Suwon District Court-2015-Gu Partnership-65613 (20. 20, 2017)

Where an ancestor fails to report a gift tax on a borrowed account under the name of the heir who is the actual owner of the property, it cannot be deemed that there is any justifiable reason to escape from imposing additional tax.

Although a certified tax accountant’s advice was made, it is difficult to deem that there was a justifiable reason not to mislead the plaintiffs in preparing each gift contract with a different content from the facts and excluding the financial property of this case from the inherited property.

Article 48 (1) of the Framework Act on National Taxes

2017Nu76151

Each donation fraternity dated November 22, 2010, which reads that "it shall be donated in 0,000,000 won among financial property."

Preparation of a summary, Plaintiffs ParkA, and ParkCC, on the basis thereof, shall report and pay each gift tax.

Accordingly, the plaintiffs are limited to the part, other than the financial property of this case, among the inherited property of ParkD.

B reported and paid inheritance tax as inherited property.

The act of the plaintiffs as such is deposited in the account of this case among the financial property of this case.

The finance of this case, together with the evasion of gift tax on 0,000,000,000, donated to

The plaintiffs avoid the calculation of inheritance tax by adding property to the value of the property of ParkD.

As such, in the process, some inheritance was conducted under the intent to evade the inheritance tax.

The plaintiffs received advice from the tax accountant or the account of this case in the name of plaintiff ParkB for a long time.

In relation to the relationship, the financial property of this case is owned by the plaintiff ParkB subjectively from the plaintiffs' perspective.

Even if there is some room for misunderstanding as such, this is a gift contract containing false content.

The financial property of this case, which is the property of Park Jong-man through the preparation, etc. of the statement, is the plaintiff ParkBB lawsuit from the beginning.

Article 47-3 (2) of the former Framework Act on National Taxes, which is an unfair act that has produced the appearance of the same kind as that of the property.

It should be subject to the unfair underreporting tax in paragraph (1). Accordingly, this part of the plaintiffs

The argument is without merit.

6. Conclusion

Thus, the above ex officio cancellation of the lawsuit of this case is dismissed, and the remainder of the plaintiffs is dismissed.

All claims shall be dismissed, and the part against the defendant in the judgment of the court of first instance shall be with different conclusions.

Since it is unfair, the plaintiffs' lawsuits corresponding to the cancellation part are dismissed, and the plaintiffs are dismissed.

The appeal shall be dismissed in its entirety as it is without merit, and it is so decided as per Disposition.

Kim AAAma 3

BB Director of the Tax Office

Suwon District Court Decision 2015Guhap65613 Decided September 20, 2017

July 17, 2018

August 21, 2018

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and all of the plaintiffs' lawsuits corresponding to the revoked part shall be dismissed.

2. All appeals filed by the plaintiffs are dismissed.

3. 95% of the total costs of litigation shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

1. Purport of claim

Inheritance taxing KRW 0,000,000,000 (additional tax for unfaithful payment) paid by the Defendant against the Plaintiffs on September 11, 2012

The imposition of KRW 00,00,000 and additional tax on negligent tax returns shall be revoked.

2. Purport of appeal

A. Plaintiffs: Inheritance tax amounting to KRW 0,000,000,000, which the Defendant paid to the Plaintiffs on September 11, 2012 (payment)

Additional tax of 00,000,000 won for negligent tax returns of 000,000,000 won for negligent tax returns

[Additional Tax Payment 00,000,000 won (additional Tax 00,000,0000 won for additional tax and additional tax on negligent tax returns 00,000,000 won)

Sector shall be revoked.

(b) Defendant: Paragraph (1) of this Article;

1. Details of the disposition;

The reasoning for this Court’s explanation is as follows: (a) the pertinent part of the judgment of the court of first instance is identical to that of the judgment of the court of first instance, except where the 6th instance court’s first instance court’s first instance court’s first instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance judgment

If an administrative disposition is revoked, such disposition shall become null and void, and no longer exists, and a lawsuit seeking revocation against a non-existent administrative disposition is unlawful as there is no benefit in the lawsuit (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012). The Defendant issued a decision of revocation of ex officio revocation of the part exceeding KRW 000,000,000, out of the additional tax on negligent tax returns on September 15, 2017, which exceeds the amount exceeding KRW 000,000,000, among the instant disposition, of the disposition in this case (Evidence A13), and the aforementioned part of the lawsuit in this case, which was revoked ex officio as above, is unlawful as there is no benefit in the lawsuit, as there is no benefit in the lawsuit.

On the other hand, the first instance court dismissed all the remaining claims except for the part against the above defendant among the plaintiffs' claims seeking revocation of the disposition of this case. On the first instance court's decision, the plaintiffs appealed only about the part of additional tax 00,000,000 won (additional tax additional tax 00,000,000 won, and additional tax additional tax 0,000,000 won). Thus, the scope of the judgment of this court is limited to the above additional tax part.

3. The plaintiffs' assertion

1) The instant account was managed in the name of Plaintiff ParkB for 27 years. Accordingly, the instant financial property is presumed to have been donated to Plaintiff ParkB pursuant to the provision of “the deemed donation, such as transfer of property to the lineal ascendant or descendant” under Article 34(1) of the former Inheritance Tax Act (wholly amended by Act No. 5193, Dec. 30, 1996; hereinafter the same) or “the presumption of donation, such as transfer of property, etc. to the lineal ascendant or descendant” under Article 44 of the Inheritance Tax and Gift Tax Act (hereinafter the “Inheritance Tax and Gift Tax Act”), and the donation is presumed to have been made to have been donated to Plaintiff ParkB pursuant to the provision of “the presumption of donation, etc. to the lineal ascendant or descendant” under Article 45-2 of the former Inheritance Tax and Gift Tax Act. In addition, Plaintiff ParkB, the title holder of the instant financial property, who was not the owner of the instant financial property, is presumed to have been the Plaintiff ParkB’s owner of the instant financial property under the circumstances of Plaintiff ParkB.

Therefore, since the plaintiffs did not report the inheritance tax on the financial property of this case due to justifiable grounds, the part of the penalty tax in this case is unlawful.

2) The Defendant imposed the additional tax on Plaintiff ParkB on KRW 0,00,000,00 which remains in the instant account while imposing the gift tax. The Defendant again imposed the additional tax on negligent tax on negligent tax returns while rendering the instant disposition to the Plaintiffs. Therefore, the portion of the additional tax on negligent tax on the instant disposition, which was imposed twice, is unlawful.

3) Since Plaintiff ParkB, ParkB, ParkA, and ParkCC prepared each gift contract and reported and paid gift tax on the money donated to Plaintiff ParkB and ParkCC in accordance with the advice of the tax accountant under the above circumstances, the preparation of each gift contract by Plaintiff ParkB, ParkB, ParkA, and ParkCC cannot be deemed as an “unfair method” and it cannot be deemed that the objective of tax evasion exists to the Plaintiffs. Thus, the Defendant’s application of the unfair under-reported additional tax (tax rate of 40%) under Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same) in the instant disposition is unlawful.

4. Relevant statutes;

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

5. Determination

(a) Whether there exists any justifiable reason not to impose additional tax;

1) Article 48(1) of the former Framework Act on National Taxes provides that "no additional tax shall be imposed if there is a justifiable reason for the taxpayer to fail to perform his/her obligations." Under the tax law, additional tax is an administrative sanction imposed, as prescribed by the Act, in cases where the taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim. Therefore, it is unreasonable for the taxpayer to be unaware of his/her obligations due to a conflict of opinions arising out of statutory construction, beyond a mere scope of land or misunderstanding. Therefore, it is unreasonable to deem that the Plaintiff’s financial property was not enough to expect the party to perform his/her obligations, or that there was a justifiable reason to believe that the Plaintiff’s financial property was destroyed under the name of 20,000,000 won or less (see, e.g., Supreme Court Decision 201Du4711, Oct. 27, 2016). 201.

3) Meanwhile, it cannot be deemed that ParkB had actually transferred any property to the instant account under the name of Plaintiff ParkB around 1985 with the deposit and management of KRW 00,000,000,000 to Plaintiff ParkB. Thus, there is no room for applying Article 34(1) of the former Inheritance Tax and Gift Tax Act to the " deemed donation, such as transfer of property, etc. to the lineal ascendant or descendant" or the "Presumption of donation, such as transfer of property, etc. to the lineal ascendant or descendant" under Article 44 of the Inheritance Tax and Gift Tax Act. Furthermore, even in cases where the provision on deemed donation of title trust is applied and the trustee should be imposed gift tax, the substance of the relevant transaction does not become final and conclusive (see, e.g., Supreme Court Decision 2014Du42728, Jun. 15, 2017). Even if Plaintiff ParkB confirmed as the title-holder of the said account under the former Real Name Financial Transactions Act, this is a matter of whether Plaintiff ParkB was the actual owner of the instant property.

4) Therefore, the circumstances alleged by the Plaintiffs, including that the trial of the preceding judgment was underway, are insufficient to recognize that the Plaintiffs did not have to report and pay the instant financial property including the instant inherited property of ParkD, and there is no evidence to support that there was any other justifiable reason. The Plaintiff’s assertion on this part is without merit.

(b) Whether the additional tax on negligent tax returns has been imposed twice;

If the additional tax is imposed on the gift tax due to the failure to report the gift tax, and the additional tax is not imposed on the gift tax amount to be added to the taxable amount of the inheritance tax at the time of the return of the inheritance tax, the imposition of the additional tax on the gift tax again becomes unlawful as a result of imposing double burdens on the taxpayer (see Supreme Court Decision 96Nu13361, Jul. 25, 1997). This case’s account includes KRW 0,000,000,000 for the gift tax imposed on the Plaintiff ParkB’s account, which had been remaining in the name of Plaintiff ParkBB, and KRW 0,000,000 for the additional tax on the gift tax (Evidence 2). Accordingly, while rendering the instant disposition on the Plaintiff’s inheritance tax, the Defendant calculated the amount of the additional tax on each Plaintiff’s gift tax after deducting the amount of the additional tax on each Plaintiff’s gift tax calculated on the aggregate of KRW 0,00,000,000 for the inheritance tax amount to be assessed on each Plaintiff’s.

As can be seen, the Defendant applied the additional tax on negligent tax returns on donated property by applying the additional tax on negligent tax returns to the amount of the inheritance tax determined by deducting the amount of the gift tax on each advance donation, not the amount of the inheritance tax calculated, thereby preventing the double calculation of the amount of the additional tax on negligent tax on donated property at the time of imposing the inheritance tax. Therefore, the Defendant’s assertion on this part is without merit, since the additional tax on negligent tax on negligent tax

In the case of underreporting the tax base by an unjust method, which is the requirement for an unfair underreporting additional tax under Article 47-3(2)1 of the former Framework Act on National Taxes, means a case where the underreporting the tax base by an affirmative act, such as making it difficult to detect any taxation requirement of the national tax or forging or withdrawing any false fact, arising from the purpose of tax evasion, such as evading the progressive tax rate and applying the provisions on carried forward losses (see, e.g., Supreme Court Decision 2013Du12362, Nov. 28, 2013).

As seen earlier, Park Dong-B, ParkA, and ParkCC donated the financial property of this case, which was held in the name of the tea to the instant account on November 22, 2010, to the Plaintiff ParkB, Park Dong-B, and ParkCC, which is different from the facts, “Plaintiff ParkB” to Plaintiff Park Dong-B and ParkCC.