당초 계약내용 등에 협의이혼 조건이 없는 양도양수계약으로 저가양수에 해당됨[국승]
Seoul Administrative Court 2010Guhap7178 (Law No. 19, 2010)
Seocho 209u2618 ( November 18, 2009)
It is the transfer contract that does not have any condition to consult on the original contents of the contract, etc. and constitutes a low price acquisition.
(1) As the judgment of the court of first instance, the transfer of shares constitutes a normal stock transfer contract with a related party, which does not have any conditions to do so, and thus constitutes a low-price acquisition between the related parties, by withdrawing the intention of divorce, and thus cancelling the condition of divorce. However, although the original contents of the contract include a normal stock transfer contract with no conditions to do so.
2010Nu3080 Revocation of Disposition of Imposition of Gift Tax
XX
The Director of Gangnam District Office
Seoul Administrative Court Decision 2010Guhap7178 decided August 19, 2010
April 19, 2012
May 10, 2012
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The defendant shall revoke the imposition of KRW 000 on April 29, 2009 against the plaintiff on April 29, 2009.
1. Quotation of judgment of the first instance;
The reasons for this Court to be stated are as follows: (a) the reasons for this Court’s ruling is the same as the reasons for the first instance judgment, except for further determination in Paragraph (2) of Article 8 of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.
2. Judgment on the assertion added by the appellate court
A. The plaintiff's assertion
1) Cash ○○○ billion payment agreement
Even if the transfer of shares of thisA is not based on a property division agreement, since around January 2003, this agreement was made by thisA to transfer the shares of this case to the Plaintiff and the Plaintiff to pay ○○○ billion in cash to thisA, the imposition of gift tax against the Plaintiff is unlawful.
2) Cancellation of a stock transfer contract
Even if a domestic share transfer contract exists effectively, since thisA rescinded the share transfer contract on April 17, 2012 on the ground that the Plaintiff did not receive KRW 000 from the Plaintiff, the disposition of imposition based on the premise that the share transfer contract is valid is unlawful.
3) Deeming unconstitutionality
① Since the provisions of the Income Tax Act and the Inheritance Tax and Gift Tax Act that require double imposition of capital gains tax and gift tax on low-price transfer are unconstitutional, the instant disposition based thereon is unlawful.
② Even if the provision on the basis of the instant disposition is constitutional, the instant disposition should be revoked as it results in unconstitutional consequences.
B. Determination
1) The part concerning the assertion of an agreement on cash ○○ billion payment
The Plaintiff’s evidence No. 10, which corresponds to the Plaintiff’s assertion, is difficult to believe it as it is and is insufficient to recognize the above facts only by other evidence, and there is no other evidence to acknowledge it. Thus, this part of the Plaintiff’s assertion cannot
2) The part concerning the assertion of cancellation of a share transfer contract
According to the evidence No. 13, this part of the Plaintiff’s assertion premised on the fact that, on April 17, 2012, if the share transfer contract is valid, it can be acknowledged that the Plaintiff notified the Plaintiff of the cancellation of the sales contract on the ground of the payment of the purchase price. However, as seen earlier, this part of the Plaintiff’s assertion based on the premise that the share transfer price was not paid.
3) Part concerning the assertion of unconstitutionality
Article 35(1) of the former Inheritance Tax and Gift Tax Act, which is a basis provision for the disposition of this case, cannot be deemed as having violated the principle of double taxation, the principle of substantial taxation, the right to equality, etc. under the Constitution, and it cannot be deemed that the disposition of this case under the above provision has resulted in the unconstitutional outcome. Therefore, the Plaintiff’
3. Conclusion
Therefore, the judgment of the first instance court is justifiable, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.