[부당이득금][미간행]
Where the taxable value of the property paid in kind is increased or decreased due to a change in accordance with the correction of the tax authority or the judgment of the court, whether the received value of the property paid in kind is changed according to the changed taxable value (affirmative in principle), and whether the received value is changed by the sale or disposal price for the reason that the property paid in kind was sold or disposed by public sale (negative)
Article 73(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007); Article 75 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008)
Supreme Court Decision 2007Du4018 Decided November 26, 2009 (Gong2010Sang, 52) Supreme Court Decision 2010Da25018 Decided August 26, 2010
Plaintiff 1 and 14 others (Attorneys Lee Im-soo et al., Counsel for the plaintiff-appellant)
Republic of Korea (Law Firm LLC, Attorneys Kim Dong-soo et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2009Na3793 decided December 1, 2010
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
The main sentence of Article 73(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007) provides that "where the value of real estate and securities among the property inherited or donated exceeds 1/2 of the value of the relevant property and the amount of the inheritance tax or gift tax paid exceeds 10 million won, the head of the competent district tax office having jurisdiction over the place of tax payment may permit payment only for the real estate and securities upon request of the taxpayer, as prescribed by Presidential Decree." Article 75 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008) provides that "the amount of receipt of real estate and securities appropriated for payment in kind under Article 73 of the Act shall be the value of inherited property or donated property except for cases falling under any of the following subparagraphs. 1. 208 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act shall not be deemed to be changed to the value of the relevant property subject to payment in kind, or its change.
According to the reasoning of the lower judgment, the lower court determined that: (a) on November 20, 200, the Plaintiffs calculated the aggregate of KRW 17,150 per share of the instant 17,380 per share with KRW 672,380; (b) the tax authority assessed the value of the instant shares as KRW 3,408,486 per share with the supplementary assessment method; and (c) the Defendant imposed the instant disposition on KRW 22,171,56,670 per share with the value of the instant shares received at KRW 70 per share of KRW 70; and (d) on the grounds that the amount of the instant shares received at KRW 70 per share of KRW 86,670 per share with the value of the instant shares received at KRW 30,70 per share with the revised assessment method; and (e) the instant disposition on KRW 28,408,670 per share with the value of the instant shares received at KRW 67,200 per share was justifiable.
In light of the aforementioned legal principles and records, the above determination by the court below is just, and contrary to the provisions of the Framework Act on National Taxes and other Acts and subordinate statutes concerning the validity of a corrective disposition or payment in kind, or contrary to the grounds of appeal, there are no errors in the misapprehension of the legal principles concerning the fairness and non-existence of an administrative disposition, in violation of the principle of equality, in violation of the taxpayer's property rights, in violation of the principle of equality, in violation of the principle of delegation legislation, or in misunderstanding
Therefore, all appeals are dismissed, and 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.
[Attachment] List of Plaintiffs: omitted
Justices Kim Yong-deok-soo (Presiding Justice)