[1] The meaning of the legality of the duty payment notice and the statement of calculation of the tax base and the amount of tax that are not stated in the notice of payment of gift tax or not accompanied by the calculation statement

[2] Whether Article 29-2 (4) of the former Inheritance Tax Act, which limits the effect of rescission of agreement on donation contract, violates the Constitution (negative), and whether Article 7 of the Addenda to the former Inheritance Tax Act, which prescribes the time of application of the above provision, infringes on the right to a retroactive legislation or trial that infringes on the right to a property (negative)

[1] According to the provisions of Article 9 of the National Tax Collection Act, Articles 34-7 and 25 of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996), and Articles 42(1) and 19(1) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14862 of Dec. 30, 1995), a notice of payment of gift tax shall include, in addition to the grounds for calculation of the tax amount, the details of calculation of the tax base and tax amount or attach the calculation statement thereto. If there were errors by omitting such entry or attachment, such notice of payment shall be deemed to be unlawful. Here, the tax payment notice shall be deemed to mean the way of calculating the specific tax base and tax amount, such as the total amount of taxable value and the details thereof.

[2] Article 29-2 (4) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) (amended by Act No. 5193 of Dec. 30, 1996) limits the freedom of contract or economic freedom of the contracting parties by restricting the effect of rescission of the agreement on the gift contract. However, it is recognized as necessary and reasonable for the exercise of tax claim in its content, and it cannot be deemed that it excessively limits individual freedom or infringes on the essence of the contract, and it cannot be said that it violates the provisions of the Constitution declaring a free market economic order. Further, the legislative branch can regulate the effect of rescission of agreement at each stage. This provision also violates the principle of no taxation without law or the principle of property right security. Furthermore, Article 462 (1) of the Addenda (amended by Act No. 4692 of Dec. 13, 1999) of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996).

[1] Article 9 of the National Tax Collection Act, Article 25 of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996), Article 34-7 (see current Article 76 of the Inheritance Tax and Gift Tax Act), Article 19 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 14862 of Dec. 30, 1995), Article 42 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (see current Article 79 (1) of the Inheritance Tax and Gift Tax Act), Article 79 (1) of the current Inheritance Tax and Gift Tax Act (see current Article 79 (2) of the Inheritance Tax and Gift Tax Act) / [2] Article 29-2 (4) of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 196), Article 31 (4) of the Addenda (see current Article 31 (4) of the Inheritance Tax and Gift Tax Act), Article 32 (1)

[1] Supreme Court Decision 85Nu56 delivered on May 12, 1987 (Gong1987, 980) Supreme Court Decision 88Nu7996 delivered on November 10, 1989 (Gong1990, 38) Supreme Court Decision 96Nu7830 delivered on October 24, 1997 (Gong1997Ha, 3677)/ [2] Constitutional Court Decision 97Hun-Ba66, 98Hun-Ba11, 48, 99Hun-Ba6 delivered on May 27, 199 (Hun-Ba35, 442)

Plaintiff (Attorney Kim Dong-dong, Counsel for the plaintiff-appellant)

Head of Suwon Tax Office

Seoul High Court Decision 97Gu39713 delivered on June 2, 1998

Supreme Court Decision 96Nu14043 Delivered on August 22, 1997

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the tax notice of this case contains an error of law by not attaching a detailed statement of calculation of gift tax base and tax amount. The court below rejected the plaintiff's assertion on the ground that the tax notice of this case

However, according to Article 9 of the National Tax Collection Act, Articles 34-7 and 25 of the former Inheritance Act (amended by Act No. 5193, Dec. 30, 1996; hereinafter the same), and Articles 42(1) and 19(1) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14862, Dec. 30, 1995); a notice for payment of gift tax shall include the details of calculation of the tax base and tax amount in addition to the grounds for calculation of the tax amount; or shall attach the calculation statement; if there were errors in omission of such entry or attachment, such notice shall be deemed unlawful (see, e.g., Supreme Court Decisions 85Nu56, May 12, 1987; 96Nu7830, Oct. 24, 1997); and no such detailed statement can be deemed as a supplement of the tax base and tax amount and calculation basis or the calculation method of the tax amount.

Therefore, although the duty payment notice of this case cannot be deemed a lawful duty payment notice, the court below's rejection of the plaintiff's assertion otherwise did not err by violating the rules of evidence or by misapprehending the legal principles on the duty payment notice, thereby affecting the conclusion of the judgment. The part pointing this out in the grounds of appeal is with merit.

2. As to whether the second point is unconstitutional or not

Article 29-2 (4) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) limits the freedom of contract or economic freedom of the parties to a gift by restricting the effect of rescission of the agreement on the gift contract. However, the contents of the amendment are recognized as necessary and reasonable for the execution of tax claims, and it cannot be deemed as restricting the individual's freedom beyond necessary or infringing on the essence thereof, and thus, it cannot be deemed that it violates the constitutional provisions declaring a free market economic order. Further, the legislators can regulate the effect of rescission of agreement at each stage. This provision recognizes the retroactive effect of the rescission of agreement only within the deadline for filing a gift tax, based on the fact that the obligation to pay the gift tax already established does not affect the rescission of the agreement on the gift contract. Further, Article 7 of the Addenda of the above Act (amended by Act No. 4662) does not violate the principle of no taxation without law or violates the principle of property rights guarantee, and thus, it cannot be accepted as the retroactive application of property rights.

3. As to the violation of the rules of evidence and the incomplete hearing among the second points

Examining the reasoning of the judgment below in light of the records, the court below recognized the fact that the transfer registration of ownership of the restoration due to the cancellation of the gift contract of this case was completed on January 10, 1994 on the grounds of the cancellation of the contract of this case on October 19, 194, and determined that the restoration date is applied after January 1, 1994, which was the enforcement date of Article 29-2 (4) of the former Inheritance Tax Act, amended by Act No. 4662 on December 31, 1993. Further, the judgment of the court below did not recognize the date of cancellation of the actual donation contract of this case as January 10, 1994, since the court below did not recognize the date of cancellation of the contract of this case as the date of Jan. 10, 1994. The grounds for appeal on this point cannot be accepted.

3. Therefore, the lower judgment is reversed by accepting the first ground of appeal, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)