Seoul Administrative Court 2012Guhap27121 (Law No. 11, 2013)

Seocho 2012,0108 (Law No. 16, 2012)

Whether the money deposited in a deposit account is a donation, and whether it constitutes an illegal report on a borrowed name transaction.

To the extent that the deposit in the name of a donor is withdrawn and the deposit is revealed to have been made in the name of the taxpayer, such deposit shall be presumed to have been donated to the taxpayer, and it is reasonable to impose an unfair non-reported penalty tax on the taxpayer where the amount is concealed through a borrowed name transaction.

Additional tax on Article 47-2 (2) of the Framework Act on National Taxes

2013Nu1299 Revocation of Disposition of Imposition of Gift Tax

LAA

H Head of the tax office

Seoul Administrative Court Decision 2012Guhap27121 decided April 11, 2013

October 23, 2013

November 20, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court is revoked. The part that exceeds the stated amount of each plaintiff's legitimate tax claim out of the stated amount in the column of "amount of notice of imposition of gift tax in attached Form No. 1 of the defendant's imposition of gift tax on September 15, 201 shall be revoked."

1. Quotation of judgment of the first instance;

This Court’s reasoning is as follows, except for the following additions to the judgment on the assertion that the plaintiff emphasizes in particular in this court, or re-convened, the reasoning for this Court’s explanation is as stated in the reasoning of the judgment of the court of first instance. Thus, it is cited in accordance with Article 8(2) of the Administrative Litigation

2. The plaintiff's assertion

① Around May 7, 2001, the Deceased (OB) requested to lend money fromCC trading with a major shareholder on and around May 7, 2001, the Plaintiff: (a) withdrawn OOOOE from the DDR’s account on May 7, 2001 and paid it to the Deceased; (b) on May 7, 2001, the Deceased used the OOOOE as a shareholder’s loan while lending OOOOE to the CC trading; and (c) the rest of OOOOOE borrowed from HE on March 30, 201. Accordingly, among the attached donation amounts, the Plaintiff was given a repayment to the inheritee, and thus, it is not subject to gift tax.

② Although the Plaintiff did not file a return on the tax base by improper means under Article 47-2(2) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same shall apply) and Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010; hereinafter the same shall apply), such as preparing double books, preparing false evidence, destroying books, and concealing property, the Defendant calculated part of the disposition imposing the gift tax of this case (attached No. 10, 11, 13, and 15) as additional tax calculated as 40/100 of the calculated tax amount.

3. Determination

A. As to the Plaintiff’s assertion ①

In a lawsuit seeking revocation of disposition imposing gift tax, 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 a deposit account, etc. in the taxpayer’s name, such deposit is presumed to have been donated to the taxpayer. Thus, barring special circumstances, such as withdrawal of such deposit and deposit in the taxpayer’s name, etc. were made for other than donation, the need for proof thereof is the taxpayer (see, e.g., Supreme Court Decision 9Du4082, Nov. 13

The plaintiff's evidence adopted in the first instance court's judgment and evidence No. 15 and No. 16 are as follows. The plaintiff's statements that "O-O-O" was insufficient to recognize that the plaintiff's above 7O-O-O-O-O-O-O-O's transfer of money to the above 7O-O-2 of the deceased's account and that it was difficult to recognize the plaintiff's transfer of money to the 7O-O-2 of the above 7O-O-O-O-O-O-O-O-O-O-O's transfer of money to the above 7O-O-O-O-2 of the above 7O-O-O-O-O's transfer of money to the above 7O-O-O-O's transfer of money to the plaintiff's account. However, there is no objective evidence to acknowledge that the plaintiff's transfer of money to the 2010O-O-O-O-O's transfer of money to the above 70000O-O-O.

B. As to the Plaintiff’s assertion

Article 47-2(1) of the former Framework Act on National Taxes provides that if a taxpayer fails to file a tax base return within the statutory due date of return, an amount equivalent to 20/100 of the calculated tax amount under the tax-related Acts shall be added to the payable tax amount. Article 47-2(2) of the former Framework Act on National Taxes provides that an amount equivalent to 40/100 of the amount calculated by multiplying the calculated tax amount by the ratio of the amount equivalent to the unreported tax base without filing a tax base in an unjust manner if there is a tax base without filing a tax base return in an unjust manner shall be added as the penalty tax, but the "unfair method" is defined as the "means prescribed by Presidential Decree" on the basis that the taxpayer conceals or disguises all or part of the facts that serve as the basis for calculating the tax base or the amount of national tax, and thus, Article 27(2)5 of the former Enforcement Decree of the Framework Act on National Taxes provides that the Plaintiff shall not be deemed as an unjust method to conceal or conceal the pertinent property under the name of the Plaintiff's 10 or 1 OG securities.

4. Conclusion

Thus, the plaintiff's appeal is dismissed as it is without merit.