-1, 163-7 각 토지 및 그 지상 건물을 3억 5천만 원에 매도한 사실이 있으므로, 2014. 1. 6.부터 2015. 1. 19.까지 허CC 및 허DD이 추BB에게 송금한 돈은 위 ▼▼동 토지 및 건물의 매매대금일 가능성을 배제할 수 없다. 게다가, 만일 원고가 추BB로부터 돈을 빌린 것이 맞으면, 원고는 바로 은행에 추BB의 대출금을 대위변제하여 대출금을 변제할 수도 있는데, 굳이 추BB에게 돈을 송금한 이유도 명백하지 않다.

2) The Plaintiff asserts that, even if estimatedB received a loan as a bank and donated the purchase price of the instant land to the Plaintiff, the gift tax taxable amount does not accrue until the subsequentB or third party actually repaid the bank’s loan, and thus, the deemed donation is unlawful.

In light of the Plaintiff’s assertion, in a case where a donor lends money from another person to a donee himself/herself, the donor’s position constitutes an unreasonable conclusion that the donor did not receive a donation until he/she has repaid the money borrowed from another person, and thus, cannot be accepted.

4. Conclusion

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