특정법인과의 거래를 통한 이익의 증여 규정에 따라 증여세 과세한 처분은 적법함[국승]
Incheon District Court-2014-Gu Group-4795 ( October 14, 2015)
A disposition imposing gift tax pursuant to the provision on donation of profits through transactions with a specific corporation is legitimate.
Article 41(1) of the Inheritance Tax and Gift Tax Act provides that the amount of money prescribed by the Presidential Decree shall be deemed as the gift profit, and Article 31(6) of the Enforcement Decree of the same Act provides that the amount calculated by multiplying the value of the shares of this case by the ratio of the shares of the plaintiffs shall be deemed as the gift profit. Thus, the disposition of this case
Article 41 of the Inheritance and Gift Tax Act
Seoul High Court 2015Nu53345 Revocation of Disposition of Imposing Gift Tax
AAA et al.
OO Head of the tax office
2015.07.14
2017.05.17
2017.06.21
1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. The total costs of the lawsuit shall be borne by the Defendants.
The decision of the first instance is revoked. The decision of the chief of the tax office against the plaintiff Aa on August 1, 2013 is revoked.
Gift tax of KRW 11,582,520, Defendant 000 on August 12, 2013
Each disposition of 35,829,220 won shall be revoked.
1. Details of the disposition;
This Court's reasoning is the same as the corresponding part of the judgment of the court of first instance. Thus, this Court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
2. Whether the lawsuit in this case is lawful
ex officio deemed.
If an administrative disposition is revoked, such disposition does not become null and void, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 2009Du16879, Apr. 29, 2010). The fact that the head of the tax office’s revocation of the disposition of this case ex officio on May 22, 2017 by Defendant 00 and the head of the tax office’s revocation of the disposition of this case on May 23, 2017 is apparent in the record. Accordingly, the lawsuit of this case seeking revocation of the disposition of this case, which is not yet extinguished, became null and void as there is no benefit of lawsuit.
3. Conclusion
Thus, the lawsuit of this case shall be dismissed in an unlawful manner. Since the judgment of the court of first instance different from this conclusion is unfair, it shall be revoked and dismissed, and the total costs of the lawsuit shall be borne by the Defendants pursuant to Article 32 of the Administrative Litigation