Even if there was a decision to adjust as a result of a lawsuit claiming a loan, a disposition imposing a gift tax cannot be deemed as a loan and is legitimate.

The loan claim lawsuit filed by the Plaintiff was concluded by compulsory adjustment with the purport of paying the amount to the Plaintiff, and it appears to mean that the Plaintiff would liquidate all relations with the Plaintiff instead of returning a part of the amount received from the Plaintiff, and it cannot be viewed to the purport of recognizing the amount received from the Plaintiff as the loan loan.

2013Guhap2656 Invalidity of a disposition, etc. imposing gift tax

United Kingdom A

Head of the tax office

October 23, 2013

December 11, 2013

1. Of the instant lawsuit, the part of the claim seeking nullification of the additional notice shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

On March 12, 2012, the Defendant issued a gift taxOO(including additional tax OOOOO) on the Plaintiff on March 12, 2012, and the disposition imposing additional OOOOOO on the Defendant on May 1, 2012, and the attachment disposition on the OOO-gun 38,986 square meters in OO-gun 38,986 square meters in POO-gun 38,986 square meters in PO-gun 14-19 square meters in PO-19 forest in PO-24,031 square meters in each claim is invalid (the end of March 12, 2011 in relation to the date on which gift tax is imposed).

1. Details of the disposition;

A. On December 13, 2010, the Plaintiff received cash OOOO from the Plaintiff from the Plaintiff from January 16, 2008 to June 25, 2009, but reported the tax evasion to the tax authority that it did not report it, and then withdrawn the above information.

B. In the Plaintiff’s passbook transaction details submitted along with the above information, the Defendant confirmed the fact that the Plaintiff remitted OB to KimB, and demanded KimB to submit gift-related data. Accordingly, KimB filed a lawsuit claiming the payment of OB to KimB (Ulsan District Court 2010 Gohap3618), but KimB paid OB to the Plaintiff the remainder of the claims, and submitted data to the effect that the decision in lieu of the conciliation on November 16, 2010, which decided to waive the remainder of the claims, was confirmed.

C. Accordingly, on October 1, 2011, the Defendant imposed an OOB (including additional OOB) on the ground that the Plaintiff donated the remainder of OB, which was deducted from the amount that the Plaintiff would have received as refund (i.e., the above mediation decision) from KimB (i.e., the OB - OOB). Accordingly, the Defendant did not file an objection against the imposition of the gift tax on KimB.

Since then, as the Defendant made it difficult to secure a tax claim from KimB, on March 12, 2012, the Defendant designated and notified the Plaintiff, who is the donor, as a joint taxpayer, and imposed the gift tax OO(including additional OOO; hereinafter referred to as the “instant disposition of imposition”) and additional OOO(s) on the Plaintiff. The instant notice of disposition of imposition and additional dues was served on the Plaintiff on the 16th of the same month.

D. On May 1, 2012, on the ground that the Plaintiff failed to comply with the instant disposition, the Defendant seized 38,986 square meters of OO-gun OO-gun OO-gun, O-si, O-si, O-si, O-si, O-si, 14-24 square meters of forest, 38,986 square meters of forest and 14-19 forest and 24,031 square meters of forest and field (hereinafter “instant attachment disposition”), and the instant attachment disposition notification was served on the Plaintiff on the seventh day of the same month.

E. The Plaintiff dissatisfied with the instant attachment disposition and filed an objection on October 23, 2012, but was dismissed on the ground of the Doctrine of the filing period on November 12, 201 of the same year. The Plaintiff filed a request for examination with the Commissioner of the National Tax Service on December 11, 2012, but was subsequently dismissed on January 22, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 6, Eul evidence Nos. 1 through 8 (including paper numbers), the purport of the whole pleadings

2. Whether the part of the instant lawsuit seeking nullification of the notification of additional dues is legitimate

A surcharge under Article 21 of the National Tax Collection Act is naturally generated under the provisions of a law without a final procedure by the competent tax office if the national tax is not paid by the due date, and thus, notification of a surcharge cannot be deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005).

Therefore, even if the Defendant stated the additional dues in the notice of payment along with the instant disposition, it is merely a notification of concept informing the existence of the additional dues, and it cannot be deemed a disposition subject to appeal litigation. Therefore, the part of the claim for nullification of additional dues in the instant lawsuit

3. Whether the disposition is lawful;

A. The plaintiff's assertion

Since the Plaintiff did not donate money to KimB, the instant disposition is null and void, and the instant disposition of seizure based on the premise of the instant disposition of imposition is also null and void.

B. Determination

Generally, a taxation disposition made on a person who does not have any factual relation, income or act, etc., which is subject to taxation, shall be deemed to be significant and apparent, but where there are objective circumstances that could mislead him to believe that it is subject to taxation with respect to any legal relation or fact which is not subject to taxation, and where it can only be clarified whether it is subject to taxation or not, if it is necessary to accurately investigate the factual relation, it cannot be deemed as apparent even if the defect is serious, and thus, it cannot be deemed that the illegal taxation disposition that misleads the fact subject to taxation is void as a matter of course (see Supreme Court Decision 2001Du7268, Sept. 4, 2002)

On the other hand, this case's disposition and the seizure disposition of this case are as follows: ① The plaintiff's lawsuit against KimB was concluded by compulsory adjustment of the contents that KimB paid OB to the plaintiff, which means that KimB would liquidate all the relationship with the plaintiff instead of returning part of the amount received from the plaintiff. This means that KimB merely means that KimB would liquidate the relationship with the plaintiff instead of returning part of the amount received from the plaintiff, and it cannot be viewed to the purport that it can not be viewed as a loan loan. ② In addition, KimB did not raise any objection even though it was imposed first gift tax, ③ the plaintiff directly notified the defendant of the donation to KimB, and ③ The disposition of this case's imposition and the seizure disposition of this case do not seem to have any substantial defect in the taxation requirements, and even if there were some defects, it can not be seen that the defect can only be seen as a case where it is clear whether it is subject to taxation, and thus, it cannot be seen as invalid or void. Therefore, the plaintiff's assertion is not justified.

4. Conclusion

Therefore, the part of the claim for nullification of the additional notice among the lawsuits in this case is unlawful, and it is dismissed as the remaining claims of the plaintiff are without merit. It is so decided as per Disposition.