National Tax Service Review Income 2011-0020 (Law No. 19, 2011)

Even if the bank manages the deposit with a borrowed-name account, it cannot be viewed as fraud or other unlawful act, so it shall be applied for the exclusion period of five years.

Even if the deceased opened and managed each of the accounts in the name of his heir and a third party under the name of his heir, it is difficult to recognize that the deceased had the intent to evade interest income tax, and that he committed fraud or other unlawful acts making it impossible or considerably difficult to impose and collect taxes as a means, and that the exclusion period of imposition should be five years.

2012Guhap7028 Global Income and Revocation of Disposition

KimA

Head of Seocho Tax Office

June 12, 2012

July 12, 2012

1. The Defendant’s imposition of global income tax of 000 won for the year 2001 and global income tax of 000 won for the year 2002 on September 1, 201 on the Plaintiff and Nonparty B, KimCC, KimD, and KimF.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The deceased KimG (hereinafter referred to as "the deceased") who is the father of the plaintiff died on March 30, 2002, and the deceased died on March 30, 2002.

On September 30, 2002, the wife and children, KimCC, KimD, the plaintiff, KimE, and KimF reported and paid KRW 000 of the inheritance tax (hereinafter referred to as "heirs") with the taxable value of the inheritance as 000 won on September 30, 2002.

B. The director of the Seoul Regional Tax Office shall conduct an inheritance tax investigation from January 26, 2004 to April 25, 2004

On May 1, 2004, in addition to the inherited property, 000 won deposited in the above borrowed name account was added to the inherited property and the heir, including the plaintiff, issued a correction and notice of 00 won of the inheritance tax, but the amount of 00,000 won was reduced on May 27, 2005.

C. On the other hand, the company outside Korea is the name of the heir or third party at the time of the above inheritance tax investigation.

Between 199 and 200, 43 accounts of the deceased are the deceased’s borrowed account, and between 1999 and 2004, 1,972,250,000 won from each of the above accounts constitute non-real-name property assets subject to Article 5 of the Act on Real Name Financial Transactions and Confidentiality (hereinafter “Real Name Financial Transactions Act”), and deposit money from some of the above 43 accounts with the Seoul Central District Court, withdrawing money from the above 43 accounts as the deceased’s heir or Korea as the deposit, and deposit KRW 00 on June 25, 200, and July 14, 2004.

D. Accordingly, the deceased’s inheritors filed a lawsuit seeking confirmation of the claim for payment of deposit against the Republic of Korea, and the president of the Gwangju District Tax Office, from March 27, 2008 to April 9, 2008, conducted a tax investigation on the income tax on the fixed-water interest income with the non-party company from March 27, 2008, and from April 4, 2008, 35 accounts out of the above 43 accounts were deemed as the name account of the deceased, and notified the Defendant

E. Accordingly, between January 1, 2001 and March 30, 2002, when aggregate taxation of financial income was conducted on the basis of the above taxation data, the interest income accrued from each of the above 35 accounts listed in the separate sheet (hereinafter referred to as "each of the accounts in this case") was reverted to the deceased, while the deceased was managing his deposit by using a large number of borrowed accounts (each of the accounts in this case), the omission in global income tax return on the interest income was 0.1 of Article 26-2 (1) 1 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 200; hereinafter the same shall apply) and 20.2 of the former Framework Act on National Taxes (amended by Act No. 2010, Sep. 1, 2010; 2010; hereinafter the same shall apply).

F. On October 21, 2010, the Plaintiff, a joint obligor of each of the above dispositions, filed an objection against the Defendant on all of the disposition imposing global income tax, and the Defendant, on November 22, 2010, accepted part of the Plaintiff’s objection among the interest income 000 won accrued in the year 2001, and subsequently corrected (reduction of KRW 000) by reducing the amount of global income tax of KRW 000 to KRW 00 (reduction of KRW 000) for which the Defendant imposed the global income tax of KRW 201 on the inheritor (the remaining portion of the disposition imposing global income tax of KRW 00 on September 1, 201 and the total amount of the disposition imposing KRW 00 for global income tax of KRW 200 accrued in the year 202, hereinafter referred to as “each of the instant dispositions”).

G. On February 21, 201, the Plaintiff filed a request for review with the Commissioner of the National Tax Service on February 21, 201, and the Commissioner of the National Tax Service, on August 19, 201, after re-auditing whether 23 accounts opened under the name of the Dried Construction Co., Ltd. among each of the instant accounts are the name of the deceased, and accordingly, made a decision to re-audit that the tax base and tax amount of each of the instant dispositions should be corrected according to the results. Accordingly, on November 30, 201, the Defendant confirmed that the said 23 accounts were the name account of the deceased, and that each of the instant dispositions was lawful.

[Reasons for Recognition] The non-satis, Gap evidence 1 to 5, Eul evidence 1 to 2, and Eul evidence 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

① It cannot be deemed that a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes solely on the deceased’s mere account management. Therefore, with respect to global income tax for the year 201 and 2002, the exclusion period for imposition of five years under Article 26-2(1)1 of the former Framework Act on National Taxes is not applicable, but the five-year exclusion period under Article 26-2(1)3 is applied, and each of the dispositions of this case was made five years after the date on which each of the above comprehensive income tax can be imposed.

② Since the actual owner of each of the instant accounts is not the deceased, each of the instant dispositions taken on a different premise is unlawful.

③ The Defendant, even after June 25, 2004, deposited money in the name of income tax on the interest income generated from 43 fraternitys including each of the instant accounts by the non-party company, and made it clear that no comprehensive income tax was imposed on the inheritors including the Plaintiff, and that no comprehensive income tax was imposed on the inheritors with respect to the said interest income. Accordingly, each of the instant dispositions imposed on the non-party company only after the lapse of 6 years from that time is against the heir’s trust, including the Plaintiff, and thus, was unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination on the first argument

1) The Defendant, as well as the network words, actively concealed income by opening a large number of borrowed accounts and distributing deposits, and omitting a global income tax return on interest income, makes it impossible or considerably difficult to impose and collect global income tax. Therefore, the ten-year exclusion period of imposition is applied pursuant to Article 26-2(1)1 of the former Framework Act on National Taxes as the deceased’s act constitutes a case where the national tax on interest income was evaded by fraud or other unlawful act. Therefore, we examine whether the above act constitutes “a case where the comprehensive income tax was evaded by fraud or other unlawful act” under Article 26-2(1)1 of the former Framework Act on National Taxes.

2) Article 26-2(1) of the former Framework Act on National Taxes provides that if a taxpayer evades or deducts the national tax by fraudulent or other unlawful means, it shall be 10 years starting from the date when it can be imposed on the deceased (No. 1) and if the taxpayer does not withdraw the tax base within the statutory due date of return, it shall be 7 years starting from the date when the national tax can be imposed, and if the taxpayer does not fall under subparagraphs 1 and 2, it shall be 5 years starting from the date when the tax was imposed on the account (No. 3). Meanwhile, the term "Fraud and other unlawful acts" under Article 26-2(1)1 of the former Framework Act on National Taxes shall be interpreted as the same meaning as 0 "Fraud and other unlawful acts committed by the deceased under the name of 20 years before the revision by Act No. 9919, and it shall be interpreted as 20 years long as the tax base of the deceased does not include any unlawful means or other unlawful acts.

3) According to Article 26-2(1)3 of the former Framework Act on National Taxes, national taxes cannot be imposed after five years from the date on which they are assessable, and according to Article 12-3(1)1 of the Enforcement Decree of the same Act, in the case of national taxes, the exclusion period shall begin from the day following the due date or the due date for submission after the due date of return or the declaration of tax base and tax amount of the relevant national tax. Any disposition taken after the expiration of the exclusion period of the imposition of national taxes is null and void (see Supreme Court Decision 2003Du1752, Jun. 10, 2004). According to Article 70(1) of the Income Tax Act, the period for final return of global income tax for which the tax base and tax amount were imposed for 201 years has already been imposed on May 31, 2002, and the period for final return of global income tax for 202 years have already been imposed on May 31, 2003; and the exclusion period for imposition of global income tax for 205 years and 201.

3. Conclusion

The plaintiff's claim is justified and accepted.