Seoul Administrative Court 2008Guhap39004 (Law No. 97.01)

early 2007west5038 (2008.30)

false appropriation of such false appropriation shall be subject to the donation in the event of offsetting the amount of such false appropriation with the construction obligation.

The act of setting off against the obligation for the construction price to be paid to the corporation by creating false claims for provisional payments to the corporation shall be deemed to have been increased by the amount equivalent to the provisional payments.

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is all dismissed.

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

The judgment of the first instance shall be revoked. Each disposition of KRW 1,149,71,080 for gift tax of KRW 1,149,71,080 for the year 2004 against the plaintiff on July 13, 2007 (the defendant's complaint on July 20, 2007 shall be deemed to be a clerical error) shall be revoked.

1. Acceptance of a judgment of the court of first instance;

The reasoning of the judgment of this court is as follows, and the judgment of the court of first instance is identical to that of the plaintiff, except for the modification as follows and the addition of the judgment on the plaintiff's assertion of double tax investigation of gift tax for 2004 pursuant to Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

A. On the 3rd side, the 6th 6th 2004 'the 2004 'the 'the 'the 'the 'the 'the 'the 'the '

B. On the 3rd page 8, 2003, the 1st January 1, 2003 " around the 2004."

(c) No. 27 No. 1, 2, and 3 are added to "No. 17 No. 1, 3, and 4."

D. According to the facts acknowledged in Section 8, Paragraph 21, Paragraph 1, the case is "in accordance with the facts established in Section 21," respectively.

2. Additional determination on the assertion of double tax investigation on gift tax reverted to year 2004

A. The plaintiff's assertion

Even if the provisional revenue was not the Plaintiff, the provisional revenue was donated to the Plaintiff in 2003, and the Seoul Regional Tax Office conducted an investigation into the Plaintiff’s provisional revenue in 2004, while conducting a tax investigation on the non-party corporation. The tax investigation in 2007 of the Seoul Regional Tax Office, which was the basis of the instant disposition, constitutes a duplicate investigation because the said tax investigation, taxable period, and tax items are the same and thus, the instant disposition 1, based on which the said tax investigation was conducted, was unlawful.

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B. Determination

1) The Plaintiff alleged to the effect that there is no dispute between the parties on January 1, 2003 that the Plaintiff acquired the claim for the provisional payment. However, the Defendant did not have any person or acknowledged the above fact, and on December 31, 2004, on the premise that the Plaintiff acquired the claim for the provisional payment (No. 1-2) on December 31, 2004, it was subject to the disposition No. 1 of this case, which is the gift tax reverted to the year 2004. Therefore, the above

2) The Plaintiff asserts that the claim of the instant provisional collection was correct at the time of the settlement of accounts for the year 2003 because the non-party corporation mistakenly stated the original claim of the Plaintiff as the branchB. Thus, even according to the Plaintiff’s assertion, it cannot be deemed that the claim of the instant provisional payment was donated on January 1, 2003, which was merely the date the revised accounting was processed in the books, even if following the Plaintiff’s assertion.

In addition, it cannot be deemed that the branchB made a donation to the Plaintiff of the instant provisional collection right around 2003, on the ground that the name of the claim for provisional collection was modified to the name of the Plaintiff retroactively from January 1, 2003 on the account book at the time of the settlement of accounts in the year 2003 (the date of settlement of accounts was set, but it was made after January 1, 2004) and that the title of the claim for provisional payment was modified to the name of the Plaintiff.

3) According to the statement in Eul evidence 3-1, on September 25, 2003, the plaintiff was awarded a contract to the non-party corporation for the construction of AAF building, the construction cost of KRW 7 billion, the construction period of KRW 40,000,00 from October 1, 2003 to December 31, 2004, and the construction cost of the construction payment to be paid at the time of lease completion within a period not exceeding 3 months after completion, and as seen above, the non-party corporation treated the above construction cost claim as set off on December 31, 2004 to the extent equivalent to the above provisional collection claim.

However, in light of the background of this donation, etc., the claim for provisional payment was donated to the Plaintiff to offset the claim for the construction price against the Plaintiff by the non-party corporation. Therefore, it is reasonable to view that the time when the claim for provisional payment was donated to the Plaintiff to the non-party corporation was donated by agreement between the Plaintiff, the branchB, and the non-party corporation around December 31, 2004.

4) Therefore, the Plaintiff’s above assertion on the premise that donation of the instant provisional deposit claims was made around 2003, which amount to the taxable period of the tax investigation in 2004 cannot be accepted.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate because all of the plaintiff's claims are without merit, and all of the plaintiff's appeal is dismissed. It is so decided as per Disposition.