Cho High Court Decision 2007No4166 (Law No. 30, 2009)

The propriety of the disposition of the principal disposition as a donation of the amount returned after changing the accounts for the amount received;

It is reasonable to deem that the provisional payment transaction against the plaintiff entered in the computer pre-paid list is the most effective act to acquire the claim for provisional payment against the non-party corporation, which is set off against the claim for the construction cost, as a means to donate the amount equivalent to the claim for the construction cost.

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

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff.

Each disposition of KRW 147,092,680, and KRW 1,269,30,980, and KRW 1,269,30, and980, imposed on the Plaintiff on July 2, 2007 by the Defendant shall be revoked.

1. Circumstances of the disposition;

A. The plaintiff's asset acquisition circumstances

(1) Gift tax related to 2003

On July 21, 2003, the Plaintiff reported that KRW 410,00,00,000 was donated by NA while acquiring ○○○○○○○○○○○ 24-11 Dong 402, Dong 101 (hereinafter “instant housing”) jointly with Mana, a spouse, jointly with Mana.

(2) As to the gift tax attributed to year 2004

(A) On July 26, 2003, the Plaintiff entered into a contract with △△ Construction Co., Ltd., a non-listed corporation (hereinafter referred to as “non-listed corporation”), under which the Plaintiff would build a new building of 3 underground and 10th underground floors (△△ building; hereinafter referred to as “instant building”) on ○○○○○○○-dong 824-27, 824, 100.

(B) On December 31, 2004, the Plaintiff set off KRW 2,504.103,365, which is a part of the construction cost payable to the non-party corporation, from the amount equal to the claim of the non-party corporation. The non-party corporation accounts for the amount equivalent to the equivalent amount from the provisional deposit account as of December 31, 2004, as if it were against the Plaintiff.

B. Disposition by the defendant

(i)tax investigation;

The director of the regional tax office of ○○, from February 26, 2007 to May 21, 2007, explained the consolidated investigation of individual entrepreneurs (from January 1, 2004 to December 31, 2006) with respect to Na, and the consolidated investigation of property tax against the plaintiff (from January 1, 2002 to December 31, 2006; hereinafter referred to as the "investigation of this case"), and notified the defendant of the result.

(2) Imposition of gift tax for 2003

The Defendant imposed KRW 147,092,680 on July 2, 2007, the gift tax of KRW 400,000 on the remainder of KRW 400,000,00, which was the amount equivalent to the Plaintiff’s share acquired among the instant housing (hereinafter “instant one disposition”) on the Plaintiff on July 2, 2007, on the premise that the Plaintiff donated the Plaintiff a donation of KRW 810,00,000 to the Plaintiff (hereinafter “instant one disposition”).

(3) Imposition of gift tax for 2004

"The defendant shall be deemed to be the amount of KRW 1,384,00,000 out of KRW 2,504,103,365, which the plaintiff offsets against the obligation for the payment of the contract price to the non-party corporation, and KRW 2,259,00,000 out of KRW 1,384,00,000, which was revised accounts as of January 1, 2003 (hereinafter referred to as "the dispute 2 gold"), and KRW 875,00,00 (hereinafter referred to as "the dispute 3 gold"), which was incurred in the year 2004, KRW 2,59,000,000, which was donated to the plaintiff. On July 2, 2007, the defendant imposed the gift tax of KRW 1,269,300,980 on the non-party corporation (hereinafter referred to as "the disposition of this case") and the claim of KRW 204,00,00.

(B) The instant three gold sources were derived from the source of the revenue collected from the Do Governor to the Do governor Development Co., Ltd. (hereinafter referred to as “Doi-ri-ri-ri, Doi-ri-ri,”) and the amount of the Doi-ri's funds was converted into the Plaintiff's provisional revenue for the non-party corporation. This also constitutes the amount that the Doi-ri

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2, Gap 2, 3, 8, Eul evidence 1-1, 2-2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The illegality of the instant disposition 1

원고는 1997. 4. 16. ◁◁시 ◁◁동 783에 있는 유치원을 양도하고 그 대금으로 400,000,000원을 받아 지AA에게 소외 법인의 사업자금으로 사용하도록 대여해 오다 가, 이를 회수하여 이 사건 주택 취득에 사용하였다 따라서 쟁점 1금원은 원고의 자금 이지, 지AA으로부터 증여받은 금원이 아니다

(2) The illegality of the instant 2 disposition

(A) Disposition resulting from duplicate investigations;

The main issue was as of January 1, 2003, the revised accounting of the Plaintiff’s provisional income, and the donation of the KRW 2 to the Plaintiff is deemed as January 1, 2003. However, the ○○ Regional Tax Office had already investigated the issues of KRW 2,00 revised accounting with the Plaintiff’s provisional income in the course of conducting a tax investigation on a non-party corporation in 2004. As such, the instant tax investigation was illegal as a reinvestigation for the taxable period and items like the above tax investigation in 2004, and the instant disposition of KRW 2 was also illegal.

(B) As to the issue 2 gold bullion

The key issue is that the Plaintiff was originally deposited with its own funds, not received a donation from the branch bank. Although the said funds were recorded as the provisional funds from the branch bank of the bank of the account of the non-party corporation, they were caused by the snow of the accounting officer, and the non-party corporation found and corrected the above number of the actual funds in the course of the settlement of accounts in 2003 and corrected and revised them.

(C) On the issues of the three gold sources, the District Court notified the District Court, the Plaintiff, etc. of the results of such tax investigation.

(2) The process of acquiring the instant house

(A) On May 31, 2003, the Plaintiff and DoA entered into a contract for the joint purchase of the instant housing in KRW 1,620,000,000 with the Postal Construction Co., Ltd. (hereinafter referred to as the Postal Construction Co., Ltd.). On July 18, 2003, the Plaintiff and DoA completed the registration of ownership transfer with respect to each of the instant housing out of the instant housing.

(B) The details of the payment of housing of this case are as follows.

(1) Contract deposit of KRW 150,000,000: June 2, 2003, the number of shares issued by the non-party corporation was paid, and the non-party corporation shall account as a half of the provisional payment issued by the NA.

② The intermediate payment amounting to KRW 470,00,000: June 9, 2003, the number of shares issued by the non-party corporation was paid in proportion to the issuance of the non-party corporation, and the non-party corporation shall account for the non-party corporation as a half of the provisional payment issued by the NA.

③ On July 21, 2003, the non-party corporation received 1,000,000,000 won from one bank to one bank ordinary deposit account. The non-party corporation immediately transferred 1,00,000,000 won to one bank ordinary deposit account by the branch bank account. On July 21, 2003, the non-party corporation’s electronic transfer table is treated as 60,000,000 won and 4,00,000,000 won to the representative, and the name of the customer is 'the chairman'.

(3) The circumstances leading to the occurrence of the instant provisional payment

(A) Issues 2 won

① In preparing the balance sheet for the business year 2002, the non-party corporation accounted for 67,227,902,636 won as the provisional receipts by the NB, i.e., the president of NB, and accounts for 67,227,90,902,636 won as the provisional receipts by the NB (A) even at the time of carrying over on January 1, 2003. At the time of settling accounts for the business year 2003, the non-party corporation accounted for 67,227,90,636 won as the provisional receipts by the NB (A) and revised accounts for 1,384,00,652 won as the provisional receipts by the Plaintiff at the time of settling accounts for the business year 2002 as indicated below:

② The Plaintiff’s assertion that the above amount of KRW 1,384,00,000 is the same as the following table, but the above amount of deposit is the amount that has been settled in the name of the president of the non-party corporation, namely, the amount of deposit in the name of the branchA.

(B) Issues 3 won

① On March 19, 2004, the representative director of the development of △△△ in Do has been changed from DoA to the Plaintiff.

② As of December 31, 2003, the balance of the available bonds in relation to the development of △△△△ in a local government, as of December 31, 2003, is KRW 1,511,780,736, and the balance of the available bonds in relation to the development of △△△△△△△△, a representative on the computer transfer sheet in the development of △△△△△△△, before March 19, 204, is KRW 1.2

③ After the change of the representative director, the development of △△△ in Korea had not gone through the procedure for settling accounts for the previous claims for provisional deposits of the △△, and the subsequent representative's transaction of provisional deposits was entered into the accounts for provisional deposits of the representative director without being separated from the transaction of provisional deposits of the representative director before the change of the representative director.

④ Among the particulars of provisional payments to the representatives of the representatives made in the development of Do, Do, in 2004, the details of provisional payments deposited into the non-party corporation in the name of the Plaintiff and the date and amount are as follows:

⑤ On January 7, 2004, KRW 66,00,000, and KRW 14,000,000, and KRW 40,000,000, and KRW 8,000,00,000, which were entered in a savings account in the name of a national bank in the name of the non-party corporation, are transferred to the savings account in the non-party corporation in the name of a national bank in the name of the non-party corporation.

(4) Details of the Plaintiff’s occurrence of income, acquisition of property, and disposal

(A) During the period from 1994 to 2004, the Plaintiff’s income generating details are as follows.

(B) From 1994 to 2004, the details of the Plaintiff’s acquisition and disposal of property are as follows.

[In the absence of dispute, Gap 2, 8 evidence, Eul 3-1 through 10, Eul 4-3 through 6, Eul 6-2 through 6-6, the purport of the whole pleadings]

D. Determination

(1) As to the Disposition 1 of this case

In light of the following circumstances known from the above facts, it is reasonable to deem that the instant gold source was the amount that a branch of 1 gold source donated to the Plaintiff. Therefore, the Plaintiff’s assertion disputing this is without merit.

① The down payment and intermediate payment of the instant housing were settled in the per share table issued by the non-party corporation, and the account was accounts for the local government, and the remainder was deposited in the name of the local government.

② The amount reported by the Plaintiff as capital gains from the disposal of a kindergarten building on April 16, 1997 is limited to KRW 273,00,000, and there is no evidence to acknowledge that the source of the KRW 1,000 is substantially the Plaintiff, since the Plaintiff was not subject to provisional disposition during the period from 1997 to 2003.

(2) As to the instant disposition 2

(A) Whether the tax investigation in 2007 constitutes a duplicate investigation

Article 81-4 (2) of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007) provides for the purpose of prohibiting abuse of tax investigation authority by stating that a tax official may not conduct a reinvestigation of the same item of tax and the same taxable period except in cases where there is evident evidence to acknowledge a suspicion of tax evasion, where it is necessary to conduct an investigation on the other party to the transaction, where there is errors in connection with two or more business years, or other similar cases prescribed by the Presidential Decree.

However, according to the above facts, a tax investigation conducted in 2004 by the ○○ Regional Tax Office is related to geographicalA, non-party corporation, income tax, corporate tax, and stock transfer of housing units, and an integrated investigation into the property tax (from January 1, 2002 to December 31, 2006 during the period subject to the investigation) on the Plaintiff conducted in relation to the instant 1 disposition, and cannot be deemed the same as in the subject and items of the tax (the fact that the Plaintiff was donated the capital increase in the course of the tax investigation in 2004 and was subject to the imposition of gift tax thereon). However, it was a disposition that the Plaintiff was subject to the disposition as a partner of the person subject to the investigation, not a disposition that was taken as the other party to the tax investigation).

Therefore, this part of the Plaintiff’s assertion based on the premise that the tax investigation in 2004 was conducted against the Plaintiff is without any need to further examine the remainder of the Plaintiff’s assertion (whether an investigation was conducted on the details of changes in the provisional payment of a non-party corporation, which was accounts modified at the time of the tax investigation in 2004, and whether the acquisition time of the 2003 won from the point of time of acquisition of the 2004 won, not

(B) As to the issue 2 gold bullion

In light of the following circumstances known from the above facts, it is reasonable to deem that 200 won was the amount that NA donated to the Plaintiff. Therefore, the Plaintiff’s assertion disputing this is without merit.

① On the balance sheet of the 2002 business year, the non-party corporation accounts as the provisional receipts of the NA. On January 1, 2003, part of the 67.27,902,636 won, which was accounted as the provisional receipts of the NA, was deleted retroactively at the time of settlement of accounts in 2003, and then revised the 1,384,000,000 won out of them to the 2003rd accounts without any grounds or reasons. The plaintiff merely claims that the 1,384,00,000 won would be immediately adjusted to the 2002nd account, and the 1,384,000 won was not presented with specific grounds or grounds.

② The Plaintiff did not present any supporting material, such as financial data, regarding the source of the 1,384,000,000 won of the 3,000 won of the 1,384,000 won of the 33

③ The sum of the Plaintiff’s provisional disposition income from 1994 to 2002 was KRW 228,00,000,000 as claimed by the Plaintiff, and there was no sufficient capability to deposit KRW 1,384,00,000 as a provisional disposition income during the year 202.

(C) At issue 3 gold sources

In light of the fact that at least 3 gold sources were transferred from January 1, 2004 to March 18, 2004, the amount that was withdrawn as the principal of the development of Do, Do, in the development of Do, from January 1, 2004 to March 18, 2004, to the fact that there was no special income accrued to the Plaintiff during the period from 1997 to 2004, and that the Plaintiff’s deposit amount on January 7, 2004 to the non-party corporation was transferred from the deposit account in the name of DoA, it is reasonable to deem that the Plaintiff received the Plaintiff’s deposit from the Do Governor of the Korea Deposit Bank for the above period (total of KRW 320,656,00).

However, since March 19, 2004, when the plaintiff takes office as the representative director of the development of Do, the issue is whether it can be viewed as the provisional payment for the plaintiff of the development of Do, Do, and Do, according to the plaintiff's argument. In light of the following circumstances known from the above facts, it cannot be deemed that the transaction of provisional payment was actually established between the development of Do, Do, and the plaintiff, and therefore, the plaintiff's assertion on this premise is without merit. Accordingly, it is reasonable to deem that the three gold sources are all the funds that the local government contributed to the plaintiff.

① At the time of March 19, 2004, the Plaintiff had taken office as the representative director of the development of Doi-gu, Seoul Special Metropolitan City (hereinafter “Seoul Special Metropolitan City”)’s provisional revenue amounting to KRW 1.217,782,828 or remaining. However, no settlement procedure was conducted until 2007, which was the time when the instant tax investigation was conducted. Moreover, the provisional revenue and provisional payment transactions that were incurred thereafter are linked to the existing principal revenue account, and have been managed together without changing the account.

② Even after the Plaintiff takes office as the representative director of the development of △△△△△, the Plaintiff deposited the provisional payment into the account in the name of a national bank in the name of the local government.

③ The provisional payment for the development of △△△△ was transferred from the deposit account in the name of the local government to the deposit account of the non-party corporation. The non-party corporation entered the funds transferred from the deposit account in the name of the local government in the Plaintiff’s provisional payment account.

④ If so, it is reasonable to view that, even after the change in the form of the representative director of the development of Do-dong in the name of Do-dong Development, the 'representative' recorded in the family deposit account on the electronic deposit account of Do-dong Development was the Do-dong Development. Even if such change is not possible, in light of the relationship between the Do-dong and the Plaintiff, the non-party corporation, and the development of Do-dong, as seen earlier, and the overall circumstances of this case, the provisional payment transaction against the Plaintiff entered in the electronic deposit account of Do-dong Development was made by the Do-dong Development to donate the amount equivalent to the claim for construction cost, and it is reasonable to view that the Do-dong was the most act that the Do-dong had the Plaintiff acquire the claim for provisional payment

3. Conclusion

Inasmuch as the plaintiff's claim is groundless, it is dismissed.