Cho-2015-Divisions-635 ( December 16, 2015)

Whether this case’s donated property is lawful

The donor of the 1st claim is not AAB but AB, and four deposits of the 2nd claim were not added twice, and the amount of the 3rd claim is legitimate to be added to the donated property, and the time when the transferred deposit was returned to the 4th claim is the date when the certificate of deposit was returned and the principal was claimed.

Article 31 of the Inheritance Tax and Gift Tax Act [Scope of Donated Property]

2016Guhap21184 Revocation of Disposition of Imposition of Gift Tax

CC Foundation, a foundation foundation

D Head of the tax office

March 24, 2017

April 7, 2017

1. As to the Plaintiff on September 16, 2014:

A. The portion exceeding KRW 0,00,000,000 among the disposition of imposition of KRW 0,000,000,000 on the gift tax as of November 21, 2007;

B. The portion exceeding KRW 0,00,000,000 among the disposition of imposition of KRW 0,000,000,000 of the gift tax as of December 31, 2008 shall be revoked, respectively.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s imposition of KRW 0,00,000,000, which was made against the Plaintiff on November 21, 2007 against the Plaintiff on September 16, 2014, and the imposition of KRW 0,00,00,00,00,00, which was made on December 31, 208, respectively, shall be revoked.

1. Details of the disposition;

가. 원고는 ◇◇, ▲▲▲, ◎◎◎ 등 수집・보존 및 전시 사업을 목적으로 0000. 0.

00. The Incorporated Foundation shall be an incorporated foundation.

B. On September 16, 2014, the Defendant decided and notified the Plaintiff of KRW 0,000,000,000,000 as indicated below, on the ground that the Plaintiff received gift from the deceased AA and did not perform its duty of return on gift tax within the prescribed period, on the grounds that the Plaintiff did not perform its duty of return on gift tax within the prescribed period.

C. On December 24, 2014, the Plaintiff filed an appeal with the Tax Tribunal, and the Tax Tribunal decided on December 16, 2015 as follows.

“The Defendant’s imposition of KRW 00,00,000 on the donation of September 14, 2006 to the Plaintiff by the Plaintiff, KRW 0,00,00,000 on the donation of November 21, 2007, KRW 0,000,000 on the donation of December 31, 2008, KRW 0,000,000 on the donation of March 26, 2010, and KRW 0,00,00,000 on the donation of March 26, 206, each disposition of imposition of KRW 0,00,00,00 on the donation of the Plaintiff by the Plaintiff from AA on September 14, 206, the Plaintiff’s deposit of KRW 376,112,67 on the donation of KRW 173,00,00 on the donation of ○○ Bank, KRW 60,00 on the date of termination, and the remainder of the tax base for adjudication.”

D. Upon the decision of the Tax Tribunal, the Defendant corrected the date of donation on September 14, 2006 as indicated in the table Nos. 1 through 3 as of January 4, 2016, as of February 20, 2007. The Defendant also corrected and notified the tax base and the amount of tax on the remaining donations, and notified the correction and notification of the tax base and the amount of tax as described in the No. 4 of the same Table on April 4, 2016 (hereinafter referred to as the “instant disposition of imposition of gift tax on the Plaintiff”) as of September 21, 2007, as described in the No. 1 Disposition and No. 3 as of November 21, 2007.

Facts that there is no dispute over recognition, Gap evidence 1, 3, Eul evidence 1 and 2 (including each number; hereinafter the same shall apply), the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Defendant calculated gift tax, including donated property, by deeming that it was donated by AA even though the Plaintiff’s property is not a donated property with respect to any of the following property:

1) Of ○○○○○-dong ○○-2 Building (hereinafter “instant building”), co-ownership 0/00 owned by AB and sold to the Plaintiff on December 31, 2008. The Defendant deemed that AA donated the instant building to the Plaintiff and included it in the donated property.

2) In the case of KRW 000,000,000,000, which the Plaintiff had been in custody in four deposit accounts in the ○○ Bank Co., Ltd., the interest of KRW 00,000,000 or donated property previously received from AA was kept in the name of the Plaintiff in the deposit account in the name of the Plaintiff. Therefore, the amount equivalent to the deposit was twice added to the donated

3) The deposit amount of KRW 00,000,000 deposited in the Doldong deposit account (Account Number of 0000000) in Busan Metropolitan City was deposited in money borrowed from ACC. The Plaintiff’s repayment to ACC on January 19, 2009 does not constitute donated property.

4) On October 23, 2008, the Plaintiff returned the certificate of deposit (Account Number 000-000-000-00, 000-00-00, 000-00 each face value) issued by AAA to △△△ Co., Ltd. on October 22, 2008, and acquired the principal and interest equivalent to face value from the above bank, the Defendant erred in recognizing the donation date by deeming that the Plaintiff received a donation of the above money on October 22, 2007.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the Plaintiff’s first argument

(2) On the premise that the Plaintiff’s co-ownership share 0/B of the building of this case was transferred to the Plaintiff under the name of 00, 4, 8, 8, and 00 shares in the building of this case, the following facts were established on August 7, 200. ② The Plaintiff’s co-ownership share 0-B of this case was transferred to the Plaintiff on June 27, 2008 under the premise that the ownership transfer registration was made on 00, 200, 200, 300, 00, 00, 00-2, 00, 000, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 30,000, 20,000, 30,00,00.

2) Judgment on the second argument by the Plaintiff

A) In full view of the facts established on January 24, 2007 as seen earlier, and the overall purport of the statements and arguments in Gap evidence Nos. 9, Eul evidence Nos. 5 and 6, the plaintiff opened four accounts in his name as listed below and deposited KRW 00,000,000 in total, and the representative director BBB made a contribution of approximately KRW 0,000,000 in case of a deposit as a contributor to the plaintiff who was held in the tax investigation on March 3, 2014, the plaintiff’s board of directors held on January 18, 2008, which was held as the sole founder and contributor of the plaintiff.

B) According to the above facts, around August 2007, AA appears to have donated the above money to the Plaintiff by opening a deposit account in the Plaintiff’s name and depositing its funds. Thus, it is lawful that the Defendant added it to the donated property.

Unlike the plaintiff's assertion, there is no evidence to acknowledge that the plaintiff acquired interest of KRW 000,00,000 derived from donated property at the time of establishment of the plaintiff, or that part of KRW 000,000 already donated by AA was deposited in the above deposit account. Thus, the plaintiff's assertion that the above KRW 00,000,000 was double added to donated property is without merit.

3) Judgment on the third assertion by the Plaintiff

In full view of the purport of the evidence No. 7-2 and the argument, AA may recognize the fact that the nominal owner was opened on February 16, 2007 and the nominal owner was changed to the Plaintiff on October 10, 2007, when the account was opened in the name of his family or foundation, and the principal was directly in charge of all deposits before his death. Of them, the account number was 00-00-0000 and the account number was 00-000.

According to the above facts of recognition, since 00,000,000 won deposited in the above account was owned by AA, and it was reverted to the Plaintiff through a change in the name on October 10, 2007, it is legitimate that the Defendant added it to the donated property, and otherwise, there is no evidence to acknowledge that the Plaintiff’s assertion that the above deposit was already repaid because it was deposited with the ACC. Thus, there is no reason to acknowledge it.

4) Judgment on the plaintiff's fourth argument

A) Article 23(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23591, Feb. 2, 2012; hereinafter the same) provides that where donated property is a bearer bond, it shall be deemed that the acquisition date is objectively confirmed by the fact of payment of interest, etc. on the relevant claim, but where the acquisition date is unclear, it shall be deemed that the purchaser claims interest payment on the relevant claim or the date of claiming redemption of the relevant claim.

B) Comprehensively taking account of the overall purport of the statements and arguments in Gap evidence No. 6, △△△ corporation may recognize the fact that the plaintiff collected negotiable certificates of deposit (Account Number 000-0000-000-00, 000-00-000, 000) from the plaintiff on October 23, 2008 and paid the plaintiff 00,000,000 won in total of principal and interest, but the above fact alone is insufficient to recognize that the plaintiff acquired negotiable certificates of deposit on October 22, 2007, and there is no other evidence to prove otherwise.

C) Therefore, since the date on which the Plaintiff acquired the above certificate of deposit is unclear, the old inheritance tax and the old inheritance tax.

Pursuant to the latter part of Article 23(3) of the Enforcement Decree of the Gift Tax Act, it is reasonable to view that the Plaintiff acquired the above certificate of deposit on October 23, 2008, on which the Plaintiff returned the certificate of deposit to △△△ corporation and sought the payment of principal and interest. Nevertheless, the instant first disposition that calculated the gift tax by deeming the acquisition time of the above donated property as October 22, 2007 is unlawful.

5) Scope of revocation of each of the dispositions in this case

A) In a lawsuit seeking the revocation of a taxation disposition, the subject matter of adjudication is whether the tax base and tax amount imposed and notified by the tax authority exist objectively. In a case where the tax base and tax amount recognized by the taxation disposition are excessive compared to the legitimate tax base and tax amount, the disposition of imposition is unlawful only within the scope exceeding the legitimate tax base and tax amount (see Supreme Court Decision 88Nu6504, Mar. 28, 1989). Therefore, the relevant

B) We examine the first disposition of this case as to the first disposition of this case. The tax base of the first disposition of this case is KRW 0,000,000,000, and the Plaintiff’s paid tax amount is KRW 000,000,000. The Plaintiff’s paid tax amount is 00,000,000. The time when the Plaintiff received two copies of △△ Certificate of Deposit issued by △△ corporation (the face value of KRW 00,000,000,000 for each of the face value) on October 23, 2008, rather than October 22, 2007. Thus, if the Plaintiff deducts KRW 0,000,000 from the value of donated property of 207, the legitimate tax base of the first disposition of this case is 00,000,000,0000,000,000,000,000,00,000,000.

C) We examine the second disposition of this case. The tax base of the second disposition of this case is 0,00,000 won, and the Plaintiff’s already paid tax amount is 0,000,000,000 won, and the assessed tax amount is 000,000,000 won for the 0/00 shares of the building of this case should be excluded from the donated property. Thus, the legitimate tax base of the second disposition of this case is 0,000,000 won (=0,000,000 won - 0,000,000 won for the above tax base is 0,000 won for the above tax amount, and 00,000 won for the aggregate of paid tax amount which is 50% of the paid tax amount, and 00,000 won for the above tax amount, 000,000 won for the gift tax amount which is recognized as 2 disposition of this case, and 00,0000 won for the above tax amount.

D) Therefore, the part exceeding the legitimate amount of each of the dispositions of this case is revoked as it is unlawful.

of the corporation.

3. Conclusion

Thus, the plaintiff's claim is reasonable within the above scope of recognition, and the remainder is accepted.

The claim is dismissed as it is without merit, and it is so decided as per Disposition.