[1] Requirements for the application of the supplementary valuation methods of donated property and the burden of proof (=tax authorities)

[2] Whether Article 2 of the Addenda to the Framework Act on National Taxes ( December 31, 1990) violates the principle of prohibition of retroactive legislation and the principle of prohibition of retroactive taxation (negative)

[3] Whether there is a defect in the taxation procedure, in case where the applicable law is not stated in the resolution of gift tax decision (negative)

[1] The assessment of donated property by the method under Article 5 (2) through (5) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 190) is a supplementary assessment method that can only be selected when it is difficult to calculate the market price at the time of donation, and there was no choice but to select a supplementary assessment method because it is difficult to compute the market price.

[2] The retroactive legislation referred to in Article 13 (2) of the Constitution refers only to the legislation that has the so-called genuine effect which only regulates the facts and legal relations already completed in the past. Article 2 of the Addenda of the Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1990) is to begin with the date on which the first gift tax can be imposed after the amendment was implemented, i.e., the commencement of the exclusion period, and it does not apply from the beginning of the exclusion period, and the exclusion period has already already expired. Thus, the principle of prohibition of retroactive taxation does not belong to the legislation of the authenticity of a lawsuit or non-performance of a lawsuit. Meanwhile, the principle of prohibition of retroactive taxation means that the fact which was completed before the enforcement of the tax law is the right to specifically determine the tax claim for which the requirements of imposition of tax have already been completed, so the imposition right can not be subject to the principle of prohibition of retroactive taxation under Article 26-2 (1) 1 of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1990).

[3] A written resolution of gift tax determination is an internal data of the tax authority, and it does not hinder a taxpayer from making a decision on whether to object to the taxation or filing an objection, on the ground that there is no provision of the relevant laws and regulations.

[1] Article 9(1) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990; see current Article 60(1) of the Inheritance Tax and Gift Tax Act); Article 5 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196, Dec. 31, 1990; see current Articles 61, 62, 63, 64, and 65 of the Inheritance Tax and Gift Tax Act); Article 26 of the Administrative Litigation Act / [2] Article 26-2(1)1 of the former Framework Act on National Taxes (amended by Act No. 427, Dec. 31, 1990; see current Article 26-2(1)4); Article 9(1) of the former Framework Act on National Taxes (amended by Act No. 4271, Dec. 31, 1993; see current Article 9-2(13) of the Inheritance Tax Act)

[1] Supreme Court Decision 92Nu787 delivered on February 26, 1993 (Gong1993Sang, 1108) Supreme Court Decision 92Nu16218 delivered on June 11, 1993 (Gong1993Ha, 2054) Supreme Court Decision 95Nu23 delivered on June 13, 1995 (Gong1995Ha, 2423), Supreme Court Decision 96Nu9423 delivered on October 29, 1996 (Gong196Ha, 3612 delivered on September 26, 1997) / [2] Constitutional Court Decision 97Nu8502 delivered on September 26, 199 (Gong1997Ha, 3332 delivered on September 26, 197) / [3] Constitutional Court Decision 96Hun-Ba398 delivered on June 16, 1995 (Gong19697Hun-Ba39496597).97

Plaintiff (Attorney Hong-soo et al., Counsel for the plaintiff-appellant)

The Director of Gangnam District Office

Seoul High Court Decision 99Nu3944 delivered on December 16, 1999

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. As to the first proposal

Article 5(2) through (5) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196, Dec. 31, 1990; hereinafter referred to as the "Enforcement Decree") provides that the evaluation of donated property is a supplementary evaluation method that can only be selected when it is difficult to calculate the market price at the time of the commencement of donation, and there was no choice of supplementary evaluation method due to the difficulties in calculating the market price (see Supreme Court Decision 95Nu23, Jun. 13, 1995).

Based on his adopted evidence, the court below acknowledged the facts that the real estate of this case including the donated property of this case was not sold for about five to five years after the plaintiff acquired on October 24, 1990 and about five to ten months, and that the real estate of this case was not sold for the remaining period after the division on February 26, 1996, and about 1,39 square meters of forest land of Gangnam-gu Seoul ( Address 1 omitted) after the division on September 2, 1996 and about 89 square meters of forest land of this case ( Address 2 omitted) was expropriated in Gangnam-gu Seoul Metropolitan Government, and did not find any transaction price before or after the commencement of the donation or after the completion of the donation or the appraisal price of the public trust appraisal institution. The court below did not err in the misapprehension of legal principles as to the gift property of this case and the appraisal method of the donated property of this case. The court below did not err in the misapprehension of legal principles as to the gift property of this case.

2. As to the second proposal

Article 26-2 (1) of the Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 1990) provides that national taxes may not be levied after the expiration of the following periods, and subparagraph 1 of Article 26-2 of the Framework Act on National Taxes provides that gift taxes shall be imposed for five years from the date on which the following periods are assessable: Provided, That the amended proviso of subparagraph 1 provides that "if any of the following items is applicable, inheritance tax and gift tax shall be ten years from the date on which it is assessable: Provided, That it shall be 10 years from the date on which the inheritance tax and gift tax can be levied." (A) provides that "if a report is not filed pursuant to Article 20 of the Inheritance Tax Act (including a case where it is applicable mutatis mutandis to gift tax pursuant to Article 34-7 of the same Act)" and Article 2 of the Addenda of the Act (amended by Act No. 4277) provides that "the amended provisions of the proviso of Article 26-2 (1) 1) 1 shall apply from the date on which first commences:

The retroactive legislation referred to in Article 13(2) of the Constitution refers only to the legislation that has the effect of the so-called "defensive effect" that regulates the facts and legal relations already completed in the past, and the above supplementary provision applies from the beginning of the date on which the first gift tax can be imposed after the enforcement of the amended Act, that is, to the beginning of the exclusion period, and the limitation period has not already expired. Thus, it does not belong to the legislation of the genuine or non-confitive effect. Meanwhile, the principle of retroactive taxation refers to the fact that the tax law has already been completed before the enforcement of the tax law, and the principle of retroactive taxation does not constitute the requirement of the imposition of tax. On the other hand, since the tax imposition requirement already becomes the authority to specifically determine the tax claim completed, the above provisions concerning the exclusion period violate the principle of retroactive taxation prohibition (see Supreme Court Decision 98Du7060, Sept. 3, 199).

The judgment of the court below to the same purport is just, and there is no violation of the misunderstanding of the legal principles as to Article 3(1) and Article 18(2) of the Framework Act on National Taxes or in violation of the principle of retroactive legislation prohibition and property

3. As to the third proposal

A. A written resolution of gift tax determination is not an internal data of the tax authority that does not contain any provision of the relevant laws and regulations, but a taxpayer cannot know the content of the taxation disposition, or it does not hinder the decision of objection against the said taxation disposition and the filing of objection thereto.

In the same purport, the court below is just in holding that there is no procedural defect in the disposition of this case, and there is no error in the misapprehension of legal principles concerning the gift tax imposition procedure

B. The court below held that a tax notice issued in accordance with the instant disposition based on its adopted evidence clearly identified the taxable year, tax item, tax amount, the basis for calculation, payment period, and place of payment, and it can be recognized that there is a procedural defect as alleged by the plaintiff since the tax base and amount of gift tax can be attached to the pertinent disposition. The court below's findings of fact and determination are just and there is no error in the misapprehension of legal principles as to the violation of the rules of evidence or the imposition procedure of gift tax.

4. Conclusion

Therefore, the plaintiff's appeal is dismissed, and all costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)