In a lawsuit seeking the invalidation of an administrative disposition, there is a responsibility to assert and prove that the defect to the person seeking the invalidation is significant and obvious.

In a lawsuit seeking the invalidation of an administrative disposition, there is a responsibility to assert and prove that the defect to the person seeking the invalidation is significant and obvious.

Article 4 of the Inheritance Tax and Gift Tax Act

2017-Gu Partnership-82475 Action to nullify the invalidity of a disposition imposing gift tax

A

@@세무서장

on October 08, 2018

on 13, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of KRW 437,186,590 (including additional taxes) imposed on the Plaintiff on December 1, 2012, the disposition of KRW 220,00,00 (including additional taxes) of the gift tax on August 7, 2013, and the disposition of KRW 217,186,590 (including additional taxes) of the gift tax on September 5, 2013 is all invalid.

1. Details of the disposition;

A. From December 198, 1998, the Plaintiff is serving as a member of AAA Co., Ltd. (hereinafter referred to as “foreign company”) and was serving as the largest shareholder of the non-party company and the sentence of BBB, who was the representative director.

B. On December 17, 2008, May 20, 2009, and June 12, 2009, the non-party company issued new shares for capital increase, and divided the face value per share from 5,000 to 500 won on June 24, 2009, and completed the registration on KOSDAQ on December 22, 2009.

C. The Seoul Regional Tax Office (hereinafter “Investigation Office”) conducted a tax investigation on the non-party company (hereinafter “instant investigation”) from September 2012 to October 2012, 2012, and as a result, BB made a title trust with 900 shares of the non-party company on November 28, 2008 in order to meet the requirement for share allocation while promoting the registration of the non-party company’s KOSDAQ, and thereafter, made a title trust with the Plaintiff on June 12, 2009, each 2,100 shares of the non-party company were additionally trusted for title trust with 3 capital increase until June 12, 2009, and then notified the Defendant of taxation data.

D. On December 1, 2012, the Defendant: (a) received title trust from BB a total of 7,200 shares (hereinafter “the shares before the instant split-off”); and (b) separately deemed that the shares were donated by BB on December 1, 2009; and (c) determined and notified each gift tax to the Plaintiff on December 1, 2012 (hereinafter “the first disposition”).

E. On December 12, 2012, the Plaintiff asserted that the dilution effect caused by capital increase with consideration should be reflected in assessing the net value of the stocks held on December 12, 2012, and appeals to the Tax Tribunal.

On February 27, 2013, the Tax Tribunal decided on May 20, 2009 and June 12, 2009 that "the dilution effect caused by capital increase with consideration shall be reflected in the dilution effect caused by capital increase."

F. Accordingly, according to the above decision on March 19, 2013, the Defendant substitute for the portion of donation in 2009 among the original dispositions.

The reduction or correction was made as follows:

G. The Defendant issued each tax notice of KRW 437,186,58 on December 1, 2009 to the Plaintiff on the ground that the due date for the installment payment of the amount of tax deferred for the gift tax of KRW 437,186,58,00 on August 7, 2013, and each of the tax notice of KRW 217,186,590 on May 217, 2013, and the Plaintiff paid the same around that time (hereinafter referred to as “instant disposition”). The Plaintiff paid each tax notice of KRW 437,186,58 on the gift of KRW 437,186, which was reduced on March 19, 2013, as well as the initial disposition of KRW 437,186,58 on the gift of KRW 1, 209.

Facts that there is no dispute over the basis of recognition, Gap evidence 3, 4, Eul evidence 1-3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not receive the donation of the instant shares from BB on December 1, 2009. However, during the investigation process of the instant case, the Plaintiff prepared and sent the transfer/acquisition contract (Evidence A No. 11-1) with the knowledge that the amount of deemed gift tax on the shares before division was reduced by receiving a request from the tax agent for the preparation of a contract for transfer/acquisition of the said shares. However, even in external appearance, the said transfer/acquisition contract is sufficient to doubt the establishment or authenticity of the content. The investigating authority secured the data on the management of the shares held in title trust of the non-party company after December 1, 2009. At the time of the investigation of the instant case, the Plaintiff’s shares were included in the title trust shares after the investigation of the instant case. At the time of the investigation, the written answer (Evidence B No. 4) written to the Plaintiff and CCC stating that the Plaintiff donated each 72,000 shares and 62,900 shares, not the written answer in fact.

Therefore, the instant disposition was imposed on the Plaintiff, who did not have any legal relations or factual relations subject to taxation on the basis of taxation data which lacks the external form of shape and is objectively suspected to suspect the authenticity of its establishment or content, and such defect is significant and apparent and null and void.

B. Facts of recognition

1) 조사청은 2012. 10.경 BBB에게 질문조사를 위한 출석요청을 하였으나, 당시 세무대리인으로 참여한 ㅇㅇㅇ세무법인은 'BBB은 췌장암(혹은 위암) 4기로 2012.4. 12.부터 항암치료 중이며 예후가 지극히 불량할 수 있어 절대 안정가료를 요한다.

과도한 스트레스는 피하는 것이 좋다.'는 내용이 기재된 ㅇㅇㅇ의원 소속 의사의 2012. 10. 4.자 진단서와 BBB에 대한 ㅇㅇㅇ병원의 의무기록사본, ㅇㅇㅇ의원이 BBB에게 발급한 검사료 및 치료비 영수증 등을 제출하면서, BBB의 건강을 이유로 '출석이 어려우니 문답서 초안을 주면 BBB으로 하여금 그 내용을 열람하게 하고 사실과 다름이 없으면 서명ㆍ날인하여 제출하겠다.'고 요청하였다.

2) 이에 조사청 소속 세무공무원 ㅇㅇㅇ, ㅇㅇㅇ는 이 사건 조사과정에서 조사된 내용을 기초로 하여 2012. 10. 17. 직접 BBB이 입원한 ㅇㅇㅇ의원에 출장하여 조사한 것처럼 BBB과의 질문과 답변을 기재한 문답서 초안을 작성한 후 이를 위 세무대리인에게 전달하였고, 세무대리인은 BBB이 위 문답서 초안에 진술인으로서 서명하고 지장을 날인한 문서(을 제4호증, 이하 '이 사건 문답서'라 한다)를 조사청에 제출하였다.

3) The instant written answer contains the following: “BB made a title trust of the shares of the Plaintiff and CCC, but the Plaintiff was his family member, and CCC, in mind of personal work or company work, donated 72,00 shares and 62,90 shares as of the date of listing, respectively. The CCC shall submit a gift contract.” The CB’s signature stated in the instant written answer is the same as the signature of BB on September 4, 2012 on the receipt and confirmation of the taxpayers’ rights charter (Evidence 7).

4) A survey agency was submitted on December 18, 2009 with the content that “BB transfers and acquires 72,000 shares of the non-party company to the Plaintiff free of charge through the above tax agent at that time,” stating that “B shall transfer and acquire the shares of the non-party company to the Plaintiff on December 18, 2009,” and “BB shall transfer and acquire the shares of the non-party company to the non-party company 62,90 shares free of charge by the non-party company to the CCC.” Each of the above contracts is sealed on the name of the donor and donee, respectively.

5) After that, the Financial Services Commission notified the prosecutor's office of the fact that BB held stocks of the non-party company as the next name and violated the duty to report the holding of listed stocks in accordance with Article 147 of the Financial Investment Services and Capital Markets Act (hereinafter "Capital Markets Act") and the duty to report the holding of stocks in accordance with Article 173 of the same Act, and excluded the Plaintiff from the details of violation by deeming that BB was donated to the Plaintiff and CCC.

6) BBB은 ㅇㅇㅇ지방검찰청 증권범죄 합동수사단에 의한 수사과정에서2011. 11.경의 이 사건 주식 및 CCC 명의 주식 처분에 관하여 '피의자(BBB)의 주식이 아닌데 왜 오수호와 처분에 대해 이야기를 한 것인가요'라는 질문을 받자, 이사건 주식이 원고의 소유임을 전제로 '임원들 주식의 경우 제가 통제를 해 왔습니다. 많은 주식을 갖고 있는 임원들은 매매를 할 때 제게 보고를 하는데, 주가관리 때문입니다.'라고 진술하였다. 그러나 ㅇㅇㅇ지방검찰청 증권범죄 합동수사단은 이 사건 주식 및 CCC 명의 주식 처분대금의 대부분이 실질적으로 BBB을 위해 사용되었고그 주식 처분에 BBB이 실질적 영향력을 행사하였다는 이유로 이 사건 주식 및 CCC 명의 주식은 BBB이 그 계산으로 보유 중인 주식이라고 판단하였다.

7) BBB은 '소외 회사의 상장일(2009. 12. 22.) 당시 자기의 계산으로 소외 회사 주식 합계 3,834,630주(58.99%)를 보유하고 있음에도 임원들 명의로 차명 보유한 합계 690,630주에 대하여 임원들 각자 보유 주식인 것처럼 거짓으로 보고한 것을 비롯하여 2011. 11. 9.까지 대량보유보고의무를 5회 위반하고, 2010. 12. 22.경부터 2013.3. 29.경까지 차명 주식을 장내 매도하여 보유주식 수가 변동되었음에도 이를 보고하지 아니하여 소유주식 보고의무를 16회 위반하였다'는 등의 공소사실로 ㅇㅇㅇ지방법원 2015 0000로 기소되어 2017. 7. 18. 위 각 보고의무위반의 공소사실에 대하여 유죄판결이 선고되었는데(현재 ㅇㅇㅇ지방법원 20××0000으로 항소심 공판이 진행중이다), 위 공소사실에는 BBB이 차명으로 보유한 주식에 이 사건 주식이 포함되어 있다.

인정근거 다툼 없는 사실, 갑 제1, 2, 11호증, 을 제4~7호증(각 가지번호 포함)의각 기재, 증인 ㅇㅇㅇ, ㅇㅇㅇ의 각 증언 및 변론 전체의 취지

C. Determination

1) In a case where objective circumstances exist that make it possible to find the person liable for taxation as to a certain legal relation or factual basis that is not subject to taxation, and thus, it can only be clarified whether it is subject to taxation, even if the defect is serious, it cannot be deemed apparent even if it is apparent, and thus, the taxation disposition that misleads the person liable for taxation as to the fact subject to taxation cannot be deemed null and void as a matter of course (see, e.g., Supreme Court Decisions 96Nu12634, Jun. 26, 1998; 2001Du7268, Sept. 4, 2002). Meanwhile, in a lawsuit seeking the invalidation of an administrative disposition, the person liable to assert and prove that the defect existing in the administrative disposition is significant and apparent (see, e.g., Supreme Court Decision 82Nu1544, Feb. 28, 1984).

2) According to the above facts, from November 28, 2008 to June 12, 2009, the Plaintiff received a title trust from BB on several occasions the shares before the split-off. Nonparty Company conducted the split-off of the shares on June 24, 2009. The contract of this case submitted at the time of the investigation stated that the Plaintiff was donated the shares from BB on December 18, 2009. Thus, it is evident that the Plaintiff received a donation of the shares of this case after the split-off of the shares before the split-off separately from the title trust. Although the content of the contract of this case is simplified, it cannot be said that the contract of this case lacks external form or objectively lacks its establishment or authenticity, and no other circumstance exists to support this.

3) In light of the following circumstances, in light of the overall purport of the arguments and the facts revealed earlier, insofar as there are objective circumstances to recognize that the Plaintiff was actually donated the instant shares from BB at the time of the instant disposition, the factual basis can be clearly examined as to whether the Plaintiff actually received the instant shares. Thus, even if the Plaintiff, as alleged by the Plaintiff, committed the instant disposition based on the premise that the instant shares were donated by BB from BB, such defect cannot be objectively and objectively apparent.

A) At the time of the investigation of this case, the signature of BB on the draft of the written answer prepared by the tax official stating that “BB actually donated 72,000 shares as of the date of listing to the Plaintiff is true,” and the BB submitted it to the Investigation Agency through the tax agent. From the standpoint of the Investigation Agency, it is difficult to determine that the instant written answer and the instant contract have superior probative value than other materials secured by the Investigation Agency.

나) 실제로 이 사건 조사 이후 금융위원회는 원고가 이 사건 주식을 증여받았음을 전제로 BBB의 보고의무 위반내역에 이 사건 주식을 포함하지 아니하였고, BBB 또한 ㅇㅇㅇ지방검찰청 증권범죄 합동수사단의 조사과정에서 이 사건 주식이 원고의 소유인 것처럼 진술하기도 하였다.

C) As the instant investigation participated by the tax agent, it could be sufficiently anticipated that the gift tax should be levied on the gift of the instant shares, separate from the title trust of shares, by submitting the instant contract and the written answer to the instant case. The Plaintiff did not assert that there was no actual donation on December 1, 2009, while dissatisfied with the initial disposition, the Plaintiff did not assert that there was no actual donation on the gift of December 1, 2009. While receiving a notice of the Defendant’s reduction and correction in accordance with the re-audit decision by the Tax Tribunal, the Plaintiff was notified of the Defendant’s reduction and correction disposition in accordance with the re-audit decision by the Tax Tribunal, but did not raise any problem for any years (BB had the intent to reduce criminal liability, such as breach of duty to report under the Financial Investment Services and Capital Markets Act, which may arise in the event that it is recognized that the

4) Ultimately, since the evidence submitted by the Plaintiff alone cannot be deemed to be null and void as a matter of course, the Plaintiff’s assertion cannot be accepted.

3. Conclusion

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