2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

On February 10, 2012, the Defendant rendered a decision that the imposition of gift tax on the Plaintiff is revoked in entirety.

2. Purport of appeal

It is so decided as per Disposition.

The reasoning for the court's explanation on this case is as follows, except for the second instance court's decision as to whether the prohibition of duplicate tax investigations has been violated or not. 4. b. 3). Thus, the court's explanation on this case is identical to each corresponding part of the reasons for the first instance court's decision. Thus, it is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

2. The part to be mard;

3) Whether the prohibition of double tax audit is violated

A) Party’s assertion

(1) The plaintiff's assertion

Although the Defendant conducted an integrated investigation into the Plaintiff’s individual entrepreneur from August 24, 2009 to September 1, 2009 (the global income tax and the source of funds attributed from 2002 to 2007), the Inspector Office of the Gwangju Regional Tax Office has conducted a comprehensive audit into the Defendant with respect to the Defendant and received the Plaintiff’s gift of each of the instant real estate from August 22, 201 to September 8, 201. The instant disposition is an unlawful disposition against the principle of prohibition of duplicate investigation.

(2) The defendant's assertion

(A) The Inspector General of the Gwangju Regional Tax Office is merely an on-site confirmation under the Regulations on the Management of Investigations (amended by the National Tax Service Directive No. 1945, Jun. 29, 2012; hereinafter “Investigation Regulations”) to clarify the source of funds to acquire each real estate of this case, not an on-site investigation.

(B) Even if the auditor office of the regional regional tax office’s family affairs and Gwangju regional tax office’s act constitutes a tax investigation, it constitutes a case where it is possible to conduct a duplicate investigation on the grounds that it constitutes “where there is clear evidence to acknowledge a suspicion of tax evasion” under Article 81-4(2)1 of the Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter “the Act”), Article 81-4(2)5 of the Act, Article 63-2 subparag. 2 of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 24366, Feb. 15, 2013; hereinafter “Enforcement Decree”), “where it is for processing various taxation data”, Article 81-4(2)5 of the Act, and Article 63-2 subparag. 3 of the Enforcement Decree of the Framework Act on National Taxes without undergoing a practical investigation.”

B) Analysis by issue

(1) The principle prohibition of double tax investigation

Tax investigation means questioning in order to determine or correct the tax base and amount of national taxes, or inspecting or investigating the relevant account books, documents or other articles or ordering the submission thereof (Article 91-2(2)1 of the Act). Such tax investigation is a kind of administrative investigation to realize the national tax authority.

The administrative purpose of the taxation authority, namely, proper taxation and fair taxation, can be achieved by preventing tax evasion, and by guaranteeing taxpayers’ sincere reports, through a tax investigation to verify the accuracy of the details of the taxation data collection or a tax investigation to verify the accuracy of the details of the tax return. However, if a taxpayer refuses a tax investigation, he/she must be subject to a fine for negligence not exceeding twenty million won (Article 17 Subparag. 5 of the Punishment of Tax Evaders Act). As such, in the course of responding to inquiries by the tax authority and submitting taxation data, the citizens are subject to certain limitations on property rights, privacy and business freedom.

Accordingly, in order to minimize restrictions on taxpayers’ fundamental rights based on the principle of excessive prohibition under the Constitution (Article 37(2) of the Constitution) and the principle of due process (Article 13(1)), the principle of “tax officials shall conduct a tax investigation to the minimum extent necessary to realize proper and fair taxation, and shall not abuse their right of investigation for any other purpose” (Article 81-4(1) of the Act), “The principle of proportionality and the principle of proportionality and the principle of prohibition of abuse of the right of investigation, and Article 81-4(2) of the Act shall be prohibited in principle from conducting a secondary tax investigation for the same tax item and the same taxable period (Article 81-4(2)).”

(2) exceptional permission of duplicate tax audits

Even with the principle of prohibition of double investigation as above, Article 81-4 (2) provides that ① Where there is clear evidence to prove a suspicion of tax evasion (Article 81-4 (2) 1); ② where an investigation is necessary with respect to the opposite contractual party (Article 2); ③ where there are errors in connection with two or more business years (Article 3); ④ where an investigation is conducted following a decision on necessary disposition following a decision on a request for examination, objection, or adjudgment (Article 4); ⑤ Other cases similar to those under subparagraphs 1 through 4 as prescribed by Presidential Decree (Article 5). In addition, Article 63-2 of the Enforcement Decree of the Act is similar to those under the Act on the delegation of Article 81-4 (2) 5 of the same Act, where an investigation is conducted for the purpose of re-investigation for the purpose of handling the taxation data (Article 81-4 (2) 1).

If a tax investigation is conducted once and a tax investigation is not permitted in any case after the time, unreasonable results may be caused against the public interest of taxation. Therefore, in order to prevent this, it seems that an exceptional re-audit may be conducted in certain cases. However, if the above exceptions are widely recognized, there is a concern to punish the principle of prohibition of duplicate investigation to protect the rights of taxpayers. Therefore, the above exceptional provisions are limited to the time when re-audit is considerably necessary in accordance with the principle of fairness of taxation.

(3) On-site confirmation and the scope of tax investigation under the provisions of the investigation

On the other hand, the proviso of Article 12(1) and Article 3 subparag. 2 of the Investigation Regulations provide that a “field confirmation” for a taxpayer or a person, etc., who is deemed to have a transaction with the taxpayer, shall not be deemed to be an on-site investigation for the purpose of processing tax sources, simple taxation data, or collecting evidentiary materials, etc.

However, as seen earlier, Article 81-4(2)2 of the Act provides that "where it is necessary to conduct an investigation on the other party to the transaction" as one of the grounds for exceptional reexamination. This is premised on the fact that the investigation on a third party, who is not a direct party to the investigation, is a kind of investigation, and thus, the former part of Article 12(1) of the above Investigation Regulations is contrary thereto. Thus, regardless of whether the above Investigation Regulations constitute a statutory order, it is invalid to the extent contrary to Article 81-4(2)2 of the Act.

Therefore, even if the Gwangju Regional Tax Office's questioning the Plaintiff's counterpart and collecting data were conducted for the purpose of audit, it shall be deemed that the act constitutes a kind of tax investigation, and it shall not be deemed that it is merely a "on-site verification" under the investigation regulations.

(4) Whether the case constitutes an exception under Article 61-4(2)1 of the Act

"Cases where there is clear evidence to prove a suspicion of tax evasion" stipulated as one of the cases where reinvestigation is exceptionally permitted in subparagraph 1 of Article 81-2 of the Act shall be limited to cases where there is evidence to prove the existence of a substantial probability of tax evasion based on the materials supporting objectivity and rationality, and such materials are not included in the materials already investigated in the previous tax investigation (see Supreme Court Decision 2010Du6083, Jan. 27, 201).

With respect to the instant case, the health department and the evidence presented by the Defendant alone are insufficient to deem that a reinvestigation is exceptionally permitted and there is no other evidence to acknowledge it as a case where there is evident evidence to prove the suspicion of tax evasion.

(5) Whether the case constitutes an exception under Article 63-2 subparagraph 2 of the Enforcement Decree

As seen earlier, Article 81-2 subparag. 5 of the Act and Article 63-2 subparag. 2 of the Enforcement Decree of the former part of Article 63-2 of the Act (hereinafter “Enforcement Decree provision of this case”) are accepted as self-help, and if it is interpreted that a tax agency, including the tax authority that has conducted the first tax investigation, can conduct a field investigation without any restriction where there is doubt about the source, reliability, and degree of suspicion of tax evasion, etc. of the tax data already secured, it is difficult to reasonably interpret Article 81-4 subparag. 5 of the Act as being “other cases similar to subparagraphs 1 through 4, as prescribed by the Presidential Decree” by stipulating that “other cases similar to subparagraphs 1 through 4,” which are “other cases similar to those of subparagraphs 1 through 4, are excluded from the scope of authority, and thus, it is difficult to accept that the Enforcement Decree provision of this case goes beyond the scope of authority, and thus, it is difficult to reasonably interpret that the new provision of Article 81-4 subparag. 2 of the Framework Act can be excessively limited in the process of national tax administration.

In this case, the following facts are revealed: ① the Defendant: (a) conducted a consolidated investigation on the Plaintiff’s acquisition of real estate from August 24, 2009 to September 1, 2009; (b) conducted an audit on the Plaintiff’s acquisition of real estate from his father’s 202 to 207; and (c) conducted an integrated investigation on the Plaintiff’s acquisition of real estate from his 206,000,000 won; and (c) conducted a comprehensive investigation on the Plaintiff’s acquisition of real estate from Nonparty 3 to his 100,000,00 won, respectively; and (d) conducted a comprehensive audit on the Plaintiff’s acquisition of real estate from Nonparty 4 to his 200,000,000 won; (b) conducted an audit on the Plaintiff’s acquisition of real estate from his 20,000,000 won to his 20,000 won, respectively, and thus, did not impose gift tax on the Plaintiff’s real estate as 25, from February 10, 19, 19999.

In full view of these facts, as part of the audit authority of Gwangju regional tax office, found errors and irregularities in the first tax investigation conducted by the Defendant, who is the tax authority, as part of the audit authority of Gwangju regional tax office, and found real transaction value by exercising a partial right to ask questions to the other party who transacted the Plaintiff and real estate for correction thereof. Thus, in the process of handling the taxation data already secured by the National Tax Service’s internal audit authority, it can be deemed cases similar to “where it is necessary to conduct an investigation to the other party to the transaction” under Article 81-4(2)2 of the Framework Act on National Taxes (Article 81-4(2)2 of the Framework Act on National Taxes). The legislative purpose of this case is to enable a third party to conduct a tax investigation, even if it is necessary to conduct a tax investigation as the original taxpayer, it is possible to recognize cooperation duty to the other party to the tax investigation and to conduct a tax investigation, and the scope of the investigation is limited to “the other party to the transaction and the other party to the tax transaction” under the proviso of Article 12(4).

C) Sub-determination

Therefore, the disposition of this case is difficult to be considered as a disposition violating the prohibition of duplicate tax investigation, and the plaintiff's assertion on this different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked, and it is so decided as per Disposition.

[Attachment]

Judges Lee Jong-hun (Presiding Judge) (Presiding Judge)