Daegu District Court-2015-Gu Partnership-22372 (No. 16, 2017)

Cho High-2014-Tgu Office-1883 ( October 10, 2015)

Application of the Principle of Prohibition of Disadvantage Change

If a subsequent disposition in accordance with the purport of the re-audit decision is more unfavorable to the claimant than the original disposition, it violates the principle of prohibition of disadvantageous change under Article 79 (2) of the Act, and the subsequent disposition exceeds the original disposition tax

Article 12-2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act

○○ High Court 2017Nu5769

○ ○

○ Head of tax office

○○ District Court 2017Guhap22372

April 20, 2018

May 18, 2018

1.The judgment of the first instance shall be modified as follows:

A. The head of ○○ Tax Office’s disposition of gift tax (including additional tax) on the column of the “final disposition tax amount” as stated in [Attachment 1] No. 1. Gift tax, which Defendant ○○ Tax Office imposed on the Plaintiff, shall revoke all of the parts exceeding the corresponding column of the “final disposition tax amount.”

B. On January 6, 2014, the part that exceeds 181,448,085 won among the disposition of imposition of inheritance tax (including additional tax) by the head of ○○○ Tax Office against the Plaintiff is revoked.

C. The plaintiff's remaining claims against the defendants are all dismissed.

2. Of the total litigation costs, 80% of the portion arising between the Plaintiff and Defendant ○○ Head of the tax office shall be borne by the Plaintiff; the remainder by Defendant ○ Head of the tax office; 90% of the portion arising between the Plaintiff and Defendant ○○ Head of the tax office; and the remainder by Defendant ○○ Head of the tax office.

1. Details of the disposition;

A. The deceased on Aug. 5, 2008 (hereinafter referred to as "the deceased") died, and the plaintiff (manam), Category BB, CCC, DoDD, and E (hereinafter referred to as "Plaintiff, etc.") who is his/her children were co-inheritors, but the inheritance tax was not reported.

B. From March 21, 2010 to May 12, 2010, Defendant 1: (a) conducted an inheritance tax investigation (hereinafter referred to as “the first investigation”); (b) determined and notified the Plaintiff, etc. of the total amount of KRW 282,136,240 (including additional taxes; hereinafter the same shall apply); and (c) on August 17, 2010, attached Table 1 of the tax calculation table. (b) determined and notified the aggregate of KRW 44,254,800 on each gift tax (including additional taxes; hereinafter the same shall apply) indicated in the “tax notice” column.

C. After that, among the successors, the lawsuit filed against the Plaintiff, CategoryCC, and CategoryD (○○ District Court 2009Dahap91688, ○○ High Court 201Na5500, hereinafter “instant lawsuit on the legal reserve of inheritance”) was concluded on December 12, 2012 by the ○ High Court.

D. Defendant ○○○○○○ Head of the tax office, based on the audit data of the National Tax Service that reflected the outcome of the instant lawsuit, confirmed that the Plaintiff, etc. omitted filing a return on donated property, etc., based on the result of conducting the inheritance tax investigation again from August 19, 2013 to September 27, 2013 (hereinafter “the second investigation”).

E. Accordingly, on January 6, 2014, the head of the ○○○○ Tax Office notified the Plaintiff, etc. of KRW 598,722,890 of the inheritance tax, and notified the Plaintiff, etc. of the tax amount of KRW 598,72,890 of the inheritance tax, and notified the Plaintiff, etc. of the tax amount of KRW 1,22,890 of the tax amount of the inheritance tax in attached Form 1, 2, and 3, of the increase or decrease table by heir.

F. In addition, on January 6, 2014, the head of the ○○○ Tax Office notified the Plaintiff of the assessment data of gift tax on each prior gift property. Accordingly, the head of the ○○ Tax Office notified the Plaintiff of the assessment data of gift tax on January 6, 2014. As indicated in the column of the “amount of tax notified” in attached Table 1(A). The head of the ○○ Tax Office notified the Plaintiff of the correction and notification of the total amount of KRW 529,480,620 (hereinafter referred to as the “disposition for the correction of gift tax as of January 6, 2014”).

G. On January 6, 2014, the Plaintiff filed an appeal against the instant disposition of inheritance tax and the disposition of correcting gift tax as of January 6, 2014, and filed an appeal with the Tax Tribunal. On February 10, 2015, the Tax Tribunal rendered a re-audit decision to the effect that, on the basis of the details of financial transactions presented by the Plaintiff, cash and real estate, etc. subject to the instant disposition of assessment fall under the Plaintiff’s donated property, and on the basis of documentary evidence, such as the details of financial transactions presented by the Plaintiff, specifications of the deceased, etc., re-audit decision to the effect that “the tax base and the amount of tax are corrected according to the results of re-audit” (hereinafter referred to as “instant re-audit decision”). The detailed property details that ordered re

Property corresponding to the decision to conduct an investigation of succession

1 ○○○○○○○○○○-dong 233-3 Large ○○○2 ○○ apartment 208 Dong 106, 106 (hereinafter referred to as “1 donated property”).

200 million won (hereinafter referred to as "second donated property") in which ○○○○ Dong-dong 1 received a donation of 1-8 large 327 square meters (hereinafter referred to as " ○○ Dong-dong land") and paid the debt with the share of expenses (hereinafter referred to as "second donated property").

30 ○○ Dong-dong ○○○-dong ○4-20 280 square meters (hereinafter referred to as “third donated property”).

Of the cash amounting to KRW 1 billion received by selling 3,684,483,00 from ○○○-dong, ○○○-dong, and 70-4 and 15 lots of land (hereinafter referred to as “○○-dong land”) to 3,684,483,00 won for the development of ○○ Industrial Development Co., Ltd. (hereinafter referred to as “○○ Industrial Development”), ○○-dong, ○○-dong, ○○-dong, and KRW 500 million remaining after returning to the deceased (hereinafter referred to as “4 donated property”).

Category 5: 93,219,770 won paid in lieu of inheritance tax

6. 5,630,000 won paid out of the deceased’s funds in connection with the injury case between the 6.330,000 won

7 Deposit of KRW 150,000,000 deposited in the account in the name of the plaintiff

Cash paid on or around April 30, 8203 KRW 280,000,00 (hereinafter referred to as 'the fifth donated property')

H. After re-audit according to the re-audit decision of this case, the Defendants maintained the existing imposition disposition of the gift tax of this case against the Plaintiff on May 8, 2015. However, on January 6, 2014, the rectification disposition of the gift tax of this case as of January 1, 2014 as of January 6, 2014 as of "attached Table 1". The amount of tax to be increased or decreased as of May 8, 2015 (hereinafter referred to as "assessment disposition of gift tax as of May 8, 2015"), and "in addition to the correction disposition of the gift tax as of January 6, 2014, the imposition disposition of each of the gift tax of this case" is referred to as "the imposition disposition of each of the gift tax of this case." The final amount of the gift tax according to the imposition disposition of each of the gift tax of this case is equal to the amount in each corresponding column of "the final amount of tax to be disposed" (556,81,230 won).

[Ground of recognition] Unsatisfy, Gap evidence 1 through 6 (including a provisional number; hereinafter the same shall apply), Eul

Each entry of evidence of subparagraphs 1 through 9 and the purport of the whole pleadings

2. Whether the imposition of gift tax of this case and the imposition of inheritance tax of this case are legitimate

A. The plaintiff's assertion

1) In the imposition of each gift tax of this case, the illegality common to the portion increased and corrected on May 8, 2015 (attached Form 1 1 'A.' No. 1, 2, 3, 5, 6, 11 among the 'Gift 1's "Gift 1's "Gift 1's "Gift 1')" (section 1).

Each disposition of gift tax in this case, which was revised on May 8, 2015, is against the principle of prohibition of disadvantageous change under Article 79(2) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same) and thus, is unlawful.

2) The illegality of the instant disposition of imposing inheritance tax on donated property and the disposition of correcting gift tax on January 6, 2014 (Chapter 2)

The Plaintiff purchased the first donation property on its own with the property gathered while serving as a doctor since 1979, and even if not, according to the result of reinvestigation after the reexamination of this case, the donor of the first donation property is not the deceased but the Plaintiff’s mother. Thus, the Plaintiff’s imposition of inheritance tax on the premise that the Plaintiff received the donation of the first donation property from the deceased and the disposition to rectify the gift tax on January 6, 2014 is unlawful.

3) The instant disposition of imposing inheritance tax on donated property No. 2 and the disposition of correcting gift tax on January 6, 2014

illegality of section 3 (section 3)

On April 10, 2003, the deceased, at the time of donation of ○○-dong land to the Plaintiff, on condition that ○○-dong land was repaid by the Plaintiff, and thereafter, all of the Plaintiff’s loans were repaid in the amount of money. Therefore, since the above loan obligation is a debt secured by the pertinent donated property and constitutes a donee’s acquisition amount, it should be deducted from the taxable amount of gift tax. Even if the Plaintiff did not repay the above obligation, the Plaintiff paid a loan to the ○-dong bank on behalf of KRW 100 million (a loan other than KRW 100 million which was set up on the ○-dong land as collateral) on the deceased’s other real estate (the ○○-dong land as collateral) at the time of donation. Accordingly, it was identical to the repayment of the above loan on the ○○-dong land as collateral. Accordingly, the Plaintiff received a monetary transfer from the deceased, all of which were assumed to have been donated. The disposition of imposition of gift tax and disposition on January 16, 2014 of this case was unlawful.

4) The instant disposition of imposing inheritance tax on donated property No. 3 and the disposition of correcting gift tax on January 6, 2014

the illegality of section 4 (section 4)

The Plaintiff purchased KRW 80 million from the development of ○ Industry around April 2003, and completed the registration of ownership transfer in the name of the Plaintiff. Therefore, the instant disposition imposing inheritance tax on the premise that the Plaintiff received the third donated property from the Deceased, and disposition to rectify the gift tax on January 6, 2014, is unlawful.

5) The illegality of the imposition of the instant inheritance tax and gift tax on donated property(Chapter 5)

The Deceased sold ○○○ Industrial Development and charged the Plaintiff with KRW 1 billion out of the purchase price received. On April 8, 2004, the Plaintiff returned KRW 500 million to the account of the Deceased’s ○○ Bank. Of the remaining KRW 500 million, the Plaintiff disbursed KRW 396,07,941 on behalf of the Deceased from March 2004 to February 2008, and again returned KRW 100 million to the Deceased. Accordingly, the instant inheritance tax and gift tax are unlawful on the premise that the Plaintiff received a donation of KRW 348,989,590 from the Deceased’s 4 donated property.

6) The instant disposition of imposing inheritance tax on donated property No. 5 and the disposition of revising the gift tax on January 6, 2014

the illegality of section 6 (section 6)

A) Around April 2003, the Deceased divided the amount of KRW 1.4 billion, which is part of the purchase price of ○○dong’s land, into equal amounts of KRW 280 million for the Plaintiff, the heir, etc. Of these, the Plaintiff and the Plaintiff’s wife collected KRW 275 million for six occasions from February 28, 2003 to March 25, 2006, and the Plaintiff reported and paid gift tax for each gift tax at the time of each gift. Accordingly, the instant disposition imposing gift tax on the premise that the Plaintiff received gift of KRW 50 million from the Deceased and the disposition revising gift tax on January 6, 2014, which is unlawful.

B) In addition, even though the Tax Tribunal ordered the head of the tax office ○○○ to review whether the donated property 5 was donated property by conducting a specific financial investigation, etc. in the instant reinvestigation, Defendant ○○ Tax Office maintained each taxation according to the first instance judgment of the instant lawsuit without conducting any financial investigation. The instant disposition imposing inheritance tax and the disposition revising gift tax on January 6, 2014, in violation of Article 80 of the former Framework Act on National Taxes, were unlawful.

7) The assertion that the prohibition of duplicate tax audits violates the principle (section 7).

The head of ○○○ Tax Office conducted the first investigation in around 2010, and issued a disposition of inheritance tax and gift tax as of August 17, 2010 to the Plaintiff, etc. The head of ○○○ Tax Office subsequently conducted the second investigation in around 2013 according to the audit data of the National Tax Service reflecting the outcome of the instant lawsuit on the legal reserve of inheritance. After doing so, the instant disposition of inheritance tax and the disposition of revising gift tax as of January 6, 2014 was conducted based on the outcome of the instant legal reserve of inheritance. Accordingly, the instant disposition of inheritance tax and the disposition of correcting gift tax of this case are based on a double tax investigation and thus ought to be revoked.

B. Relevant statutes

Attached 2 is as shown in the "related Acts and subordinate statutes".

(c) Fact of recognition;

Matters to be mediated

1. The Plaintiff (the Defendant of the instant case) shall be paid KRW 200 million to the Category B by December 31, 2012 (including the principal and interest of the deposit money of KRW 6048,00,000,000,000,000) and, if so, the unpaid amount shall be paid in addition to the delay damages calculated at the rate of 20% per annum from January 1, 2013 to the date of full payment (Provided, That the foregoing deposit shall be deemed to have been repaid by the Plaintiff to the Chapter B).

2. Chapter BB shall, at the same time with payment of the amount set forth in paragraph 1 from the Plaintiff, withdraw each application for a provisional injunction against real estate in ○○ District Court 2010Kahap262, No. 2010Kahap263, and cancel its enforcement.

3. Chapter BB shall waive the remainder of the claims.

4. The total costs and expenses for conciliation shall be borne by each person.

1) The first instance judgment of the lawsuit of this case (○○ District Court Decision 2009Gahap9168, August 9, 201) dismissed the main claim (the plaintiff in this case) of Chapter BB (the plaintiff in this case) and rendered a judgment that "the plaintiff (the defendant in this case) shall pay the plaintiff 141,362,506 won (the plaintiff in this case) and damages for delay." The reason for the judgment was that "the plaintiff donated the land in ○○-dong and the land in 1,3 donated to the plaintiff before the deceased's birth, and donated the plaintiff 280,000,000 won each to the plaintiff around April 2003 (the above judgment of the court below hereinafter referred to as "the legal reserve of this case").

2) Chapter BB and the Plaintiff were ○ High Court 201Na5500 against the judgment on the legal reserve of inheritance of this case

On December 12, 2012, the court of appeal filed an appeal, and the following mediation was concluded (hereinafter referred to as the "mediation of this case").

3) Defendant ○○○ Head of the tax office’s disposition of gift tax on May 8, 2015, after the re-examination of the instant case was decided.

The specific reasons for the correction of the increased portion in the division (hereinafter referred to as "each increase or decrease disposition") are as follows (Provided, That "net" is the sequence listed in the "net" column of "tax calculation table" in attached Form 1 (A).

Reasons for the correction of the increased amount

According to the sales contract of December 5, 2013, which is attached to the report of capital gains tax on donated property No. 15,160,000 on January 5, 2014, the purchaser is confirmed to be KRW 124,000,000, since the Plaintiff’s mother-care pay, the purchase price is confirmed to be the actual transaction price.

25,129,160 former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") Article 47 (2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1

31,132,790 of Inheritance Tax and Gift Tax Act (amended by Act No. 47 (2) of 31,132,790)

545,000,000 Loans under the deceased’s name as collateral on the land of ○○dong in fact by the Plaintiff

The Plaintiff’s obligation is the Plaintiff’s debt that he used and profited from, and paid by the Deceased under his name, and thus, the amount of the above loan or its repayment should be added to KRW 100 million in addition to the land of ○○ Dong as additional donated property.

647,038,750 3 donated property was attached to the report of capital gains tax on January 2014.

According to the summary, the actual purchase price of the above real estate is not KRW 80 million, but KRW 100 million.

Since it is confirmed that it is KRW 80 million, the difference of KRW 100 million is added to the gift value.

112,58,00 of the Inheritance Tax and Gift Tax Act (amended by Act No. 47 (2) of the former Inheritance Tax and Gift Tax Act)

[Ground of recognition] Facts without dispute, Gap evidence 3, Eul evidence 12, 13, Eul evidence 6, the purport of the whole pleadings

D. Determination

The reasons for this part are as follows: (a) the provisions pertaining to the calculation of due tax amount under the Chapter 3, which differs from the judgment of the first instance court; and (b) the provisions pertaining to the calculation of due tax amount under the Chapter 7, which differs from the judgment of the first instance court; and (c) the corresponding parts of the judgment of the first instance court (Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, are the same with the corresponding parts of the judgment of the first instance court (Article 9, 1, 1

○ From 11th to 15th of the decision of the first instance court shall be amended in accordance with the following subparagraphs:

3) Determination as to the third proposal

A) Relevant legal principles

Article 47 of the former Inheritance Tax and Gift Tax Act provides that the gift tax amount shall be the amount calculated by subtracting the amount which the donee takes over from the aggregate amount of the donated property as of the date of donation the donee takes over as a debt secured by the donated property (paragraph (1)). In applying this provision, with respect to onerous donation between spouse or between lineal ascendants and descendants, the amount of the relevant debt shall be presumed not to have taken over by the donee (paragraph (3)). In general, in a case where a donee receives a gift from a lineal ascendant of a real estate created by a collateral security in the name of a third party, it shall not be deemed that the donee takes over immediately a debt secured by the collateral security, i.e., a debt which the donee has been deducted from the value of the donated property, and in such a case, the donee bears the burden of proving that the donee took over a debt secured by the collateral security, or that the donee performed a debt by his/her own transfer (see, e.g., Supreme Court Decision 2002Du950, Oct.

B) the facts of recognition

(1) On February 26, 2003, the Deceased obtained two loans from the ○ Bank (○○ Business Department) as follows (hereinafter referred to as “first loan,” and “second loan”). With respect to each secured real estate (first loan: ○○○-dong land, second loan: ○○-dong land: 9-6m26m2, and building on its ground) from ○○ Bank, the Deceased completed the registration of creation of a neighboring mortgage with the debtor’s and the maximum debt amount of KRW 125 million. The interest on the first loan secured on the land of ○○○-dong was withdrawn and paid from the account of ○○ Bank (Account number ○○4-41-000,93-3) of the Deceased on a monthly basis.

List of votes

(2) The Deceased and the Plaintiff repaid the loans Nos. 1 and 2 from August 2003 to February 2004, respectively, as follows. The registration of the establishment of a neighboring mortgage on each of the secured real estate was cancelled on February 11, 2004.

(3) Of the instant re-audit decision ordered by the Tax Tribunal to conduct a re-audit, the part concerning ○○ Dong land is on the ground that the Plaintiff’s “donation contract” (the Plaintiff’s assertion that it was drafted at the time of donation of ○○ Dong land to the Plaintiff on April 10, 2003) states that KRW 125 million is borne by the donee (the Plaintiff) with respect to ○○ Dong land registered as the receipt No. 7589 on February 13, 2003. Since ○○dong land was paid KRW 100 million from the deceased’s account in addition to the materials repaid as KRW 100 million from the deceased’s account, it is on the ground that a re-examination is necessary on whether the portion of ○○dong land secured by ○○dong land constitutes a prior donation.

(4) On April 10, 2003, the Deceased donated ○○○○○-dong 1, a collateral real estate related to loans 2 to GG (the son of the Plaintiff’s son) and the building on the ground thereof.

(5) On the other hand, “written statement prepared by the Plaintiff on January 15, 2005” includes the content that “the deceased donated ○○○○○ Dong 1 on April 10, 2003 land and buildings on which 9-6 land and buildings were donated to GG on April 10, 2003, and at the same time, the Plaintiff did not donate the second loan to the burden of the military personnel in consideration of the fact that there was no import as the military personnel at that time.”

[Ground of recognition] A without dispute, Gap's evidence Nos. 2, 6, 7, 19 through 22, Eul's evidence No. 29, the result of the first instance court's financial transaction information reply to ○ Bank (Order of Sale Business), the purport of the whole pleadings

C) Determination

(1) Whether the Plaintiff has repaid the first loan obligation upon the Plaintiff’s acceptance

As above, as long as the borrower of the first loan on the land of ○○○-dong is the deceased, and all of its interest and principal have been repaid with the money withdrawn from the deceased’s account (Account Number 04-○-0000093-3), the first loan shall be deemed to have been repaid by the deceased as the deceased’s obligation. However, the Plaintiff submitted the donation contract (which is written as a donation with assumption of obligation) on April 10, 2003 in the name of the deceased, and the results of the first instance financial transaction report on the ○○ Bank (○○○ Business Department) in the first instance, including “the deceased and the Plaintiff requested the Plaintiff to withdraw the second loan from the Plaintiff’s account, but the employee in charge appears to have withdrawn the first loan from the deceased’s account instead of the Plaintiff, by mistake, even though he requested the Plaintiff to repay the second loan from the deceased’s account.”

However, in light of the above circumstances, it is difficult to view that there was an error in the subject of repayment since the relationship between the deceased and the Plaintiff, the process of repayment of the first loan, and the date on which the repayment of the first loan and the second loan was withdrawn from the deceased’s account and the Plaintiff’s account, etc., it is insufficient to recognize that the contents of the above donation contract or the results of the financial transaction information meeting as mentioned above are difficult to believe as they are, and only the descriptions of the evidence Nos. 1 and 23 submitted by the Plaintiff are insufficient to recognize that “the Plaintiff exempted the first loan obligations and paid them in his own money.”

(2) Whether the transfer of ○○ Dong land can be recognized as the repayment content of 2 loans.

As seen earlier, the deceased’s secondary loan obligation was repaid with the money withdrawn from the Plaintiff’s account. However, in light of the following circumstances: (a) the same person’s two loans cannot be deemed identical solely on the ground that the same person received two loans from the same bank; (b) the first loan and the second loan are separate real estate; (c) the real estate was donated to different persons; and (d) the repayment was withdrawn from another person’s account; and (c) the second loan was given to the Plaintiff, not from ○○ Dong-dong land; and (d) the real estate (○○○○○○ Dong-dong and 9-6 land and buildings on its ground) donated to GaG-dong (the deceased’s grandchildren); and (e) it should be reflected in the process of calculating the gift tax on the real estate; and (e) it is difficult to deem that the aforementioned recognition fact or the circumstances asserted by the Plaintiff constitutes a “payment or transfer of the loan and the payment for consideration for the loan.”

(3) Sub-determination

Therefore, under the premise that ○○○ Dong's secured debt amounting to KRW 100 million should be deducted from the gift amount under the premise that ○○○ Dong's secured debt amount was acquired and repaid by her own, the third chapter of the plaintiff is without merit.

○ It is necessary to add the judgment of the first instance court on the following arguments between the 20th sentence and the 7th sentence.

7) Determination as to Section 7

A) Relevant legal principles

Article 81-4 (1) of the former Framework Act on National Taxes provides that "tax officials shall conduct a tax investigation to the minimum extent necessary for proper and fair taxation, and shall not abuse their authority to investigate for any other purpose, etc." and Paragraph (2) of the same Article provides that "tax officials shall not conduct re-investigation into the same item of tax and the same taxable period unless there is clear evidence to acknowledge a suspicion of tax evasion (where there is any evidence to prove a suspicion of tax evasion) or other cases similar to subparagraphs 1 through 4 (where it falls under any of subparagraphs 1 through 4) prescribed by Presidential Decree (where it is similar to subparagraph 5), etc., other cases prescribed by Presidential Decree." In light of the aforementioned provisions and the purport thereof, "where there is clear evidence to acknowledge a suspicion of tax evasion" under Article 81-4 (2) of the former Framework Act on National Taxes, means cases where the possibility and rationality of the fact of tax evasion is recognized to a considerable extent (see, e.g., Supreme Court Decision 2010Du19294, Nov. 29, 20).

B) Determination

① After the head of ○○○○○ Tax Office conducted the first investigation on August 17, 2010, imposed inheritance tax and gift tax as of August 17, 2010; ② thereafter, the head of ○○○ Tax Office rendered a judgment of winning part of BB on August 9, 201, as to the gift tax Nos. 1 through 4, 6, 8, 10, and 12 in the process of the lawsuit on legal reserve of inheritance; ③ Defendant ○○○ Tax Office conducted the second investigation on the basis of the audit data on the outcome of the lawsuit on legal reserve of inheritance notified by the National Tax Service; ② Defendant 1 presented the first investigation on the inheritance tax of this case and revised the gift tax of January 6, 2014; ⑤ Plaintiff 1’s testimony and testimony of this case to the Plaintiff during the first investigation on the legal reserve of inheritance No. 18, 225, 29, 31, and 32 as evidence; and ④ Plaintiff 1’s testimony and testimony of this case No. 5 BB.

Examining these facts in light of the legal principles as seen earlier, inasmuch as only some inheritance and donated property were confirmed at the time of the first investigation, and each of the instant donations and inherited property was not revealed, and thereafter, the heir was punished by the instant lawsuit, and more inheritance and donated property were disclosed during the relevant litigation process. Since the National Tax Service secured litigation data, such as judgment, and notified the head of the competent tax office of the audit data reflecting this fact, it is reasonable to deem that the second investigation was commenced on the basis of the probability of tax evasion based on the objective and rationality data. Thus, it is reasonable to deem that the second investigation was conducted on the basis of the objective and rationality of the fact of tax evasion. Thus, it constitutes an exceptional re-investigation permitted under Article

Therefore, since the defendant's assertion pointing this out is well-grounded, the letter of Chapter 7 of the first plaintiff cannot be accepted on a different premise.

○ From 20 pages 7 to 21 of the judgment of the first instance court shall be amended as follows.

8) Calculation of a reasonable amount of tax

As above, since the portion of each increase in the imposition of gift tax in this case is unlawful, it is identical to the corresponding column of the No. 1'Calculation Table of the No. 1'.'A. Among the gift tax, the Plaintiff's amount of gift tax in this case is 573,735,420 won in total by the initial imposition of gift tax (=4,254,800 won in total as of August 17, 2010 + 529,480 won in total by the imposition of gift tax in each of the imposition of gift tax as of January 6, 2014). Accordingly, it is unlawful on the premise that the above 8's imposition of gift tax in this case exceeds 1'B. 8's imposition of gift tax in each of the imposition of gift tax in this case, 2's imposition of gift tax in each of the above No. 8'D 2's imposition of gift tax in each of the above "No. 400's final imposition of gift tax".

3. Conclusion

Thus, the plaintiff's claim of this case against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, it is so decided as per Disposition 1. It is so decided as per Disposition.

2

Relevant statutes

(1) The former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010)

Article 14 (Real Taxation)

(1) If the ownership of the income, profit, property, act or transaction subject to taxation is nominal and a third person to whom it belongs exists, the tax-related Acts shall apply to such person to whom it actually belongs as a taxpayer.

(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall apply to the actual income, profit, property, act or transaction, regardless of its title or form.

(3) Where it is recognized that benefits provided for in this Act or other tax-related Acts are obtained unfairly by means of indirect means via a third party or through two or more acts or transactions, this Act or other tax-related Acts shall apply, deeming that the relevant party has made a direct transaction or has engaged in a single act or transaction consecutively in accordance with the economic substance thereof.

Article 21 (Establishment Date of Liability for Tax Payment)

(1) A liability to pay national taxes shall accrue at the following times:

1. For income tax or corporate tax, when the taxable period is terminated: Provided, That for the corporate tax on the liquidation income, when the concerned corporation dissolves (including dissolution due to a division or merger by division) or merges;

2. For inheritance tax, when inheritance begins;

3. For a gift tax, when property is acquired by the gift;

Article 65 (Decisions)

(1) Decisions on a request for examination shall be made pursuant to the following subparagraphs:

3. When a request for examination is deemed reasonable, a decision to revoke or correct the disposition against which the request is made, or a decision on necessary disposition shall be made: Provided, That where additional investigation is necessary, such as the confirmation of facts, to revoke or correct the disposition against which the request is made, or take necessary disposition, a decision on re-investigation may be made to have the disposition agency conduct re-investigation and to make

(5) Where a decision on reinvestigation is made pursuant to the proviso to paragraph (1) 3, the disposition agency shall investigate within 60 days from the date the reinvestigation is determined, and cancel, correct or take necessary measures according to the results thereof. In such cases, the disposition agency may postpone the investigation, extend or suspend the investigation period pursuant to Articles 81-7 and 81-8.

§ 79. Prohibition of Unfair Dismissals and Change of Disadvantages

(2) In making a decision under Article 65 applicable mutatis mutandis under Article 81, the Council of Tax Judges or the Joint Session of Tax Judges shall not make a decision more disadvantageous to the claimant than the request for adjudgment

Article 80 (Effect of Decision)

① 제81조에서 준용하는 제65조에 따른 결정은 관계 행정청을 기속(羈)한다.

(2) When a decision is made on a request for adjudgment, the relevant administrative agency shall take necessary measures without delay according to the purport of the decision.

Article 81 (Mutatis Mutandis Application of Provisions Governing Requests for Examination)

Articles 61 (3) and (4), 63, 65 and 65-2 shall apply mutatis mutandis to any request for adjudgment.

(c) Provided, That the period within twenty days in Article 63 (1) shall be a considerable period;

Article 81-4 (Prohibition of Abuse of Right of Tax Investigation)

(1) Any tax official shall conduct tax investigation within the minimum limit necessary for proper and fair taxation and shall not abuse the right of tax investigation for any other purpose.

(2) Tax officials may not conduct reinvestigation for the same items of taxation and for the same taxable period, except in any of the following cases:

1. Where obvious evidence exists that prove a suspicion of tax evasion;

2. Where it is necessary to investigate a trading partner;

3. Where mistakes relating to two or more business years exist;

4. Where an investigation is conducted following the decision on necessary disposition pursuant to Article 65 (1) 3 (including cases applied mutatis mutandis in Articles 66 (6) and 81);

5. Other cases similar to subparagraphs 1 through 4, which are prescribed by Presidential Decree.

Administration The former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010)

Article 3 (Liability for Inheritance Tax Payment)

(1) With respect to inheritance tax imposed pursuant to this Act, an heir (referring to the heir under Articles 1000, 101, 1003 and 1004 of the Civil Act, and including a person who renounces inheritance under Article 1019 (1) of the same Act and a special relative under Article 1057-2 of the same Act; hereinafter the same shall apply) or a person to whom a testamentary gift is made (including a person who acquires property by donation becoming effective due to the death; hereinafter the same shall apply) shall have an obligation to pay inheritance tax according to the rate calculated, as prescribed by the Presidential Decree, based on the property received or to be received by each heir among inherited property: Provided, That where a special relative or testamentary donee is a profit-making corporation, the profit-making

(3) The inherited property under the provisions of paragraph (1) shall include the donated property the heir or testamentary donee has received from among the donated property added to the inherited property under the provisions of Article 13.

(4) Inheritance tax under the provisions of paragraph (1) shall be jointly and severally liable to pay within the limit of property received or to be received by each heir or testamentary donee.

Article 4 (Gift Tax Liability)

(1) A donee shall be liable to pay gift tax pursuant to this Act: Provided, That where the donee is a profit-making corporation, the gift tax payable by the profit-making corporation concerned shall be exempted, but where the profit-making corporation, the title holder of the gift tax under Article 45-2, is exempted from paying the gift tax, the actual owner (excluding profit

Article 13 (Taxable Value for Inheritance Taxes)

(1) The taxable amount for calculating the inheritance taxes shall be the amount obtained by adding the amounts of property falling under each of the following subparagraphs, after deducting the amounts under the provisions of Article 14 from

1. The value of property donated by an ancestor to his/her heir within ten years before the commencement date;

2. The value of property donated by an ancestor to a person other than his/her heir within five years before commencing the inheritance.

Article 46 (Non-Taxable Gift Property)

No gift tax shall be imposed on any of the following amounts:

5. Socially recognized disaster relief funds and goods, medical expenses, dependents' living expenses and educational expenses or others similar thereto as prescribed by the Presidential Decree;

Article 47 (Taxable Amount of Gift Tax)

(1) The taxable amount of gift taxes shall be the total amount of the donated property under the provisions of this Act as of the date of donation [excluding the value of the donated property under the provisions of Articles 40 (1) 2, 41-3, 41-5, and 42 (4) (hereinafter referred to as the " donated property excluding any summing-up] minus the amount of debts secured by the donated property (including debts prescribed by the Presidential Decree, such as debts related to the donated property), which

(2) Where, within ten years prior to the date of donation concerned, the aggregate of the value of donated property received from the same person (where the donor is a lineal ascendant, including the spouse of such lineal ascendant) is not less than ten million won, such value shall be added to the taxable amount of gift taxes: Provided, That

(3) In the application of the provisions of paragraph (1), with respect to an onerous donation between spouse, or between lineal ascendants and descendants (including the cases presumed to be a donation under Article 44), even if the donee takes over the obligation of the donor, the donee concerned shall be presumed not to have taken over the obligation of the donee: Provided, That this shall not apply in case the amount of the obligation concerned is objectively recognized under the conditions as prescribed by

(1) The former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 25201, Feb. 21, 2014)

Article 63-2 (Prohibition on Overlapping Investigation)

"Cases prescribed by Presidential Decree" in Article 81-4 (2) 5 of the Act means any of the following cases:

1. If a general investigation is undertaken against a person suspected of disturbing the economic order through speculative investment in real estate, hoarding and hoarding, undertaking transactions without authentic documentation, etc., leading to evasion of taxes;

2. Where a reinvestigation for the handling of all kinds of assessment data, or a confirmation investigation for determination of the national tax refund is conducted;

3. and 3. Deleted;

(1) Enforcement Decree of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010)

Article 10 (Methods, etc. of Verifying Obligations)

(1) The term “those proved by the method as prescribed by the Presidential Decree” in Article 14 (4) of the Act means those proved by one of the following subparagraphs, as debts of the inheritee at the time of the commencement of inheritance:

1. Documents confirming that debts owed to the State, local governments and financial institutions are debts owed to such institutions;

2. Debt obligations to persons other than those under subparagraph 1 shall be confirmed by a contract for debt-sharing, documents evidencing a creditor, documents evidencing the establishment of collateral and the payment of interest, etc.

(2) Financial institutions referred to in paragraph (1) 1 and Article 15 (2) of the Act mean financial institutions referred to in subparagraph 1 of Article 2 of the Act on Real Name Financial Transactions and Confidentiality.

Article 35 (Scope, etc. of Non-Taxable Property)

(4) The term “those as prescribed by the Presidential Decree” in subparagraph 5 of Article 46 of the Act means those falling under any of the following subparagraphs, and directly paid for the original purpose:

1. Deleted;

2. School expenses, scholarships, or other similar money and valuables;

3. Commemorative gifts, congratulatory money and other similar money and valuables deemed necessary for ordinary purposes;

4. Mixed goods deemed to be ordinarily necessary.

5. Goods which are donated by other persons and brought in to Korea from a foreign country, and whose dutiable value is less than 1 million won;

6. Of the subsidies for house acquisition donated by the intra-company labor welfare fund under subparagraph 4 of Article 46 of the Act to a homeless worker to acquire or rent a house (including the land appurtenant to the house, not exceeding five times the total floor area of the building) the total floor area of which is not more than 85 square meters, not more than 5/100 of the acquisition value of the house and not more than 10/100 of the lease value of the housing rent subsidies; and

7. Money and other valuables donated through the press to aid the needy.

Article 36 (Liability Deducted from Taxable Amount of Gift Tax)

(1) The term “liability prescribed by the Presidential Decree” in Article 47 (1) of the Act means the relevant rental deposit in case where a donor leases the relevant property to another person.

(2) The term “in the event that it is objectively recognized under the conditions as prescribed by the Presidential Decree” in the proviso of Article 47 (3) of the Act means the case that is proved under one of the subparagraphs of Article 10

director Regulations on the Management of National Tax Trials (Ordinance of the National Tax Service No. 1805, January 1, 2010),

Article 26 (Delivery and Handling of Written Decision)

(6) Where a notice of re-audit of a disposition subject to an application for adjudication is notified, the director in charge of the investigation affairs of the relevant tax item (the director in charge of the disposition in cases where the disposition subject to an application for adjudication is not a tax disposition) shall determine the re-audit within 30 days from the date of receipt of notice of the re-audit and make a necessary disposition according to the results of re-audit, and notify the applicant of the result of the changed disposition by

(7) In cases falling under paragraph (6), if there is another investigative agency falling under Article 15 (1), the head of the competent tax office (including the commissioner of the competent regional tax office) shall take charge of reinvestigation, but the initial investigator shall not take charge of reinvestigation, and the scope of reinvestigation shall be limited to the parts stated in the text of