[1] In case where the period of cumulative taxation of a re-donation is extended by the amendment of the Inheritance Tax Act, the period of cumulative taxation of a donation made before the amendment

[2] In a case where only a part of the previous donations becomes subject to cumulative taxation, the method of calculating the tax amount to be deducted from the assessed tax amount subject to cumulative taxation

[1] Article 31-3 (1) of the former Inheritance Tax Act prior to the amendment by Act No. 4283 of December 31, 1990 provides that "in case of Article 29-4, if the total sum of the values of donations received from the same person within three years prior to the relevant donation amounts to not less than two million won (in case of Article 29-4, the amount which is not deducted under Article 31 (1)), gift tax shall be levied on the sum of the values of such donations minus the amount under Article 31 (1)." Paragraph (2) of the same Article provides that "in case of paragraph (1), the amount calculated by applying the tax rate under Article 31-2 to the value of the donation (in case of two or more donations, the sum of the values thereof) which is added after the amendment of the Act, shall be imposed on the aggregate of the values of donations under Article 31-13 (1) of the former Inheritance Tax Act (in case of Article 31-1, 199-1).

[2] In light of each provision of the Inheritance Tax Act as to the aggregate taxation of a second donation and the purport of the tax credit system to prevent double taxation by deducting the amount of gift tax paid to the previous donation which is subject to cumulative taxation of a second donation, in case where only a part of the previous donation becomes subject to cumulative taxation of a second donation, it is reasonable to calculate the amount of tax to be deducted from the amount of comprehensive taxation of a second donation, by adding the amount of tax to the amount of tax to be deducted from the amount of comprehensive taxation of a second donation at the time of each donation added to the value of the relevant donation.

[1] Article 31-3(1) and (2) of the former Inheritance Tax Act (amended by Act No. 4805, Dec. 22, 1994; see Article 47(2) of the current Inheritance Tax and Gift Tax Act) / [2] Article 31-3(1) and (2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4805, Dec. 22, 1994; see Article 58 of the current Inheritance Tax and Gift Tax Act)

Plaintiff

Head of the tax office

Seoul High Court Decision 97Gu8061 delivered on July 16, 1997

The remainder of the judgment below except for the incineration part is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below determined as follows: (a) the plaintiff's father, ① 168,000,000 won on December 27, 1989, ② gold 100,000 won on January 22, 1990, ③ gold 100,000 won on December 29, 1990, ④ 26,571,000 won on July 19, 191, ⑤ 100,000 won on December 23, 1991; (b) the amount calculated by deducting the total amount of the gift tax calculated on June 23, 1991 from the gift tax calculated on June 19, 193 to 30,00 won after deducting the total amount of the gift tax calculated on June 16, 193, and (c) the amount of the gift tax calculated on June 3, 19, 195.

2. Article 31-3 (1) of the former Inheritance Tax Act prior to the amendment by Act No. 4283 of December 31, 1990 provides that "in case of Article 29-4, if the aggregate of the values of the donations received from the same person within three years prior to the relevant donation amounts to two million won or more (in case of Article 29-4, the amount which is not deducted from the amount under Article 31 (1)), gift tax shall be imposed on the sum of the values of the donations minus the amount under Article 31 (1)." Paragraph (2) of the same Article provides that "in case of paragraph (1), the amount which is added from the amount calculated by applying the tax rate under Article 31-2 (if there are two or more donations, the sum of values thereof) which is added to the value of the donation shall be imposed within the aggregate of the values of the donation under Articles 31-1 through 31 of the former Inheritance Tax Act before the date of comprehensive taxation on the donation."

However, in light of the purport of the current tax credit system to prevent double taxation by deducting the amount of gift tax paid to the previous gift subject to the provisions of the relevant laws and regulations as seen earlier and the amount of comprehensive taxation as to the previous gift subject to comprehensive taxation, in case where only a part of the previous donation becomes subject to comprehensive taxation on the relevant gift, the amount of tax to be deducted from the amount of comprehensive taxation on the relevant gift shall be calculated by adding up the amount calculated by deducting the amount of aggregate taxation on the immediately preceding donation from the amount of comprehensive taxation on the relevant donation at each time of donation added to

Nevertheless, the court below held that the tax amount calculated by adding the value of each gift of this case to the value of each gift of this case is the already paid tax amount to be deducted from the aggregate taxation amount on the gift of this case. It erred by misapprehending the legal principles on the deduction of already paid tax amount in the second donation, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. The Plaintiff filed an appeal against the part retired at the lower court, but did not submit a separate statement of grounds for appeal as to this part within a legitimate period, and the petition of appeal does not contain any indication in the grounds for appeal.

4. Therefore, the part of the judgment of the court below other than the part of incineration shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination, and the remaining appeal shall be dismissed and it is so decided as per Disposition by the assent of all participating

Justices Jeong Jong-ho (Presiding Justice)