"The re-investigation of this case constitutes "the case where there is clear evidence to prove the suspicion of tax evasion";

"The above facts revealed before the second tax investigation of this case are objectivity and rationality to support the probability of the omission of gift tax by the plaintiff. Thus, the second tax investigation of this case constitutes "where there is evident evidence to acknowledge the suspicion of tax evasion", and "the content of the judgment"

2014Guhap10022 Revocation of Disposition of Imposing gift tax

NewA

Daejeon Head of the District Tax Office

June 11, 2014

August 13, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The disposition taken by the Defendant against the Plaintiff on December 5, 2011 (to be deemed as a clerical error in December 1, 2011) to impose gift tax on the Plaintiff shall be revoked.

1. Details of the disposition;

A. Receiving compensation from the Plaintiff’s father

"The plaintiff's referenceB received OOB from CCC on October 18, 2005 as compensation for land in the OOB (hereinafter "the compensation in this case")," (b) the first tax investigation and the imposition of gift tax.

"1) The Director of the Daejeon Regional Tax Office had conducted a tax investigation on the plaintiff (hereinafter referred to as the "first tax investigation of this case") with the tax items subject to investigation from March 9, 2007 to May 10, 207 as transfer income tax and source investigation, and the investigation period from January 1, 2002 to February 28, 2007 as the "from February 2007"; the Daejeon Regional Tax Office (hereinafter referred to as the "the first tax investigation of this case"); and (ii) on March 14, 2006, used the amount of OOO to purchase the amount of 6,618 square meters in response to the location of OOO on March 14, 2006; and identified the remaining amount of OOOOO, DaDDDD 2, 2006 to the plaintiff on November 15, 2006, and O200 out of each account with the deposit of 50O2,07 O.

3) Accordingly, around May 2007, the Defendant decided and notified the Plaintiff’s donation of OOOE from NewB as to the donation of OOE to the Plaintiff.

C. Second tax investigation and imposition of gift tax of this case

1) On May 201, the Defendant confirmed the circumstances in which the Plaintiff directly managed the financial assets of the newB in the process of investigating the reasons for delinquency in capital gains tax for the 2005 year from the newB.

(2) From September 14, 201 to October 21, 2011, the Defendant again conducted a tax investigation on the Plaintiff (hereinafter referred to as the “second tax investigation”). In the tax investigation, the instant compensation was deposited in the account in the name of newB, excluding the KRW 00,000, KRW 10,000, KRW 20,000, KRW 10,000,000, KRW 10,000,000, KRW 10,000,000, KRW 20,000, KRW 20,000, KRW 2,000, KRW 2,000, KRW 2,000, KRW 2,000, KRW 2,000, KRW 1,000, KRW 2,000, KRW 16,000, KRW 10,000, KRW 16,06,00, KRW 16,06.,00.

On February 8, 2012, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but was dismissed on October 1, 2013.

Facts that there is no dispute over recognition, Gap's evidence Nos. 1, 4, 8, 9, 10, Eul's evidence Nos. 1, 2, 4, and 5 (including each number), the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The Plaintiff, as a dementia patient of class 3 of the brain disease disorder, was stolen or stolen the instant money from the newB by taking advantage of the fact that the newB had an incomplete capacity or mental capacity as a dementia patient, and the newB did not intend to donate the instant money to the Plaintiff. Therefore, the instant disposition based on the premise that the newB donated the instant money to the Plaintiff is unlawful.

2) Violation of the principle of prohibition of duplicate tax audits

Since the instant secondary tax investigation overlaps with the instant tax investigation, the instant disposition based on the premise of the instant secondary tax investigation is an unlawful disposition contrary to the principle of prohibition of duplicate tax audits as stipulated under Article 84-4(2) of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter the same).

(b) Related statutes;

Administration Inheritance Tax and Gift Tax Act (amended by Act No. 9916 of January 1, 2010)

Article 2 (Gift Tax Taxables)

(1) Where any donated property falls under any of the following as of the date of donation due to a donation by a third party (excluding donation becoming effective due to the death of a donor; hereinafter the same shall apply), gift tax shall be levied on such donated property, as prescribed by this Act:

1. Where a person to whom property has been donated (hereinafter referred to as a " donee") is a resident (including a non-profit corporation, the head office or main office of which is located in Korea; hereafter the same shall apply in this paragraph and Articles 54 and 59), all of the donated property received, as donation,

2. Where a donee is a non-resident (including a non-profit corporation, the head office or main office of which is not located in Korea; hereafter the same shall apply in this Article and Articles 4 (2) and 6 (2) and (3)): all of the property donated to a non-resident, which is located in Korea.

(3) The term "donation" in this Act means a gratuitous transfer (including transfer at a remarkably low price) of any tangible or intangible property, the economic value of which can be calculated, directly or indirectly, to any third person, notwithstanding the name, form, purpose, etc. of such act or transaction, or an increase in the property value of any third person by contribution.

director Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013)

Article 81-4 (Prohibition of Abuse of Right of Tax Investigation)

(1) Any tax official shall conduct a tax investigation to the minimum extent necessary to realize proper and fair taxation and shall not abuse the right of tax investigation for any other purpose.

(2) Tax officials may not conduct reinvestigation for the same items of taxation and for the same taxable period, except in any of the following cases:

1. Where obvious evidence exists that prove a suspicion of tax evasion;

(Omission)

C. Determination

1) As to the non-existence of grounds for disposition

According to the statements in Gap's 3, 6, 7, and 11 (including Serial number), the new BB submitted a memorandum of July 16, 1930 that the new B had been registered as a disabled person of Grade III due to brain disease on December 16, 2003. ② At the time when the new BB submitted an application for electronic financial use to the OGOOOO branch on November 14, 2006, the Plaintiff was able to prepare the said application, and the Plaintiff was able to assist the Plaintiff in preparing the said application, and the Plaintiff was able to bear all civil and criminal responsibilities arising in relation to the application for Internet banking and the report and termination of the accident report of the attached account. ③ The new BOGO branch on December 11, 206 submitted a memorandum of opinion to the effect that the new BO is different from the new BOB statement made by the Plaintiff on December 18, 201, respectively.

However, according to the following facts, Gap evidence Nos. 1, 5, 6, 7 (including paper numbers), and Eul evidence Nos. 5, which can be acknowledged by adding the whole purport of the pleadings, at least since the health condition of newB appears to the extent that it can sufficiently express his/her own intent during November 2006, since the financial status of newB transferred the money of this case at least during the period of November 2006, it shall be deemed to be based on the will of newB. Even if the plaintiff conducted the transfer transaction of this case, it shall be deemed that the newB ratified the transfer transaction after the fact. Thus, it is reasonable to view that the money of this case was donated to the plaintiff on the basis of

① On November 14, 2006, when preparing and submitting an application for electronic financial use at the OF OO branch, newB had been assisted by the Plaintiff. However, the "the last name of the application" column was stamped with the name of the Plaintiff, and "the second name of the application was stamped by the newB" on December 27, 2005, and "the second name was submitted at the OGOO branch in order to transfer the OB to this H on December 27, 2005, the second body was similar to the second body of the newB under the above application for electronic financial use, and the second body was entirely different from the body of the Plaintiff under each tax law submitted at the OGOO branch on December 11, 2006, ③ the first name of the application was stamped by the new BOB on December 11, 2007, and the second part was never reported to the Plaintiff on May 16, 2007.

④ At the time of the first tax investigation of this case, the Plaintiff prepared and submitted a certificate to the effect that the Plaintiff received a donation from the newB, and paid gift tax accordingly.

⑤ The Plaintiff did not return the instant money to the newB, and the newB or the Plaintiff’s penalty also did not request the Plaintiff to return the instant money.

Accordingly, we cannot accept this part of the plaintiff's argument.

2) As to the assertion of violation of the principle of prohibition of duplicate tax audit

In light of the provisions and purport of Article 81-4(1) of the former Framework Act on National Taxes, "where there is clear evidence to acknowledge a suspicion of tax evasion under Article 81-4(2) of the former Framework Act on National Taxes," refers to cases where the probability of the fact of tax evasion is acknowledged based on objective and reasonable data (see, e.g., Supreme Court Decision 2010Du19294, Nov. 29, 2012). In this case, the Health Unit and the Defendant’s investigation into the grounds for delinquency in capital gains tax for the year 2005 by newB, the fact that the Plaintiff was aware of the circumstances in which the Plaintiff directly managed the financial assets of the newB, as seen earlier, can be acknowledged based on the evidence evidence Nos. 2 and 5.

① From 2001 to 2010, the Defendant confirmed that the Plaintiff acquired real estate more than OO won since 2006, while the Plaintiff’s total income amount was OOO won and the Plaintiff’s real estate price was OO won.

② In addition to the instant compensation, the Defendant confirmed that newB received compensation from the OB to the urban development of the OB in 2005, the new II, the south of the newB, due to the same urban development project, received compensation from the OB in 2006, and the new J in 2006, the south of the newB, the vehicle of the newB, received the compensation from the OB in 2006.

In light of the above, the above facts revealed before the second tax investigation of this case are objective and reasonable to support the probability of the omission of gift tax. Thus, the second tax investigation of this case constitutes "the case where there is clear evidence to prove the suspicion of the omission of tax". Therefore, the second tax investigation of this case constitutes an exception to the permission of the duplicate tax investigation, and thus, there is no error of law contrary to the prohibition of duplicate tax investigation of this case. The plaintiff's assertion on this part is without merit.

3. Conclusion

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