Seocho 2015west 318, 319, 320, 321, 322 ( November 12, 2015)

In a lawsuit demanding division of inherited property, evidentiary materials submitted in the lawsuit demanding division of inherited property do not constitute duplicate investigation because there is considerable probability of omission of gift tax.

The tax investigation of this case based on evidence, etc. submitted in the lawsuit demanding the division of inherited property constitutes a case where the possibility of omission of the plaintiffs' gift tax is recognized to a considerable extent based on objective and reasonable data and exceptionally re-audit is allowed.

Article 81-4 (Presumption of Donation of Property Acquisition Funds, etc. under Article 45 of Inheritance Tax and Gift Tax Act Prohibited from Abuse of Right of Tax Investigation)

2016Guhap53760 Revocation of Disposition of Imposition of Gift Tax

LA, KimB, KimCC

DD Head of the tax office and EE Head of the tax office

oly 2016.10

oly, 2016.24

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

The imposition of additional tax of KRW 00,000,000 (including additional tax) and the imposition of KRW 0,000,000,000 (including additional tax) imposed on Plaintiff LA on August 13, 2014 by the Defendants and the Plaintiffs shall be revoked, respectively, of the imposition of additional tax of KRW 00,000,000.

1. Details of the disposition;

On January 15, 2010, the Plaintiffs filed a return on the tax base of inheritance tax with the taxable value of KRW 0,000,000,000 as the heir of KimF (the decedent’s death on April 17, 2009, hereinafter referred to as “the decedent”). The head of the GG Tax Office conducted an inheritance tax investigation from November 19, 201 to February 14, 201, and determined and notified the Plaintiffs of KRW 0,000,000,000 of inheritance tax on March 10, 201.

From December 23, 2013 to July 29, 2014, the commissioner of HH Regional Tax Office conducted an investigation into the source of funds and the inheritance tax (hereinafter referred to as the "tax investigation of this case") against the plaintiffs, and notified the defendants. The defendants considered the portion of the deposit property in the plaintiffs' name as prior donation whose source of funds is unclear (hereinafter referred to as the "the deposit of this case") as prior donation and determined and notified the gift tax and inheritance tax (including additional tax) to the plaintiffs (hereinafter referred to as the "disposition of this case"). The amount of tax determined and notified to the plaintiffs was reduced as stated in the "after correction of the attached Table").

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 6 (including provisional number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Whether it constitutes a reinvestigation

Article 81-4(2)1 of the former Framework Act on National Taxes (amended by Act No. 12162, Jan. 1, 2014; hereinafter the same) provides that "any case where there is clear evidence to prove a suspicion of tax evasion exists" as one of the exceptionally permitted cases. This refers to cases where the existence of evidence to prove a substantial probability of tax evasion is recognized based on evidence to support objectivity and rationality.

In addition to the statement in Gap evidence Nos. 1 and Eul evidence Nos. 7, ① another child of the decedent filed a lawsuit for the division of inherited property against the plaintiffs (200 family court No. 2009Rahap000, currently Supreme Court No. 2013S00, Sep. 19, 2003). ② The document of this case, "as of September 19, 2003," which was prepared by the decedent, was submitted as evidence; ③ the details of the accounts in the name of the plaintiffs were organized; ③ the examination by the Family Court of 00 won was withdrawn from the account of the decedent on May 29, 1998 and deposited KRW 1 billion with the account in the name of the plaintiff KimCC on the same day; and on July 2, 2001, the defendant withdrawn KRW 1 billion from the account of the decedent's account under the name of the deceased and withdrawn KRW 3 billion from the account of each of the plaintiff's 1 billion on the same day.

In the lawsuit claiming the division of inherited property, the document prepared by the decedent was arranged by the decedent's own account in the name of the decedent and the plaintiffs, and the facts confirmed in the lawsuit claiming the division of inherited property, such as the entry and withdrawal of the decedent and the plaintiffs' account, are confirmed through the results of factual inquiries about financial institutions. Thus, in the investigation of gift tax and inheritance tax, objective and reasonable data can be used, and the plaintiffs' omissions can be easily verified if the data are examined. Therefore, the tax investigation of this case conducted based on the evidence and inquiry submitted in the lawsuit claiming the division of inherited property, etc., is acknowledged to a considerable extent of objectivity and rationality, and exceptional causes.

the re-audit is allowed.

B. The portion of the gift tax on Plaintiff LA

According to Article 45 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter the same), in cases prescribed by Presidential Decree where it is difficult to recognize that the property was acquired by self-reliance on the grounds of occupation, age, income, property status, etc., the acquisition fund of the property shall be presumed to have been donated to the person who acquired the property at the time of the acquisition of the property, and it shall be deemed to have been donated to the person who acquired the property, and where there

In addition to the purport of Gap evidence 1, Eul evidence 7 through 9, and 11, the following facts are stated: (1) as of July 31, 003; (2) as of June 18, 203; (3) as of September 19, 203; (4) as of September 19, 200, the phrase "the details of the account of the decedent and the plaintiffs; (4) as of "the operation of bonds for 00 billion won"; and (3) as of March 31, 2003, the size of the funds operated in the Republic of Korea was recorded (the decedent appears to have operated approximately KRW 00 billion at around 10,000; and (4) as of March 31, 200 to April 16, 2004, the Kim J borrowed money from the decedent was deposited within the Republic of Korea with the maximum period of KRW 9,000,000 for the plaintiff 20,000.

In light of the contents and amount of funds, details of payment of interest, current status of the Plaintiffs’ stay, etc. of the decedent’s pocket book, it seems that the decedent collected property while engaging in the bond business in Korea and managed the property in the account in the name of the decedent and the Plaintiffs, and that the deposit subject to the instant disposition is presumed to have been donated.

Plaintiff LA collected property through construction rather than bond business, i.e., the decedent, and ② Plaintiff LA had more re-owned property than the decedent based on the domestic business and had more re-owned property in the form of deposit. At the maturity of one year, Plaintiff LA did not receive the gift from the decedent on the ground that the instant deposit was not received by donation from the decedent.

However, in light of the following circumstances and facts, it is insufficient to reverse the presumption of the deposit of this case, which can be acknowledged by adding the respective descriptions of evidence Nos. 12 through 20 to the purport of the entire pleadings.

LAL Korea Co., Ltd., which had been operated by the ancestor, did not have received losses each year from 1992 to 2006, and the total amount of losses was 100 billion won through the construction business. Rather, as seen earlier, it is difficult to view that the ancestor collected the property through the construction business, and rather, formed the property by doing the bond business using the Plaintiffs’ account. In addition, it is unclear whether the period of stay in the Republic of Korea of the Plaintiff LA is 282 days, and it is not clear whether the Plaintiff’s maximum period of stay in the Republic of Korea was 282 days, or to what extent property was formed through the both money business, and it is hard to view that the land sale price (as of May 1982, approximately KRW 00,000,000,000,000 won, including the Plaintiffs as of May 195, 199, which was 190 to KRW 90,000,000,000,000.

Therefore, in light of the Plaintiff’s income and property status, and the scale of the instant deposit, etc., it is presumed that the Plaintiff lowestA received the donation from the decedent who had been able to receive the deposit at the time because it is difficult to view that the Plaintiff lowestA acquired the deposit by her own means, and the circumstance cited by Plaintiff lowestA is insufficient to deem that such presumption is reversed and there is no other evidence to acknowledge it.

C. Additional tax portion

The plaintiffs asserts that since the tax authority's negligence on the part of the tax authority with regard to the failure to report and the failure to pay taxes if the tax authority made a tax investigation in good faith and imposed taxes, this part should be reduced.

However, as seen earlier, it is difficult to view the instant tax investigation as an illegal reinvestigation, and the tax authority may rectify the tax base and tax amount at any time within the exclusion period for taxation. Moreover, the penalty is administrative sanctions imposed in the event of violation of various obligations, such as reporting and payment, etc. as prescribed by the law without justifiable grounds. In particular, the additional tax is imposed on the amount paid at the same time as securing the performance of the obligation to pay taxes, deeming that financial benefits have been received for the amount not paid by the due date for payment, and is imposed on the violation of the obligation to pay taxes. Considering the fact that the obligation to report and tax liability of inheritance tax are in principle against the Plaintiffs,

3. Conclusion

Thus, the plaintiffs' claim of this case is dismissed as it is without merit.