early 2007west5038 (2008.30)

false appropriation of such false appropriation shall be subject to the donation in the event of offsetting the amount of such false appropriation with the construction obligation.

The act of setting off against the obligation for the construction price to be paid to the corporation by creating false claims for provisional payments to the corporation shall be deemed to have been increased by the amount equivalent to the provisional payments.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of gift tax of KRW 1,149,71,080 for the year 2004 against the Plaintiff on July 31, 2007 and the imposition of gift tax of KRW 901,559,49 for the year 2005 is revoked.

1. Details of the disposition;

(a)The details of the Plaintiff’s property acquisition;

1) Gift tax related to the 2004 gift tax

① On September 25, 2003, the Plaintiff, a non-listed corporation, was incorporated in Doi-ri, Seoul Special Metropolitan City (hereinafter referred to as “non-listed corporation”).

다)에 서울 동대문구 ★★동 117-4 지상 ★★프라자빌딩 의 신축을 공사대금 70억 4,000만 원에 도급을 주었다.

② On December 31, 2004, the Plaintiff: (a) offseted the amount equivalent to KRW 5,893,443,209 out of the construction price payable with the claim against the non-party corporation with the claim against the non-party corporation; and (b) accounted for the amount equivalent to the same amount from the provisional deposit account of the non-party corporation as half-yearly.

(ii) gift tax related to the 2005 gift tax;

① On December 14, 2005, the Plaintiff acquired KRW 11,000 per share of KRW 306,59,000 per share (the face value shall be KRW 10,000 per share) by taking over KRW 27,869 from the total shares issued by the non-party corporation from the Kim○○○, LeeB, and Mandong on December 15, 2005 (hereinafter referred to as “Mag○○ and four others”).

② In addition, on December 29, 2005, the Plaintiff acquired 4,241,847,156 won per share of 196,72 shares issued by the non-party corporation from the △ Development Co., Ltd. (hereinafter referred to as “△ Development”).

B. Disposition by the defendant

1) Tax investigation conducted by the director of Seoul Regional Tax Office in 2007

From February 26, 2007 to May 21, 2007, the director of the Seoul Regional Tax Office conducted the consolidated investigation of personal entrepreneurs (from January 1, 2004 to December 31, 2006) and the consolidated investigation of property tax against the plaintiff (from January 1, 2002 to December 31, 2006) against the plaintiff, and notified the defendant of the result on July 3, 2007.

(ii) disposition relating to the gift tax, 2004.

The Defendant: (a) on January 1, 2003, the amount of KRW 2,108,084,652, out of KRW 5,893,443,209, set-off against the construction price for the non-party corporation, the Defendant: (b) on December 31, 2004, the Defendant: (c) on the basis that the amount of the provisional payment was initially set-off against the non-party corporation; (d) on January 1, 2003, the amount of the provisional payment was revised and accounts as the Plaintiff; and (e) on December 31, 2004, the Defendant exempted the Plaintiff from the obligation for construction price equivalent to the same amount of the provisional payment; and (e) on July 13, 2007, the Plaintiff issued a disposition of imposition of KRW 1,149,711,080 (hereinafter “instant disposition”).

3) As to the gift tax reverted to year 2005

① On July 13, 2007, the Defendant issued a gift tax of KRW 492,34,590 on the Plaintiff on July 13, 2007 (hereinafter referred to as “instant secondary disposition”) on the following grounds: (a) the Plaintiff was under title trust with respect to the said shares of KRW 4,00,00; (b) the Plaintiff was deemed to have donated the said shares to the Plaintiff via the above Kim○○○ and four other persons; and (c) the said shares were assessed as KRW 29,008 per share in accordance with the supplementary assessment method prescribed in the Inheritance Tax and Gift Tax Act.

② In addition, the Defendant received shares 196,722 shares issued by the non-party corporation at a remarkably lower price than the market price from △ Development. The Defendant assessed the market price of shares issued by the non-party corporation according to the supplementary method prescribed by the Inheritance Tax and Gift Tax Act, which is not the 11,000 shares trading price between the Plaintiff and the non-party corporation and the non-party corporation, and assessed the market price of the shares at KRW 29,008 per share in accordance with the supplementary method. On July 13, 2007, the Defendant issued a disposition imposing gift tax of KRW 409,224,90 for the Plaintiff (hereinafter “instant third disposition”).

(c)Implementation of the pre-trial procedures;

On October 11, 2007, the Plaintiff filed an appeal with the Tax Tribunal on each of the instant dispositions, but the Tax Tribunal dismissed the said appeal on June 30, 2008.

[Based on recognition] Gap evidence 1, 2, 3, Eul evidence 1, 2, 3, 6, 7, 15 (including above numbers) and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The first disposition of this case is subject to the first disposition

① The amount of KRW 2,108,084,652, which was disposed of by the Plaintiff against the claim for construction payment of the non-party corporation, was originally stated as a branchA in the provisional deposit account, but this was originally stated as the Plaintiff, but at the time of settlement of accounts in 2003, the non-party corporation discovered and corrected the number of accounts in charge of accounting.

② Even if the above provisional receipts were not the Plaintiff, since the NA revised the above amount on January 1, 2003 to the Plaintiff’s provisional receipts account, the above amount was deemed to have been donated to the Plaintiff on January 1, 2003. Since the Seoul Regional Tax Office had already investigated the Plaintiff’s provisional receipts in conducting a tax investigation on the non-party corporation in 2004, the tax investigation conducted in 2007 by the Seoul Regional Tax Office, which was the basis of the disposition No. 1 of this case, was unlawful as a reinvestigation of the above taxable period and tax items, such as the tax investigation in 204.

2) The second disposition of this case is subject to the second disposition

The shares issued by the non-party corporation, which were owned by the non-party ○○ and four other, are owned by Kim○○ and four others, and the branchA does not hold title trust with Kim○○ and four others, and Kim○○ and four others sold the shares issued by the non-party corporation to the Plaintiff at a reasonable price. As such, the purchase and sale of the shares issued by the non-party corporation to the non-party corporation cannot be deemed as a donation by the non-party 1 to

3) In accordance with the third disposition of this case,

Inasmuch as KRW 11,00 per share, which is the price of the shares issued by the non-party corporation, sold to the Plaintiff by ○○○ and 4 others, is recognized as the market price prescribed in the Inheritance Tax and Gift Tax Act, it cannot be deemed that the Plaintiff purchased the shares issued by the non-party corporation from △ Development to KRW 21,562 per share, which is the amount indicated in the △ Development’s balance sheet.

B. Determination

1) The first disposition of this case is subject to the first disposition

A) As to the reversion of 2,108,084,652 Won 2,100

(1) Facts of recognition

① At the time of the settlement of accounts for the business year 2003, the non-party corporation revised KRW 67,227,902,636 from among the 67,108,084,652 from among the 2002, which was appropriated as short-term loans for shareholders, executives, and employees of the branch of the branch of the 2002 business year as listed below, as the Plaintiff’s provisional receipts, and revised KRW 1,384,00,000 from among the 1,384,000,000 from among them to the △△△△ (the wife

② The Plaintiff’s assertion that the above amount of KRW 2,108,084,652 is indicated as follows, but the above amount of deposit is the amount of money deposited in the name of “the National Assembly member on the electronic computer table of the non-party corporation,” i.e., the amount of money deposited in the name of a branchA.

(3) The details of income accrued during the period from 1994 to 2002 by the plaintiff are as follows:

④ The details of property acquisition from around 1994 to around 2002 are as follows, and there is no asset transferred during the same period.

[Reasons for Recognition] Facts without dispute, Eul evidence 4-1, 16-22, Eul evidence 16-16, the purport of the whole pleadings.

(2) Determination

① The non-party corporation accounts for 67,227,902,636 won deposited in the year 202, i.e., the National Federation of N202, and entered it on the balance sheet of 2002 business year. The non-party corporation, even before January 1, 2003, deleted this retroactively at the time of settlement of accounts in 2003, and then revised the accounts for 2,108,084,652 won as the Plaintiff’s provisional payment without any grounds or reasons. ② The Plaintiff failed to present any supporting materials, such as financial materials, etc. regarding the particulars of 2,108,084,652 won claimed by the Plaintiff, ③ the total amount of provisional disposition income of the non-party corporation from around 1994 to 200,529,408, 208, 206, 208, 208, 206, 208, 2008.

B) Whether the tax investigation in 2007 was a reinvestigation

① 서울지방국세청은 2004. 8. 31.부터 2004. 11. 11.까지, 지AA과 지AA이 실질적으로 소유하고 있는 소외 법인 및 주식회사 ▲▲주택(변경 후 명칭 : 주식회사 ☆☆주택, 이하 '▲▲주택'이라 한다)에 대하여 조사대상기간을 2001. 1. 1.부터 2003. 12. 31.까지로 정하여, 지AA에 대하여는 소득세(부가가치세 등 소비제세, 갑근세 등 원천제세 등 포함, 2001. 2. 부가가치세 일반조사분과 2001년 종합소득세 확인조사분 제외) 관련 세목 통합 조사를, 위 각 법인에 대하여는 법인세통합조사 및 주식이동조사(부가가치세 등 소비제세, 갑근세 등 원천제세 및 주식변동조사에 다른 증여세 등 포함)를 각 실시한 사실, ② 서울지방국세청은 위와 같은 세무조사 결과 소외 법인과 ▲▲주택의 유상증자 당시 지AA이 서△△, 원고, 지▽▽, 지▼▼ 등에 대하여 증자대금을 증여한 것 등을 적발하고, 2004. 12. 7.경 지AA, 원고 등에게 이와 같은 세무조사결과를 통지한 사실은 당사자 사 이에 다툼이 없거나, 갑 4, 5, 6, 9, 11호증, 을 5호증, 을 17호증의 1,3,4의 각 기재에 변론 전체의 취지를 종합하면 이를 인정할 수 있다.

위 인정 사실에 의하면, 서울지방국세청이 2004년에 한 세무조사는 지AA, 소외 법인, ▲▲주택에 대한 소득세, 법인세, 주식이동에 관한 것으로, 설령 원고의 주장대로 서울지방국세청이 2004년 한 세무조사 당시 소외 법인의 가수금 변동에 관하여 조사를 하였다고 하더라도, 이는 소외 법인에 대한 2001년부터 2003년까지의 법인세에 관한 조사라 할 것이어서, 이 사건 제1처분과 관련하여 실시된 원고에 대한 재산제세 통합조사(조사대상 기간 2002. 1. 1.부터 2006. 12. 31.까지)와는 그 대상자, 과세기간 및 세목에 있어서 같다고 볼 수 없다{가사 서울지방국세청이 한 2007년 세무조사가 재조사에 해당한다고 하더라도, 위 가)항에서 인정한 사실관계에 따르면, 지승통은 2003. 12.경 원고에 대하여 소외 법인에 대한 허위의 가수금 채권을 만들어 주고 원고가 2004. 12. 31. 이를 소외 법인의 공사대금채권과 대등액에서 상계하여 그 가수금 상당의 금액을 취득하였다고 할 것이므로, 이러한 경우 원고가 증여재산인 위 가수금 상당의 금액을 취득하는 시기는 상속세 및 증여세법 시행령 제23조 제1항 제3호(권리의 이전이나 그 행사에 등기ㆍ등록을 요하는 재산과 건물 이외의 재산의 취득시기는 인도한 날 또는 사실상의 사용일)에 따라 원고가 상계권을 행사한 2004. 12. 31.이라 할 것인바, 이는 2 이상의 사업연도와 관련하여 잘못 이 있는 경우에 해당한다고 할 것이어서, 국세기본법 제81조의4 제2항에 정한 재조사금 지의 예외에 해당한다고 할 것이다}.

c)Indivate

Therefore, the claim of KRW 2,108,084,652, out of the claim of provisional payment against the non-party corporation set-off against the claim of the construction cost of the non-party corporation, shall be deemed to be a part of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the local government

2) As to the second disposition of this case

A) Facts of recognition

① 소외 법인은 2001. 6. 13. 및 2003. 12. 2. 유상증자를 실시하였는데, 당시 소외 법인의 직원이었던 김수환, 김○○ 외 4인(다만, 김CC은 최♡♡의 처인데, 최♡♡은 지AA의 사업관련인이다)은 아래 표 기재와 같이 소외 법인 발행 주식을 취득한 후, 2005. 12. 14. 또는 2005. 12. 15. 원고에게 양도하였다.

② 소외 법인은 2001. 6. 13. 하남☆☆연합주택조합에 용지매입비로 대여한 35억 원을 위 조합의 평화은행 예금계화에서 회수한 다음, 그 중 7억 5,000만 원은 소외 법인의 ♤♤은행로 입금하고, 나머지 27억 5,000만 원은 지AA의 가수금을 반제하는 것으로 회계처리를 한 후 이틀 후인 2001. 6. 15. 소외 법인 명의의 평화은행 별단예금으로 입금하였는데, 서울지방 국세청이 2007. 2. 26. 소외 법인에 대하여 세무조사를 할 당시 입수한 소외 법인의 문건 (을 9호증의 1)에 의하면, 위 금액은 아래 표 기재와 같이 2001. 6. 13.자 유상증자대금으로 사용된 것으로 기재되어 있다.

③ In addition, on December 2, 2003, the non-party corporation withdrawn KRW 2.5 billion from the bank account of the non-party corporation’s corporate bank and deposited it into the ordinary bank account of the non-party corporation. On the same day, the non-party corporation deposited KRW 800 million from the ordinary bank account of the non-party corporation’s corporate bank into the ordinary bank account of the non-party corporation. On December 2, 2003, the non-party corporation deposited KRW 767,220,00 out of the ordinary bank account of △ Development to deposit KRW 319,670,000 and KRW 319,340,000 from the ordinary bank account of the same day, and deposited the above amount into the account of the non-party corporation’s corporate bank’s savings account of the non-party corporation’s corporate bank’s corporate bank’s increase in capital, and at the same time, withdrawn the above amount to the non-party corporation’s 20.20,2003.

④ According to the statement on December 2, 2003, the certificate of subscription for securities issued by an enterprise bank (No. 10-2) was entered. ③ The amount of subscription for new shares issued as stated in the above paragraph (3) was deposited at the same bank trading center from 17:17 to 16:31 on December 2, 2003 at the same date at the same trading center.

⑤ 원고는 김○○ 외 4인으로부터 소외 법인이 발행한 주식 27,869주를 306,559,000원에 양수하면서 김○○ 외 4인의 예금계좌로 무통장입금하였는데, 김○○, 김CC, 이BB, 임◇◇의 예금계좌가 2005. 12. 14. 14:48경부터 같은 날 14:53경까지 5분 만에 ♤♤은행 삼성동지점에서 개설되었고, 특히 김CC의 계화의 경우 주부임에도 위 신규거래신청서에 소외 법인의 전화번호가 기재되어 있으며, 또한 위 주식대금은 김○○ 외 4인의 예금계좌로 입금된 지 하루 만에 출금되었고, 그 후 김○○ 외 4인의 예금계화는 현재까지 아무런 거래도 없다.

④ On January 5, 2006, 2006, ○○○ and four other persons were to pay the securities transaction tax directly to the Plaintiff in lieu of the securities transaction tax to be paid to the Plaintiff, and received approval from the vice president, but the securities transaction tax was not paid by the auditor as it did not obtain approval by the auditor. In addition, on February 23, 2006, 2006, the non-party corporation attempted to pay the transfer income tax to be paid directly by the non-party Kim○ and four other persons in the form of a securities transaction against the Plaintiff, and failed to report and pay it without obtaining approval from the vice president.

7) Around July 2007, the Defendant notified the gift tax on the premise that the shares owned by Kim○○ and four other persons were held in title trust by the branchA. However, Kim○ and four other parties did not object to the said tax assessment and paid in full.

[Reasons for Recognition] In the absence of dispute, Gap evidence 12, Eul evidence 8-2, 3, 4, 6, 7, 8, Eul evidence 9 through 11, Eul evidence 12-1 through 4, 6, 7, Eul evidence 13-1 through 4, 6, 6, 7, Eul evidence 13-1 through 4, 6, 7, and Eul evidence 14-3 through 7, Eul evidence 14-19, 20, 22, 24 (including provisional number), the purport of the whole pleadings.

B)Judgment

위 인정 사실에 의하면, 지AA은 김○○ 외 4인에 대하여 소외 법인 발행 주식 27,869주를 명의신탁하였다고 할 것이고, 위와 같은 명의신탁 경위, 김○○ 외 4인이 원고로부터 지급받은 주식대금 지급계좌의 ★★ 및 그 내역, 원고와 김○○ 외 4인과의 관계 등 위 주식거래를 둘러싼 제반 사정을 종합하면, 김○○ 외 4인이 원고에게 한 위 주식의 매매는 지AA이 원고에게 위 주식을 증여하기 위한 방편으로 체결한 가장매매라고 할 것이므로, 결국 지AA이 원고에게 소외 법인 발행 주식을 증여하였다고 보아 한 이 사건 제2처분은 적법하고, 이와 반대의 견해를 전제로 한 원고의 주장은 이유 없다.

3) In accordance with the third disposition of this case,

As seen above, the share transaction between Kim○-○ et al. and the plaintiff cannot be deemed to be a "value deemed to have been generally constituted in the event of free transaction between many unspecified persons" under Article 60 of the Inheritance Tax and Gift Tax Act, as the most trade is the most trade. Therefore, the third disposition of this case evaluated as a supplementary assessment method under the same Act is lawful, and the plaintiff's assertion is without merit.

3. Conclusion

If so, the plaintiff's claim is dismissed, and it is judged the same as the order.