[증여세등부과처분취소][집38(2)특,417;공1990.9.1.(879),1743]
(a) The period for filing a request for review after a taxpayer having a foreign domicile files an objection against a taxation disposition (=60 days);
B. Whether a disposition imposing gift tax, etc. on the representative director who received title trust due to inevitable circumstances of the company’s real estate purchased by the company is null and void as a matter of course (negative)
(a) Where a taxpayer who received illegal taxation has a domicile in a foreign country, a request for examination or an objection may be filed within 90 days from the date (where a notice of disposition is received, the date on which the notice of disposition is received) on which he/she became aware that the disposition has a domicile in the foreign country, unlike in cases where he/she has a domicile in the foreign country, but where a request for examination is filed after receipt of an objection, a request for examination shall be made within 60 days from the date on which he/she receives the notice of decision on the objection (where he/she fails to receive the notice of decision, the date on which
B. Where a company has entrusted a representative director with the registration of ownership transfer in the name of the representative director for unavoidable reasons when it acquired real estate from a third party, but again completed the registration of ownership transfer in the name of the company, the tax authority may not deem that the company has donated the real estate to the representative director on the date when the registration of ownership transfer is made in the name of representative director pursuant to Article 32-2 of the Inheritance Tax Act and that there is a significant and apparent defect in the taxation that imposes gift tax and defense tax on the representative director.
(a) Articles 55(1) and (2), 56, 61(1), and 66(5) of the Framework Act on National Taxes;
Kim Law Firm Jung-ju, Attorney Kim Hong-dae, Counsel for the plaintiff-appellant
Head of the Office of Government
Seoul High Court Decision 89Gu1673 delivered on February 20, 1990
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
1. Judgment on the ground of appeal No. 1 by the Plaintiff’s attorney
According to the relevant provisions of the Framework Act on National Taxes, where a taxpayer intends to file an administrative litigation against an illegal taxation disposition, he/she shall not file a request for examination within 60 days (in cases where a taxpayer has a domicile in a foreign country, 90 days) from the date on which he/she first becomes aware of such disposition (in cases where he/she has a domicile in a foreign country, the date on which he/she receives a notice of disposition), and where he/she intends to file a request for examination after undergoing a request for examination, he/she shall do so within 60 days from the date on which he/she receives a notice of decision on a request for examination (in cases where he/she fails to receive a notice of decision, the date on which 30 days prescribed in the proviso to Article 6 (5) expires) under Article 66 (5) (the proviso to Article 61 (1)), so that he/she may file a request for examination within 90 days from the date on which he/she receives a notice of decision on such request for examination (in cases where he/she has a domicile in a foreign country, the date on which it receives a notice).
2. Determination on the ground of appeal No. 2
As in the theory of lawsuit, the non-party company acquired real estate from a third party and completed the registration of ownership transfer under the name of the representative director for unavoidable reasons, and again completed the registration of ownership transfer under the name of the non-party company. The non-party company deemed to have donated the real estate to the plaintiff on the date when the registration of ownership transfer was made under the name of the plaintiff pursuant to Article 32-2 of the Inheritance Tax Act and imposed the gift tax on the non-party company and the defense tax accordingly. Thus, the judgment of the court below that stated this purport is just, and there is no error of law by misapprehending the legal principles as to the invalidation of taxation.
3. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jae-sung (Presiding Justice)