Seocho 2017west 4432 ( December 21, 2017)

Money transferred from the parent's account to the account of this case for the purpose of money laundering as shown in the facts of recognition of criminal judgment constitutes donation.

Unless there are special circumstances where it is deemed difficult to adopt a factual judgment of the relevant civil and criminal trial, it cannot be acknowledged that there was an opposing fact. Thus, it is reasonable to view that the amount of this case was the act of donation, such as transfer of property free of charge, since the ownership or disposal right is finally vested in the Plaintiff at the time of deposit

Article 2 (Gift Tax Taxables) of the former Inheritance Tax and Gift Tax Act

Article 23 of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act (Time of Acquisition of Donated Property)

2018Guhap57193 Revocation of Disposition of Imposition of Gift Tax

AA

a) the Director of the Tax Office

November 29, 2018

January 17, 2019

1. The plaintiff's claim is dismissed.

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

On January 19, 2017, the Defendant revoked the imposition disposition of the gift tax Xx (including additional tax) imposed on the Plaintiff on the Plaintiff.

1. Details of the disposition;

A. On August 24, 2011, the Plaintiff transferred KRW 800 million (hereinafter referred to as “the instant money”) from c bank accounts under the name of BB to d bank accounts in the name of BB, a shareholder of BB, BB. (hereinafter referred to as “instant corporation”).

B. The Defendant conducted a gift tax investigation and determined that the Plaintiff, who had the right to manage and dispose of the instant account, donated the instant money from BB, and on January 19, 2017, determined and notified the Plaintiff on January 19, 2017 (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal, but was dismissed on December 21, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 6, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff temporarily transferred the instant money to the account in the middle course of money laundering while managing the entire property of BB and the Plaintiff’s brothers and sisters. In other words, the instant disposition was unlawful on a different premise, since there was an intention to donate the instant money between the Plaintiff and BB, or the Plaintiff did not have been finally reverted to the right to own or dispose of the instant money.

(b) Fact of recognition;

1) On August 24, 2011, the Plaintiff transferred the instant amount of KRW 800 million to the instant account according to the proposal of Audit and Inspection CCC by the instant corporation.

2) The Plaintiff, while substantially managing the passbook and seal of the instant account, transferred KRW 218,845,000 out of the instant amount from August 24, 201 to October 14, 2011, to the account in the name of DD and EE designated by CCC from the instant account, and CCC transferred KRW 171,654,00 out of the amount transferred over five times from September 25, 201 to October 16, 2011, to the account in the name of FF designated by the Plaintiff.

3) On the ground that the Plaintiff would no longer send money to his own designated account, and that it is necessary to conduct the business of the instant legal entity, such as a tax declaration, etc., by using the corporate seal received from the Plaintiff for re-issuance of passbooks to the instant account from January 4, 2012 to February 29, 2012, the CCC withdrawn KRW 573,057,000, out of KRW 581,15,000, remaining in the instant account nine times during the period from January 4, 2012 to February 29, 2012.

4) On February 2012, the Plaintiff filed a complaint with CCC on charges of fraud, etc., and transferred KRW 171,763,765 to a bank account in the name of FF on March 9, 2012, the original deposit of KRW 171,763,765 to a bank account in the name of BB.

5) CCC는 2013. 9. 12. 서울중앙지방법원으로부터 'CCC는 원고로부터 BBB 돈 8억 원을 증여받아야 하는데 세금이 문제된다는 말을 듣고 원고에게 중국에서 운영하고 있는 소 사료 사업체를 통해 자금을 세탁해서 증여세가 부과되지 않도록 해 주겠다고 제안하였고, 이에 원고는 이 사건 계좌의 통장과 도장을 자신이 보관하면서 CCC의 요청이 있을 때 수시로 돈을 송금하여 자금세탁을 의뢰하는 조건으로 위 제안을 수락하여 이 사건 금원을 이 사건 계좌에 입금하였다. 그런데 CCC는 이 사건 계좌에서 불법적으로 위 금원을 인출하여 편취할 목적으로 이 사건 법인의 공동대표이사인 GGG와 HHH 명의의 위임장을 위조하고 이를 행사하여, 피해자 cc은행 직원을 기망하여 피해자로부터 573,057,000원을 편취하였다'는 범죄사실로 사문서위조죄, 위조사문서행사죄, 특정경제범죄가중처벌등에관한법률위반(사기)죄로 징역 3년을 선고받았고(서울중앙지방법원 2013고합XXX), CCC가 이에 불복하여 항소하였으나 서울고등법원에서 2012. 12. 12. 항소 기각됨에 따라(서울고등법원 2013노XXXX), 위 판결은 그대로 확정되었다. 위 형사재판에서 CCC는 이 사건 계좌에 입금된 이 사건 금원은 이 사건 법인 명의로 운영하는 소 사료 사업에 대한 투자금으로 자신이 원고로부터 투자받은 돈이므로 그 처분권이 자신에게 있다고 주장하였으나, 제1심 및 항소심 법원은 모두 이 사건 계좌에 입금된 이 사건 금원은 원고가 자금세탁을 할 목적으로 입금한 금원으로 그 처분권한이 원고에게 있다고 인정하였다.

6) 원고는 CCC를 상대로 'CCC가 원고에게 BBB로부터 증여받은 8억 원을 이른바 자금세탁 목적으로 이 사건 계좌에 보관하도록 하였고, 이 사건 계좌의 통장과 도장을 보관하면서 CCC의 요청이 있을 때 수시로 원고가 직접 돈을 송금하는 것을 조건으로 하였음에도, CCC가 이 사건 계좌에서 573,057,000원을 불법 인출하여 위 금원을 편취하였으므로, 불법행위로 인한 손해배상금 573,057,000원 및 이에 대한 지연손해금 상당의 지급을 구한다'는 내용의 손해배상청구의 소를 제기하여, 서울중앙지방법원으로부터 2014. 3. 5. 자백간주로 인한 원고 전부승소 판결을 선고받았고(서울중앙지방법원 2013가합XXXX호), 위 판결은 그 무렵 확정되었다.

[Ground of recognition] Facts without dispute, Gap evidence 3 through 5, 7 through 10, Eul evidence 2, the purport of the whole pleadings

C. Determination

1) Generally, in a lawsuit seeking the cancellation of a tax imposition disposition, the burden of proof is imposed on the person liable for taxation, but if it is revealed that the facts alleged in light of the empirical rule in the specific litigation process were proved, the other party cannot be readily concluded that the pertinent tax disposition was an unlawful disposition that failed to meet the taxation requirements (see, e.g., Supreme Court Decisions 2009Du6568, Sept. 24, 2009; 2009Du6568, Sept. 24, 2009). In addition, even if a civil trial or criminal trial is not bound by the civil trial or criminal trial’s fact-finding, the facts established in the already-established civil trial or criminal trial are sufficiently binding evidence in the pertinent administrative litigation, and thus, it is difficult to employ the relevant civil trial or criminal trial’s fact-finding in light of other evidence submitted in the relevant administrative litigation, barring any special circumstance to the contrary (see, e.g., Supreme Court Decision 2008Da92312, Sept. 29, 209).

2) In light of the above legal principles, it is reasonable to view that the instant money was donated to the Plaintiff as it ultimately reverts to the Plaintiff’s ownership or right to dispose of property at the time of deposit in the instant account, and it is insufficient to reverse it solely on the basis of the evidence submitted by the Plaintiff and its assertion. Accordingly, the instant disposition is lawful, and the Plaintiff’s assertion is without merit.

A) The Plaintiff, including the transfer of the instant money to the instant account, led to all decision-making and fund transfer during the process of money laundering, while substantially managing the accounts in the name of the instant account and FF.

B) It is recognized that the Plaintiff had the authority to dispose of the instant money deposited in the instant account in the relevant criminal trial already finalized. Even though the Plaintiff and CCC determined that they have the authority to dispose of the instant money in the said criminal trial, the Plaintiff was recognized in the relevant civil trial to have been acquired by transfer the instant money to the instant account for the purpose of avoiding gift tax by gifting the instant money from BB, and the said fact was directly asserted by the Plaintiff in the civil court, and thus, the said fact became final and conclusive that the Plaintiff had the right to recover KRW 573,057,00,000, which was so acquired by CCC.

C) At the time of transferring the instant money to the instant account, the Plaintiff did not yet express his/her intent to donate the said money to the Plaintiff, which is merely an intermediate stage of money laundering according to the intent of BB. However, the Plaintiff’s overall management of the property of BBB and brothers and sisters in ordinary sense cannot be deemed to have transferred the instant money by simply transferring the said money to the instant account in the position of the manager of the instant money, contrary to the facts established in the relevant civil and criminal case and the Plaintiff’s existing assertion in the relevant civil and criminal case, unlike the fact-finding and the Plaintiff’s existing assertion, and there is no other evidence to deem that BB instructed or involved in the Plaintiff’s decision-making or money transfer related to money laundering.

D) In the process of money laundering, the Plaintiff acquired money by deception equivalent to the CCC’s fraud, but some of the money was transferred to the FF account he/she designated through a third party. The Plaintiff transferred the money transferred to FF’s account to BB on March 9, 2012. However, it appears that the Plaintiff was aware of the fact that the money was stolen from CCC and failed to do so in the process of preparing a criminal complaint and related lawsuit, and was inevitably returned to the FF account. As such, the circumstance that part of the money in this case was returned to the FF account through the instant account cannot affect the judgment prior to the foregoing determination. In addition, Article 31(4) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013) provides for the pertinent tax base where the donated money was returned from the beginning within the reporting deadline, but there is no room to deem the pertinent provision on the gift tax (excluding the donated money and the gift tax pursuant to the agreement between the parties.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.