Seoul Administrative Court 2007Guhap1474 (Ob. 19, 2008)

National High Court Decision 2005No1473 ( December 11, 2006)

Gift tax is legitimate because it cannot be said that there is a quid pro quo relationship between land use and profit-making.

Since the Plaintiff received the contribution of each of the instant land and had its contributors and their relatives use it as a site for the instant building, it is subject to gift tax. If the Plaintiff offered three of the instant land as a water collateral for the Plaintiff’s use of and profit from each of the instant land, if it is in a quid pro quo relationship with the use of and profit from each of the instant land, the portion equivalent to the price of the value of the land should be excluded from taxable objects, but it cannot be deemed that there is a quid

2011Nu35790 Revocation of Disposition of Imposing gift tax, etc.

- Appellants

School Foundation XX private teaching institutes

head of Sung Dong Tax Office

Seoul Administrative Court Decision 2007Guhap11474 Decided February 19, 2008

Seoul High Court Decision 2008Nu8378 Decided September 1, 2009

Supreme Court Decision 2009Du17575 Decided October 13, 2011

April 12, 2012

May 10, 2012

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim corresponding to the above cancellation part is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s revocation of the imposition of each gift tax and each corporate tax on January 6, 2005 (attached Form 1) recorded in the original tax amount column in the list of imposition dispositions (the Plaintiff sought revocation of the imposition of KRW 000 and KRW 2000,000 for the business year from 200 to 2003 business year by adding each tax amount to each item of claim, but the purport of the disposition is that the donor of the gift tax and the corporate tax are to seek revocation of the disposition imposed on each business year).

2. Purport of appeal

A. The plaintiff: The part against the plaintiff in the judgment of the court of first instance shall be revoked, and the defendant shall revoke the imposition of each gift tax and each corporate tax on January 6, 2005 as stated in the "reasonable tax amount" of the disposition of imposition against the plaintiff on January 6, 2005.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the above revocation is dismissed.

1. Scope of the judgment of this court;

The judgment of the court prior to the remanding of the case at issue rendered against the plaintiff on January 6, 2005 (attached Form 1) by the defendant on January 6, 2005 in the plaintiff's claim, that each part of the judgment of the court of first instance which partly accepted the plaintiff's claim against the plaintiff and each of the defendant's losing parts among the judgment of the court of first instance which partly accepted the plaintiff's claim is dismissed. Each of the plaintiff and the defendant's appeals was dismissed. The plaintiff and the defendant appealed against each of the judgment of the court prior to the remanding of the case. The plaintiff's appeal is dismissed. The Supreme Court of Korea accepted only the defendant's appeal against the part against the defendant, and reversed the part against the defendant among the judgment of the court of first instance prior to the remanding of the case, and remanded it to this court. Accordingly, since the part against the plaintiff among the judgment of the court of first instance becomes final, the scope of the judgment at this court is limited to

2. Quotation of judgment of the first instance;

"The reasons for this court's decision" are as follows: ① part of the first instance court's decision multiplied by the number of Chapters 16 through 26 (g), (h) part of the second instance court's decision, and (e) part of the second instance court's decision multiplied by the number of paragraphs 16 through 26 (g), and (h) part of the second instance court's decision, ② decision as to the third claim, (d) decision as to the third claim, (e) decision as to the fourth claim, (e) decision as to the third party's decision, and (iii) decision as to the plaintiff's claim as stated in Section 3.B. (b) below, as well as the addition of decision as to the second instance court's decision as to the second instance court's decision, Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, and Article 428 (1) 20 of the second instance court's decision, "No. 208 (A) of the second instance's decision as to 9. 20.20.20.

A. The third part of the claim multiplied by “(g)”

(1) Article 48(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter "the Inheritance Tax and Gift Tax Act") provides that "the value of the property contributed by a public-service corporation shall not be included in the taxable value of the gift tax." The main sentence of Article 48(3) provides that where a public-service corporation allows its contributors and their relatives to use or profit from the property contributed by it by means of lease, loan for consumption or loan for use, the value prescribed by Presidential Decree shall be deemed a donation by the public-service corporation and the gift tax shall be levied immediately on the property." Article 39(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010; hereinafter "Enforcement Decree of the Inheritance Tax and Gift Tax Act") provides that the value of the property contributed by the public-service corporation is lower than that of the property in question.

(2) According to the aforementioned facts and evidence, (1) the newCC decided to donate each of the instant land owned by it to the Plaintiff on February 13, 198, but refused to implement the implementation thereof, the Plaintiff filed a lawsuit against the newCC, and on February 21, 1997, the newCC died on December 13, 199 when the bereaved family members, including NewCC took over the lawsuit, (3) the ownership transfer registration was made in the name of the Plaintiff on February 9, 200 with respect to each of the instant land. (2) At the same time, the new building owned by the Plaintiff and the new building owned by the 3rd Government as part of the base village purification project, and (4) the new building owned by the 1st Government by the 9th Government of the new building and the new building owned by the 1st Government of the 9th Government of the 9th Government of the 9th Government of the 190th Government of the 190th Government of the 9th Government of the 1st Government of the 1970th Government of the new building.

(3) Examining these facts in light of the relevant provisions as seen earlier, since the Plaintiff received the contribution of each of the instant lands and let the contributor and his relatives use them as the site for the instant building and make profits therefrom, each of the instant lands may be subject to gift tax pursuant to the main sentence of Article 48(3) of the Inheritance Tax and Gift Tax Act. However, if new Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

However, as seen earlier, as seen in the factual basis, it seems that, at the time of the Plaintiff’s donation of each of the instant lands, there was already been a commercial house owned by new Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd.

Therefore, since the land of this case contributed by the plaintiff cannot be excluded from the subject of gift tax, the plaintiff's assertion on this different premise cannot be accepted.

(4) As to this, while providing the Plaintiff with a total of KRW 000,000 in several times, the Plaintiff thought that part of the above amount was a rent for the use and profit of each land of this case. It cannot be deemed that new DD merely provides the Plaintiff with convenience necessary for the Plaintiff to obtain a loan, and it cannot be deemed that DD violated the principle of no taxation without the law or the principle of substantial taxation by denying the offering of the above physical collateral and the use and profit-making of each land of this case. However, it is argued that D violated the principle of no taxation without the law, merely because D considered that D paid part of the above amount to the Plaintiff as the price for the use and profit-making of each land of this case, or the payment between the Plaintiff and Do Do d d d d d e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e.

(h) Sub-determination

Ultimately, the Plaintiff’s assertion that the gift tax imposition of this case is unlawful is without merit.

B. Determination on the third argument

For the same reason as the above '(1) Item (g)', newD merely offers the 3 Dongs, etc. of this case for the plaintiff as a physical collateral for the plaintiff, and as long as the plaintiff's economic profit cannot be deemed to be in the relationship of the use, profit and quid pro quo of each land of this case, the plaintiff's assertion that the corporate tax disposition of this case was unlawful on the premise that newD had received economic benefit by the act of providing physical collateral as above is without merit.

(D) Judgment on the fourth argument

The plaintiff's imposition of corporate tax following the gift tax on one factual basis is illegal as double taxation. However, since gift tax and corporate tax differ from each other in terms of taxation requirements, it should be imposed separately in accordance with each taxation requirements, the plaintiff's assertion on this part is without merit.

(e) Sub-decisions

Ultimately, the Plaintiff’s assertion that the corporate tax disposition of this case is unlawful is without merit.

4. Additional determination

A. As to the assertion that newD entered into a lease agreement with the Plaintiff

(1) The plaintiff's assertion

On July 28, 2001, NewD entered into a lease agreement with the Plaintiff on each of the instant lands and used each of the instant lands.

(2) Determination

According to the statement of evidence No. 17 and witness B of the first instance trial, the above contract was prepared after one half year from February 9, 200, and the above contract was prepared, 1,2, 3, 5, 6, 8, 10, 11, and 12 land owned by the plaintiff (attached Form 2) as to the land No. 1, 2, 3, 6, 8, 10, 11, and 12 in the list of the current status of land and buildings, and the lease contract was concluded between the plaintiff and new D for five years from July 28, 200 and 5 years from February 9, 200, but the lease contract was established with 00 won per annum based on the evidence examined by the court of first instance and the first instance. In other words, the above contract was prepared after the lapse of one year from February 9, 200 to how to treat the rent for the new land, and there was no mentioning evidence that the above contract was entered in the new Do or new 200.

B. As to the assertion on the establishment of legal superficies under customary law as to part of each of the instant lands

(1) The plaintiff's assertion

Of each land of this case, the land of this case 715 and the land of this case 786-2, which is the land of this case 686-2, was owned by NewCC and its heir. As to the land of this case 2 lots, the ownership of this case was legally transferred in the plaintiff's future around February 9, 200, and there is no special agreement to remove the 3 Dongs at that time. Thus, in assessing the donation amount of the land of this case 2 lots, it is reasonable to assess the donation amount on the basis of the officially assessed land value reflecting the limitation of statutory superficies under the above customary law.

(2) Determination

(A) According to the facts acknowledged earlier, Gap evidence Nos. 4 and 7, and the purport of the whole pleadings, the registration of ownership transfer was completed in the plaintiff's future on February 9, 200 with respect to the land of this case, which was originally registered under the name of NewCC. The registration of ownership transfer was completed on February 13, 198, and prior to the death of NewCC on February 21, 1997. On the other hand, the registration of ownership preservation was completed in the future of the Jung-gu Government on April 1, 2000 with respect to the three buildings of this case. On the same day, it can be recognized that the registration of ownership transfer was completed in the new DDR, one of the successors of NewCC, and there was no counter-proof.

Therefore, it cannot be deemed that the two parcels of this case and the three parcels of this case were owned by the same person at the time when the ownership transfer registration was completed on February 9, 2000 with respect to the two parcels of this case, and at the time when the ownership transfer registration was completed in the Plaintiff’s future, it cannot be deemed that the three parcels of this case were owned by the same person. Furthermore, even if the two parcels of this case can be deemed to have been completed in the Plaintiff’s future on February 9, 2009, the legal superficies under the customary law for the three parcels of this case cannot be established on the premise that the legal superficies under the customary law for the three parcels of this case cannot be established on the premise that the heir of newCC shared the two parcels of this case with other inheritors (see, e.g., Supreme Court Decision 2007Da28488, Jun. 28, 2007).

(B) As to this, the Plaintiff asserted that, on February 13, 1988, NewCC donated each of the instant land, including the instant two parcels of land, to the Plaintiff, and that the land and the buildings on the instant two parcels of land were owned by the same person, and only the instant two parcels of land were transferred to the Plaintiff’s future ownership. However, even according to all evidence submitted by the Plaintiff, it is not sufficient to recognize that there was a building on the instant two parcels of land on February 13, 198, and even if it can be recognized by home, the ownership transfer registration on the Plaintiff’s land on the instant two parcels of land was completed on February 9, 200, and therefore, on February 13, 198, it cannot be deemed that the owner of the instant two parcels of land has changed from NewCC to the Plaintiff, as alleged by the Plaintiff, and thus, it cannot be accepted as the Plaintiff’s assertion on the premise that the above legal superficies is established under the customary law on February 13, 1988.

5. Conclusion

Therefore, the plaintiff's claim of this case is all dismissed due to the lack of reason, and since the judgment of the court of first instance is unfair with different conclusions, the part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the above cancellation is dismissed. It is so decided as per Disposition