[증여세부과처분일부취소소송][공2019하,1588]
In a case where Gap, after the title trust of Eul in the future, changed the name of shares to Eul, and Byung reported and paid gift tax on the ground that Byung reported and paid Eul's shares to the tax authority as gift tax, the tax authority deemed Gap and Byung as " donor" and Byung as " donee" pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act, and ordered joint payment by determining and notifying additional taxes not reported and not-paid penalty taxes and not-paid penalty taxes within the statutory due date of return, the case affirming the judgment of the court below that in a case where the gift tax payer files a return on the gift tax base to the head of the competent tax office within the statutory due date of return, it cannot be deemed as non-reported even if the donor erroneously reported the gift tax base, and thus, the imposition of non-reported penalty tax is unlawful, and as long as Byung reported on gift tax was effective
In a case where Gap, after the title trust of Eul in the future, changed the name of shares to Eul, and Byung reported and paid gift tax on the grounds that Eul donated shares from the tax authority to Eul, the tax authority affirmed the judgment below that the tax authority imposed additional tax on Gap and Byung on the ground that Gap and Byung reported and paid gift tax on the ground that Eul should be deemed to be a donor and Byung as a donee pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007; hereinafter the same shall apply), and that the tax authority ordered joint payment by determining and notifying the illegal non-reported additional tax and non-paid additional tax as well as the gift tax (principal tax), the case affirming the judgment below that the gift tax base was unlawful in light of Article 68(1) of the former Inheritance Tax and Gift Tax Act, Article 65(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621 of Feb. 22, 2008), Article 47-1 of the former Framework Act.
Articles 45-2 and 68(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007); Article 47-2(1) of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007); Article 65(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621 of Feb. 22, 2008)
Plaintiff 1 and one other (Law Firm Barun et al., Counsel for the plaintiff-appellant)
Jinju Tax Office (Law Firm Cheong Law, Attorney Kim Jong-chul, Counsel for the plaintiff-appellant)
Busan High Court (Chowon) Decision 2017Nu10459 decided October 18, 2017
All appeals are dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. Case summary
A. From 1985 to December 1999, Plaintiff 1 acquired 3,159,320 shares of father-young Co., Ltd. (hereinafter “Non-Decree”) and held title trust in the name of the Non-Party, a title trust.
B. Around 2007, the Nonparty requested Plaintiff 1 to adjust the name of the said shares. Accordingly, on December 29, 2007, Plaintiff 1 changed the name of the shares in the form of donation made by the Nonparty to Plaintiff 1 in the form of donation made by the Nonparty for KRW 2,264,698 of the said secondary shares of KRW 3,159,320 on December 29, 2007.
C. On March 29, 2008, Plaintiff 2 reported gift tax on the ground that “Plaintiff 2 donated the instant shares from the Nonparty on December 29, 2007,” and paid KRW 14,427,913,173 among the instant shares to the Defendant on July 7, 2008, pursuant to the Defendant’s permission for payment in kind, KRW 391,351 out of the instant shares.
D. On May 25, 2009, the Defendant assessed the value per share of the instant shares as KRW 40,051, and issued a revised and notified the gift tax to Plaintiff 2 (hereinafter “instant first disposition”).
E. On November 1, 2013, the Defendant revoked the instant first disposition and returned 391,351 shares paid in kind by Plaintiff 2 to Plaintiff 1.
F. On the same day, pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter the same), the Defendant issued an order to jointly pay the Plaintiffs KRW 53,529,529,405,597, totaling KRW 53,529,529,40,529,405,593, and KRW 60,453,000,000,000,000 per share of the shares of this case, assessed the value of the shares of this case as KRW 60,453,00,000,000 and KRW 26,581,291,883,00,000,000,000,000,000,000,000).
2. Whether Plaintiff 2’s report on gift tax on March 29, 2008 constitutes a non-report (ground of appeal Nos. 1 and 2)
A. Article 68(1) of the former Inheritance Tax and Gift Tax Act provides that a person liable to pay gift tax shall report the taxable value and tax base of the gift tax to the head of the tax office having jurisdiction over the place of tax payment within three months from the date of donation, as prescribed by Presidential Decree. Article 65(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621, Feb. 22, 2008) provides that a person liable to pay gift tax under Article 68(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act shall be based on
Meanwhile, Article 47-2(1) of the former Framework Act on National Taxes (amended by Act No. 8830, Dec. 31, 2007) provides that a taxpayer shall impose an additional tax without filing a tax return if the taxpayer fails to file a tax return within the statutory due date of return.
B. The lower court determined that: (a) where a person liable to pay gift tax files a return on the gift tax base with the head of the competent tax office within the statutory due date of return, the imposition of penalty tax in this case was unlawful without having to further determine the part on whether the person did not file a return by improper means, even
C. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on penalty tax not reported or penalty tax not reported, as otherwise alleged in the grounds of appeal.
3. Whether the imposition of penalty tax against nonperformance of payment in this case is unlawful (Ground of appeal No. 3)
A. The lower court: (a) premised on the premise that Plaintiff 2’s report on gift tax cannot be deemed as a non-report; and (b) determined that the imposition of penalty tax in this case was unlawful on the ground that Plaintiff 2’s report on gift tax remains effective as long as it
B. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on penalty taxes in bad faith as alleged in the grounds of appeal.
In addition, the Defendant’s ground of appeal No. 3 that the portion of the penalty tax in bad faith on the valuation of donated property is legitimate is the first time in the final appeal, and it cannot be a legitimate ground of appeal.
4. Conclusion
The Defendant’s appeal is dismissed as it is without merit. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Dong-won (Presiding Justice)