Seoul Administrative Court 2017Guhap63610 ( October 11, 2018)

In the case of an illegal duplicate tax investigation because there is no clear evidence to acknowledge the suspicion of tax evasion;

It is not recognized that the civil judgment was already secured before the second tax investigation, and the civil judgment is based on the same facts as the materials secured by the investigating authority at the time of the first investigation, and it cannot be deemed as an obvious material to acknowledge the suspicion of tax evasion.

The prohibition of abuse of the right to tax investigation under Article 81-4 of the Framework Act on National Taxes as deemed donation of title trust property

Seoul High Court 2018Nu35713 Revocation of Disposition Imposing Gift Tax

Department sent to the Director of Seoul Regional Tax Office* (Director of Investigation*) on September 13, 2013, a tax investigation prior to the date of tax investigation.

In the text and notes of the tax issues investigation document attached to the notification of the result of the decision of the Consultative Committee for Determination of Facts

As the deceased* as the largest shareholder of the Company, the deceased has exercised voting rights on the shares of this case.

The contents of the civil judgment of this case and the detailed contents stated in the statement of the civil judgment of this case, and the above notice

It is recognized that the civil judgment of this case is included in the separate list. However, the above resolution is adopted.

A. As to the payment of KRW 7.5 billion by the deceased to this** in accordance with the decision of the Reconciliation Recommendation in this case

**The data to review whether gift tax may be imposed on this**

It was delivered to the person in charge of gift tax assessment, and the investigating authority about one year from the point of the above notice.

Around August 2014, the above recognition company prepared a review report on the selection of the deceased's investigation.

The office alone confirmed the result of the above resolution and deemed that the deceased was selected as a person subject to investigation.

and there is no other evidence to prove otherwise.

B. On January 2015, when the tax investigation of this case was in progress, the agency conducting the tax investigation is the Plaintiff’s agent.

In addition, a civil judgment of this case was requested and submitted, and the investigating authorities prior to the investigation of this case

It seems that the civil judgment of this case was not obtained.

(2) In light of Article 81-4 of the former Framework Act on National Taxes and its purport, Article 81 of the former Framework Act on National Taxes

Section 2(1) of the Act provides that re-audit shall be exceptionally permitted.

"Where there is clear evidence corroborating a suspicion of tax evasion" means the fact of tax evasion;

Cases where the probability of such data is deemed to be considerably reasonable based on objective and reasonable data;

shall be limited and such data shall not include any data already examined in the previous tax investigation.

It is reasonable to interpret that it is (see Supreme Court Decision 2010Du6083, Jan. 27, 201).

However, at the time of the initial tax investigation of this case, the Investigation Agency shall collect the criminal judgment of this case and additional collection of this case.

In particular, the written decision on the preservation for the collection in this case had already been made with the content that the deceased held the title trust of the shares of this case to SPC as the actual right holder of the shares of this case. Thus, the fact that the civil judgment of this case was rendered based on the same facts as the above stated in the criminal judgment of this case and the written decision on the preservation for the collection in this case after the pronouncement of the criminal judgment of this case and the decision on the preservation for the collection in this case cannot be deemed to constitute a new case

As to this, the defendant's criminal judgment of this case is unique to the facts charged in relation to the convertible bonds of this case.

The verdict of innocence has become final and conclusive on the violation of the Act on the Punishment, etc. of Specific Economic Crimes (Misappropriation).

As the judgment of innocence has become final and conclusive on the violation of the Act on the Punishment, etc. of Specific Crimes.

The decision on the preservation for collection of the collection of this case that ordered the collection of illegal gains acquired by the deceased from the above referral acceptance as well as the above acceptance;

Since the civil judgment of this case becomes effective, the written judgment of this case and the written decision of preservation of collection of this case

Despite this, the author argues that new materials have value. However, the criminal judgment of this case is the criminal judgment of this case.

the deceased's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust)

the conversion price of the convertible bonds of this case is reasonable price and is issued at a remarkably low price.

The reason why the decision on the preservation for collection in this case was invalidated is that it is not a specific crime of the deceased.

There is no sentence of additional collection as a result of judged not guilty of violation of the Act on the Aggravated Punishment, etc. of Crimes.

In light of the fact that the judgment became final and conclusive, and that the instant convertible bonds and shares were not invalidated for the reason that they were not owned by the deceased, the Defendant’s above assertion is without merit.

③ Ultimately, the instant tax investigation is tax evasion stipulated in Article 81-4(2)1 of the former Framework Act on National Taxes.

A duplicate tax investigation agent shall not be deemed to be a case where there is an obvious material to acknowledge the suspect of Rin and duplicate tax investigation.

The instant disposition is based on an illegal duplicate tax investigation, and thus, it is not necessary to examine the remainder of the Plaintiff’s assertion.

shall be revoked in an unlawful manner.

3. Conclusion

If so, the plaintiff's claim of this case will be accepted on the ground of its reasoning, and the conclusion is different.

The judgment of the court of first instance is unfair, and it is ordered to revoke the disposition of this case.

The decision shall be rendered as above.

OO

*The Director of the Tax Office

January 11, 2018

November 28, 2018

January 16, 201

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of each gift tax of KRW 000 (including additional taxes) and KRW 000 (including additional taxes) against the Plaintiff on October 1, 2015 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

1. Details of the disposition;

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The court's explanation on this part is identical to the corresponding part of the reasons for the judgment of the court of first instance (from the last 3th to the fourth 18th eth eth eth eth eth eth eth eth eth eth eth eth eth eth e)

B. Relevant statutes

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the reasoning is accepted by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

(c) Fact of recognition;

D. Determination

1) Whether it is an illegal duplicate investigation

A) The reasoning for the court’s explanation as to whether the instant tax investigation is “tax investigation prohibited from re-audit” is identical to the corresponding part of the reasoning of the judgment of the court of first instance (Articles 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act. As such, this part of the reasoning for the judgment of the court of first instance is acceptable.

B) Whether the instant tax investigation is an unlawful duplicate tax investigation

(1) Relevant legal principles

A tax investigation should be conducted within such minimum scope as may be necessary to realize appropriate and fair taxation. Moreover, a re-audit of the same tax item and the same taxable period may seriously undermine taxpayers’ freedom of business and legal stability as well as may lead to the abuse of their right to tax investigation. Therefore, the Framework Act on National Taxes strictly limits cases where re-audit is exceptionally permitted. In the same purport, a re-audit of the same tax item and the same taxable period is prohibited in principle if a re-audit fails to meet the requirements specified in such limited provisions. Furthermore, when a re-audit violates the principle of prohibition of double-tax investigations, a serious procedural defect that is inevitable to control the effects of the taxation disposition should exist, and a "where there is obvious material to acknowledge the suspicion of tax evasion" provided for as one of the cases where a re-audit is allowed, shall be strictly limited to cases where there is evidence to prove the possibility of tax evasion and its rationality are supported by data (see Supreme Court Decision 2016Du5421, Dec. 13, 2017; Supreme Court Decision 2012Du36138, Dec. 2014.

(2) Determination

① The Defendant asserted that this case’s tax investigation constitutes a duplicate tax investigation permitted under the former Framework Act on National Taxes because it constitutes “where there is clear evidence to acknowledge a suspicion of tax evasion” under Article 81-4(2)1 of the former Framework Act on National Taxes since the investigating authorities obtained the civil judgment of this case prior to the investigation of this case after the initial investigation of this case, and the deceased was suspected of tax evasion through title trust of the convertible bonds and stocks to SPC. However, in full view of the aforementioned facts and the evidence as seen earlier, it is not recognized that the investigating authorities had secured the civil judgment of this case prior to the investigation of this case, and there is no other evidence to acknowledge this otherwise. If the investigating authorities started the investigation of this case by obtaining the civil judgment of this case as alleged by the Defendant, the investigating authorities did not obtain the selection table of the deceased’s investigation (No. 15) prepared around August 2014, and the details of the investigation of this case’s tax investigation of this case’s case’s domestic tax office were not recorded in the Seoul National Tax Office’s list No. 14.