Gwangju District Court 2013Guhap2495 ( February 17, 2015)

The early 2012 Gwangju 3965

The receipt of the plaintiff's customer confirmation during the audit process after the tax investigation constitutes a duplicate investigation.

The plaintiff's confirmation of the customer during the audit process after the tax investigation constitutes a duplicate tax investigation, which constitutes a case where there is clear evidence to acknowledge the suspicion of tax evasion exceptionally permissible, and it constitutes an illegal duplicate investigation because it does not fall under the case where the investigation of the customer is necessary.

Article 81-4 of the Framework Act on National Taxes [Prohibition of Abuse of Right of Tax Investigation]

Gwangju High Court 2015Nu5329 ( December 5, 2015)

○ ○

○ Head of tax office

Gwangju District Court 2013Guhap2495 ( February 17, 2015)

oly 8, 2015

November 5, 2015

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of KRW 1,205,184,510 against the Plaintiff on June 7, 2012 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff’s mother’s mother died on February 7, 2008, and his spouse ○○○, the Plaintiff’s children, and YO (seven children, other than the Plaintiff and YO, given up inheritance; hereinafter referred to as “Plaintiff, etc.”) among his bereaved family members, succeeded to the deceased’s property (hereinafter referred to as “instant inheritance”).

B. The Defendant, by June 29, 2010, did not report the inheritance tax base, etc. on the instant inheritance by June 29, 2010, pursuant to which the deceased’s death report was filed, appointed the Plaintiff, etc. as a person subject to a person subject to a non-declaration of inheritance tax in 2010 and conducted a tax investigation for determining the tax base and amount of inheritance tax on the instant inheritance (hereinafter “the first tax investigation”) following the instant inheritance from September 13, 2010 to October 27, 2010. From 225,150,000 won of the taxable value of inheritance pursuant to the instant inheritance, the inheritance tax base was determined to be zero won in calculating the inheritance tax base. In calculating the foregoing inheritance tax base, the portion relating to the deceased’s inherited property and the inherited debt recognized by the Defendant is as follows.

Periodical (part) Property

- Unlisted 46,950 shares of ○○○, Inc., Ltd. (hereinafter referred to as “○○○”) held by the Deceased (hereinafter referred to as “○○○”) (the assessed amount of KRW 269,00,000; hereinafter referred to as “stocks”)

- KRW 549,00,000 out of the decedent’s land expropriation compensation

e. Succession obligations (part)

The deceased’s debts of KRW 2,159,000,000 (hereinafter referred to as “liability related to Glag○”).

C. On March 28, 2011, the Plaintiff et al. filed a claim with the Defendant for correction of the inheritance tax base, etc. by additionally including the obligation to pay KRW 2,547,00,000, for which the obligation to pay the deceased was finalized as of the date commencing the inheritance of this case, and the Defendant corrected the inheritance tax base, etc. (hereinafter “instant correction”) with the following content.

i.e. inherited property

- Since it is recognized that the Plaintiff’s husband’s her husband’s her husband’s her husband’s her husband’s her husband’s her husband’s ○○ or other shares was transferred from the deceased on January 15, 2008, which was before the date of commencing the inheritance of this case, the deduction from the inherited property (the

e.g. inheritance obligations

- In addition to ○○-related obligations, 930,000,000 won of the Deceased’s obligations (hereinafter referred to as “the separate obligations of this case”) are additionally recognized.

D. Meanwhile, the auditor of the ○○ Regional Tax Office, from August 22, 2011 to September 8, 2011, conducted a regular cross-market comprehensive audit of the ○○ Tax Office (hereinafter “instant comprehensive audit”) on the ○○ Tax Office (hereinafter “instant comprehensive audit”), indicating the following issues in the primary tax investigation and the instant correction procedure, and instructed the Defendant to re-examine the said portion and to handle it.

e. 1. Regarding the primary tax investigation

- Recognizing, without any objective evidence, a debt relating to Kim○-○ as an inheritance obligation without any particular examination;

- In addition to the expropriation compensation of KRW 549,00,000, which was revealed in the first tax investigation, the deceased held at the time of the inheritance of this case 859,000,000 (hereinafter referred to as the “additional expropriation compensation”) but omitted from the inherited property.

B. As to the correction of the instant case

- without objective evidence, recognize the separate debt of this case as the deceased’s obligation.

- It is difficult to view that the deceased transferred ○○ or her husband’s shares to the plaintiff and her husband, and it is unreasonable to deduct them from the inherited property.

E. Accordingly, the Defendant, from January 2, 2012 to January 4, 2012, and from February 1, 2012 to March 12, 2012, conducted a re-investigation into the instant overall audit cadastral matters (hereinafter referred to as “instant re-investigation”), and on June 7, 2012, the Plaintiff, etc.: (i) excluded the Plaintiff’s obligation related to Kim○ and the instant separate obligation from the deceased’s inherited property; (ii) increased, corrected, and notified the instant additional expropriation based on inheritance tax base of KRW 1,205,184,510 (including additional tax) calculated by including ○○ and the instant additional expropriation money in the deceased’s inherited property (hereinafter referred to as “instant disposition”).

F. On August 27, 2012, the Plaintiff dissatisfied with the instant disposition and filed a petition for an inquiry with the Tax Tribunal on August 27, 2012, but was dismissed on July 25, 2013.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition was made on the basis of an unlawful tax investigation for the following reasons;

Since it is illegal, it must be cancelled.

1) The instant comprehensive audit and the instant re-audit conducted on the basis thereof are duplicate tax audits conducted on the same tax item as the primary tax audit, and is unlawful as it does not constitute an exceptional case where duplicate tax audits are allowed under each subparagraph of Article 81-4(2) of the Framework Act on National Taxes.

2) Even if a duplicate tax investigation is permitted on the grounds that the part related to Kim○-○-related obligation falls under obvious evidence to acknowledge a suspicion of tax evasion, its scope should be limited to the above part of the obligation. Thus, the investigation on the part not recognized as above among the comprehensive audit and reinvestigation in the instant case is illegal duplicate tax investigation.

3) Although the instant comprehensive audit constitutes a tax investigation, it is illegal as it was conducted by the director of ○○ Regional Tax Office having no jurisdiction over the tax investigation under Article 81(1) of the Framework Act on National Taxes, and thus, it is also unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

(A) The term “tax investigation” means questioning in order to determine or correct the tax base of national tax and the amount of tax, or inspecting and investigating the relevant account books, documents or other things or ordering the submission thereof (Article 81-2(2)1 of the Framework Act on National Taxes). This is to enable the tax authorities to prevent tax evasion by verifying the accuracy of the collection of taxation data and the details of the return, and ultimately ensure a taxpayer’s faithful return, thereby ultimately ensuring a proper and fair taxation.

However, if a taxpayer, etc. who is the other party to a tax investigation refuses to do so, he/she shall be subject to sanctions for fines for negligence and shall comply with the tax investigation in fact. In the process, certain parts of fundamental rights, such as property rights, privacy and freedom of business,

Therefore, in order to promote taxpayers' rights and interests and advance tax administration, Article 81-4 (2) of the Framework Act on National Taxes prescribes the principle of prohibition of double tax investigation that "tax officials shall not, in principle, conduct a secondary tax investigation for the same items of taxation and the same taxable periods", and in order to prevent unreasonable consequences from being caused by prohibiting double tax investigation in all cases, it is promoting balance between public interest such as tax balance and individual basic rights.

(B) Meanwhile, Article 3 subparag. 22 of the Regulations on the Conduct of Tax Investigations (National Tax Service Directive No. 1945) provides that a field investigation is conducted on a taxpayer’s office, business place, factory, or domicile, etc. and directly against the relevant taxpayer or related person (Article 3 subparag. 22). On the other hand, it is excluded from a tax investigation when verifying the appropriateness of the reported matters through the analysis of documents, taxation data, etc. submitted by the taxpayer or related person, or when importing evidential documents through postal questioning, etc. and inquiring about the details of transactions for the purpose of confirming the facts of a specific transaction (Article 3 subparag. 23). This is less than a field investigation. ② If a taxpayer fails to file a report on the tax base of inheritance tax and gift tax, or if there are omissions or errors in the reported tax base or tax amount, the head of a tax office, etc., under Article 76(1) and (4) of the Inheritance Tax and Gift Tax Act shall investigate the tax base and tax amount, and if it is impossible to determine the tax base and tax amount or tax amount

Considering the fact that the investigation is prescribed to be decided or corrected, it shall be harmful to a duplicate tax investigation.

It is difficult to view it as a tax investigation being conducted.

(C) In full view of the provisions and purport of the above relevant laws and regulations, a tax investigation that constitutes a duplicate tax investigation is to be conducted for the purpose of taxation: ① a tax investigation is to be conducted for the purpose of taxation; ② a taxpayer or a person who is deemed to have a transaction with the taxpayer, etc.; ③ the place is the office, workplace, factory, or domicile of the taxpayer, etc.; ④ a taxpayer is to ask questions; ④ a taxpayer is to inspect and investigate books, documents, articles, etc.; ⑤ a question or account book should be related or related to the determination or correction of the tax base and tax amount.

Furthermore, as seen earlier, Article 3 subparag. 22 of the Regulations on the Investigation Affairs provides that the investigation of a taxpayer can be seen as a tax investigation of a taxpayer even without the investigation of a taxpayer. Article 3 subparag. 22 of the same Act provides that the investigation of a taxpayer can be seen as a tax investigation of a taxpayer even without the investigation of a taxpayer. This does not necessarily include the fact that ① is limited to a taxpayer’s on-site or an investigation of a taxpayer is required to be conducted together (Article 84 of the Inheritance Tax and Gift Tax Act). ② Article 44 of the Regulations on the Investigation Affairs provides that a taxpayer’s business partner or a transaction partner of a taxpayer subject to investigation shall be selected as a person subject to investigation if it is necessary to conduct an investigation of a taxpayer under the circumstances in which the taxpayer is not aware of, and the investigation of the other party may result in infringing the taxpayer’s freedom of business and privacy, and thus, it is necessary to prevent such infringement and guarantee the taxpayer’s right to defense.

(D) Under the foregoing legal doctrine, we examine whether the instant comprehensive audit and reinvestigation on the instant additional expropriation compensation constitutes a tax investigation prohibited as a duplicate tax investigation pursuant to the aforementioned legal doctrine.

2) As to the obligation relating to Kim○-○

A) According to the Audit Regulations of the National Tax Service and the Local Tax Office (National Tax Service Directive No. 1533), when conducting a comprehensive audit or partial audit of the business affairs of an institution subject to audit, a public official in charge of audit may take measures, such as requesting submission of data, evidentiary documents, and written confirmations, and may instruct dispositions according to the audit results. ① such audit or inspection is a measure that intrudes on a private area through the exercise of the right to ask questions and investigation, which results in infringing on a taxpayer’s freedom of business and privacy, and thus, it is necessary to restrict the taxpayer’s rights and interests repeatedly after the initial tax investigation. ② In light of the above, there is no reason to regard the name of the audit or inspection as a taxpayer, and there is no reason to regard it differently depending on whether it is a tax investigation or an audit measure. ③ Even if a taxpayer did not take the form of a tax investigation, the right to ask questions and investigation was exercised, and it is reasonable for the taxpayer to do so in light of the principle that it is necessary for the taxpayer to cooperate with the audit or inspection system.

(2) According to the evidence No. 1, No. 2, No. 11-1, No. 15-17, No. 15-47, and No. 1, No. 6, as to the instant case, the Defendant: (a) at the time of the first tax investigation, the Plaintiff et al., stated that “the Plaintiff et al., obtained real estate or borrowed money necessary for the construction of a new kindergarten building from ○○; (b) on behalf of ○○○○○○○, he was issued bills demanding reimbursement of the above debt amount on behalf of ○○○○○, which was issued by ○○○○○○○’s Co., Ltd. to conduct a transaction with ○○○○○○○’s Co., Ltd. on behalf of ○○○○○○○○’s Co., Ltd., which was the same as that of this case’s Co., Ltd. on behalf of ○○○○○○’s Co., Ltd., which was the first ballot No.

B) Whether there is obvious evidence to prove the suspicion of tax evasion

In Article 81-4(2)1 of the Framework Act on National Taxes, "where there is clear evidence to acknowledge a suspicion of tax evasion" under Article 81-4(2)1, one of the cases where duplicate tax investigations is exceptionally permitted, shall be limited to cases where there is evidence to prove the existence of a substantial probability of tax evasion and the existence of evidence to support objectivity and rationality. It is reasonable to interpret that such materials do not include the materials already investigated in the previous tax investigation (see, e.g., Supreme Court Decision 2010Du6083, Jan. 27, 2011).

In light of the above legal principles, as long as the data secured for the obligations relating to Kim○-○ prior to that time was investigated only in the first tax investigation, it cannot be deemed as a double tax investigation that exceptionally allowed since the part of the obligations relating to Kim○-○ out of the instant comprehensive audit constitutes the above reasons.

C) Whether the investigation of the opposite contractual party is necessary

Article 81-4 (2) 2 of the Framework Act on National Taxes provides that "where an investigation is required on a trading partner as an exception to which duplicate tax investigation is allowed," but its purport is that duplicate tax investigation is allowed on the other party's ground of his/her duty of cooperation in a tax investigation (if interpreted otherwise, it may result in a very wide wide scope of permissible scope of reinvestigations as it makes it possible to circumvent the principle of prohibition of duplicate tax investigation by investigating the other party). In light of the above, the comprehensive audit of this case conducted a tax investigation conducted on the plaintiff et al., not Kim○, who is the other party to the transaction, and it is not acknowledged the premise that the above provision is applicable to the investigation conducted on Kim○, while conducting a tax investigation conducted on the plaintiff et al., and therefore, it cannot be deemed as a

4) As to the remaining inherited property or obligations

A) The part on ○○ or the shares

According to the records in Gap evidence Nos. 1 and 2, Eul evidence No. 11-2, Eul evidence No. 11-2, Eul evidence No. 1, 4-6, and Eul evidence No. 7-1, the defendant, at the time of the correction of the case, transferred 383,90,000 won to the deceased's account from November 22, 2001 to October 30, 2007, with a claim equivalent to the above money against the deceased, he acquired ○○○ or its own shares from the deceased on Jan. 15, 2008 and substituted for the above claim against the plaintiff, and thus, it is difficult to obtain a request for correction to deduct ○○○ or its shares from the deceased's inherited property, and ② The auditor of ○○○ or its local tax office again submitted the plaintiff's opinion to the defendant on July 31, 2008, which was 00 or its own shares as 04.71.208.

The disposition of this case is deemed to have been owned by and included in the inherited property, and

In light of the above facts in light of the legal principles as seen earlier, the data additionally secured between the re-audit of this case after the comprehensive audit of this case is merely a document related to the transfer income tax of July 31, 2008 on the shares of ○○○○○ and the stock, as seen earlier, and this cannot be said to have been conducted for the above period as long as the data already held by the defendant were the data that had been held by the defendant. Thus, this part of the plaintiff's assertion is without merit (a double tax investigation is premised on the "first tax investigation" in its concept, unless there is any specific provision in Article 81-4 (2) of the Framework Act on National Taxes, but considering the legislative intent that prohibits double tax investigation and the contents of the relevant Acts and subordinate statutes, it is reasonable to deem that "the first tax investigation" under the premise that double tax investigation is prohibited is limited to the case where the tax investigation was conducted

According to the evidence Nos. 1, 2, and 5, the investigation of ○○ or ○○’s shares was conducted in the correction procedure of the instant case requested by the Plaintiff, not the first tax investigation, and the content of the investigation is merely a review of the documents submitted by the Plaintiff, etc., and a separate investigation is not conducted. In light of the above legal principles, in the light of the above facts of recognition, even if the part concerning ○○ or ○○’s shares out of the comprehensive audit and reinspection of the instant case constitutes a tax investigation as alleged by the Plaintiff, it is difficult to recognize it as a double tax investigation even if it falls under the Plaintiff’s

B) The separate debt of this case

According to the plaintiff's evidence Nos. 1 and 2, Eul evidence Nos. 1, 5, and 6, and Eul evidence Nos. 7-2 and 3, the defendant merely borrowed 591,561,00 won and the design cost, etc. to the deceased in connection with the new construction of the kindergarten that ○○○○ was trying to operate at the time of the correction of this case, and it is difficult to recognize that the above facts were identical to the above facts of the plaintiff's tax investigation conducted on July 6, 1995, which were 15,39,000 won and interest of ○○○○ Co., Ltd. (hereinafter referred to as "○○○○'s trade name before the change; hereinafter referred to as "the above facts of this case's tax investigation conducted by the plaintiff at the time of this case's tax investigation, and it is difficult to recognize that the above facts of this case's tax investigation were identical to those of the plaintiff's tax office's duty of inheritance.

C) Part on the instant additional expropriation compensation

According to Gap evidence Nos. 1 and 2, Eul evidence Nos. 11-2, Eul evidence Nos. 1, 11-2, Eul evidence Nos. 1, 4, 6, and Eul evidence Nos. 7-3, ① since some of the compensation money for the expropriation of land owned by the deceased was used for the price, etc. for the land purchased in the name of the deceased after the commencement of the first investigation, the defendant included KRW 533,190,00, and KRW 16,106,970, including acquisition tax, as inherited property, in other assets. ② According to the payment of deposit money by the ○○○○ National Tax Service, the auditor of the above ○○○○ National Tax Service received the above provisional attachment other than the above amount included in the first tax investigation after the commencement of the first tax investigation, the defendant did not have any error in the misapprehension of the legal principles as to the above property, and thus, it did not constitute an indirect tax investigation of the deceased.

5) Sub-committee

A) Therefore, the part of the instant comprehensive audit and reinvestigation related to Kim○-○ is illegal as a tax investigation conducted in violation of the principle of prohibition of duplicate tax investigation. However, the remaining part of the inherited property or debts cannot be deemed as a tax investigation by itself before examining whether it is permitted by an exception provision as a duplicate tax investigation.

B) Meanwhile, the portion not related to the illegal reinvestigations can be adjusted at any time within the exclusion period for imposition, and it is not necessary to limit the amount of tax to be imposed on the grounds of other revisions when revising the increase due to illegal reinvestigations. Thus, the scope of the taxation disposition illegal due to the illegal duplicate audits is limited to the portion of the taxation disposition based on the taxation disposition based on the illegal reinvestigations, that is, the taxation disposition based on the taxation data acquired from the reinvestigations (see the foregoing Decision 2010Du6083, Apr. 28, 1995). However, in the litigation for cancellation of the taxation disposition, the determination is based on whether the legitimate amount of tax exceeds the reasonable amount of tax. The parties can submit arguments and materials supporting the objective tax base and tax amount until the closing of argument at the trial court, and if the amount of tax to be imposed lawfully is calculated based on such materials, the entire taxation disposition should be revoked. However, if not, the court does not have any duty to calculate the reasonable and reasonable method of calculating the amount of tax to be imposed by finding ex officio and ex officio (see, etc.).

In light of the above facts in light of the above legal principles, in calculating the tax base of the inheritance tax of this case, ① the Defendant calculated ○○○ and the additional expropriation compensation of this case as inherited property, and the portion excluding the separate debt of this case cannot be deemed unlawful, but ② the portion excluding Kim○-related obligations from the above tax base is unlawful. However, even if the materials submitted by the time of the closing of argument in the trial, the legitimate tax amount to be imposed lawfully based on the above judgment cannot be calculated, and the disposition of this case should be revoked in its entirety.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and since the judgment of the court of first instance is unfair, the plaintiff's appeal shall be accepted and the judgment of the court of first instance shall be revoked and the disposition of this case shall be revoked as per Disposition.