It cannot be readily concluded that there is a free loan agreement on the ground that the balance of sale has not been paid for a long time.

Although the buyer has paid the remaining balance and the delayed payment to the seller for a long time, it is necessary to respect the termination of the contract as an area of private autonomy, so it is difficult to see that there is a free loan agreement between the buyer and the seller.

Article 41 of the Inheritance Tax and Gift Tax Act [Donation of Benefits through Transactions with Specified Corporations]

2014Guhap21852 Revocation of Disposition of Imposition of Gift Tax

1.A

2.B

3. ThisCC;

○ Head of tax office

December 18, 2014

February 5, 2015

1. The Defendant on May 29, 2013:

(a) gift tax of KRW 226,782,981, and KRW 74,670,409, and gift tax of KRW 67,322,901 for the year 2011, imposed on Plaintiff E-A with respect to Plaintiff E-A;

(b) gift tax of 45,897,155 won for the gift tax of 2010 against Plaintiff HighB;

C. 34,308,104 won as gift tax for the year 2010 against Plaintiff CC;

Each disposition of imposition shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On December 4, 1993, the Plaintiff acquired 5,915 square meters in total (hereinafter “the instant land”) of the land size of 00-0 ○○○○○○-dong and 14, and 5,915 square meters (hereinafter “the instant land”) as shown in the real estate list as shown in the attached Table 1, on December 20, 205, the father and father of the Plaintiff AD, the mother EE, the Plaintiff AE (hereinafter “the above DD, EE, E, and E, for convenience”), and the Plaintiff E, E, the spouse of the Plaintiff E, the Plaintiff E, and E, were to enter into the sales contract with the FFF (hereinafter “FF development”) as a shareholder of the Plaintiff E, the Plaintiff E, as a corporation on December 20, 2005.

C. According to the instant sales contract, FF development received from GG bank Co., Ltd. (hereinafter “GG bank”) a PF loan of KRW 7 billion on December 20, 2005, and paid KRW 2.3 billion to EGD, etc. on December 21, 2005, as down payment, but it did not pay the purchase price of money and KRW 20.7 billion (hereinafter “the instant balance”) and damages for delay up to now.

D. Meanwhile, the shareholding status from 2003 to 201 of the FF Development is as follows:

"E. As a result of conducting a tax investigation on the plaintiffs, the defendant judged that Dodd, etc. in a special relationship with the plaintiffs were to have lent the remaining amount of FF development to the plaintiffs without compensation, and deemed to have finally donated an amount equivalent to the appropriate interest rate to the plaintiffs. In accordance with the provisions of Article 41 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter "former Inheritance Tax and Gift Tax Act"), Dod, etc. applied the provisions of Article 41 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 2011; hereinafter referred to as "the former Inheritance Tax and Gift Tax and Gift Tax and Gift Tax and Gift Tax Act"), the lower amount between Dod, etc. and Dodddd, etc. were to have been donated to the plaintiffs as the value of each gift to the plaintiffs, and dismissed the plaintiffs' respective request for adjudication on May 29, 2013.

Facts without dispute over recognition, Gap evidence 3, Gap evidence 4-1 to 3, Gap evidence 6, Eul evidence 1 through 17, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) The allegation that the instant remaining balance cannot be deemed as a gratuitous loan

It is true that FF development was not yet paid to ED et al. of this case. However, it is limited to delay of payment of agreed price due to a business failure of FF development to ED et al., and it constitutes delay of payment. Unless a monetary loan contract is concluded with ED et al. on the balance of this case, it cannot be said that a monetary loan was made between ED et al. and FF development.

Therefore, each of the instant dispositions, which imposed taxes after deeming the corresponding interest equivalent thereto as the value of donated property by D, etc. as a gratuitous loan for the FF development due to the special circumstances of FF development, is unlawful against the principle of no taxation without law, by deeming that D, etc. had imposed taxes on the transaction which has not yet been completed.

2) The defendant's assertion that Article 41 (1) of the former Inheritance Tax and Gift Tax Act, etc., which is the ground for the disposition, cannot be the ground for the disposition of each of the instant dispositions.

Even if DoD, etc. lent the amount equivalent to the purchase and sale balance of this case to FF development and obtained profits for the plaintiffs, the subject of the application of Article 41(1) of the former Inheritance Tax and Gift Tax Act, which is the taxation basis of the disposition of this case, is limited to the goods or cash. Thus, interest on the remaining balance of this case cannot be deemed as falling under the benefit arising from the free loan of money, and thus, it cannot be applied to the above provision.

In addition, even if Article 41-4 (1) of the former Inheritance Tax and Gift Tax Act provides for the benefit arising from the free loan of money, the above provision does not regard the benefit equivalent to the interest as the value of the donated property of the lender, and it does not regard the "person who is the shareholder of the lender" as the profit of the lender. Therefore, in this case, the above provision cannot be applied to the plaintiffs who are merely the shareholders of FF development who are merely the lender of the money."

Attached Form 3 is as shown in the relevant statutes.

(c) Fact of recognition;

(1) From around 2003, FF developed the instant land, which had been called △ Tourist Hotel, and tried to establish and implement a business plan to newly build and sell officetels (hereinafter “the instant officetel business”). The FF development, on November 11, 2004, obtained the approval of land use from DoD, etc., which was the owner of the instant land, and then acquired a construction permit to newly build a residential officetel from the competent administrative agency for the instant land. The FF development, on August 1, 2005, started contact with HH on August 18, 200, and entered into the instant 200,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,00,000,000,00,000,00,00,00.

5) Around that time, FF Development entered into a PF loan agreement with GG Bank on KRW 7 billion to be used for the initial cost of the instant officetel business. Based on this agreement, the name of FF development and ED was successively transferred to Korea Asset Trust Co., Ltd. on December 20, 2005 by concluding a real estate security agreement with the truster, Korea Asset Trust Co., Ltd., the trustee, the trust principal of the instant land, the trust principal of the trust principal, the GG bank, the first beneficiary of the trust principal, and the FF development beneficiary.

6) 이후 FF개발은 2006. 5. 18. 주식회사 보생건설과 사이에 용역대금 3억 5,000만 원의 철거용역계약을 체결한 다음 이 사건 토지 위에 있던 퀸스관광호텔 건물을 철거하였다.

7) However, H’s refusal to implement the instant construction contract agreement on the ground of an officetel in Busan City’s officetel, suggesting that H’s construction contract was concluded by partly amending the FF agreement’s content related to the method of allocating earnings from the content of the existing construction contract agreement.

"8) On July 9, 2007, the FF development refused the proposal for revision of H and requested H to comply with the existing construction contract. However, on the ground that H was not implemented on the ground that H was considerably reduced in its profits, H was asked to enter into a construction contract, start-up construction work, and start-out business in accordance with the existing construction contract, and did not express its intent within 2 weeks, H did not take any particular measure against H. ("9). The FF development brought a lawsuit against H to seek liability for nonperformance of obligations due to H’s failure to pay damages on the account of ○○ District Court’s 000 00 Ga00,000, the above court rendered a judgment of 201 billion won for the Plaintiff’s transfer and takeover of the land and delayed payment of H to H 29 billion won on the premise that H’s failure to implement the management right on March 11, 2009.

11) Since August 2014, FF development negotiations with ○○ Construction Co., Ltd. on construction contracts, but, as a result of negotiations and negotiations, it did not reach the contract, the instant officetel project had re-inceptioned.

12) On August 7, 2014, FF development entered into a construction contract between the construction company of △△△, a building company of △△△△, and the construction company of △△△△△, with the five-storys above ground, 39, 560 rooms and ancillary facilities (total total floor area of 91,464.07 square meters), 38 months from the date of commencement of the construction contract period (from September 2014 to October 2017) and 117 billion won, and currently the instant officetel project of this case is in progress.

Facts that there is no dispute over the basis of recognition, entries in Gap evidence 7 through 12, and the purport of the whole pleadings.

1) Article 41(1) of the former Inheritance Tax and Gift Tax Act provides that where a person who has a loss or a special relationship with a shareholder or investor of a corporation for which the business has been suspended or closed has made any of the following transactions with the specified corporation and the shareholder or investor of the specified corporation has made profits as prescribed by Presidential Decree, the amount equivalent to such profits shall be deemed the value of property donated to the shareholder or investor of the specified corporation, and Article 31(6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the transaction where the shareholder or investor of the specified corporation has made profits as prescribed by Presidential Decree" shall be "the transaction where the assets or services are provided free of charge". Article 41(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that where the profits under Article 41(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act are donated, or where the profits

On the other hand, while Article 14(1) of the Framework Act on National Taxes and Article 2(3) of the former Inheritance Tax and Gift Tax Act declare the principle of substantial taxation, the legal relations chosen by the taxpayer are merely the fictitious act to avoid the burden of tax, or (ii) the legal relations are carried out for the purpose of tax evasion, and (iii) the legal relations chosen by the taxpayer should be respected in principle in terms of the principles of private autonomy, legal safety, and predictability, except in cases where it can be seen that it is unfair to treat such legal relations in favor of the taxpayer under tax law. In addition, the tax authority should pay special attention in denying the legal relations chosen by the taxpayer with respect to the legal acts, etc. which have not yet been completed, and imposing tax by newly organizing such legal relations in terms of tax law.

2) In light of the above legal principles, we examine whether the FF Development, the purchaser of the instant land, did not pay the remainder of the instant purchase and sale and the damages for delay thereof for a long time to DoD, etc., the seller, and whether the FF Development, as it was leased from DoD, etc. free of charge, can be reconsumed under the tax law.

On December 2005, the fact that the FF development of the plaintiffs as shareholders purchased the land of this case 2.3 billion won from DaD, etc. and paid the purchase price of this case 2.3 billion won among them, and that the remaining balance of the sale and purchase of this case and damages for its delay have not been paid up to now is as seen earlier. According to the whole evidence and the purport of the pleading as seen earlier, DoD, etc., a seller, has not taken legal measures, such as termination of a contract against FF development or claiming damages, even though considerable time has elapsed from the date of payment of the remainder under the contract of this case, can be acknowledged.

However, considering the above facts and the purport of the pleading, it is difficult to find that the agreement on the sales contract of this case was not terminated until now, and that the agreement on the sales contract of this case is valid. Thus, if the agreed date for the payment of the purchase price expires, it is difficult to conclude that the FD had not paid the remaining amount of the purchase price of this case for seven years since the FD had not been paid, it is likely to be against the principle of no taxation without any justifiable reason that it would be difficult to recognize the remaining amount of the sale price of this case for the FD without compensation because it would be difficult to recognize the remaining amount of the business of this case because the FD would not have been paid for the remaining amount of the business of this case because it would be difficult for the Plaintiffs to pay the remaining amount of the sale price of this case without compensation due to the reasons that the FD would not have been paid for the remaining amount of the business of this case.

3) Therefore, each of the dispositions of this case, which impose gift tax for 2010 and 2011 on the plaintiffs, who are shareholders of FF development, by applying Article 41(1)1 of the former Inheritance Tax and Gift Tax Act, on the premise that a free loan was made between ED and FF development for the purchase and sale balance of the land of this case, is unlawful (On the other hand, as long as the plaintiffs' claim is accepted, the plaintiffs' remaining assertion that the taxation basis provision was erroneously applied in each of the dispositions of this case is not examined).

3. Conclusion

If so, all the plaintiffs' claims are reasonable, it is decided as per Disposition by admitting them.