Revocation of Disposition Imposing Gift Tax

Since there is no violation of the jurisdiction of the agency having jurisdiction over the place of payment of gift tax, and the fact of title trust of shares is recognized in light of the records of each evidence, it is recognized that the person having jurisdiction over the place of payment of gift tax prepared false evidence or false documents and made a false statement, it is legitimate to apply the rate of unfair

Article 45-2 of the former Inheritance Tax and Gift Tax Act

2018Guhap1887 Revocation of Disposition of Imposition of Gift Tax

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○ Head of tax office

May 16, 2019

June 20, 2019

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 273,735,370 (including additional tax) on the Plaintiff on August 21, 2017 shall be revoked.

1. Details of the disposition;

A. △△ Pharmaceutical Co., Ltd. (the former ○○ Pharmaceutical Co., Ltd.; hereinafter referred to as the “instant corporation”) is a corporation with the purpose of drug wholesale business.

B. Around May 24, 2012, shares 99,000 shares in the name of the instant corporation (hereinafter “instant shares”) were transferred in the name of the Plaintiff.

C. From May 29, 2017 to June 27, 2017, the head of △△ District Tax Office conducted an investigation on the change of shares with respect to the instant corporation, and notified the Defendant of the taxation data that the actual owner of the instant shares was deemed to have re-titled the Plaintiff after the title trust of the instant shares, and thus, constitutes a deemed donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act.

D. On August 21, 2017, the Defendant decided and notified the Plaintiff of gift tax amounting to KRW 273,735,370 (including penalty tax on unfair non-declaration), which was donated on May 24, 2012 (hereinafter referred to as “instant disposition”), and notified the Plaintiff of the designation of joint and several taxpayers. On September 26, 2018, the Plaintiff appealed to the Tax Tribunal, but the Tax Tribunal dismissed the Plaintiff’s claim on July 20, 2018.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 10 (if any, including a tentative number),

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

1) Grounds for violation of jurisdiction and lack of disposition

The head of the tax office having jurisdiction over the domicile of the donee shall determine the tax base and amount of gift tax. The investigation by the head of the △ District Tax Office, which is not the defendant, violates his jurisdiction, and the defendant only determined the gift tax on the plaintiff and notified the collection disposition thereof. Thus, the disposition of this case is unlawful because it violates his jurisdiction or is a collection disposition lacking the imposition disposition.

2) Violation of the underlying taxation principle

The Plaintiff was the actual owner who acquired the instant shares from the Chapter AA, and transferred it to the OrCC in accordance with due process. However, the Defendant imposed gift tax on the premise that HaB merely made a title trust on the Plaintiff’s shares without any grounds. Accordingly, the instant disposition is in violation of the principle of base taxation.

3) Illegality of additional tax on non-declaration

Cheating, which are the requirements for the imposition and collection of the tax, refer to fraudulent schemes or other active acts that make it impossible or considerably difficult to impose and collect the tax, and it does not constitute mere failure to file a tax return or filing a false tax return without any addition to the circumstances showing the intention of active concealment. Although the Plaintiff did not engage in such active misconduct, it is illegal for the Defendant to impose the penalty tax on the Plaintiff to impose the penalty tax on the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the violation of jurisdiction and the lack of disposition

According to Article 12 of the Corporate Tax Act, corporate tax shall be imposed by the head of a tax office or the director of a regional tax office having jurisdiction over the place for tax payment. Article 9(1) of the same Act provides that the place for tax payment of corporate tax of a domestic corporation shall be the location of the head office or the principal office according to the register of the corporation, and Article 81-11 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23,

In full view of the overall purport of the pleadings in the statements in Gap evidence Nos. 4, 11, and Eul evidence Nos. 1, the head of Seocho District Tax Office: (a) conducted an investigation of stock change in the corporation of this case as the corporate tax office having jurisdiction over the place of tax payment for the corporation of this case located in ○○○○○-dong; (b) during this process, he judged that the actual ownership of the shares of this case was determinedB and JungB was nominal in title to the plaintiff; and (c) notified the defendant, who is the disposition authority in charge of the Plaintiff’s place of tax payment, of the gift tax assessment; and (d) on August 21, 2017, the defendant reviewed the gift tax assessment data on the basis thereof, and then decided on the gift tax amount of KRW 273,735,370 (including KRW 56,34,440 (including the penalty tax without filing an unfair report) with the Plaintiff on August 21, 2017. [The plaintiff’s assertion in this case is not accepted.

2) Determination as to the assertion of violation of the underlying taxation principle

In light of the following circumstances acknowledged by comprehensively taking account of the overall purport of Gap evidence Nos. 4 and Eul evidence Nos. 1 through 5 and the overall purport of the pleadings, it is reasonable to deem that Jung-B trusted trusted the instant shares to A, but again trusted the Plaintiff on May 24, 2012. Therefore, the prior Plaintiff’s assertion on a different premise is rejected.

At the time of the establishment of the corporation of this case, A, who was a shareholder of the corporation of this case at the time of the establishment of the corporation of this case, did not make any statement on the details of the acquisition of shares in relation to the capital stock and did not make any statement on the detailed details of the acquisition of the shares, but thereafter, A, the said statement of this case was reversed.

At the time of the establishment of the legal entity of this case, the lessor of the legal office of this case was dueB.

Part BA is the head of MaB, and the plaintiff is also a relative relationship as the head of MaB.

㉣ 원고는 이 사건 주식 취득대금을 정BB으로부터 빌렸다고 주장하면서도 관련 금융자료를 제출하지 못하고 있다.

The Plaintiff had been registered as the only internal director of the instant corporation from May 24, 2012 to June 11, 2014, but did not memory for the process and period of his/her employment, and did not make any specific statement related to his/her business at all.

In the course of a tax investigation, the transferee of the instant shares stated that “The amount that the person himself lent to JeongB was approximately KRW 600,000,000,000,” and that “AB, as due to the failure to repay the said amount, made a request for acquiring the instant shares, he/she purchased the instant shares in KRW 544,50,000 on the ground that he/she requested to take over the instant shares.”

3) Determination as to the illegal assertion of unfair non-declaration penalty tax

Since the title truster, who received property such as stocks, is deemed to have received a donation of the above property pursuant to Article 45-2 of the Inheritance Tax and Gift Tax Act, the title truster itself is subject to taxation requirements, if the title truster, who is a taxpayer, commits an act to conceal or disguise the title trust, which is a taxation requirement, such act constitutes a fraudulent act under Article 47-2 (2) of the former Framework Act on National Taxes.

In full view of the overall purport of the statements and arguments as to this case, it is reasonable to view that the Plaintiff prepared false evidence or false documents, such as the share transfer agreement under the Plaintiff’s name, the tax base return of transfer income tax and securities transaction tax, etc., and made a false statement that the transfer price of the instant shares was borrowed from staticB, and that the Plaintiff’s act constitutes “unlawful act” under Article 47-2(2) of the former Framework Act on National Taxes. Therefore, the disposition of this case where the Defendant imposed penalty tax on the Plaintiff by applying 40% of the unfair non-reported penalty tax rate to the Plaintiff is legitimate.

3. Conclusion

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