Suwon District Court-2014-Gu Partnership-51891 (Law No. 22, 2015)

Whether the application of the rate of penalty tax (40%) for improper non-reported report is legitimate or not.

Since it is difficult to recognize that the Plaintiffs did not report the tax base of gift tax according to the title trust of this case in an unjust manner, it is difficult to recognize that they reported the tax base without any tax base by illegal means, the rate of penalty tax without any return

2015Nu4317 Revocation of Disposition of Imposing gift tax

Red ○ and 4

○ Head of Tax Office and 3

Suwon District Court Decision 2014Guhap51891 Decided April 22, 2015

August 26, 2015

September 16, 2015

1. Of the judgment of the first instance court, the part against the plaintiffs falling under the order to revoke below shall be revoked.

The "amount of revocation of penalty tax without filing an unfair return" among each disposition on imposition of gift tax stated in the details of the attached gift tax notice filed by the Defendants against the Plaintiffs is revoked in all relevant parts.

2. The plaintiffs' remaining appeals are dismissed.

3. 15% of the total litigation costs are assessed against the Defendants, and the remainder is assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The Defendants shall revoke all imposition of KRW 1,374,890,810 in total of the gift tax as stated in the attached Table of Duty Payment Notice.

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

(a) Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows. (B) The reasoning for this Court’s explanation is as follows, with the exception of adding the judgment of the Plaintiffs on the conjunctive argument in the trial, and thus, it is identical to the corresponding part of the judgment of the first instance. Therefore, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the

Parts used for cutting.

The "attached Acts and subordinate statutes" of the judgment of the court of first instance shall be cited as the "attached Acts and subordinate statutes" of the judgment of the court of first instance.

Article 41-2 "Article 45-2" shall be deemed to be "Article 45-2".

○ 6th page 1 "No. 22038" means "No. 22572".

In the 00th page 6, the "Plaintiff Kim ○" in the 5th page is changed to "Gim Kim ○".

The ○○○○○○, each of the 6ths No. 9, 10, 13, 15, 17, and 19 on the part of the 6ths, respectively, refers to “Plaintiff ○○”.

B. Judgment on the plaintiffs' preliminary assertion

1) The plaintiffs' assertion

Despite the fact that the Plaintiffs did not engage in an active act to conceal or disguise the title trust of this case, it is unlawful to impose an unfair non-reported penalty tax on gift tax only on the sole basis of a stock title trust. Therefore, in the disposition of this case, the penalty tax on the illegal non-reported penalty should be revoked accordingly.

2) Determination

A) According to Article 47-2(2)1 of the former Framework Act on National Taxes (amended by Presidential Decree No. 10405, Dec. 27, 2010), where there exists a tax base without filing a return by improper means (referring to any method prescribed by Presidential Decree, as violating the duty to report the tax base or the amount of national taxes on the basis of concealing or pretending all or part of the fact that serves as the basis for calculating the tax base or the amount of national taxes), an amount equivalent to 40/100 of the amount calculated by multiplying the calculated tax amount by the ratio occupied by the amount of tax base without filing a return in an unjust manner among the tax base shall be added to the payable tax amount or deducted from the refundable tax amount. Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22572, Dec. 30, 2010) provides that the aforementioned "means prescribed by Presidential Decree, such as preparing a false book or document, obtaining false evidence or document (No. 23) or concealment of income or concealment of records, or other unlawful act.

Meanwhile, the legislative purport of Article 45-2(1) of the Inheritance Tax and Gift Tax Act is to allow exceptions to the substance over form principle to the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. As such, the proviso to Article 45-2(1) is applicable only where the purpose of tax avoidance is not included in the purpose of title trust, and the taxes under the proviso are not limited to the gift tax (see Supreme Court Decision 2004Du1421, Jun. 11, 200

In addition, even if a provision on deemed donation is applied and gift tax is imposed, the substance of the relevant transaction is not determined as a gift (see Supreme Court Decision 2002Du12137, Sept. 24, 2004).

B) In light of the above legal principles, comprehensively taking account of all the following circumstances revealed by the facts as seen earlier, it is difficult to recognize that the Plaintiffs did not report the gift tax base in an unfair manner on the ground that they did not report the gift tax base according to the title trust of this case, and thus, it is difficult to recognize that they reported the tax base without filing an unfair report. Therefore, the unfair non-reported penalty tax

① The penalty tax on an unfair non-declaration is imposed on an act of without filing a return on a specific tax subject to the duty to report by concealing and citing the facts that form the basis of the tax base, etc. in an unfair manner. In the case of deemed donation, the subject matter of the report is based on the title trust, and thus, the fact constituting the basis of the tax base, etc. is the title trust. Therefore, even if the subject matter of the concealment and family head is limited to the title trust itself, it is difficult to deem that the subject matter of the concealment and family head also is the basis of the tax evaded from the title trust of this case. In other words, even if the title trust of this case was concealed and concealed from the underlying fact of another tax, it may be considered as the additional tax of the avoided tax.

② Even if the Plaintiff, who is the title trustee, committed an act externally as a right-holder pursuant to the title trust agreement, the said act is merely incidental to the process of title trust of valid shares, and thus, it is difficult to readily conclude that the act of concealing and inducing the relevant title trust through the preparation of a false document, the manipulation of transaction, and concealment.

③ The Defendant asserts that the act of hiding property under another person’s name by using the means of title trust, etc. constitutes an unfair method stipulated in Article 47-2(2) of the Framework Act on National Taxes. On the consistent reasoning of the Defendant, in a case where deemed donation due to title trust is recognized, 40% of the unfair non-reported penalty tax should be applied without any exception. It is unlikely to expect that the person who held the title trust should report gift tax due to the deemed donation of title trust for the purpose of tax avoidance. In most cases, where the said deemed donation was made, most of the cases would have performed an act similar

In such cases, there may be a problem that is contrary to the purpose of Article 47-2 of the Framework Act on National Taxes that allows the determination of the degree of specific facts by examining the ratio of the non-declaration penalty tax to 20% and 40%.

(4) Even if a gift tax is imposed due to a deemed donation, the substance of the relevant transaction is not confirmed as a donation. Ultimately, the gift tax resulting from a deemed donation is a kind of sanction on title trust for the purpose of tax avoidance (see, e.g., Constitutional Court en banc Order 2012Hun-Ba259, Sept. 26, 2013). It can be practically an excessive sanction on title trust for the purpose of tax avoidance.

C) Therefore, the portion exceeding the amount calculated by applying the general non-reported penalty tax rate (20%) in the instant disposition, i.e., the “amount of revocation of the non-reported penalty tax” among the details of the attached gift tax payment notice, should be revoked since all relevant parts are unlawful.

3. Conclusion

Therefore, the plaintiffs' claim is justified within the above recognized scope, and the remaining claims are dismissed as they are without merit. Since the judgment of the court of first instance is partially unfair, the part of the appeal by the plaintiffs is accepted and the judgment of the court of first instance is revoked as requested by the plaintiffs, and each of the "amount of revocation of the penalty tax without filing an unfair report" among each disposition on imposition of gift tax, which the defendants revoked to the plaintiffs as stated in the attached notice of payment of gift tax, and the corresponding part is revoked, and the remaining appeal by the plaintiffs is dismissed as it is so decided as per Disposition.