아무런 준용 규정 없이 같은 호 가목에서 준용하는 시행령을 나목에서 준용할 수 없음[국패]
Suwon District Court-2015-Guhap-1282 (2016.07)
Examination-2014-5247 ( November 18, 2013)
No such provision shall apply mutatis mutandis to item (b) of the Enforcement Decree applicable mutatis mutandis under item (a) of the same subparagraph without such provision.
Article 29 (3) 3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act that applies mutatis mutandis under item (a) of the same subparagraph without any provision for the calculation of "the changed value after the change" under subparagraph 5 (b) of Article 31-9 (2) of the Enforcement Decree of the former Inheritance Tax and Gift Tax
Article 31-9 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (Donation of Other Benefits)
2016-Nu-5757 Revocation of Disposition of Imposition of Gift Tax
AA
o Head of the tax office
November 246, 2016
December 15, 2016
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
1. Purport of claim
The Defendant’s imposition of gift tax on October 22, 2014 by OOO and OO(total OO) shall be revoked.
2. Purport of appeal
The judgment of the first instance is revoked. The plaintiff's claim is dismissed.
1. Quotation of judgment of the first instance;
The reasoning of this court's decision is as follows, except for adding or adding some of the contents to the defendant's preliminary disposition, and adding the decision on the defendant's preliminary disposition under Paragraph 2 below, and thus, it is consistent with the reasoning of the first instance court's decision. Thus, it is cited in accordance with Article 8 (2) of the Administrative Litigation Act
Part 15 of Part 2, "Article 63 (1)" shall be added to "Article 63 (1)."
○ The 4th page, 5th, 21th, 11th 5th "paragraph 1" below the 4th page shall be "paragraph 2".
Part 4 (a) under the 4th page "Article 29 (3) 3" shall read "Article 29 (3) 3".
Jinaly,
Article 61(1) of the former Inheritance Tax and Gift Tax Act is the same as Article 60(1) of the former Inheritance Tax and Gift Tax Act.
○ Part 8 (19) of the 8th page "paragraph 1)" shall be "paragraph 1".
○ The 3rd page of the 9th page "paragraph 1" refers to "paragraph 1".
○ Part 9 of the 9th page "in paragraph 3" shall be read as "paragraph 3".
○ The 10th page 16 of the original Inheritance Tax and Gift Tax Act is amended by adding the Enforcement Decree thereto.
2. Judgment on the defendant's conjunctive disposition
A. The defendant's assertion
Preliminaryly, the Defendant’s interest derived from an all-inclusive share swap
In accordance with Article 2 and Article 39-3(1)2 of the former Inheritance Tax and Gift Tax Act and Article 29-3(1)2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the Plaintiff, the shareholder of BB (wholly owning parent company), who is a shareholder of CCC (wholly owned subsidiary), was deemed to have received a donation of total OO won from DD and EE, and thus, issued the instant disposition.
B. Determination
In full view of the structure and characteristics of the comprehensive exchange transaction of shares under the Commercial Act and the text, legislative intent and system of the provisions related to the Inheritance Tax and Gift Tax Act, the comprehensive exchange of shares under the Commercial Act
The gift tax shall be levied on the profits earned by the shareholders of a complete parent company by applying Article 42(1)3 of the former Inheritance Tax and Gift Tax Act on the donation of profits arising from the transaction that increases the corporation’s capital. The gift tax shall not be levied by applying Article 2 and Article 39-3(1)2 of the former Inheritance Tax and Gift Tax Act and Article 29-3(1)2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. The defendant’s above assertion is without merit
3. Conclusion
Since the judgment of the first instance is justifiable, the defendant's appeal is dismissed as it is groundless.