Changwon District Court 2009Guhap759 ( October 22, 2009)

Cho High Court Decision 2008J0940 ( December 31, 2008)

It cannot be deemed that there was a donation solely by the change of the policyholder and beneficiary.

It cannot be deemed that there was a donation under the Inheritance Tax and Gift Tax Act on the basis of a change of the policyholder and beneficiary only, and it is deemed that the actual receipt of insurance money or the refund for cancellation was a donation from the actual premium payer.

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant revoked the disposition of imposition of KRW 128,788,830 on December 18, 2007 against the plaintiff on December 18, 2007 (it appears to be a clerical error in the statement of complaint on December 20, 2007).

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings as a whole in the statements in Gap evidence 1, 2, 3, 6, 7, 8, and Gap evidence 9-1, 2, 1, and 2.

A. Conclusion of an insurance contract of the AA

"(1) 원고의 아버지인 오AA(2006.1. 23.사망)은 2000. 12. 23. CC생명보험 주식회사(이하 'CC생명'이라 한다.)와 무배당슈퍼재테크(거치형) 보험상품에 관하여, 보험수익자 오AA, 피보험자 유BB(원고의 처이자 오AA의 며느리), 만기 2005. 12. 23.로 한 보험계약(이하이 사건 보험'이라 한다.)율 체결하고, 그 무렵 보험료 전액인 1,244,000,000원을 일시에 납입하였다.",(2) 이 사건 보험의 주요 내용 제2조 [겨|약의 체결 및 보험료]

(1) The contractor shall enter into an indemnity contract at the same time with:

1. Indemnity contracts;

A contract for the insured to be paid insurance money due to death or loss during the insurance period;

2. Accumulation contract;

Article 6 of the contract for the payment of maturity insurance money if the insured is alive until the insurance period expires.

(1) The contractor may, with the consent of the company, modify the following:

1. Payment insurance premiums;

2. Policyholders or beneficiaries;

3. Details of other contracts.

(3) When the contractor wishes to change the beneficiary under Paragraph (1)(3), he must obtain the consent of the insured before the grounds for the payment of insurance pride arise.

Article 7 (Voluntary Termination of Contractor)

A contractor may terminate a contract at any time before the contract is terminated, and in such cases, the Company shall pay a refund for the termination of the contract.

Article 10 (Types of Insurance Money and Reasons for the present Time)

회사는 표|보험자에게 다음 사항 중 어느 한가지의 경우에 해당하는 사유가 발생한 때 에는 수익자에게 약정한 보험금을 지급한다.

1. Where the insured is living until the period of insurance expires: The maturity insurance money;

2. Payment of death benefits when the insured dies or becomes disabled in the first grade in the disability classification table during the insurance period period period;

3. When the insured becomes disabled of Grades II through VI in the disability classification table due to a disaster: Payment of disability benefits.

B. Change of the policyholder and beneficiary of the instant insurance

On March 29, 2001, OA changed the policyholder and beneficiary of the instant insurance from OA to the Plaintiff with the consent of the Plaintiff, UB, andCC life.

C. The Plaintiff’s receipt of the maturity insurance money based on the instant insurance

On December 23, 2005, the Plaintiff received the maturity insurance amount of KRW 1,521,357,000 (hereinafter “the maturity insurance amount”).

D. Imposition of gift tax on the plaintiff

(1) On July 31, 2007, the Plaintiff received a tax investigation from the director of the Busan Regional Tax Office with regard to the receipt of the insurance payment of this case. On March 29, 2001, the Plaintiff reported the payment of KRW 1,244,00,000 for the insurance payment of this case and KRW 14,589,000 for the reason that the Plaintiff received a donation of KRW 1,258,589,589,000 for the total amount of KRW 1,258,589,00 for the insurance payment of this case from the purchase date of insurance to the change of name, and paid it in installments.

(2) However, on December 18, 2007, the Defendant: (a) deemed that the Plaintiff donated the instant insurance proceeds from OrA on the insurance maturity of the instant case to the Plaintiff; and (b) applied Article 34(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “the Inheritance Tax and Gift Tax Act”) by deeming the instant insurance proceeds as the value of donated property; (c) imposed KRW 128,78,830 of the remaining gift tax after deducting the Plaintiff’s said payment amount (hereinafter “the instant disposition”).

E. On March 10, 2008, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but was dismissed on December 31, 2008.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The instant insurance takes the form of insurance, but its substance is a savings deposit, and thus, Article 34(1) of the Act cannot be applied.

(2) The Plaintiff received the status of the policyholder and the beneficiary of the instant insurance, which is a savings insurance, from the Plaintiff, and received the status of the policyholder and the beneficiary of the instant insurance, and received the donation of the insurance property at the time of such transfer. Therefore, it is reasonable to evaluate the value of the donated property as the amount equivalent to the insurance premium and interest accrued therefrom paid by the Plaintiff. Therefore, even if the Plaintiff received the instant maturity insurance money as a beneficiary after receiving the status of the policyholder and beneficiary of the instant insurance, it cannot be deemed that the amount of the insurance money was donated to another person, apart from the value of the donated property

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Determination on the first argument

As seen earlier, the insurance of this case is "non-distribution Sck insurance" that the name of the product is "non-distribution Sck, which is determined by the insured, the beneficiary, and the maturity, death, and hull disability are defined as an insured event, and the insurance amount payable for the cause of receiving the insurance amount is stipulated as an insurance accident. Accordingly, the insurance of this case constitutes life insurance.

Therefore, the plaintiff's first argument is without merit.

(2) Judgment on the second argument

According to Article 2 of the Act, the term "donations" refers to the transfer of tangible or intangible property, which can calculate the economic value, to another person, either directly or indirectly, or the increase of the value of another person's property by contribution, regardless of the form, purpose, etc. of the act or transaction, regardless of the name, purpose, etc. of the act or transaction. It can be said that the Plaintiff was transferred the right to receive economic value by transferring the status of the policyholder and beneficiary of the insurance

However, in reality, if the acquisition of donated property is not carried out, it cannot be said that it is subject to gift tax due to a grave state where there is no taxable object.

"Although the name of the policyholder and the beneficiary was changed to the plaintiff, if the plaintiff terminates the insurance contract pursuant to Article 7 of the insurance contract of this case as the policyholder, the plaintiff will acquire the cancellation refund for theCC life, and if the insurance accident occurs, the insurance money will be acquired as the beneficiary. Therefore, it cannot be deemed that the subject of gift tax has been specified at the time of the change. In the case of this case where the plaintiff is paid the maturity insurance money as the beneficiary, it shall not be deemed that the amount of the insurance money should be donated at the time of the occurrence of the insurance accident because the beneficiary and the payer of the insurance money are different in the case of the life insurance stipulated in Article 34 (1) of the Act." Accordingly, the change of the policyholder and the beneficiary cannot be deemed as a donation of property under the law. Thus, the second argument

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. However, since the judgment of the court of first instance is just with this conclusion, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.