Cho High Court Decision 2010Du0632 ( October 31, 2010)

It is difficult to deem that there was a serious violation of procedures even if there was no opportunity to request a pre-assessment review.

Even if there is no opportunity to request the pre-assessment review, it is difficult to see that there was a serious violation of procedure, and since shares are nominal trust, and it is insufficient to recognize it as there is no specific proof of window dressing accounting, a disposition imposing gift tax by evaluating shares by supplementary evaluation methods is legitimate.

2010Guhap9861 Revocation of Disposition of Imposition of Gift Tax

50

O Head of tax office

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing gift tax of KRW 245,973,00 against the Plaintiff on November 30, 2009 is revoked.

1. Details of the disposition;

A. LB and LCC owned 1/2 (375,00 shares) each of the above 1/2 (375,00 shares) as a joint representative director of DD (the trade name before December 17, 2001: EE Electricity Industry Co., Ltd.; hereinafter referred to as the “instant company”). LB transferred 375,00 shares owned by it to 300,000 shares (hereinafter referred to as the “instant shares”) from 375,000 shares to 300,000 shares (hereinafter referred to as the “instant shares”) from 370,000 shares to 112,50 shares (hereinafter referred to as “the instant shares”), 30 shares (the instant shares) from 10,000 shares to 20,000 shares (the instant shares), 30,500 shares (the instant shares) from 30,500 shares (the instant shares) to 30,500 shares (the instant shares) from 20, 3701) shares.

C. From November 1, 2005 to April 11, 2007, the Defendant conducted a tax investigation with respect to the above company, and assessed the value per share of the instant 1,2, and 30% from 109 to 207 to 2007 to 2007, and, in the process that the instant 1,2, and 3 shares were to be returned in the name of CC principal by pretending to be the sale and purchase, the Defendant held that the instant 1,2, and 3 shares were nominal in title, respectively. Accordingly, the Defendant: (a) on July 2, 2007, based on the supplementary method of assessment under the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter referred to as “Inheritance Tax and Gift Tax Act”); (b) assessed the value per share of the instant 1,209 to 100,542 won; and (c) assessed each of the instant 200G shares to 300G shares 1, 30606.4,207.19

D. Accordingly, on October 9, 2007, OF and JungG filed a request with the Tax Tribunal for a trial, and on January 20, 2009, the Tax Tribunal rendered a decision to revoke the imposition of each gift tax on the grounds that the pertinent shares were owned by the least BB from B from the beginning of the year, and that the transfer price was paid from the maximumCC, etc., but the maximumCC was deemed the donor. However, on the grounds that the imposition of gift tax was unfair, the gift tax was revoked on the ground that the maximum B was deemed the donor and the gift tax was imposed (the first instance court 2007 middle 4022).

E. Accordingly, on May 7, 2009, the Defendant: (a) purchased the instant 3 shares from the largestB; and (b) held title trust with the FF and YG; (c) imposed KRW 204,109,500 on FF as gift tax on the instant 1,201; and (d) imposed KRW 95,291,000 on FG as gift tax on the instant 3 shares on October 29, 2001; and (b) on November 30, 2009, the Plaintiff did not have the ability to cope with the acquisition price of the said shares as national tax as delinquent taxpayers at the time. In view of the fact that LCC held the title trust of the instant 3 shares to the Plaintiff, the Defendant calculated the gift tax on the instant 3 shares by October 29, 2001 as follows, and imposed KRW 245,597,00 (hereinafter referred to as “instant disposition”).

F. On October 29, 2001, the transfer date of the instant 1, 2, and 3 stocks, the date of appraisal as of October 29, 2001, the Defendant calculated the net asset value per share (net profit and loss value) calculated based on the weighted average amount of net profit and loss during the instant three years by using supplementary appraisal methods under the Inheritance and Gift Tax Act, on the ground that there is no data that could assess the market price of the instant company’s stocks as of the base date. The Defendant calculated the net asset value of 6,081,720,184 won per share (net asset value) calculated based on the corporate tax return and financial statement as of the end of 200 of the instant company’s business year by dividing the net asset value of 6,081,720,184 won by the total number of issued stocks (net asset value) by 8,109 won, a price higher than the net profit and loss by applying 30% per share to 10,542 won per share.

G. On February 22, 2010, the Plaintiff appealed, but the Tax Tribunal dismissed the Plaintiff’s appeal on March 31, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1, 2, 3, and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① With respect to the instant disposition, the Defendant did not perform the prior notice procedure regarding the tax investigation under Article 81-7 of the Framework Act on National Taxes, and did not conduct any specific tax investigation against the Plaintiff, and did not notify the Plaintiff of the result of the tax investigation under Article 81-9 of the same Act, thereby deprived the Plaintiff of the Plaintiff’s opportunity for pre-assessment review.

② The owner of the instant 3 shares is not the largestCC, and the largestCC did not deem that the Plaintiff was in title trust.

③ Even if the disposition of this case itself is lawful, the company of this case was a window dressing accounting for sales in November and December 2001 and for the business year 2001, but the defendant assessed the market price of the stock in this case without reflecting it in the application of the supplementary evaluation method in calculating the value of the asset. Therefore, in accordance with the court appraiser Park Jong-J’s appraisal report (U.S. District Court 2010Guhap1362) conducted from January to October 10-10-2 of the company of this case, the period for restricting the cost of sales from -3,120,406,538 won, which is the net asset value of the company of this case calculated by the defendant, the net asset value of the company of this case - 6,081,720,720,184 won excluding the above period of profit and loss, and the net asset value of 2,961,313,646 won per share as of October 201 shall be added to 394 won per share.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

(1) Determination as to the assertion

The validity of a taxation disposition in a case where there is an error in the course of the collection of taxation data, shall vary depending on the contents, degree, and object of the taxation disposition. However, since a taxation disposition is based on its existence, in principle, its propriety shall be determined by the existence of objective taxation requirements. Thus, even if there was an error in the tax investigation procedure, unless it is serious, such circumstance alone does not constitute the grounds for revocation of the taxation disposition, unless it is the case where there was no investigation at all, or unless it is significant to collect data that form the basis of the taxation disposition in

On the other hand, the following facts are acknowledged by the evidence as follows. The defendant conducted a tax investigation with respect to the largestB, the largestCC, the OF, and the GG, the joint representative director of the company of this case. The result alone seems not to have any need to conduct a tax investigation with respect to the plaintiff since it is possible to sufficiently implement the disposition of this case. The defendant sent a notice of tax notice and notice of tax payment to the plaintiff around February 9, 2009, but it is impossible to deliver the notice to the plaintiff due to the absence of closure, and the plaintiff sent the notice of tax payment to the entrance of the plaintiff's domicile, and it seems that the plaintiff confirmed the receipt of the tax payment notice and consulted the defendant about the contents of the tax. The pre-assessment review cannot be seen as unlawful because the tax authority notified the taxpayer of the contents of the disposition before imposing tax, and it cannot be viewed that the plaintiff did not have any opportunity to request a tax review without giving the plaintiff an opportunity to request a tax review on the contents of the disposition of this case. Thus, even if the defendant did not have any opportunity to request a tax review.

(2) Judgment on the claim

As seen earlier, the Plaintiff did not have the ability to pay the acquisition price of the instant 3 shares as national taxes at the time of acquiring the instant 3 shares, and even until now, it is unclear whether to pay the acquisition price of the instant 3 shares, and financial data related to the payment is not submitted at all, and it appears that OF and EGG did not pay the acquisition price of the instant 1,2 shares to the largest BB. Ultimately, it appears that the largestCC would have paid the acquisition price of the shares on behalf of OF and EGG, real estate, cash, etc. In short, it appears that OF would have paid the acquisition price of the shares to the largest BB by means of real estate, cash, etc., while the HF did not report and pay gift tax on the above acquisition price, despite asserting that it received the donation from the largestCC. In light of the fact that the KGG did not clarify the payment of the acquisition price of the shares, the maximumCC, the maximumB, and the Plaintiff’s personal relationship, etc., the Plaintiff’s assertion that it purchased the instant shares, and therefore is reasonable.

(3) Judgment on the claim

Article 60(1) of the Inheritance Tax and Gift Tax Act provides that the value of the property on which the gift tax is levied under this Act shall be the market price as of the date of donation (hereinafter referred to as the "base date for appraisal"); Article 60(3) provides that where it is difficult to calculate the market price in the application of the provisions of paragraph (1), the value shall be appraised by the methods stipulated in Articles 61 through 65 in consideration of the type, size, transaction circumstances, etc. of the relevant property; Article 63(1)1 (c) of the Inheritance Tax and Gift Tax Act provides that "where it is difficult to calculate the market price, the value calculated by the methods stipulated in Article 61 through 65" shall be deemed as "market price"; Article 63(1)1 (c) of the same Act provides that "where stocks and equity shares that are not listed on the Korea Stock Exchange are appraised by the methods stipulated in the Presidential Decree in consideration of the assets and earnings of the relevant corporation; Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the net asset value per share is calculated by the average net asset value per share" as of 6.

B) The Plaintiff asserted that there was a window dressing accounting prior to the business year 2002. However, the Plaintiff only asserts the possibility of window dressing accounting, and there is no assertion or proof as to which account has been divided to a certain extent (the above appraisal result is difficult to accept as it is because of the problem of excessively allocation). According to the evidence No. 2, the court appraiser Park Jong-J in the related case calculated the profits and losses for the limited period from the sales amount from January 2001 to October 2001 - 3,120,406,538 won. However, the above appraisal is dependent on the materials and statements submitted by the company of this case, and there is no proof that there is a difference in the sales amount, and there is no reason to acknowledge the above appraisal result as it is difficult to accept as it is, and there is no other evidence that there is no other evidence that the Plaintiff submitted from the company of this case to the company of this case, and there is no other evidence that there is no reason to prove that the above appraisal value per share is 3.4.

3. Conclusion

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