증여세부과처분취소
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1..
1. Grounds for admitting the judgment of the court of first instance to be used in this case are 2. Grounds for the judgment of the court of first instance
C. In addition to the use of the 10th parallel 1 to 9th parallel 1 as follows, the reasoning of the judgment of the court of first instance is as stated in Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.
[Article 31(5) of the Inheritance Tax and Gift Tax Act provides that "where a donee returns property donated to him/her to the donor or re-donates such property to the donor within three months after the deadline for filing a report under Article 68 expires, no gift tax shall be imposed on the return or re-donates." Article 45-2(1) of the same Act provides that "The gift tax shall be imposed by deeming the title trust, which is the purpose of tax avoidance, as a gift, as a gift." Thus, the "donation" under Article 31(5) of the Inheritance Tax and Gift Tax Act, should be deemed as included in the title trust deemed as a gift. Accordingly, even where the title trustee returns the property trusted to the title truster three months after the deadline for filing a report on filing a gift tax, the disposition of this case is lawful.
However, the legislative purport of Article 45-2(1) of the Inheritance and Gift Tax Act is to allow exceptions to the substance over form principle to the purport that the tax justice is realized by effectively preventing the tax avoidance act using the title trust system even though the substance is not a donation. Thus, it is determined that the transfer of the name of stocks, etc. to the name of the actual owner after three months from the expiration of the deadline for filing the gift tax does not constitute a new donation, and thus, it cannot be deemed that the gift tax may not be imposed
The Supreme Court Decision cited by the Defendant (Supreme Court Decision 2011Du8765 Decided September 29, 201) is different from each other, and thus, it is inappropriate to invoke the case in this case.
Therefore, the defendant's argument is justified.