Article 70 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

At the same time, the defendant receives 195,00,000 won from ○○○○, and at the same time delivers to the plaintiff Sung○○○○, each share certificate stated in the separate sheet No. 1.2 in the separate sheet No.2 in the separate list No.2, and simultaneously receives 67,600,000 won from ○○○○○○○○○○, and simultaneously receives 67,60,000 won from ○○○○○○○○○○○, and simultaneously receives 65,00 won from ○○○○○○○○○, and simultaneously receives 65,00,00 won from ○○○○○○○, and simultaneously receives 63,000 won from ○○○○○○○, and simultaneously receives 63,050,000 won from ○○○○○○, the above share certificates were entered in the separate list No.2, 300,000 won from ○○○○○○○○.

The following facts may be acknowledged by adding up the whole purport of the pleadings to the statements of evidence Nos. 1-1 to 6-4 of evidence Nos. 1-1, and No. 1-2 of evidence No. 1.

A. The ○○○, a shareholder of ○○○○○ (hereinafter “○○○○”) calculated KRW 40,000 per share of KRW 50,00 and purchased KRW 2 billion under the name of the Plaintiff Sungsung○○○○○○, a shareholder of 6,200 and KRW 6,200 per share in the name of the Plaintiff ○○○○○○, under the name of the Plaintiff ○○○○○○○, Plaintiff 5,850, Plaintiff 5,850, Plaintiff 40, Plaintiff 40, 300, respectively, under the name of ○○○○○, a shareholder of ○○○, who is not specially related under Article 26(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17828, Dec. 30, 202; hereinafter “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”).

나. 이에 관할 세무서인 ○○세무서, ○ · □ · ◇◇◇, ■■세무서(이하 '각 관할 세무서'라 한다)는 여○○이 위 각 주식을 원고들에게 증여한 것으로 보고, 명의신탁일 현재 위 주식의 1주당 가액을 구 상속세 및 증여세법 시행령 제54조의 규정에 의한 평가방법에 의하여 362,063원으로 평가한 후, 이를 기준으로 하여 2003. 12. 11.자로 원고들에게 별지 목록 2 제3항 기재와 같은 금액의 2002년도 귀속 증여세 합계 6,551,865,050원(이하 '당초 증여세액'이라 한다)을 각 부과하였다(이하 '당초 증여세 부과처분'이라 한다).

C. Accordingly, on December 20, 2003, the plaintiffs applied for the payment of the initial amount of gift tax with the above stocks donated to each competent tax office on December 20, 2003. Each competent tax office assessed on January 7, 2004 as the permission for payment in kind (hereinafter referred to as the "permission for payment in kind") and the receipt price of stocks appropriated for payment in kind was 90% of the shares of 000,000 paid, and accordingly, 3,575,630 won per share pursuant to Article 20 (1) 2 of the Enforcement Rule of the Inheritance Tax and Gift Tax Act [=3,575,630 won per share [3,00 won per share 362,063 won-1 share (0.9 share price per share)] ± (the number of shares paid in kind per share 5,000 won per share)] ± (the number of shares paid in kind was 2.0.9 per share 1- old shares].

D. Meanwhile, on February 2, 2004, the plaintiffs filed a request for a trial with the National Tax Tribunal to the effect that the assessment standard for calculating the original amount of the gift tax on ○○○○ Stocks shall not be 362,063 won, but shall be 50,000 won, which is the actual purchase price of the said stocks from ○○○○, etc. The National Tax Tribunal accepted the plaintiffs' claims on July 6, 2004, and decided to the effect that the assessment of the tax base and tax amount shall be 50,000 won for the assessed amount of the ○○○○ Stocks upon receiving the plaintiffs' claims on July 6, 2004. Accordingly, each tax office decided to the effect that the assessment of the tax base and tax amount shall be 50,000 won for the assessed amount per each stock of the ○○ stocks, which shall be 50,000 won for each tax office having jurisdiction over each tax office, as the revised amount of gift tax on 19, 2004.

E. On July 22, 2004, the Plaintiffs initially imposed gift tax on each of the competent tax offices. Since the imposition of gift tax is illegal and unfair, the Plaintiffs already cancelled and applied for refund of all the shares paid in kind to the Plaintiffs, and applied for refund of property paid in kind with the intent to pay the reduced gift tax in cash. However, each of the competent tax offices, based on the above decision of the National Tax Tribunal based on the amount of KRW 50,000 per share of the shares paid in kind, assessed as KRW 45,00 per share by the method of calculating the amount of receipt per share of the shares paid in kind and assessed as KRW 45,00,00, based on the method of calculating the amount of receipt per share of the shares paid in kind. On each date listed in attached Table 2(9), each of the instant shares stated in attached Table 2(1) shall be refunded only 801 share per share, and as to the remaining KRW 1,034, the changed amount of gift tax shall be rejected.

2. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

3. Judgment on the plaintiffs' assertion

A. Determination on the assertion that the disposition of gift tax originally rendered is void as a matter of course

(1) In the initial imposition of gift tax, there is a defect in the assessment of donated property subject to gift tax by applying the unlawful and unfair assessment method, and since this is a significant and apparent defect, the initial imposition of gift tax is null and void. Accordingly, the defendant asserts that all shares paid in kind by the plaintiffs should be refunded to the plaintiffs according to the initial imposition of gift tax.

(2) According to the above facts that ○○○○○○○○○○○○○○○ Party’s ○○○○○○○○○ Party’s 00 shares issued at the time of such investment, it is difficult to view the 6th anniversary of the fact that the 5th shareholder’s initial 0th 6th 5th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 3.

B. Determination on the assertion that the instant disposition of permission for payment in kind is void as a matter of course

(1) Judgment on the withdrawal of the request for payment in kind

The plaintiffs claim that the payment in kind is for the convenience of a taxpayer and that the decision entirely depends on the choice of the person liable for tax payment. Thus, the plaintiffs may freely withdraw the application for payment in kind even after the payment in kind has already been made in light of the principle of equity in taxation, etc., and as long as the plaintiffs legally withdraw the application for permission in kind, the disposition in this case taken by the competent tax office to pay in kind

On the other hand, the Framework Act on National Taxes does not provide for the refund of property paid in kind, except as otherwise provided for the refund of property paid in cases where a taxpayer makes a refund through a decision of cancelling or reducing the whole or part of the assessment after inheritance, gift tax, income tax or corporate tax was paid in kind under Article 51-2 of the Framework Act on National Taxes, and there is no provision under the law that the taxpayer voluntarily withdraws an application for payment in kind after the payment in kind and seeks a refund of the whole property paid in kind at the competent tax office and on the premise that there is no right to claim a change in the method of payment in kind at the same time after the permission for payment in kind was granted. Therefore, even if the application for payment in kind was withdrawn after the permission for payment in kind, the above assertion is without merit ( there is no special circumstance that the original amount of income has been reduced by 90% or more, and under such circumstance, there is no special circumstance that the return of application for payment in kind and the payment in kind should be allowed under the principle of tax payment in accordance with the Framework Act on National Taxes, the principle of tax balance or good faith.

(2) Determination on the assertion that the application for payment in kind is revoked on the ground of mistake

The plaintiffs revised 469,391,50 won by a decision made by the National Tax Tribunal for the correction of 6,51,865,050 won or more. The plaintiffs were forced to make an application for payment in kind because the original amount of the gift tax was excessively excessive to the extent that it is impossible to pay in cash, and the plaintiffs did not make an application for payment in kind from the beginning, if the competent tax office made a legitimate tax disposition that was not defective based on the correct tax base. Accordingly, the plaintiffs filed an application for payment in kind on the basis of mistake in the amount of gift tax. Since this constitutes an error in important part of a juristic act, the plaintiffs revoked the application for payment in kind on the ground of an expression of intent due to mistake, and therefore, they asserted that the disposition for the payment in kind

On the other hand, the plaintiffs' application for payment in kind is an act of public law of so-called private person, and the provisions concerning invalidation or cancellation due to defects in declaration of intention under the Civil Act do not apply to the act of public law of private person due to its nature (see Supreme Court Decision 99Du971 delivered on August 24, 2001). Thus, it is impossible to cancel the application for payment in kind on the ground of mistake. Thus, the above argument is without merit.

(3) Claim that the disposition of payment in kind is void due to an error in the calculation of the disposition of payment in kind

As the amount of the initial amount of the gift tax should be corrected, the tax office having jurisdiction over each of the tax offices shall base the amount of KRW 3,575,630 per share, which is the initial amount of the gift tax paid in kind, in refunding the stocks paid in kind. As a result, 1,698 of the shares paid in kind (=6,082,082,473,550 won ± 3,575,630 won) should be refunded to the plaintiffs, and the remaining shares should be treated as paid in kind, and even though the above corrected amount of tax should be considered as paid in kind, it is erroneous that the tax office having jurisdiction over each of the tax offices should calculate the amount of the original amount of the gift tax paid in kind as 45,000 won and refund only KRW 801 per share to the plaintiffs, and if there was any error in the part on the assessment of

On the other hand, Article 51-2 of the Framework Act on National Taxes provides that where part of the imposition of gift tax is revoked or reduced, a partial refund of the property paid in kind is possible, and in light of the circumstances surrounding the initial imposition of gift tax, there is a defect in the evaluation of stocks to be paid in kind by the competent tax office while granting permission for payment in kind, but the defect is not significant and clear, so the permission for payment in kind cannot be deemed null and void as the above argument is without merit.

4. Conclusion

Therefore, the plaintiffs' claims against the defendant are dismissed as it is without merit. It is so decided as per Disposition.