Donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

The plaintiff shall bear the total costs of the lawsuit after the appeal.

1. Article 18 (1) of the Administrative Litigation Act provides that "a revocation lawsuit may be instituted without going through an administrative appeal against the disposition concerned, even though it is possible under the provisions of other Acts and subordinate statutes: Provided, That this shall not apply to cases where there is a provision that a revocation lawsuit cannot be instituted without going through an adjudication on an administrative appeal against the disposition concerned." Article 20 (1) provides that "a revocation lawsuit shall be instituted within 90 days from the date on which the existence of the disposition, etc. is known: Provided, That in cases where the proviso of Article 18 (1) is provided for in the proviso of Article 18 (1) and other cases where a request for administrative appeal may be made, or where an administrative agency has falsely notified that a request for

In addition, Article 56 (2) of the Framework Act on National Taxes provides that "any administrative litigation against any illegal disposition prescribed in Article 55 shall not be filed without going through a request for examination or adjudgment and a decision thereon under this Act, notwithstanding the main sentence of Article 18 (1), Article 18 (2) and (3) of the Administrative Litigation Act," and the main sentence of paragraph (3) of the same Article provides that "any administrative litigation under paragraph (2) shall be filed within 90 days from the date the decision on such request for examination or adjudgment is notified, notwithstanding Article 20

In the case where two or more dispositions for the same purpose in tax administration were taken in the course of a phased and developmental process and are related to each other, or in the course of a tax litigation, the tax authorities changed the subject matter of the taxation, and the grounds for illegality are common, or multiple persons are subject to the same obligation through the same disposition, one of the taxpayers, who was either subject to a prior trial procedure or subject to the same obligation, provided an opportunity for the Commissioner of the National Tax Service and the Tax Tribunal to re-determine the basic facts and legal issues, such as the time when the prior trial procedure was duly conducted, and the taxpayer seems to be harsh to have been subject to the prior trial procedure, and thus, the taxpayer may file an administrative lawsuit seeking the revocation of the taxation disposition even without going through the prior trial procedure (see, e.g., Supreme Court Decision 2005Du10170, Apr. 14, 2006).

However, the main sentence of Article 56(3) of the Framework Act on National Taxes excludes the application of Article 20 of the Administrative Litigation Act pursuant to Article 56(2) of the Framework Act on National Taxes that Article 18(1) of the Administrative Litigation Act excludes the application of the main sentence of Article 18(1) of the same Act and that it is not possible for a taxpayer to file a lawsuit seeking cancellation of a tax disposition without going through a prior trial procedure under the Framework Act on National Taxes. Thus, in a case where a taxpayer can file a lawsuit seeking cancellation of a tax disposition without going through a prior trial procedure, he/she shall file such lawsuit within 90 days from the date he/she becomes aware of the disposition, etc. in accordance with Article 20(1) of the Administrative Litigation Act, barring any special circumstance. The same applies to a case where one of the taxpayers

2. According to the records, on February 6, 2013, the Defendant: (a) deemed that the Plaintiff trusted the instant shares to KimB on the title trust; and (b) imposed gift tax pursuant to Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “former Inheritance Tax and Gift Tax Act”); (c) on the same day, on the ground that the Plaintiff was jointly and severally liable for tax payment as a donor based on the constructive gift under title trust; and (d) KimB filed an appeal with the Tax Tribunal on April 12, 2013; (b) however, the Plaintiff did not request a judgment with the Tax Tribunal; and (c) on February 18, 2014, the Plaintiff filed a lawsuit seeking revocation of the remainder of the instant disposition that was not cited by the Tax Tribunal.

Therefore, the Defendant issued the instant disposition to the Plaintiff on February 6, 2013, and the Plaintiff filed the instant lawsuit on May 19, 2014 even after having received a tax payment notice around that time, and accordingly, the instant lawsuit was filed after the lapse of 90 days from the date on which he/she became aware of the disposition, and thus, is deemed unlawful.

3. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed without further proceeding to decide on the grounds of appeal, and this case is sufficient for the Supreme Court to directly render a judgment. The plaintiff's lawsuit of this case must be dismissed as it is unlawful. Since the judgment of the court of first instance is justifiable, the plaintiff's appeal is dismissed, and the total costs of the lawsuit after the lawsuit are brought to the plaintiff are borne by the plaintiff. It is so decided