Daegu District Court 2012Guhap302 (27 June 2012)

Cho High-depth 201Gu0667 ( December 08, 2011)

It shall be deemed that the transfer price of real estate is paid and used, and shall be applicable to the donation.

(1) In special circumstances, such as withdrawal of a deposit and deposit, etc. in the name of a taxpayer for any purpose other than donation, the burden of proof shall be the taxpayer, and real estate transfer proceeds shall be deemed to have been freely consumed for living expenses, card bills, etc. after being deposited into the Plaintiff’s account in the Plaintiff’s name, and thus constitutes donation.

2012Nu1625 Revocation of Disposition of Imposing gift tax

XX

Head of Dong Daegu Tax Office

Daegu District Court Decision 2012Guhap302 Decided June 27, 2012

November 30, 2012

December 28, 2012

1. Of the judgment of the court of first instance, the part on imposition of gift tax on the gift of April 23, 2010 regarding the gift of April 23, 2010 is revoked, and the lawsuit of this case corresponding to that part is dismissed.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be divided into three parts, and such two parts shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance is revoked. The defendant revoked all the imposition of KRW 000 on the gift of September 29, 2009 against the plaintiff on December 1, 2010, KRW 000 on the gift of October 14, 2009, and KRW 000 on the gift of April 23, 2010 on the gift of April 23, 2010 (the defendant revoked ex officio the penalty tax on each of the above gift of November 12, 2012, the plaintiff revoked all of the lawsuit of this case on each of the additional taxes).

1. Details of the disposition;

A. On April 9, 2009, the Plaintiff was entrusted by the Plaintiff’s father-gu in the U.S. to dispose of 63-7 large 295.4m2 (hereinafter “real estate 1”) owned by thisA, and sold the real estate 1 to the Plaintiff, other than ParkB, etc. on September 18, 2009, for KRW 000 on the same day, and deposited in the Plaintiff’s deposit account on September 21, 2009, upon receiving KRW 000 as the down payment, and received KRW 00 as the intermediate payment on September 28, 2009, and deposited in the Plaintiff’s deposit account in the Plaintiff’s name on September 29, 2009, and received KRW 00 as the remainder payment on October 14, 2009 and deposited in the Plaintiff’s account on the same day.

B. On April 9, 2010, the Plaintiff entered into a contract for compensation for losses on the second real estate between thisA and Daegu Metropolitan City on April 14, 2010, with respect to the compensation for losses, payment and receipt of compensation, claim for adjudication of expropriation and receipt of compensation, disposition such as filing of objection, receipt of deposit money, commencement of administrative litigation, and other legal acts in the name of the Plaintiff, and deposited KRW 00 on April 23, 2010 with the Plaintiff’s account under the name of the Plaintiff by withdrawing KRW 00 on the same day after receiving KRW 00 from one bank under the name of the Plaintiff.

C. On August 1, 2010, the commissioner of Daegu Regional Tax Office distributed and deposited KRW 000 of the transfer price of 1 real estate and KRW 000 of the compensation for losses for 2 real estate over several times in the Plaintiff’s account, and notified the Defendant that the Plaintiff used it as living funds as necessary. On December 1, 2010, the Defendant recognized that the Plaintiff was donated 00 won, subtracting the transfer income tax and the resident tax payment amount from the total amount of the transfer price of 1 real estate and compensation for 2 real estate (hereinafter collectively referred to as “transfer amount”) from the total amount of 00 won for 00 won for 00 won for 100 won for 00 won for 100 won for 200 won for 00 won for 100 won for 20 won for 00 won for 10 won for 10 won for 10 won for 10 won for 10 won for 10 won for 10 won for 10 won for 10 won for ever for 200 won for .

D. On November 12, 2012, the Defendant revoked the penalty tax of each of the above gift tax ex officio (hereinafter referred to as the “instant disposition”). The part concerning the gift of September 29, 2009 as of October 14, 2009 among the instant disposition is deemed to be “the second disposition” and “the third disposition regarding the gift of April 23, 2010,” and “the part concerning the gift of April 23, 2010,” respectively.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. The plaintiff's assertion

① This case’s disposition is unlawful on a different premise that the Plaintiff’s new real estate was distributed, deposited, and managed the transfer amount under the name of the Plaintiff’s term deposit and securities account in the name of the Plaintiff. In particular, even if it is recognized that KRW 000,000, which was managed with the Plaintiff’s existing deposit, was inevitably donated to the Plaintiff, the remainder of KRW 00 (00,000,000,000,000,000,000,000,000,000,000,000,000,000,000) was managed separately from the Plaintiff’s existing deposit, and thus, it cannot be deemed as a donation.

② The instant disposition notice contains only the tax base, tax rate, and amount of principal tax, but does not specify the method of calculation, calculation, etc. so that the general public can easily understand and determine whether to appeal.

3. Whether a lawsuit against the third disposition is lawful.

According to the reasoning of the judgment of the court below, the defendant's submission of a gift tax decision, revocation of the decision of gift tax, and notification of inventory date, the defendant can be found to have revoked the third disposition ex officio around December 24, 2012. Thus, the plaintiff has no legal interest in seeking the revocation of the third disposition, and the lawsuit of this case corresponding to that part was unlawful.

4. Whether dispositions Nos. 1 and 2 are legitimate;

(a) Related Acts and subordinate statutes;

Attached 1 is as stated in the "related Acts and subordinate statutes".

B. Determination as to Section (1)

(1) In case where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality (hereinafter referred to as the "Act on Real Name Financial Transactions and Confidentiality") and the fact of the contract is clearly indicated in the real name verification statement, etc., it would be reasonable to interpret that the deposit title holder, the actor of the deposit title holder, and the intent of the financial institution acting for him/her, as the deposit owner, would be the party to the deposit contract, and to clarify the legal relationship as to the party to the deposit contract (see, e.g., Supreme Court en banc Decision 2008Da45828, Mar. 19, 2009). In a lawsuit seeking revocation of gift tax imposition, if it is revealed that the deposit is withdrawn in the name of the person who is recognized as a donor by the tax authority and the deposit account is deposited in the taxpayer's name, such deposit shall be presumed to have been donated to the taxpayer, and if there are special circumstances, such as the withdrawal of such deposit and the deposit under the taxpayer's name, etc.

(2) In the case of this case, as long as the transfer amount of this case was deposited in the Plaintiff’s account under the name of the Plaintiff, considering the following circumstances revealed in view of the overall purport of the pleading in the statement in the evidence Nos. 1 through 7, the Plaintiff, the nominal owner of the account, shall be deemed to have acquired all the rights to the deposit. The entries in the evidence Nos. 5 and 6 alone are insufficient to recognize that the Plaintiff merely managed the transfer amount of this case to acquire new real estate in the name of thisA with the authority delegated by thisA, and that it was not a donation from thisA, and there is no other evidence to acknowledge this otherwise. Therefore, it is reasonable to deem that the Plaintiff received the transfer amount of this case from thisA. Accordingly, the Plaintiff

(A) Under the real name verification system, if an overseas Korean submits a copy of his/her real name verification certificate, an agent’s real name verification certificate, a consular verification (or notarized), etc., to an overseas Korean in Korea, an overseas Korean agent may open a deposit account in his/her own name at a domestic branch of the same financial institution. The overseas Korean principal may open an account at the domestic branch of the same financial institution using the overseas branch of the financial institution. If the domestic means of domestic payment acquired in Korea are deposited, it is also possible to open a regular deposit passbook. Therefore, the Plaintiff or this may manage the instant transfer amount by creating a periodical deposit passbook, etc. in his/her name in a domestic financial institution. On December 16, 2008, the transferor of the real estate 1,208, and the Plaintiff actually opened one bank account in the name of the Plaintiff on behalf of the Plaintiff on December 16, 2008. However, the Plaintiff deposited the instant transfer amount into the Plaintiff’s account without opening an installment savings account in the name of the Plaintiff.

In addition, even if the Plaintiff did not open an additional deposit account in the name of thisA, it was able to manage the transfer proceeds of 1 and 2 real estate under the name of thisA using the existing one bank deposit account in thisA, but did not manage the transfer proceeds using the existing one bank deposit account in the name of thisA.

(B)A financial institution shall keep the transferred amount of the instant case in combination with the existing amount of deposit or the additional amount of deposit after deposit into the Plaintiff’s account. As such, the Plaintiff cannot request the financial institution to pay the transferred amount separately.

(C) The instant transfer amount was deposited in the account under the Plaintiff’s name, such as “the flow chart of the transfer price of real estate 1” and “the flow chart of the purchase price of real estate 2-2” of [Attachment 2-2] and “the flow chart of compensation for expropriation of real estate 2-2], and continued to be deposited and managed in a fixed deposit, securities account, etc. in the Plaintiff’s name. The Plaintiff freely released and consumed KRW 000 as cost of living, card price

(D) On January 4, 2011, the amount of KRW 400 million deposited on the Plaintiff’s new bank account (200-106-000) on January 4, 201 on the flow map of the transfer proceeds of real estate (200-106-000) was deposited on January 4, 201 (Evidence 6-2), and on May 3, 201, the amount of KRW 00 deposited on May 3, 2010 to the Plaintiff’s Han Bank account (899002060511) on the flow chart of the Plaintiff’s expropriation proceeds of real estate (Evidence 6-3) was deposited on October 22, 2010, and the remaining amount was deposited on November 3, 2010 as the termination of the contract (Evidence 6-3), and each of the aforementioned amounts was not verified (Evidence 6-3).

(E) The Plaintiff asserted that “it was separately managed for the purchase price of other domestic real estate according to thisA’s intent, but it was confirmed by the National Tax Integration Network on October 2012 that real estate was purchased under thisA under the name of thisA. Rather, on April 5, 2011, the Plaintiff purchased the apartment at 00 won of Daegu-gu, Daegu-gu, 809 Dong 805 Dong 709 (No. 7).

C. Judgment as to Section B

(1) Article 9(1) of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 201; hereinafter referred to as the "former National Tax Collection Act") provides that when the head of a tax office or the head of a Si/Gun intends to collect a national tax, he/she shall issue to the taxpayer a written notice specifying the taxable year, tax item, amount of national tax, grounds for the calculation, deadline for payment and place of payment of the national tax, and Article 6 of the former Enforcement Rule of the National Tax Collection Act (amended by Ordinance of the Ministry of Strategy and Finance No. 192, Mar. 24, 201; hereinafter referred to as the "former Enforcement Rule of the National Tax Collection Act") provides that the notice under Article 9(1) of the former Enforcement Rule of the National Tax Collection Act shall be in accordance with the tax payment notice in attached Form 10, and attached Form 10 provides that

On the other hand, the main sentence of Article 77 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 10361, Jun. 8, 2010; hereinafter referred to as the "former Inheritance and Gift Tax Act") provides that "the head of a tax office, etc. shall notify the donee of the tax base and tax amount determined under Article 76 under the conditions as prescribed by the Presidential Decree. The main sentence of Article 79 (1) of the former Enforcement Decree of the Inheritance and Gift Tax Act (amended by Presidential Decree No. 22516, Dec. 7, 2010) upon delegation thereof provides that where the head of a tax office, etc. notifies a tax base and tax amount pursuant to Article 77 of the Act, he/she shall notify a tax

Such provisions on the duty payment notice under the former National Tax Collection Act and individual tax law accept the constitutional principles of due process and the basic principles of the Administrative Procedures Act in the territory of taxation disposition, and ensure fairness in tax administration by having the tax authority impose a careful and reasonable taxation, while notifying taxpayers of the details of the taxation disposition in detail, and allowing them to make a decision on whether to object of objection and to make an appeal convenience. Thus, these provisions should be deemed compulsory provisions (see, e.g., Supreme Court en banc Decision 2010Du12347, Oct. 18, 2012).

(2) According to the evidence No. 4-1 and No. 2 of this case, the notice of tax payment as to the first and second disposition contains the year, item, tax amount, time limit and place of payment of gift tax imposed. With respect to the basis for calculation of such tax amount, the notice of tax payment as to the first disposition is 00 won, and the calculated tax amount is 00 won if the tax rate is applied at 10%. If additional tax is 000 won, the notice of tax payment within the time limit for payment is 00 won, along with the notice of tax notice, and the notice of tax payment as to the goods donated on September 29, 2009, the notice of tax investigation and determination on the above amount of tax pursuant to Article 76 of the Inheritance Tax and Gift Tax Act is stated as follows. The notice of tax payment as to the second disposition contains 00 won, and 300 won, if it is stated as 00 won, and 100 won and 400 won, which is added to the notice of tax amount of tax credit.

In light of the following circumstances revealed by the above facts, a tax payment notice on the first and second dispositions is in accordance with the tax payment notice form under the former Enforcement Rule of the National Tax Collection Act and there is no omission of the essential items prior to the filing of a tax payment notice, and the basis for calculation of the amount of tax or the statement of calculation of the amount of tax is sufficient to the extent stated as above, and it cannot be deemed unlawful on the ground that the tax payment notice did not state the substantial basis, route, background, basis, etc. for calculating the amount of tax (see, e.g., Supreme Court Decision 2001Du1014, Jan. 27, 2004). Furthermore, in the tax payment notice on the first and second dispositions, the Plaintiff’s notice on the first and second dispositions cannot be deemed unlawful on the ground that the Plaintiff did not report and pay the gift tax on the donated goods on September 29 and October 14, 2009, and thus, the Plaintiff’s notice of the gift tax pursuant to the relevant provisions.

5. Conclusion

Therefore, the part concerning the disposition No. 3 among the plaintiff's claims in this case shall be dismissed, and the remaining claims shall be dismissed without any grounds. Since the part concerning the disposition No. 3 in the judgment of the court of first instance concerning the disposition No. 3 is unfair as a result of the conclusion, it shall be revoked, and the lawsuit of this case corresponding to the above part shall be dismissed, and the remaining part shall be just as it is concluded, and it is so decided as per Disposition by the plaintiff