Busan District Court-2015-Gu Partnership-20429 ( March 24, 2015)

Cho High Court Decision 2014Da163 ( December 03, 2014)

It is the fact that the repayment on behalf of the loan and the discharge of the debt is made a donation of the amount of the loan.

It is reasonable to deem that the Plaintiff donated the loan equivalent to the loan under the name of the Plaintiff to the Plaintiff by repaying the loan under the name of the Plaintiff on behalf of the Plaintiff.

Article 2 of the Inheritance Tax and Gift Tax Act

2015Nu22455 Revocation of Disposition of Imposing gift tax

○ Kim

Head of Suwon Tax Office

Busan District Court Decision 2015Guhap20429 Decided July 24, 2015

December 11, 2015

on 15, 2016

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’s gift tax assessed against the Plaintiff on May 20, 2013 KRW 34,024,860 shall be revoked.

The imposition disposition shall be revoked.

1. Details of the disposition;

A. On June 15, 2006, the Plaintiff acquired land and buildings on three parcels, including 1122-1 and 3, from the Busan △△△-dong, 1122-1 (hereinafter referred to as the “real estate of this case”), jointly with the father Kim○○○, Mo○○○○, and two siblings (hereinafter referred to as the “Seoul △△△△△△,”) (20% of each share), and borrowed 1.4 billion won from the Busan ○ Bank (hereinafter referred to as the “Seoul △△ Bank”) as collateral, and received loans from the Plaintiff on December 28, 2006, additionally KRW 100 million (hereinafter referred to as the “loan in the name of the Plaintiff”).

B. On December 31, 2008, Kim ○○ obtained a loan of KRW 1.7 billion from the Busan Bank as a security of the ○○○ Driving range owned by himself and Lee○○○○○, which was jointly owned by himself and Lee○○○, and repaid the loans under the Plaintiff’s name to KRW 100 million among them (hereinafter “instant key loans”).

C. From January 7, 2013 to February 5, 2013, the head of Seosan Tax Office conducted a non-regular integrated investigation into the Korean △△△△△△△ (hereinafter “Korea △△△△△△△△”) with the representative director from January 7, 2013 to February 5, 2013, and conducted a joint investigation into the gift tax investigation into the spouse and related persons of Kim ○○’s spouse and children, and confirmed the repayment of the instant Plaintiff’s loan with the instant key loan, and notified the Defendant of the taxation data by determining that this constitutes a gift from the discharge of the Plaintiff’s obligation to the Plaintiff, and the Defendant decided and notified the Plaintiff of KRW 34,024,860 (hereinafter “instant disposition”).

D. Accordingly, the Plaintiff filed an appeal with the Tax Tribunal on December 6, 2013 upon filing an objection, but was dismissed on December 3, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Chapter 1

원고, 부 김○○, 모 이○○, 형제 2명은 부산 사★★ ◉◉동 304-15 지상 △△메디컬△△(이하 '△△메디컬△△'이라 한다, 각 지분 20%)을 공유하면서 공동으로 부동산임대업을 운영하였고, 그에 따른 임대료 수입을 김○○가 관리하였다.

On the other hand, △△△△△△△ in lease of △△△△△△△ and thereafter, from January 2008 to December 2012, 201, 1.29 billion won was leased. Of these, △△△△△△ in fact deposited out to the account in the name of Kim○○, and thus, KRW 540 million was actually deposited out of the account in the name of Kim○○. As such, KRW 19 million equivalent to KRW 20 million is the Plaintiff’s share.

Therefore, even if Kim ○○, as the key loan of this case, had a claim for reimbursement against the Plaintiff formally by repaying the Plaintiff’s nominal loan of this case, it is reasonable to deem that the agreement between Kim○ and the Plaintiff, out of the loan income of △△△△△△, was implicitly concluded to cover or repay the Plaintiff’s claim for reimbursement. Therefore, the amount equivalent to the key loan of this case cannot be deemed as having been donated to the Plaintiff.

(2) Chapter 2

Until December 31, 2008, when the loan under the Plaintiff’s name was repaid since 2006, ○○ Kim obtained approximately KRW 43 million from the lease of the instant real estate and the instant △△△△△△△△△△△, and thus, among which the Plaintiff’s share was paid, approximately KRW 8.6 million (43 million x 1/5) should be deducted from the donation amount.

(3) Chapter 3

From December 31, 2008, when the loan under the Plaintiff’s name was repaid from 2004, the Plaintiff acquired approximately KRW 106,091,188 from the lease of △△△△△△△ to December 31, 2008, and thus, the Plaintiff’s share of 21,218,237 (106,091,188 x 1/5) should be deducted from the donation amount.

(4) Chapter 4

The reason why the director of the Seosan Tax Office conducted a gift tax investigation on the plaintiff while conducting a gift tax investigation on the Korea △△△△△△ is that it violates the provisions of Articles 81-4 (Prohibition of Abuse of Right to Tax Investigation), 81-5 (Right to Receive Assistance in Tax Investigation) and 81-6 (Selection of Person under Jurisdiction of Tax Investigation and Selection of Person under Jurisdiction) of the Framework

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to the First Claim

On December 31, 2008, the fact that ○○ Kim has repaid the Plaintiff’s loan of this case as the key loan of this case is as seen earlier. In light of the overall purport of the pleadings in Gap’s evidence Nos. 1, 2, 10 through 20 (including the number of branch numbers; hereinafter the same shall apply) and Eul’s evidence Nos. 2, the following circumstances acknowledged as follows: ① Kim○-○ start to lease △△△△△△△△ on August 8, 2007, but in 2007, 3,417,227 won was operated.

In light of the Plaintiff’s △△△△△△△△△△△△△△△△△△△△△△△△ KRW 23,67,27 won and 24,945 won, and the Plaintiff’s △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△ KRW 20,000, and the Plaintiff’s 126,58,453 won and the 27,648,647 won, and the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△ was not a party to whom the △△△△△△△△△ was not a party to whom the 2008 interest accrued.

Therefore, under the different premise, the first chapter of the Plaintiff’s first chapter cannot be accepted.

D. Determination as to the second proposal

As seen earlier, in the case of the △△△△△ Rental Business, from 2006 to December 31, 2008, it appears that the real estate of this case was leased from 2006 to 2008, and approximately KRW 49,685,000 ( approximately KRW 43 million in consideration of the △△△△△△△△ rental business operator), but it does not necessarily have to be distributed to the joint owners as a matter of course at the time of the occurrence of the additional income from real estate rent. ② The Plaintiff did not have any assertion as to the amount of money that should have been deducted from the amount of the gift of this case until △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, as a matter of course, in view of the fact that there was no agreement between the Plaintiff and the Plaintiff on the amount of the gift of this case and the amount of the real estate rent of this case.

Therefore, under a different premise, the second chapter of the Plaintiff’s second chapter cannot be accepted.

E. Determination on the third ground for appeal

In light of the above, there is no evidence to deem that the Plaintiff and Kim ○, etc. leased △△△△△ from 2004 to December 31, 2008, and there is no profit equivalent to approximately KRW 106,091,188, and rather, starting the lease of △△△△△△△△△, including Kim ○, around August 2007, and up to 2008, there is no actual profit from the lease of △△△△△△△△△, and up to 2008, there is no profit from the lease of △△△△△△△△△, therefore, the first third week of the Plaintiff’s third week on a different premise is without any reason without any further review (it is difficult to view that the Plaintiff’s share of real estate should be deducted from the donation amount as a matter of course, as long as there is no evidence to know the distribution or settlement agreement on the profit.)

F. Determination as to Section 4

As seen earlier, the director of the Seosan Tax Office conducted a corporate non-integrated investigation on Korea △△△△△△, along with a gift tax investigation on the spouse and children of the representative director Kim ○-○. As long as the tax investigation was not limited to the investigation on Korea △△△△, the Plaintiff’s assertion that the tax investigation was conducted in deviation from the scope of the investigation and exceeded the scope of the investigation is difficult to accept.

Therefore, under different premise, the defendant abused the tax investigation authority (violation of Article 81-4 of the Framework Act on National Taxes), infringed the plaintiff's right to receive assistance from a lawyer, certified public accountant, or certified tax accountant (violation of Article 81-5 of the Framework Act on National Taxes), or committed an offence of violating the law

The fourth chapter of the plaintiff's main text of Article 81-6 of the Framework Act on National Taxes is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed as it is without merit.

It is so decided as per Disposition.