Seoul Administrative Court-2014-Gu 6329 ( December 22, 2015)

Examination Donation 2014-007 (Law No. 13, 2014)

Any loan transaction that is not a donation and can not be seen as a land dispute fee, and the details of redemption are clear.

Even in the name of the acquisition price of the building permit right, since it is deemed necessary expenses since it is reasonable to view it as necessary expenses, but the transferred amount sent in the name of a person not related to the land cannot be deemed as land-related fees. Although there is no evidence proving that the loan is borrowed, it is clear that the details of the loan are repaid

Article 97 of the Income Tax Act: Necessary expenses of transfer income and taxation of gift tax Article 2 of the Inheritance Tax and Gift Tax Act

2016Nu34389 Revocation of Disposition of Imposition of Gift Tax, etc.

KimA, NewB

CC Head of the District Tax Office, D Director

October 26, 2016

December 7, 2016

1. Of the judgment of the first instance court, the part against the director of the DefendantCC in excess of the order to revoke is revoked, and the Plaintiff KimA’s claim corresponding to the revoked part is dismissed.

On November 1, 2013, the part of the disposition imposing capital gains tax of KRW 1,002,976,902 (including additional tax) belonging to Plaintiff KimA on November 1, 201, which exceeds KRW 837,635,92, shall be revoked.

2. The appeal by the chief of Defendant DD Tax Office and the remaining appeal by the chief of DefendantCC Tax Office are dismissed, respectively.

3. The 4/5 of the total litigation costs between the plaintiff KimA and the director of the defendantCC shall be borne by the plaintiff KimA, and the remainder by the director of the defendantCC, respectively, and the appeal cost between the plaintiff newB and the director of the defendant DD tax office shall be borne by the director of the defendant DD tax office.

Cheong-gu and purport of appeal

1. Purport of claim

A. The disposition of imposition of capital gains tax of KRW 1,002,976,902 (including additional tax) accrued in 2006 against Plaintiff KimA on November 1, 2013 by the Director of the Tax Office shall be revoked.

B. On November 1, 2013, the head of the Defendant DD Tax Office revoked each of the imposition of gift tax of KRW 18,933,30 for the year 2009, KRW 106,532,640 for the gift tax of KRW 106,532,640 for the year 201, KRW 318,131,716 for the gift tax of KRW 318,716 for the year 2011, and KRW 836,171,760 for the gift tax of KRW 20 for the year 201.

2. Purport of appeal

(a) DefendantCC director;

In the judgment of the court of first instance, the part against the director of the defendantCC shall be revoked, and the plaintiff KimA's claim corresponding to the revoked part shall be dismissed.

B. Defendant DD director of the tax office

The part of the judgment of the court of first instance against the defendant DB is revoked, and the plaintiff NewB's claim against the above defendant is dismissed.

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance except for dismissal or addition as follows. Thus, this part is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ The second 2nd 2nd 3rd “Releting” added “EEE EE-Related Construction Site” to “EEE-Related Construction Site.”

After the "Plaintiff KimA" in Part 9 of the third part, the "in accordance with Article 96 (2) 5 of the former Income Tax Act and Article 162-2 (2) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008)" shall be added to "in the preceding 2006" and "in the preceding 1,027,778,050" of the first 11 and "1,02,976,902" of the 13th 13th 13th 11th 1th 1th 1th 1th 1th 2.

○ Of the acquired funds under paragraph 1 of title 4, the “value of the original donated property” is added to the “value of the original donated property” below, and the “840,545,060 won” in Part 4 shall be added to the “(including additional tax)” below.

○○ 1-2 of the 5th 5th 1-2 “amended by reduction ....................” the 2009, respectively revised the gift tax of KRW 18,93,30, KRW 106,532,640, gift tax of KRW 318,131,716, gift tax of KRW 2011, KRW 836,171,760 (including two additional taxes) for gift tax of KRW 2012.”

2. Relevant statutes;

Attached Table 1 shall be as stated in the relevant statutes.

3. Whether the disposition of transfer income tax of this case is legitimate

(a) Facts of recognition;

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance (from 5th to 10th 7th eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth e) except for dismissal or addition as follows

○ The 5th page "on the ground" in the 10th place shall be read as "on the upper land".

The following is added to the 6th page 9 of the 6th page "," and the 6th page 4th page "PP" is added to "G development".

As of June 10, 2002 on June 10, 2002, "In addition, 00 Development Co., Ltd. and 00 PF Construction Co., Ltd., Co., Ltd., Ltd., Co., Ltd., Co., Ltd., Ltd., Co., Ltd., Co., Ltd. prepared a letter of delegation and letter stating that all rights concerning the transfer of EEE permission and agreed amount, amount receipt method, distribution method, etc. shall be delegated to GG development representative Co., Ltd., Ltd., and that they should not raise civil and criminal objections. Of them, 00 Co., Ltd., Ltd., Co., Ltd., Ltd., Ltd., Co., Ltd., Ltd., Co., Ltd., Ltd., Ltd., and 00 Co., Ltd., Ltd., Ltd., Co., Ltd., Ltd., Ltd., Ltd., received full amount from GG developmentK, and they shall receive distribution amount and receive distribution amount." The above receipts and each of G Development Co.

○○ KRW 7,100,000,000,000 for KRW 200,000 for KRW 7,000 for KRW 8,00 for KRW 90,00 for KRW 8,00 for KRW 8,00 for KRW 10,00 for KRW 8,00 for KRW 10,00 for KRW 10

B. Whether the acquisition price of the instant building permit constitutes necessary expenses

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance except for dismissal or addition as follows. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

The "transfer price" in Part 8 of the 8th page is fixed as "acquisition price", and the "the acquisition price of the building permit of this case can be regarded as expenses paid in order to secure and use the value of the land of this case by clearly resolving the dispute over the land of this case without going through the procedures, such as a lawsuit, by adding "the acquisition price of the building permit of this case" to the last day of the 11th page.

○ The 8th parallel 18 to 9th parallel are as follows.

“3) As to this, the Defendant asserted that the acquisition price of the instant building permit can only be the necessary expenses for the building when the building is completed in the future, and cannot be the necessary expenses for the land. However, as seen earlier, the acquisition price of the instant building permit can be deemed the expenses disbursed in order to exclude the construction companies claiming lien from the instant land and to fully use the said land, regardless of the title thereof, and thus, it is reasonable to regard it as the necessary expenses for the instant land.”

C. Whether the remittance amount of this case constitutes necessary expenses

1) Since the tax authority bears the burden of proving the legality of a taxation disposition, in principle, the tax authority bears the burden of proof as necessary expenses that are the basis of the determination of taxable income. However, deduction of necessary expenses is more favorable to the taxpayer, and most of the facts that form the basis of necessary expenses are located in the controlled area of the taxpayer. As such, the tax authority is difficult to prove. Thus, if it is reasonable to have the taxpayer prove the burden of proof by taking into account the difficulty of proof or equity between the parties, the need for proof should be returned to the taxpayer (see, e.g., Supreme Court Decision 91Nu10909, Jul. 28,

2) In this case, it is reasonable to view that it is necessary to prove that the Plaintiff KimA needs to prove that the remittance amount constitutes necessary expenses, insofar as it is difficult for the head of the tax office, as the tax authority, to investigate and relatively easy to prove the Plaintiff KimA as necessary expenses, and that the occurrence of necessary expenses in the above content and scale is not obvious in light of the empirical rule.

However, in full view of the above evidence and evidence Nos. 16, 17, 8, 9, and 14-1, 2, and 14-1, 14-2, and 15 of the evidence Nos. 14-1, 2, and 15 of the evidence Nos. 14-1, and the following circumstances, which can be seen by comprehensively considering the purport of the entire pleadings, the evidence presented by the Plaintiff alone is insufficient to recognize that the amount of remittance in this case is the money that Plaintiff KimA paid to Ga in return for the transfer amount to GaL and for the fee for the dispute resolution of land, and there is no other evidence to prove otherwise, it cannot be deemed that the

① There seems to have been significant completion from June 2002 to June 18, 2002 of the payment of compensation, management expenses, consolation money, and acquisition money of building permit to the buyers and lien holders who have partially carried out the construction of the building scheduled to be newly constructed. However, the payment period of the transferred amount is consistent with the time when the land dispute resolution was carried out as the owner from June 25, 199 to October 18, 202. However, although the payment period of the transferred amount is consistent with the time when the land dispute resolution was carried out as the owner, the payment period of the transferred amount is from November 19, 202 to September 30, 203. There is no evidence to acknowledge that the payment period of the transferred amount of the transferred amount of the instant case continues to carry out the land dispute resolution business even after the payment period of the transferred amount was made (the agreement between the Plaintiff Kim A and LL does not have been prepared in writing specifying the amount of fees for land dispute resolution business and the payment period and method

② Since the transfer amount of this case was paid as an individual monetary transaction between Plaintiff KimA and HaL, it cannot be ruled out that the transfer amount of this case was paid as an individual monetary transaction between Plaintiff KimA and HaL. In this regard, Plaintiff KimA used the account in his own name to separate personal monetary transaction from other transaction. As such, Plaintiff KimA asserted that the transfer amount of this case transferred from the account in his name of newM was not money due to monetary lending between himself and Ha LL. However, there is no clear evidence to support that Plaintiff KimA had been conducting monetary transaction by distinguishing the account from that of his own name, and it is difficult to view that the remittance amount of this case traded from the account in his name of Plaintiff KimA was a fee for land dispute resolution on the sole basis of the details of transactions with GaL with the account in his name of Plaintiff Kim Jong, which was in the name of his own name and that of his husband at the time of his own questioning about Plaintiff Kim Jong-A on September 4, 2013. Rather, LA can be viewed as having received money payment from his own account.

③ On September 1, 2013, the High L has prepared a written confirmation that Plaintiff KimA received KRW 2 billion as fees for land dispute resolution affairs. However, on September 4, 2013, in the course of the investigation of the crime of capital gains tax, the amount of KRW 10-1.5 billion out of the amount of KRW 2 billion paid in the said crime of capital gains tax was received through the account (in person and person’s name) over several times, and the remainder was received directly in cash. Of approximately KRW 2 billion of the fee claimed by Plaintiff KimA, the remittance transferred from the account in the name of OOOOO of KRW 2 billion to the account in the name of AL is KRW 1.4 billion, it cannot be ruled out that the remainder of the fee was paid in cash separately from the statement of the High LL, or was remitted to Hah’s account.

④ Although the witness KimN and ShinM testified that the instant remittance amount was paid as a fee for the dispute resolution of land, Kim NN, and Kim NN became a member of the JJJ Co., Ltd. (hereinafter “JJJ”) around July 2006, it is difficult to view that the instant remittance amount was accurately known of the situation at the time of payment of the instant remittance amount in 2002-2003, which was 3-4 years prior to the date of payment of the said remittance amount, and it does not seem that newM was merely aware of the specific details.

⑤ Meanwhile, Plaintiff KimA asserts that since the director of the tax office recognized that the transferred amount constituted necessary expenses for the dispute resolution of land, the transfer amount of this case is not different in nature from the expenses paid to the same party under the same name. However, unlike the transfer amount, the transfer amount does not coincide with the time when the dispute resolution of land was mainly conducted. The transfer amount accounts in the name of the representative director, while the transfer amount accounts in the name of the former representative director was under the name of the former representative director, the former representative director of the land. On the other hand, Plaintiff KimA did not appear to have been under the name of the new owner of the transfer amount, who is an employee of 00 units of land. As such, Plaintiff KimA did not have been able to accept the Plaintiff’s allegation that it was impossible for OOO to receive the transfer amount under the name of the new owner of the land, and thus, it cannot be seen that it was impossible for OOO to actually pay the transfer amount under the name of the latter to have been made under the name of the former owner of the land.

D. Therefore, if the acquisition price of the instant building permit is added to the necessary expenses and the legitimate transfer income tax to be paid by the Plaintiff KimA is calculated, the portion exceeding the above 837,635,923 won [the amount obtained by deducting the amount stated in the column of "(1) 300 million won" from the stated amount of "total determined tax amount of 1,417,502,712 won -579,86,789 won" in the table of "Calculation of Political Tax" [the amount obtained by deducting the amount stated in the column of "the actual payment of the relevant asset"] in the disposition imposing the transfer income tax of this case is unlawful.

4. Whether the imposition of gift tax of this case is legitimate

The court's explanation on this part is identical to the corresponding part of the judgment of the first instance except for dismissal or addition as follows. Thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ The 11th page “The Plaintiff” portion of the 19th page “the 19th page is the Plaintiff’s funds borrowed from the branch or borrowed from each of the instant real estates as security.”

In light of the following circumstances, the first to third-party 1 were as follows: (a) evidence and evidence Nos. 26-1, 2, 29, 32; (b) evidence Nos. 33-1, 2, 37-2, 5 and 10; and (c) fact-finding with respect to the head of the Seoul Detention Center of the first instance court, and the first-class court's fact-finding with respect to the head of the Seoul Detention Center of the first instance court, the first-class 1 to 13-party 2, 679,00,000 won (the amount calculated by deducting KRW 500,000 from the value of donated property which the Defendant first recognized as the value of donated property; hereinafter referred to as "the acquisition fund of this case") shall not be deemed to have been donated to the Plaintiff 1B.

① On November 29, 2010, Plaintiff NewB appears to have leased 1,40,000 won of the instant real estate to SS and received on January 31, 2011. Plaintiff NewB appears to have received on November 15, 2012, KRW 7,000,000 from TPP, and KRW 6,30,000,000,000,000,000 from NA on December 21, 2012. Plaintiff NewB appears to have received on July 5, 2013, KRW 50,000 from 3 billion,000,000,000,000,000,000 won, and KRW 1,000,000,000,000,000,000,000,000,000,00 won from 3,000,000 won.

② Although there was no document related to the acquisition fund of this case between Plaintiff NewB and Plaintiff KimA, the document related to the borrowing of money, such as a loan certificate, was prepared, but Plaintiff NewB was given birth to his child as it was in an internal relationship with Plaintiff KimA, considering the relationship, the mere fact that the document was not prepared does not immediately lead to the absence of a monetary lending relationship between the Plaintiffs.

③ On May 11, 2012, Plaintiff NewB leased the instant Real Estate No. 2 to the JJ for KRW 1 billion and repaid KRW 700 million to Han Bank on the same day. At the time, Plaintiff KimA was a major shareholder of the JJ. At the time, Plaintiff Kim Jong-A was a joint collateral mortgage to secure the obligation of the JJJ with respect to the instant Real Estate Nos. 2 and 3. In particular, Plaintiff KimA was deemed to have actually performed legal acts, such as the acquisition and disposal of the instant Real Estate No. 2 by Plaintiff KimA, by exercising the right of decision entirely with respect to the management and disposal of the instant Real Estate No. 2, and thus, Plaintiff KimA was deemed to have subsequently performed legal acts, such as the acquisition of each of the instant Real Estate by Plaintiff KimA. Therefore, Plaintiff KimB rather than seeking to make a donation to Plaintiff NewB, even if the repayment period was not specifically agreed in advance, it appears to have been granted on the premise of future recovery.

â………§ 13 â……………………â…………â……â……âââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââ

5. Determination as to the disposition imposing the gift tax of this case on the ancillary disposition added at the trial

A. Defendant DD director's assertion

Even if Plaintiff NewB received a loan from Plaintiff KimA, this constitutes a free loan of at least KRW 100 million, and thus, the gift tax may be imposed on Plaintiff NewB pursuant to Article 41-4 of the Inheritance Tax and Gift Tax Act (donation of profits derived from money free loan, etc.). Therefore, the imposition of gift tax in this case is lawful within the scope of KRW 9,576,630, gift tax on August 18, 201, and KRW 16,718,594, gift tax on donation on November 18, 201, within the scope of KRW 35,537,30,00, gift tax on May 13, 2009.

B. Determination

1) Since the subject matter of a taxation revocation lawsuit is objective existence of the tax amount determined by the tax authority, the tax authority may submit new data that can support the legitimacy of the tax base or tax amount recognized in the relevant disposition, or exchange and change the reasons within the scope that maintains the identity of the disposition, and it does not necessarily mean that only the data at the time of the disposition should be determined whether the disposition is legitimate or that only the reasons at the time of the disposition can be asserted (see, e.g., Supreme Court Decision 2010Du7277, May 24, 2012).

2) As to the instant case, the grounds for the previous disposition of the gift tax imposition of this case and the conjunctive disposition added by Defendant DDA head of the tax office in the first instance are based on the objective factual basis that Plaintiff Kim A paid the acquisition fund of this case to Plaintiff NewB, and it does not change only the composition of the taxation requirement and legal evaluation, but also the basic facts that constitute the grounds for taxation. Thus, it is reasonable to deem that the change of the provisional disposition by Defendant DD head of the tax office was made within the scope of maintaining the identity of the grounds for the previous disposition.

3) First, with respect to the portion of money that Plaintiff KimA has paid to Plaintiff NewB on May 13, 2009, August 18, 2010, and November 18, 2011, the following amounts shall be deemed to be the value of property donated to the borrower on the date on which the money is loaned, where the amount of money exceeding KRW 100 million is given free of charge or at an interest rate lower than the appropriate interest rate, from a person in a special relationship under paragraph (1) of Article 41-4 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 2011). In such cases, if the lending period is not set, the lending period shall be deemed one year; if the lending period is not set, the amount shall be deemed to have been newly granted on the date following the date on which the first year elapses; and if the lending period is more than one year, the scope of persons under paragraph (2) shall be determined by Presidential Decree as follows.

In addition, Article 31-7 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23591 of Feb. 2, 2012) provides that "a person who has a special relationship with the former part of the main sentence of Article 41-4 (1) of the Act" means a person who loans money and a person who takes over a loan (hereafter referred to as "money lender, etc." in this paragraph) has a relationship with any subparagraph of Article 19 (2). In this case, "one shareholder, etc." shall be deemed "money lender, etc.". In this case, "the largest shareholder or largest investor as prescribed by Presidential Decree" in Article 22 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act means a shareholder or investor (hereinafter referred to as "shareholders, etc."), who together holds stocks, etc. of the following persons shall be the largest shareholder, etc., and "the spouse and 200 shares of the former spouse, etc." in Article 19 (20) of the former Enforcement Decree No. 94).

As of May 13, 2009, August 18, 2010, and November 18, 2011, there is no evidence to acknowledge that the Plaintiff’s newB had a special relationship with the Plaintiff KimA as of November 18, 201 under each subparagraph of Article 19(2) of the Enforcement Decree of the said Act. Thus, this part of the claim by the Defendant D director of the tax office cannot be accepted without further review.

4) Next, we examine the portion of the money that Plaintiff KimA paid to Plaintiff ShinB on May 1, 2012.

Article 41-4 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013) shall be deemed to be the value of property donated to the borrower on the date of borrowing the money, where the money of at least KRW 100 million is loaned from a related party prescribed by Presidential Decree under paragraph (1) without compensation or at an interest rate lower than the appropriate interest rate:

In such cases, the term of loan shall be one year if the term of loan is not fixed, and if the term of loan is at least one year, the relevant amount shall be calculated by deeming the loan to have been newly granted each year on the day following the date on which the one year elapses; the method of calculating money at least 100 million won under paragraph (1); the proper interest rate; and other necessary matters shall be prescribed by Presidential Decree; and Article 31-7 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 24358, Feb. 15, 2013) provides that "a related person prescribed by Presidential Decree" in the former part of Article 41-4 (1) of the Act means a person who has a relationship falling under any of the subparagraphs of Article 12-2 (1) with the lender and his/her spouse who maintains his/her livelihood under the proviso of Article 16 (2) of the Framework Act on National Taxes (including a related person falling under any of the following subparagraphs 20-2 (1) and 4).

In full view of the purport of the argument in the evidence No. 5, Plaintiff Kim Jong-A may recognize the fact that there was a child other than the married one between Plaintiff Kim Jong-B and Plaintiff KimA on May 1, 2012. Thus, it is difficult to conclude that Plaintiff NewB had a de facto marital relationship at the time of May 1, 2012, and otherwise, Plaintiff NewB had a special relationship under each subparagraph of Article 12-2(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 24358, Feb. 15, 2013) with Plaintiff KimA and the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 24358, Feb. 15, 2013). Thus, Defendant D

6. Conclusion

Therefore, the part exceeding KRW 837,635,923 of the disposition of transfer income tax in this case against the plaintiff KimA and the disposition of gift tax in this case against the plaintiff ShinB by the director of the tax office and the director of the tax office of defendant DD against the plaintiff ShinB shall be revoked in violation of each law. The plaintiff KimA's claim in this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed without merit, and the plaintiff ShinB's claim in this case shall be accepted with merit. However, since the part of the judgment of the court of first instance as to the defendantCC tax office differs in part from this conclusion, part of the judgment of the court of first instance accepted the appeal by the director of the tax office of the defendantCC and dismissed the plaintiff KimA's claim corresponding to the revoked part, and the appeal by the director of the tax office of defendant DD and the remaining appeal by the director of the tax office of defendantCC shall be dismissed as it is so decided as per Disposition.