Seoul Administrative Court 2013Guhap837 ( December 17, 2013)

early 2012west 3149 ( December 26, 2012)

An act of public offering to prepare a false transfer contract in order to open the name and conceal the title trust relationship after the transfer of shares constitutes fraud or other improper act.

After the transfer of shares for the purpose of tax avoidance, in order to conceal the title trust relationship, it has been remarkably difficult to impose and collect taxes due to the preparation of a false sales contract, the active participation in or the solicitation of false payments, and the false report of capital gains tax. It is reasonable to apply 10 years of the exclusion period of imposition in case of tax evasion by fraudulent or other unlawful acts.

The exclusion period for national tax assessment under Article 26-2 of the Framework Act on National Taxes

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

2014Nu41048

KoreaA

Head of the District Tax Office

on January 23, 2015

on 13, 2015

1. The part against the Plaintiff regarding the order to revoke under the judgment of the court of first instance shall be revoked. On April 2, 2012, the part that the Defendant imposed against the Plaintiff on the Plaintiff on April 2, 2012 exceeding KRW 00 among the imposition of the gift tax belonging to the year 207 shall

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be five minutes, and four minutes shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance court shall be revoked. On April 2, 2012, the Defendant imposed capital gains tax on the Plaintiff for the year 2003, and the imposition of capital gains tax on the Plaintiff for the year 2007 and the imposition of capital gains tax on the gift tax on the year 2007 which exceeds ○○○○.

1. Details of the disposition;

A. The Plaintiff is a major shareholder of △△ Metal Industry Co., Ltd. (hereinafter referred to as “△△ Metal”), who is a stock-listed corporation, and the Plaintiff is a representative director of △△ Development Co., Ltd. (hereinafter referred to as “△△”) and a major shareholder of △△, a non-listed corporation (hereinafter referred to as “△ Development”).

B. On March 12, 2003, the Plaintiff sold 37,200 shares of △△ Development (hereinafter referred to as “instant shares of △△ Development”) owned by the Plaintiff to ○○○○○. However, due to the payment method of the purchase price, the Plaintiff entered into a sales contract with the Plaintiff, stating that ① KRW 116,482 shares of △△ metal owned by one B shall be calculated as KRW ○○○○ per share of △△○○○, and ② the Plaintiff shall take over the obligations owed by the Plaintiff for △○○○, and ③ the remainder of the purchase price shall be paid in cash by one B (hereinafter referred to as “first sales contract”). If the Plaintiff and one B notifies the other party of the time and method of exchanging the shares of △△ Development and the shares of this case, the other party agreed to accept it within seven days.

C. Since then, the obligation under the instant sales contract was fulfilled, and the instant shares were substantially transferred to one BB, and the transfer of ownership was not made in the future. On December 12, 2007, the Korea Development Bank entered into a share transfer contract with the △○○○○○○ per share of the instant shares to be transferred to △○○○○○○ (hereinafter “the instant secondary sales contract”).

D. However, the contract of the second sales contract of this case states that the plaintiff who had been a holder of the shares of this case at the time of the contract of this case is the transferor, and the contract of this case was prepared by HanB with the delegation of the plaintiff by the plaintiff. On December 13, 2007, the following day of the contract of this case was divided into three accounts of ○ Bank on the day of the plaintiff's name (○○ Bank, △△△, and ○○○).

E. However, on January 2008, the Plaintiff reported and paid the transfer income tax to the Defendant on the premise that the instant shares were transferred to the Plaintiff by △ Development without undergoing one BB.

F. From April 12, 2010 to September 29, 2011, the director of the Central District Tax Office: (a) conducted an investigation into capital gains tax and gift tax on the Plaintiff and HanB; and (b) at the time of the instant sales contract, the market price of △ Development shares at the time of the instant sales contract is assessed as KRW 00 per share in accordance with the supplementary assessment methods under the Inheritance Tax and Gift Tax Act; and (c) applying the provision regarding the wrongful calculation of capital gains tax under the Income Tax Act, the Plaintiff’s transfer of shares to ○○, the acquisition value is calculated as KRW 00, and the acquisition value is calculated as KRW 00; and (b) among the proceeds deposited in the passbook in the name of the Plaintiff in relation to the 2 sales contract of this case, the ○○○○ KRW was deemed to have made donation to the Plaintiff; and (d) the Defendant, the disposition authority, who was the Plaintiff’s donation of shares, notified the Plaintiff of these taxation data under the name of KRW 15,205.

G. Accordingly, on April 2, 2012, the Defendant respectively determined and notified the Plaintiff, ① KRW ○○○○○○○○○○○ for the transfer income tax of 2003, ② KRW ○○○○○ on December 13, 2007, ③ on January 1, 2005, KRW ○○○○○○○○○○ on the gift tax of 2005. On January 1, 2005, the Defendant determined and notified the Plaintiff on January 1, 2005 pursuant to Article 4(5) of the former Inheritance Tax and Gift Tax Act.

H. On July 2, 2012, the Plaintiff dissatisfied with each of the above dispositions and filed an appeal with the Tax Tribunal on July 2, 2012. On December 26, 2012, the Tax Tribunal rendered a decision that “The tax base and tax amount shall be corrected by re-audit of the donated property upon the imposition of gift tax on December 13, 2007, and the remainder of the claim shall be dismissed.”

I. On December 13, 2007, the Defendant recognized that the KRW ○○○ out of the donations made on December 13, 2007, did not correspond to the amount used by the Plaintiff, and calculated the tax base by deducting the amount from the existing donated property. Accordingly, on February 7, 2013, the Defendant corrected the amount of gift tax by reducing the amount of gift tax to KRW ○○○○ upon reduction (hereinafter “the imposition disposition of gift tax as of April 2, 2012 and the imposition disposition of capital gains tax as before reduction”).

Facts without any dispute, Gap's 1 through 7, Eul's 1 and 3 through 5, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) Details on imposition of capital gains tax

The Defendant imposed the transfer income tax on the premise that the exclusion period of imposition is ten years as stipulated in Article 26-2(1)1 of the Framework Act on National Taxes. However, the Plaintiff did not file a tax base return, and as such, the exclusion period of imposition should be applied for seven years as stipulated in Article 26-2(1)2 of the above Act. Since the first sale contract of this case does not change the title holder to B after the transfer contract of this case, Korea-B, the transferee of the shares, did not request the transfer of the title holder, and further, the transfer of title holder is irrelevant to the Plaintiff. Furthermore, since the transfer of title holder is entitled to exercise the right selectively, the transfer of title holder's right is not a passive exercise of the right, and the imposition period of the transfer income tax in this case is terminated seven years after the expiration of the exclusion period, and thus, the transfer income tax is unlawful by extending the transfer of the shares to the Plaintiff without imposing the transfer income tax by the transfer agent's transfer of shares under Article 45-2(1) and (2) of the former Inheritance Tax and Gift Tax Act.

(2) Part on imposition of gift tax

Although only the money actually used by the Plaintiff out of the price under the 2 sales contract of this case should be deemed to have been donated by the Plaintiff from B, the Defendant concluded that the Plaintiff was donated with ○○○○○○, without any grounds, to the extent that it was not possible to identify the place of use out of the above price, and erred in adding up it to the value of donated property. Furthermore, since the said money was transferred to B by a person who actually controlled and used the Plaintiff’s account in the name of

(b) Relevant u300 statute;

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

C. Determination

(1) Whether imposition of capital gains tax is lawful

"㈎ 국세기본법 제26조의2 제1항은 원칙적으로 국세의 부과제척기간을 5년으로 규정하고 있으나(제3호), '납세자가 사기 기타 부정한 행위로써 국세를 포탈하거나 환급・공제받는 경우'에는 그 부과제척기간을 당해 국세를 부과할 수 있는 날부터 10년으로 연장하고 있다(제1호). 위 조항의 입법취지는 조세법률관계의 신속한 확정을 위하여 원칙적으로 국세 부과권의 제척기간을 5년으로 하면서도 국세에 관한 과세요건사실의 발견을 곤란하게 하거나 허위의 사실을 작출하는 등의 부정한 행위가 있는 경우에 과세관청으로서는 탈루신고임을 발견하기가 쉽지 아니하여 부과권의 행사를 기대하기가 어려우므로 당해 국세에 대한 부과제척기간을 10년으로 연장하는 데에 있다. 따라서 국세기본법 제26조의2 제1항 제1호 소정의사기 기타 부정한 행위'라 함은 조세의 부과와 징수를 불가능하게 하거나 현저히 곤란하게 하는 위계 기타 부정한 적극적인 행위를 말하고, 다른 어떤 행위를 수반함이 없이 단순히 세법상의 신고를 하지 아니하거나 허위의 신고를 함에 그치는 것은 여기에 해당하지 않는다(대법원 2013. 12. 12.선고 2013두7667 판결 참조).",㈏ 살피건대, 앞서 든 증거들에 변론 전체의 취지를 종합하면 다음 ① 내지 ②의 사실이 인정된다.

① From 2003 to 2006, △△ Development did not distribute the shares of this case to the Plaintiff, and the Plaintiff continued to report such dividend income at the global income tax return. ② At the office of △ Development, at the time of the tax investigation, the document was found that “the Plaintiff transferred the shares of this case to ○○○○○○○, but was assessed as the assessed amount under the Inheritance Tax and Gift Tax Act, and “the review of the transfer of shares” described as “the transfer of shares at the book value.”

㈐ 위 처분의 경위에서 본 사실관계에 더하여 위 인정사실에서 엿볼 수 있는 다음 ㉮ 내지 ㉰의 사정에 비추어, 원고는 과세요건사실의 발견을 곤란하게 하고 허위의 사실을 작출하는 등의 부정한 행위를 하였고, 따라서 이는 조세의 부과와 징수를 불가능하게 하거나 현저히 곤란하게 하는 '사기 기타 부정한 행위'에 해당한다고 봄이 상당하다.

The contract for the second sale of this case stated that the Plaintiff, not the transferor, is the transferor, and that the first sale contract was prepared by the Plaintiff as delegated by the Plaintiff. In light of the developments leading up to the preparation of the contract, it appears that the Plaintiff and the second sale contract was made by collusion with the Plaintiff, or that the Plaintiff participated in and cooperates with the Plaintiff at least. Moreover, as the second sale contract was fully deposited in the account under the Plaintiff’s name, as the above account was maintained and managed by B with the Plaintiff’s consent, it appears that the Plaintiff was involved in the false payment of the price. Furthermore, the Plaintiff reported a false transfer income tax to the effect that it was consistent with the appearance of the first sale contract and the false payment of the price. Furthermore, the Plaintiff reported the transfer of shares to the ○○○ transfer income tax, which was the first sale contract, to the effect that the transfer of shares was made by the 20th transfer of the shares to the 20th transfer of the shares to the 1st transfer to the 1st transfer of shares (see Supreme Court Decision 2013Du10519, supra.).

㈑ 따라서, 이 사건 양도소득세 부과처분에는 국세기본법 제26조의2 제1항 제1호 소정의 10년의 부과제척기간이 적용된다고 봄이 타당하고, 이와 전제를 달리하는 원고의 주장은 이유 없다. 나아가 양도소득세와 증여세는 납세의무의 성립요건과 시기 및 납세의무자를 서로 달리하는 것이어서, 구 상속세및증여세법 제45조의2에 따른 증여세 부과와 이 사건 양도소득세 부과가 이중의 제재라고 볼 수 없으므로, 이에 반하는 원고의 주장 또한 받아들일 수 없다.

(2) Whether a disposition imposing gift tax is lawful

In a lawsuit seeking revocation of gift tax imposition, as long as the deposit in the name of a person recognized as a donor by the tax authority is revealed to have been withdrawn and deposited in the bank account in the name of a taxpayer, such deposit shall be presumed to have been donated to the taxpayer. Thus, barring special circumstances, such as withdrawal of such deposit and deposit in the name of a taxpayer, etc., it shall be deemed that such deposit was made for purposes other than donation (see Supreme Court Decision 9Du4082, Nov. 13, 2001). In addition, there is a need to prove such fact to the taxpayer (see Supreme Court Decision 9Du4082, Nov. 13, 2001).

① In the name of the Plaintiff, ○○ Bank Co., Ltd., which was deposited in the second sale contract, opened an account using the Plaintiff’s seal. ② After the Plaintiff’s request for lending of the account to ○○ Bank, △△△△△, and ○○○○○○○○○○ (○○○○), the Plaintiff, an employee of the Plaintiff, opened the account using the Plaintiff’s seal. ② In addition, the head of the passbook and seal in the above account were kept by B, and controlled and used the above account. In addition, on the premise of the facts as seen earlier in the process of the above disposition, the public health account and the total amount of the transfer was deposited in the Plaintiff’s name on December 13, 2007, and even if it is presumed that the above account was donated to the Plaintiff, it is reasonable to view that there was a special circumstance to deem that the amount deposited in the above account was reverted to B, unless the Plaintiff was the Plaintiff. Therefore, the Defendant’s disposition imposing gift tax on the part of KRW 2007 was unlawful.

3. Conclusion

Therefore, the plaintiff's claim shall be partially accepted within the above scope of recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance differs in part from this conclusion, it is so decided as per Disposition by cancelling part of it and accepting part of the plaintiff's claim.