Seoul Administrative Court-2016-Gu Partnership-767 ( October 10, 2017)

Property transferred to a lineal ascendant or descendant is presumed to have been donated.

어머니로부터 이 사건 아파트를 대가를 지급하고 매수하였음을 인정할 증거가 없고, 허위로 양도계약서를 작성하고 뺑뺑이 거래를 하였으므로 부정행위 가산세를 부과함은 적법함

Article 44 of the former Inheritance Tax and Gift Tax Act (Presumption of Donation of Property Transferred to Spouse, etc.)

2017Nu4151 Revocation of Disposition of Imposition of Gift Tax

***

o Head of the Oral Tax Office

July 19, 2017

August 16, 2017

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant's disposition of imposition of gift tax****,**,***,** and additional tax***,*,******.

1. Quotation of judgment of the first instance;

This court's reasoning is as follows: (a) add "Additional Part of the relevant Acts and subordinate statutes" to the corresponding part of the relevant Acts and subordinate statutes of the court of first instance (section 7); and (b) add the judgment that the plaintiff emphasizes in this court as to the assertion that the plaintiff emphasizes in this court is identical to that of the court of first instance; and (c) therefore, (d) refer to Article 8(2

2. Additional determination

A. The plaintiff's assertion

① The Plaintiff did not receive a donation as to the purchase of the instant apartment.

(2) The Defendant already received capital gains tax of KRW******,**,*** even though it had been paid capital gains tax of KRW *****,****,*** imposition of gift tax of KRW * is excessively harsh to the Plaintiff and thus contravenes the principle of proportionality.

③ Since the Plaintiff did not have any intention to file a fraudulent report, such as tax evasion, the portion of the penalty tax on non-declaration of origin is unlawful.

B. Determination

(1) Whether the apartment of this case was donated

In light of the circumstances described in Article 2-3(1) through (4) of the judgment of the court of first instance, it is reasonable to view that the Plaintiff was given a gift not by purchasing the apartment of this case from cC but by purchasing the apartment of this case, in light of the aforementioned evidence and the purport of the entire pleadings.

① The Plaintiff asserted in the first instance trial that, unlike the contents expressed as the source of the instant apartment acquisition fund at the tax trial stage, the Plaintiff transferred the instant apartment as a means of living expenses to his family members in lieu of the payment of the purchase price. In other words, this court changed the Plaintiff’s assertion that the Plaintiff was transferred the instant apartment from cc to c in lieu of the return of the money voluntarily withdrawn and used by the Plaintiff’s family members from the Plaintiff’s bank account, keeping the American income earned as an American attorney-at-law in cash in Korea, and the disposal

② First of all, the Plaintiff’s assertion as to the source of purchase fund is reversed several times and inconsistent. Furthermore, this part of the Plaintiff’s assertion is difficult in view of the following: (a) the Plaintiff’s argument that the Plaintiff finally arranged in this court was brought in in cash at the time of entry into Korea; (b) there is no evidence to deem that the Plaintiff had been staying in Korea at all times on the deposit date of the Plaintiff’s bank account deposit date; (c) rather, there is room to believe that the Plaintiff would have been staying in Korea on that date; (d) the Plaintiff’s use of large amounts of funds as a legal expert must be supported by objective data; and (e) there is a need to prepare data; and (e) there is more difficulty and risk in receiving cash; and (e) it is relatively difficult to understand this part of the Plaintiff’s assertion. Furthermore, even if the Plaintiff’s family members voluntarily withdrawn and used money from the Plaintiff’s bank account from 2007 to 2013, they did not grant the Plaintiff’s right to withdraw or grant his family members in the future.

(3) The plaintiff asserts that part of the purchase price*****,**,**,**,**,**,*,**,**, in total, paid in lieu of a refund bond of KRW *****,*,**, in addition to a refund bond of KRW ***,**,**, in addition to a refund bond of KRW ***,**,***, in full, after the purchase date. However, the above total amount of the purchase price********,*****, in excess of KRW ****,***, in**, in excess of KRW **, in terms of an amount of KRW **,**,***,****, in addition, there is no reason to have been paid in excess of the fixed large amount of money.

(2) Whether the principle of proportionality is violated

As seen earlier, as long as the Plaintiff donated the instant apartment, he is liable to pay the gift tax prescribed by the relevant statutes, and does not have discretionary authority over whether to exercise the right to impose a gift tax or to determine the amount of tax on the subject matter of gift tax as above. On a different premise, the Plaintiff’s assertion that the Plaintiff was a seafarer is without merit without further review.

(3) Whether the imposition of additional tax is lawful

(A) Relevant regulations and legal principles

According to Articles 26-2(1)1 and 47-2(2) of the former Framework Act on National Taxes (amended by Act No. 11873, Jun. 7, 2013) and Article 12-2(1) of the Enforcement Decree of the same Act, where a taxpayer fails to report the tax base of national tax under the tax-related Acts by the statutory due date of return due to “Fraud or other unlawful act” under each subparagraph of Article 3(6) of the Punishment of Tax Evaders Act, an amount equivalent to 40/100 of the calculated tax amount, etc. is imposed as an additional tax. Article 3(6) of the Punishment of Tax Evaders Act provides for the false entry of books, false evidence or receipt of false documents, destruction of books and records, concealment of income, profit-making, concealment or concealment of assets, intentional act or omission of a list of tax invoices or fraudulent methods, or other active act that makes it impossible or considerably difficult to impose and collect taxes as an act falling under any of the following subparagraphs:

“Fraud or other unlawful act” in the crime of evading tax under Article 3(1) and (6) of the Punishment of Tax Evaders Act refers to an act that enables the evasion of tax, i.e., a deceptive scheme or other affirmative act that makes the imposition and collection of tax impossible or considerably difficult, and thus, it does not constitute merely a mere failure to file a tax return under the tax law or making a false tax return without accompanying other acts, but it does not constitute a mere failure to file a tax return or making a false tax return without accompanying such other acts. However, it can be recognized that the imposition and collection of tax was impossible or remarkably difficult in cases where the circumstances indicate active concealment, such as a failure to file a tax return or a false tax return, and an intentional omission of income or sales, etc. in the account book, are added (see, e.g., Supreme Court Decision 2013Do13829, Feb. 21

(B) Whether the act constitutes a fraudulent act

Examining the following circumstances, based on the aforementioned evidence and the purport of the entire pleadings, in light of the legal provisions and legal principles as seen earlier, the Plaintiff’s act constitutes “Fraud or other unlawful act that significantly makes it impossible or difficult to impose and collect taxes as a means of concealment, with the intention to evade gift tax, rather than simply failing to file a report required under the tax law.” Thus, the Plaintiff’s aforementioned assertion is without merit.

① 이 사건 아파트가 원고 앞으로 소유권이전등기가 되기 직전 무렵인 2013. *. **.부터 같은 해 *. **.까지 KKK와 ccc의 계좌에서 수시로 현금이 인출되어 원고의 계좌로 입금되었다가 원고의 계좌에서 다시 ccc의 계좌로 송금되는 속칭 '뺑뺑이'거래가 이루어졌는바, 이는 매매대금의 지급 자료를 허위로 작출하기 위한 것으로 보인다.

② The Plaintiff: (a) made a false sales contract stating that the apartment was donated by CC; and (b) completed the registration of ownership transfer based on the above contract by making the grounds for registration false facts; and (c) accordingly reported and paid a false transfer income tax.

③ The Plaintiff asserts that the amount of the gift tax of this case was 1**,00,00 won and the amount of the gift tax of this case was 1***,**,000 won and the amount of the gift tax of this case was 3,000 won and so there is no reason to take such form to evade the gift tax of small amount. However, since gift tax and transfer income tax are taxes with different purposes, purport, function, effect, etc. of imposition, the intention of tax evasion should not be expressed through simple comparison of the two taxes. Furthermore, according to the above evidence, the market price of this case is *0,000 won and the amount of the gift tax of this case is *10,000,000 won and the gift tax of this case is *1,000,000 won ** the transfer value of the apartment of this case* the transfer income tax of this case*,000,000 won * the amount of the gift tax of this case * the Plaintiff's portion of the gift tax can not be argued.

3. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.