Seoul Administrative Court 2015Guhap58195 (Law No. 18, 2015)

In the regulations on deemed donation of money lending, the specially related person is not in accordance with the theory of unilateral relation.

If there is "the relationship under any of the subparagraphs of Article 19 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act" between a lender and a borrower, a loan from a person with a special relationship shall be deemed to be a monetary loan, and both the borrower and the borrower's employee or the borrower's employee or both.

Donation from a monetary loan under Article 41-4 of the Inheritance Tax and Gift Tax Act

Revocation of Disposition Imposing Gift Tax

○ ○

Head of the tax office;

September 18, 2015

May 11, 2016

June 1, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's decision of May 1, 2014 that was rendered to the plaintiff on July 24, 2002, KRW 4,487,670 (including additional taxes; hereinafter the same shall apply), KRW 6,317,250 of the gift tax on July 23, 2003, KRW 17,94,80 of the gift tax on July 23, 2004, KRW 19,202,40 of the gift tax on the donation of July 23, 2005, KRW 18,216,90 of the gift tax on the donation of July 23, 2006, KRW 17,278,60 of the gift tax on the donation of July 23, 207, KRW 308, KRW 36,300 of the gift tax on the donation of July 23, 2007, respectively.

1. Quotation of judgment of the first instance;

The reasoning of this Court’s judgment is as follows, and it is consistent with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, given that the reasoning of this Court’s judgment is the same as the reasoning of the first instance judgment, except for

○ The 13th main text of the judgment of the first instance court is "(amended by Act No. 7010 of Dec. 30, 2003; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act")."

○ The part of the 8th judgment of the first instance court in the 8th instance shall be deemed to be “(amended by Act No. 7010 of Dec. 30, 2003)”, and the 14th judgment shall be deemed to be “(amended by Presidential Decree No. 18177 of Dec. 30, 2003)” respectively.

2. Additional determination

A. The plaintiff's assertion

The Supreme Court states that in determining whether a person who is subject to legal fiction of donation at a low price or high price transfer pursuant to Article 35 of the former Inheritance Tax and Gift Tax Act and Article 26 (4) 1 and Article 19 (2) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177 of Dec. 30, 2003; hereinafter the same shall apply), "employee who is in a special relationship" refers to an employee (including an employee of a corporation under control by investment) of the person liable for tax payment (the transferee at a low price transfer, the transferor at a high price transfer, and the transferor at a high price transfer) on the basis of the person liable for tax payment (the transferee at a high price transfer, the transferee at a high price transfer, and the other party to the transaction as an employee of the other party to the transaction, cannot be regarded as an "person who has a special relationship under the above provisions."

According to the theory of one-way relationship, "a person who is in a special relationship under Article 41-4 (1) of the former Inheritance Tax and Gift Tax Act" should be determined on the basis of the plaintiff, and the least ○, who is the borrower, is not an employee of the plaintiff, and does not constitute a person with a special relationship under the above provision.

B. The judgment of this Court

The main text of Article 41-4(1) of the former Inheritance Tax and Gift Tax Act provides that "in case where a loan of 100 million won or more from a person in a special relationship is made free of charge or at an interest rate lower than the appropriate interest rate, the amount under any of the following subparagraphs shall be deemed to be donated on the date on which the loan is made." Accordingly, Article 31-7(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "a person in a special relationship under the main sentence of Article 41-4(1) of the same Act shall be determined by the Presidential Decree."

This is different from the form or content of Article 26(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act on the constructive gift at the time of a low-price or high-priced transfer. In other words, Article 26(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "a person who is in a special relationship with the transferor or transferee" refers to a person who has any of the following relationships with the transferor or transferee, there is room to regard only one person in a special relationship with each other based on the person liable for tax payment as the person liable for tax payment."

However, Article 31-7 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act on the constructive gift of a monetary loan provides that "the person who has lent or received the loan refers to the person who has a relationship falling under any of the subparagraphs of Article 19 (2)" and does not specify the scope of the specially related person only on the basis of the lender who is liable for tax payment. Rather, if there is "the relationship under any of subparagraphs of Article 19 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act" between the borrower and the borrower, the lending is deemed as a monetary loan from the specially related person. It is natural interpretation that the borrower or the borrower'

Furthermore, the legal fiction of deemed donation at the time of low-price or high-priced transfer and a monetary loan are the subject of separate acts, and thus, there is no inevitable reason to equally define the scope of persons with special relationship. Thus, Article 31-7(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides otherwise under Article 26(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and it cannot be said

3. Conclusion

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