National High Court Decision 2004J356 (Law No. 16 May 2005)

Donations

Dismissal

Where the claimant who is the representative director pays the comprehensive income tax on behalf of Kim ○, a disposition to impose the gift tax by deeming that the claimant has received cash donation from Kim ○○ is legitimate.

Article 2 of the Inheritance Tax and Gift Tax Act

I dismiss the appeal.

1. Summary of disposition;

The OOOO(O) operated a construction business on June 1, 1994 after conducting a tax investigation on October 1, 1998, it confirmed 421,304,000 won in total for 196, 1996, 1997, and OOOOO(O). On November 1, 1998, 198, OOOOOO(O) notified the total amount of value-added tax 28,14,980 won, corporate tax 116,118,780 won, corporate tax 116,780 won, and OOOO(O)'s representative director(OOO(O)'s income tax 130,847,470 won (hereinafter referred to as "point tax amount"), total 275,111,230 won, and OOOO(OO) notified the total amount of tax on March 13, 1998.

As a result of the tax investigation conducted on (O)OOO and the President Kim OO's (O) from September 6, 2001 to January 2002, 202, the Commissioner of the National Tax Service received loans on December 10, 1998 and notified the disposition authority of taxation after confirming that the amount of tax was not returned, and the disposition authority notified the disposition authority of the taxation data after confirming that the claimant received no return of the amount of tax, and the disposition authority decided and notified the claimant of KRW 21,020,340 for the gift tax of 1998 on May 6, 2004 by deeming that the claimant received the amount equivalent to the amount of tax at issue from KimO.

On July 30, 2004, the claimant appealed and filed an appeal for adjudication on this case.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

OOO(O) has appropriated the supply value of the construction and repair of a general hall at the request of (O)OOO, and delivered the funds created by OOO by appropriating a park corresponding thereto, and (O)OOO requested that (O)OO(OO(O) use of the funds be concealed, as the fact that the park was processed in the tax investigation conducted by the Commissioner of the National Tax Service by OOOO was confirmed, and that it was promised to pay taxes to be collected by OOO(O).The reason why OOO paid the outstanding tax was to avoid imposing taxes on other income, etc., and even if OO was not paid by OO with OOO's gift, the disposition imposing the gift tax is unreasonable.

(b) Opinions of disposition agencies;

The claimant asserts that the amount of construction supplied by the OOO(O) is excessively appropriated and the corresponding park has been appropriated. However, it is unclear whether the park is directly corresponding to the OOO or not, and whether the funds created by the OO under the OO are delivered to the OOO under the OO agreement, and the claimant also acknowledges that the OO paid the key tax amount on behalf of the OO, and there was no fact that the amount corresponding to the OO was returned, so the disposition imposed on the OO was justified by deeming that the amount corresponding to the O

3. Hearing and determination

A. Key issue

If the claimant pays the tax amount on behalf of a third party, whether the amount equivalent to the tax amount can be deemed to have been donated.

(b) Related statutes;

(1) In case where, on the donation date, there is donated property falling under one of the following subparagraphs as of the donation date due to a donation by another person (excluding donation becoming effective due to the death of a donor; hereinafter the same shall apply), the gift tax shall be levied on such donated property in accordance with this Act:

1. Where a person who acquires property by donation from a third party (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 53, 54 and 59), all the donated property which a resident has received;

(2) The donation of gift under Article 554 of the Civil Act is effective when one of the parties expresses his intention to confer a property free of charge to the other party and the other party approves it.

C. Facts and determination

As a result of conducting a tax investigation on OO(O) on October 198, 198, the Commissioner of the National Tax Service confirmed the omitted amount of income in the business year 1996, 1996, 421,304,000 won, and confirmed the total amount of tax paid by OO(O) after receiving the loan tax amount of 349,221,000 won as bonus disposal from OOO(O) and notified the amount of value added tax of 28,114,98,00 won, corporate tax of 116,118,780, and the amount of tax notified by OOO(O) until December 10, 1998.

According to the statement statement made by OOOOO in the office of OOOO's office on May 4, 200 when it serves as the representative director from October 1986 to January 200, 200, OOO was in charge of the school juristic person's OOO, OOOO's real estate, funds of the president of the foundation and their families' real estate, etc., as a result of the tax investigation related to OOOOOO, OOOOOO's comprehensive construction, when it is anticipated that the additional collection of taxes was expected, OOOO(O) was required to pay for the amount of tax related to the creation of OO's funds by concluding a contract for supply at a price higher than the actual construction price, OOOOO's total construction amount was stated as the amount of tax to be collected on behalf of the National Tax Service and the amount of tax to be collected on behalf of the National Tax Service.

Article 2(1) of the Inheritance Tax and Gift Tax Act provides that where the person who acquires the property from another person’s donation is a resident, the resident shall levy the gift tax on all donated property. The term “donation” refers to the transfer of a tangible or intangible property in which economic value can be calculated, directly or indirectly, to another person by means of a direct or indirect method, or an increase in the property value of another person, regardless of the form, purpose, etc. of such act or transaction, and Article 554 of the Civil Act provides that the effect of the donation takes place by expressing the intention to grant the other party

In full view of the above facts and relevant Acts and subordinate statutes, the claimant asserts that the OOO (O) participated in the formation of the OO's non-fund, and that the tax amount notified including the OO's tax amount was paid instead of OO on behalf of OO, does not constitute a gratuitous donation of assets. However, since the OOO (O) paid the OO's tax amount by proxy in collusion with OO in a tort creating the O's funds, the OO's act of paying the OO's tax amount constitutes a donation of assets transfer without compensation, since the OO's economic interest equivalent to the O's tax amount was granted to the claimant, it constitutes a donation of assets transfer without compensation. In addition, there is no counter-proof that the OO made a substitute payment of the O's tax amount against the claimant's will and thus

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes, because the petition for appeal is groundless as a result of the review.