Whether the expropriation of contributed property constitutes an inevitable reason not used for public interest projects within three years;

It is reasonable to deem that the contributed land could not be used for any purpose other than the electricity and answer on the wind designated as the planned area of the national rental housing complex constitutes a ground for exclusion from the collection of gift tax.

Article 48 of the Inheritance Tax and Gift Tax Act

2014Guhap1155 Revocation of Disposition of Imposing gift tax

AAAA of a school foundation

Daejeon Head of the District Tax Office

on December 24, 2015

October 22, 2015

1. On October 2, 2012, the part that exceeds KRW 134,05,00 among the disposition imposing gift tax of KRW 418,923,90 for the Plaintiff on October 2, 2006, exceeds KRW 134,051,80 for the disposition imposing gift tax of KRW 213,294,240 for the year 2006, and the part that exceeds KRW 17,978,175, among the disposition imposing gift tax of KRW 213,294,240 for the Plaintiff

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Each disposition on imposition of gift tax of KRW 418,923,90,90,213,294,240,2323,868,580, which belongs to the year 2006 by the former Defendant against the Plaintiff on October 2, 2012, shall be revoked.

1. Details of the disposition;

A. The Plaintiff operating AAA (hereinafter referred to as the “instant school”) around 2003, as described in the attached Table BB, was contributed to the land of Daejeon Pung-dong **** 1,821m2, and 65m2 (hereinafter referred to as the “instant land”). (b) The Defendant, around May 2012, conducted the corporate integration investigation on the Plaintiff’s 2006-2 and 2010-5 years, issued a notice of dismissal of each of the instant tax appeals (hereinafter referred to as “instant tax appeals disposition”) within three years from the date on which the Plaintiff received the instant land pursuant to Article 48(2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8435, May 17, 2007; hereinafter referred to as the “former Tax and Gift Tax and Gift Tax and Gift Tax and Gift Tax Act”); (c) the Plaintiff was not directly used for the public interest business of the educational foundation; and (d) each of the instant tax appeals and disposition on the instant land.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Each disposition of this case shall be revoked because it is unlawful based on mistake of facts, etc. as follows.

1) The Plaintiff registers and manages each of the instant land as basic property for education, and basic property for education is not a corporation but a school expenses accounting and must be approved by the Ministry of Education in its operation and disposition. Thus, it should be deemed that the Plaintiff itself uses it as basic property for education controlled by the competent authorities for "direct public interest project".

2) The land No. 1 of this case was incorporated into the Daejeon District Five District National Rental Housing Complex on March 19, 2005 or the Daejeon District National Rental Housing Complex on July 6, 2005, respectively, and was admitted to the Land Housing Corporation, which is a project operator. This constitutes a case where it is difficult to use the land entirely within three years due to an inevitable reason under the proviso of Article 48(2)1 of the former Inheritance Tax and Gift Tax Act and Article 38(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621 of Feb. 22, 2008; hereinafter referred to as the "former Enforcement Decree of the Inheritance Tax and Gift Tax Act"). Thus, the land of this case is excluded from the subject of gift tax, since all remaining land have been used directly for the business of the plaintiff, such as urban environment creation of this case and test site, research site, etc. within three years from the date of contribution.

(b) Related statutes;

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

C. Determination

1) Determination on the first argument

Since the Private School Act imposes special restrictions on the disposition of basic property for education and the system of exemption from gift tax on the property contributed by public interest corporations under Article 48(1) and (2) of the former Inheritance and Gift Tax Act differs from each other, it cannot be immediately deemed that the property reported as basic property for education is subject to exemption from gift tax, and whether it is subject to exemption from gift tax should be independently determined depending on whether it satisfies the requirements under Article 48(1) and (2) of the former Inheritance and Gift Tax Act and Article 38 of the Enforcement Decree of the former Inheritance and Gift Tax Act. Therefore, the Plaintiff’s assertion that each of the instant land is an basic property for education, and thus, constitutes exemption from gift tax is without merit

2) Determination on the second argument

A) In light of the legislative purport and text of Article 48(1)1 of the former Inheritance Tax and Gift Tax Act and Article 38(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, if a public corporation knew that the property contributed was an inevitable cause under the laws and subordinate statutes that could not be used for the purpose of public interest, or even if it was unaware of such cause, if it would have been easily known that the property contributed was not used for the purpose of public interest, and if it was not used for the pertinent property within three years thereafter, it would be likely that the cause of disability under the Acts and subordinate statutes existed at the time of receiving the contribution would be sufficiently resolved in the future, and it would not be deemed that the Plaintiff could not use the property directly for the purpose of public interest within the scope of Article 48(2)1 of the former Inheritance Tax and Gift Tax Act and Article 38(2)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, etc. It constitutes an inevitable cause for which the Plaintiff could not use the property directly for the purpose of public interest under the proviso of Article 28(1) of the former Enforcement Decree.

(1) On December 6, 2004, the public announcement was made for the designation of the National Rental Housing Complex 1 on December 6, 2004, and accordingly, the designation of the National Rental Housing Complex 1 was made on March 19, 2005 pursuant to Article 205-61 and Article 205-192 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Act No. 860, Oct. 17, 2007). In light of the fact that the first land was contributed on January 23, 2003, it is difficult to view that the Plaintiff had been aware of the situation where the first land was to be expropriated as such. (2) In light of the above fact that the designation of the National Rental Housing 2 was made, the public announcement was made within the scope of Article 206 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Act No. 860, Oct. 17, 2007). 207.

(5) In addition, the defendant asserts that in order to be subject to the proviso of Article 48(2)1 of the former Inheritance Tax and Gift Tax Act, "the defendant reported to the head of the competent tax office in addition to the "legal or administrative inevitable reasons" as an effective requirement. However, the report to the head of the competent tax office is merely merely a procedural matter for tax convenience and it is difficult to regard it as an element for non-taxation of gift tax (the imposition of tax depends on whether the citizen's procedural matters are complied with that which makes it difficult for the citizen to do so are likely to infringe on the citizen's property right). The determination of whether the contributed property falls under the category of subject to non-taxation of gift tax under the proviso of Article 48(2)1 of the former Inheritance Tax and Gift Tax Act is made depending on whether there is "any inevitable reason for not using the donated property directly for the public interest business, etc." (see Supreme Court Decision 2011Du25807, Jan. 29, 2014).

The burden of proof as to non-taxation requirement is deemed to be the Plaintiff’s assertion (see, e.g., Supreme Court Decision 84Nu780, Jul. 9, 1985); the above evidence and the statements in Gap’s 3 through 5, 12 through 21 are insufficient to acknowledge that the remainder of the land except the land in this case was used directly for the plaintiff’s public interest project within 3 years; there is no other evidence to acknowledge it; rather, according to the above facts and evidence as well, Eul’s 2 through 11, and 13 evidence and the overall purport of oral argument, it is difficult to accept this part of the Plaintiff’s assertion. Accordingly, the second land in this case is merely the following circumstances. Accordingly, although the Plaintiff was located in the neighboring area of the Yong-dong Training Institute, there is no evidence to deem that the above land was used directly for the plaintiff’s public interest project (on July 9, 1985, etc.) between 200 to 206, and instead, there seems to exist * Dan-dong-gu.

B) Although the land of this case is located in the vicinity of the school of this case, in light of field photographs, etc., it seems that the land of this case was used as a garden of neighboring residents up to the recent years, and the pents, etc. are relatively recently installed, and considering the growth status of trees also growing, etc., it seems that the trees were planted recently. Furthermore, according to the vindication photographs submitted by the Plaintiff to the Defendant, it seems that the students did not directly plant trees, but rather the students were planted in the school.

C) The instant land No. 4 appears to be inappropriate for being utilized as a training site for students in progress of urban environment as the instant school is considerably far away from the instant school. As a result of an on-site investigation conducted around May 2012 by the Defendant’s employees, it appears that the instant land was found that the instant land was a site or a rhythm and rhythm and neglected without any separate management.

D) The instant land No. 5 is considerably far away from the instant school, and it is inappropriate for the instant school to be utilized as urban environmental adjustment processes and students’ practical training areas, etc. as it is located in the vicinity, but it does not seem that a project related to the instant training center was performed. According to the letter-based statement of the Plaintiff’s on-site manager at the time of the corporate integration investigation on May 2012, according to the Plaintiff’s letter-based statement, most of the instant land No. 5 were not cultivated for a long time.

D. Sub-determination

1) Thus, in relation to the land No. 1 of this case, it constitutes non-taxation requirement under the proviso of Article 48 (2) 1 of the former Inheritance Tax and Gift Tax Act only with regard to the land No. 2 of this case. Therefore, in consideration of this, each of the dispositions of this case is calculated again as follows: [The sum of the taxable amounts of the land No. 1 of this case is 80,470,400 + 38,058,900 + 39,352,500 + 34,914,000 + 530,272,000 + 67,60,000 + 730,000 + 730,000,000 + 730,030,000,0000 + 867,67,000,0000 + 86,306,408,008,00 won, respectively, 20846,308.

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.