The early 2012 Gwangju 3965

Re-audit due to audit and cadastral records is exceptionally permitted.

It constitutes a duplicate tax investigation that has received a written confirmation from the customer with regard to the audit and inspection, but it constitutes an exceptionally permissible case where the duplicate investigation is an investigation into the customer and it is possible to conduct a duplicate tax investigation because it constitutes a case where there is evident evidence to acknowledge the suspicion of tax evasion.

Article 81-4 of the Framework Act on National Taxes [Prohibition of Abuse of Right of Tax Investigation]

Gwangju District Court 2013Guhap2495 ( January 27, 2015)

○ ○

○ Head of tax office

January 15, 2015

February 17, 2015

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 1,205,184,510 against the Plaintiff on June 7, 2012 is revoked.

1. Basic facts

A. Inheritance of the property of the plaintiff et al.

The head of ○○ (hereinafter referred to as “the deceased”) died on February 7, 2008, and his bereaved family members died on February 7, 2008, and there were nine children, including the plaintiff and the plaintiff, etc., and as other children except the plaintiff and the YellowO have renounced their inheritance, the plaintiff, the YellowO, and the YellowO (hereinafter referred to as “the plaintiff, etc.”) inherited the deceased’s property (hereinafter referred to as “the inheritance of this case”).

(b) Conducting a preliminary tax investigation;

Although the deceased died on February 7, 2008, the Defendant confirmed on June 29, 2010 that the inheritor did not report the inheritance tax base, etc. until then, and conducted a tax investigation for determining the tax base and tax amount of inheritance tax pursuant to the inheritance of this case (hereinafter referred to as "the first tax investigation") from September 13, 2010 to October 27, 2010. As a result of the first tax investigation, if the deceased deducted KRW 1,00,000,000, such as the spouse, from KRW 225,156,000,000, the inheritance tax base was calculated as zero won and determined that there was no amount of inheritance tax calculated.

Meanwhile, in calculating the above inheritance tax base, the inheritance debts recognized by the defendant included KRW 2,159,00,000 of the deceased's debts against Kim○, and the inherited property includes KRW 46,950,000 of non-listed shares of ○○○, Inc. (hereinafter referred to as "the shares of this case") held by the deceased.

C. Correction claim by plaintiffs, etc.

On March 28, 2011, the Plaintiff et al. filed a claim with the Defendant for the correction of the inheritance tax base, etc. by including KRW 2,547,00,000, for which the obligation to pay the deceased was finalized as of the date of commencing the inheritance, in addition to the inheritance obligation.

Accordingly, on January 15, 2008, the Defendant: (a) deducted the shares of this case, including inherited property, from inherited property at the time of the first tax investigation, and revised the inheritance tax base by additionally including KRW 930,00,000,000, out of the amount of the above debt, which the Plaintiff and her husband’s her husband Park○○ received from the deceased; and (b) calculated the transfer price to the money deposited in the deceased’s deposit account before that time; and (c) deducted the shares of this case including inherited property from inherited property at the time of the first tax investigation;

(d) Conducting a comprehensive audit on the ○○ Tax Office;

From August 22, 2011 to September 8, 2011, an auditor of ○○ regional tax office performed a comprehensive audit on the ○○ Tax Office’s regular audit. In relation to the first tax investigation, ① there is a problem in recognizing the deceased’s obligation of KRW 2,159,00,000 for the deceased’s obligation to Kim○, and ② an omission of the inherited property in KRW 859,00,000 for the land owned by the deceased. ② In relation to a request for correction, it is pointed out that there is a problem in recognizing the inheritance obligation of KRW 930,00,000 for the deceased’s obligation and ④ the inheritance obligation of KRW 930,00 for the deceased’s obligation and the deduction of the inherited property of this case, and conducted a reinspection on whether

The processing was directed.

On the other hand, in the process of the above comprehensive audit, an additional investigation was conducted on Kim○ in relation to the deceased's obligation to Kim○○.

(e) Conducting a secondary tax investigation and imposing inheritance tax;

After investigating the items pointed out in the audit process, the Defendant conducted a tax investigation (hereinafter referred to as "second tax investigation") again from January 2, 2012 to January 4, 2012 and from February 1, 2012 to March 12, 2012 in order to correct the inheritance tax base and tax amount arising from the inheritance of this case.

Since June 7, 2012, the Defendant: (a) against the Plaintiff, KRW 2,159,00,000 against the Deceased’s obligation to Kim○.

In addition, the amount of KRW 930,00,000 additionally recognized upon the application for correction was deducted from the inheritance liability. Based on the inheritance tax base of KRW 2,272,684,00,000 (including additional tax) calculated by including KRW 859,00,00 among the shares of this case and the amount of money deposited for expropriation on the land owned by the deceased, the amount of KRW 1,205,184,510 (including additional tax) was increased or notified (hereinafter referred to as the "disposition of this case").

(f) Procedures of the previous trial;

On August 27, 2012, the Plaintiff dissatisfied with the instant disposition and filed a petition for an adjudication with the Tax Tribunal on August 27, 2012, but was dismissed on July 25, 2013.

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

1) The investigation into Kim○-○ and the secondary tax investigation conducted in the course of the audit are duplicate tax investigations conducted on the same tax item as the primary tax investigation. As such, there is no exception to allowing duplicate tax audits under each subparagraph of Article 81-4(2) of the Framework Act on National Taxes, and thus, it is unlawful. Accordingly, the instant disposition taken based on an illegal duplicate tax investigation is also illegal

2) Even if a double-tax investigation is allowed on the grounds that there is obvious evidence to prove a suspicion of tax evasion in relation to the deceased’s obligation to Kim ○○, the scope should be limited to the part on the deceased’s obligation to Kim○.

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Determination

(a) In general of double tax investigations;

1) The term “tax investigation” means questioning in order to determine or correct the tax base of national tax and the amount of tax, or inspecting, investigating or ordering submission of the relevant account books, documents or other things (Article 81-2(2)1 of the Framework Act on National Taxes). Such a tax investigation is a kind of administrative investigation conducted by the State to realize the right to taxation.

In order to collect taxation data and verify the accuracy of the details of the tax return, the tax authorities may ultimately prevent tax evasion and ultimately guarantee taxpayers’ faithful returns by securing the administrative purpose, namely, appropriate and fair taxation. However, if a taxpayer refuses a tax investigation, it is inevitable for the taxpayer to be subject to sanctions, etc. for fines for negligence, and to respond to the tax investigation in fact. As such, in the course of responding to questions of the tax authorities and submitting taxation data, citizens are restricted to certain parts of fundamental rights, such as property rights, privacy, and freedom of business.

Therefore, in order to minimize the limitation of taxpayers' fundamental rights based on the principle of excessive prohibition under the Constitution and the principle of due process of law, the National Tax Basic Act provides that "tax officials shall conduct a tax investigation to the extent necessary to realize proper and fair taxation, and shall not abuse their right of investigation for other purposes, etc." (Article 81-4 (1) of the Framework Act on National Taxes), and also that "tax officials shall not conduct a secondary tax investigation in principle for the same tax item and the same taxable period (Article 81-4 (2) of the Framework Act on National Taxes)."

Meanwhile, Article 81-4(2) of the Framework Act on National Taxes provides for the prohibition of duplicate tax audits as above, but if a tax investigation is conducted once, and it is not permitted to conduct duplicate tax audits in any case after the occurrence thereof, unreasonable results may be caused, and thus, in order to prevent such occurrence, the principle of prohibition of duplicate tax audits for the protection of taxpayers’ rights may be mitigated if such exceptions are widely acknowledged. Therefore, the above exceptional provisions need to be interpreted limited to cases where the prohibition of duplicate tax audits is significantly contrary to the principle of fair taxation.

(b) Whether it constitutes a double tax investigation;

1) According to Article 81-4(2) of the Framework Act on National Taxes, whether a case constitutes a duplicate tax investigation is basically determined on the basis of the identity of the tax items and taxable periods. Since the first tax investigation and the second tax investigation were conducted to determine the tax base and tax amount of inheritance tax due to the inheritance of this case, which is the same tax item, the second tax investigation are conducted to determine the tax base and tax amount of inheritance tax due to the inheritance of this case. Thus, even if the second tax investigation include some items which are not entirely examined

2) According to the Defendant’s assertion, in order to verify whether the pertinent tax official’s obligation to Kim○, which was recognized as an inheritance obligation as a result of the first tax investigation according to the auditor’s pointed out by the ○○ regional tax office, requested an interview of Kim○ in the audit process and received Kim○’s confirmation related to the above obligation. It is reasonable to deem that it constitutes a tax investigation as it was collected by questioning the deceased’s counterpart Kim○, who is the deceased’s counterpart to the transaction in order to verify the existence of the inheritance obligation, which serves as the basis for the determination of inheritance tax base and tax amount, and as long as the investigation is subject to the same tax item as the first tax investigation, it constitutes a duplicate tax investigation.

(c) Whether exceptional grounds for permission are recognized.

1) Whether the exception under Article 81-4(2)2 of the Framework Act on National Taxes constitutes grounds for exception

Article 81-4 (2) 2 of the Framework Act on National Taxes provides that "where an investigation is necessary for the other party to the transaction" as an exception to which duplicate tax investigation is allowed, and the proviso to Article 12 (1) of the Regulations on the Management of Investigations, which is the instructions of the National Tax Service, is conducted with the other party to the transaction.

It is limited to ‘part-finding' for future contents.

The facts and evidence as mentioned above, and the following facts and circumstances, which can be acknowledged by comprehensively considering the purport of the argument as a whole in the statement in Eul evidence No. 8, i.e., ① whether the Plaintiff’s obligation to Kim○ is recognized as an inheritance obligation, are ① the materials investigated by the Defendant at the time of the first tax investigation, including objective and specific financial materials to verify the date of borrowing funds, the details of payment of interest, the specific usage of borrowed funds, and the details of the collection of claims by Kim○, etc., so it is insufficient to recognize that the deceased’s obligation to Kim○ was in existence only with the above materials. As such, the auditor of ○○○ Regional Tax Office appears to have been essential to verify whether the obligation was in existence at the time of the first tax investigation. ② The auditor of ○○○○ Regional Tax Office pointed out that the Plaintiff’s obligation to the deceased was not investigated with Kim○ at the time of the first tax investigation from the same point of view, ③ since ○○ Tax Office did not know the necessity of the investigation into Kim○ at the time of the first tax investigation, the obligee’s.

Therefore, the investigation of Kim ○○, which was conducted in the audit process, shall be lawful by meeting the requirements of the duplicate tax investigation exceptionally permitted.

2) Whether the exception under Article 81-4(2)1 of the Framework Act on National Taxes constitutes grounds for exception

A) Article 81-4(2)1 of the Framework Act on National Taxes provides for one of the cases where a double tax investigation is exceptionally permitted “where there is clear evidence to acknowledge a suspicion of tax evasion” shall be limited to cases where the existence of evidence is recognized by the material supporting objectivity and rationality of a considerable probability of confirming the occurrence of tax evasion. It is reasonable to interpret that such material does not include the materials already investigated in the previous tax investigation (see Supreme Court Decision 2010Du6083, Jan. 27, 201).

B) The facts and evidence as seen earlier, evidence No. 2, and the following facts and circumstances, which can be acknowledged by comprehensively taking into account the overall purport of oral proceedings, namely, ① after the first tax investigation, the investigation of Kim○○ after Kim○, submitted a new confirmation document (Evidence No. 2) which is a new taxation data, in relation to the deceased’s obligations from Kim○○, and ② The above confirmation document prepared by Kim○○○ was paid to the deceased KRW 250,000 as a share investment fund, and the amount to be received from the deceased is equal to KRW 2.1 billion as the investment amount or the amount to be received from the deceased was equal to KRW 2.1 billion, and a notarial deed was issued in the name of the deceased’s husband at the time of the first tax investigation, and ③ the confirmation document prepared in relation to the deceased’s obligations to Kim○○○○ at the time of the first tax investigation, which is reasonable in view of the fact that the deceased’s new evidence was written in relation to the deceased’s obligations to the deceased’s Kim○’s Kim and real estate purchase fund, etc.

Therefore, the defendant should be allowed to make a duplicate tax investigation where there is clear evidence to acknowledge the suspicion of tax evasion.

(d) Allowable scope of double tax investigations.

In light of the fact that there is clear evidence to prove a suspicion of tax evasion, a taxpayer's presumption of good faith, such as a taxpayer's report, is no longer applied to the case where there is a clear evidence to prove a suspicion of tax evasion (Articles 81-3 and 81-6 (3) of the Framework Act on National Taxes), and that in cases where a suspicion of tax evasion is acknowledged in part of the same tax item and the taxable period, there is a high possibility of tax evasion for other parts, and thus the necessity of an investigation is recognized, in cases where a duplicate tax investigation is conducted due to obvious evidence to prove a suspicion of tax evasion, it cannot be said that a duplicate tax investigation is permitted only for the relevant parts, and unless there are special circumstances that it constitutes abuse of tax investigation authority, a duplicate tax investigation

Therefore, it cannot be said that it is unlawful that the Defendant conducted a tax investigation on the part other than the deceased's obligation to Kim○ at the time of the second tax investigation.

E. Sub-committee

Ultimately, since the investigation and the secondary tax investigation conducted after the first tax investigation constituted a legitimate duplicate tax investigation, the prior plaintiff's assertion on a different premise is without merit.

4. Conclusion

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