Cho High Court Decision 2010Du0231, 20106.15

Since it is reasonable to see that the money lent to another person is the money of the Plaintiff Company, the imposition of corporate tax and gift tax is legitimate.

Since it is reasonable to see that the money lent to another person is the money of the Plaintiff Company, the disposition imposing corporate tax by including it in the gross income and imposing gift tax by considering it as a gift is legitimate.

2010Guhap36022 Revocation of Disposition of Imposing corporate tax, etc.

1. △△ Company 2. ParkA

○ Head of tax office

December 21, 201

February 17, 201

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s imposition of KRW 106,572,520 of the corporate tax for the business year 2005, and KRW 80,445,00 of the gift tax for the year 2005, against Plaintiff Park Jong-A, each of which was made against Plaintiff Park Jong-A on November 9, 2009, shall be revoked.

1. Details of the disposition;

A. On November 8, 2005, the Plaintiff Park Jong-A completed the registration of the right to claim ownership transfer on the housing and two-storys of the 00 ○○○○○-dong 11-38 Do, and the 99 Do governor-dong 11-38 Do, on the ground of the 00 Do governor-dong 11-38 Do, and on the 2nd floor of the 7th floor of the 005 Do governor-2 Do governor-dong 2005 hereinafter “the instant real property”). On November 1, 2006, the registration of the ownership transfer on the instant real property was completed on the ground of sale made on October 9, 2006.

B. From July 24, 2009 to September 3, 2009, the ○○ Regional Tax Office has conducted an investigation into the source of funds for persons suspected of having invested in real estate, such as Plaintiff Park Jong-A, and as a result, determined that the Plaintiff Company’s registration of ownership transfer on the instant real estate was completed, and that the Plaintiff Company’s loaned KRW 300 million to the ○○ Construction Co., Ltd. (hereinafter “Plaintiff”) and KRW 50 million (=30 million + KRW 50 million + KRW 50 million + KRW 50 million) with each contributed by the Plaintiff Company, the Plaintiff Company’s president, and Plaintiff Park Jong-B, and KRW 30 million with each contributed by the Plaintiff Company. The ○○ Regional Tax Office borrowed the instant real estate as collateral and completed the registration of ownership transfer claim in the name of Plaintiff Park Jong-A, thereby omitting the claim of KRW 300 million from the gross income and the said claim of KRW 300 million with respect to the instant real estate.

C. On November 9, 2009 based on the above findings, the Defendant respectively decided and notified the Plaintiff Company KRW 106,572,520 for the business year 2005, and KRW 80,445,000 for the gift tax for the year 2005 for the Plaintiff Park Jong-A (hereinafter “each disposition of this case”).

[Ground of recognition] Facts without dispute, Gap evidence 1-1-2, Eul 1, Eul 2, 3 and 7-2 (including additional numbers), the purport of the whole pleadings

2. Whether each disposition of this case is lawful

A. The plaintiffs' assertion

The Defendant rendered each of the instant dispositions on the premise that the KRW 300 million, which the Plaintiff Company lent to △ Construction, was the Plaintiff Company’s money. However, the Plaintiff Company lent KRW 300 million from DaCC (which directly paid interest on KRW 300 million to YCC), and again lent it to △ Construction, not the money of the Plaintiff Company. Accordingly, each of the instant dispositions on the different premise is unlawful, and thus ought to be revoked.

(b) Fact of recognition;

1) The Plaintiff Company is a company engaging in credit business.

2)The GovernmentB attended ○○ Regional Tax Office on August 24, 2009 and stated to the following purport during the period of its funding investigation conducted by ○○ Regional Tax Office with respect to Plaintiff LA:

O AB is the husband of the plaintiff Park Jong-B, and is working as the president of the plaintiff company from April 28, 1997.

C. On November 8, 2005, the Plaintiff Company borrowed KRW 400 million on January 6, 2006 and interest rate of KRW 5.5% per month (see, e.g., a loan transaction contract (Evidence 5)) on each of the instant real estate in the collateral. The Plaintiff Company completed the registration of the right to claim transfer of ownership in the name of the Plaintiff Park Jong-A with respect to the instant real estate as the collateral.

O The above 400 million won is 300 million won in the amount of the Plaintiff Company and 50 million won in the amount of the Plaintiff Company and the Park Park A.

3) On March 20, 2008, the Plaintiff Park Jong-A completed the registration of the establishment of a new mortgage with respect to the instant real estate as the debtor Jung-B, a collateral security-based bank, and the Seoul Special Metropolitan City bank.

[Reasons for Recognition] Each of the aforementioned evidence, evidence Nos. 4, 5, and 1-6 of evidence Nos. 6, and the purport of the whole pleadings

C. Determination

In other words, the following circumstances recognized by the overall circumstances revealed in the process of the above facts and arguments, namely, ① Plaintiff Company is a company engaging in credit business, and a loan transaction contract (Evidence No. 5) with △ Construction was made in the name of Plaintiff Company. ② ○○ Regional Tax Office appeared in ○○ Regional Tax Office during the loan management investigation period for Plaintiff Park Jong-A, and Plaintiff Company lent KRW 400 million to △ Construction. The Plaintiff Company stated KRW 300 million out of KRW 400 million as Plaintiff Company’s funds, and there is no evidence to support that the statement was made against the intention of △B; ③ The Plaintiffs asserted that ○B paid interest on KRW 300 million to △, and the Plaintiffs did not present any supporting evidence, such as financial materials, etc., even if they asserted that △ paid interest on KRW 300 million,000,000,000 to △ Construction. Accordingly, it is difficult to see that the Plaintiffs’ respective statements were contrary to the above evidence No. 6.35.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit. It is so decided as per Disposition.