[증여세부과처분취소][공1989.9.15.(856),1302]
Whether to cancel a property transfer contract between lineal ascendants and descendants and to levy gift tax pursuant to Article 34(1) of the Inheritance Tax Act (negative)
Even in cases where the value of the property is deemed to have been donated to the transferee by transferring the property between lineal ascendants and descendants pursuant to Article 34(1) of the Inheritance Tax Act, if the transfer contract is duly cancelled and registered for cancellation by the taxing authority prior to a disposition imposing a tax on the transfer of the property as the cause of taxation, the effect of the change in the real right arising from the execution of the contract shall be retroactively extinguished and the transfer of the property subject to deeming that the donation was never made and the donation under the Inheritance Tax Act shall not be deemed to have existed from
Article 34(1) of the Inheritance Tax Act
Plaintiff 1 and one other plaintiffs' attorney Lee Dong-dong, Counsel for the plaintiff-appellant
The director of the tax office
Seoul High Court Decision 86Gu1083 decided May 4, 1987
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. The court below is just in examining the process of the cooking the evidence which was conducted in recognizing the facts in its judgment in light of the records, and there is no error of law of misconception of facts due to a violation of the rules of evidence or incomplete hearing
2. Even though the value of the property is deemed to have been donated to the transferee by transferring the property between lineal ascendants and descendants pursuant to Article 34(1) of the Inheritance Tax Act, if the transfer contract is lawfully rescinded before the tax authority imposes a tax disposition imposing a gift on the transferee, and if the cancellation registration is made by cancellation, the effect of the change of real right due to the execution of the contract shall be retroactively extinguished and the transfer subject to view as a gift and donation under the Inheritance Tax Act shall be deemed not to have existed from the beginning. Thus, the imposition of gift tax on the basis of the gift shall not be conducted.
According to the reasoning of the judgment below, the court below held that the plaintiff 2 transferred the real estate to the plaintiff 1, who was his own child on September 20, 1985 and completed the registration of ownership transfer on September 20, 1985 on September 20, 1985, but cancelled the above registration of ownership transfer on October 3, 1985. The defendant decided that the sale of plaintiff 2's plaintiff 2's plaintiff 1 shall be deemed to be a donation under Article 34 of the Inheritance Tax Act, and that the disposition of gift tax, etc. on September 20, 1985 was made on September 18, 1986. Thus, if the facts are the same, the donation under the Inheritance Tax Act between the plaintiffs shall be deemed not to have existed from the beginning. Thus, the judgment below is just and there is no error in the misapprehension of legal principles as to the inheritance Tax Act, such as the theory of lawsuit, and there is no error in the misapprehension of legal principles as to the inheritance tax law.
3. Therefore, the appeal is dismissed, and all 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 Song Man-man (Presiding Justice)