Appellate Court 2014J 2064 (Law No. 28, 2014)
Certificates of merit
It is difficult to recognize land and shares as property contributed to a kindergarten as a public-service corporation because they are registered of ownership in the name of the applicant.
Article 48 of the Inheritance Tax and Gift Tax Act
The early 2018 middle 3973
The appeal is dismissed.
1. Summary of disposition;
A. On June 20, 2012, the claimant: (a) received the donation of one half of the shares of an OO (hereinafter referred to as “contribute shares”) located on the land outside two parcels of land (hereinafter referred to as “contribute shares”) from the OOO of the claimant’s mother; and (b) assessed the value of donated property as an OO; and (c) reported the gift tax on July 31, 2012, upon reporting the gift tax, the applicant deemed the donated property of the public service corporation, etc. and filed a report on the tax base and calculated tax amount of the gift tax instead of regarding the donated property of the public service corporation, etc.
B. On January 9, 2014, the disposition authority decided and notified the applicant on June 20, 2012, that the building of the issue kindergarten was registered in the name of an individual, and was not the property contributed by the public service corporation, etc.
C. The claimant appealed and filed an appeal on March 28, 2014.
2. Opinions of the claimant and disposition agency;
A. The claimant's assertion
As an applicant is the founder and operator of a private kindergarten, the applicant is a public service corporation, etc. under Article 12 of the Inheritance Tax and Gift Tax Act. It is inevitable to register the relevant kindergarten building in the name of the private kindergarten and register it in the name of the applicant, and its substance is the same as registered in the name of the private kindergarten. Therefore, the major issue shares are the property contributed by the
(b) Opinions of disposition agencies;
Although it is confirmed that the at issue kindergarten building is being used as a kindergarten for educational purposes, the registration of ownership transfer for the at issue shares has been made in the name of the claimant individually, it shall be deemed that the claimant has received a donation.
3. Hearing and determination
A. Key issue
Appropriateness of the disposition imposing gift tax by deeming that a kindergarten building registered in personal name does not fall under the property contributed by a public service corporation, etc.
(b) Related statutes;
(1) Inheritance Tax and Gift Tax Act;
Article 16 (Non-Inclusion in Taxable Value of Inherited Property of Public Service Corporation, etc.) (1) The value of property contributed by an ancestor or his/her heir among inherited property to a person engaged in a business for religion, charity, academic purpose or other public interest (hereinafter referred to as "public service corporation, etc.") within the deadline for filing a report under Article 67 (referring to six months from the last day of the month to which the date such cause ceases to exist belongs, in extenuating circumstances exist) shall not be included in the taxable value of inherited property.
Article 48 (Non-Inclusion, etc. in Taxable Value of Property Invested by Public Service Corporation, etc.) (1) The value of property contributed by public service corporation, etc. shall not be included in the taxable value of donated property.
(2) Where a public service corporation, etc. to which the property is contributed pursuant to paragraph (1) or Article 16 (1) falls under any of the following subparagraphs 1 through 4 and 6, the head of a tax office, etc. shall deem that a public service corporation, etc. has received a donation of the value prescribed by Presidential Decree, and impose gift tax immediately in cases falling under subparagraph 5, and impose penalty tax under Article 78 (9): Provided, That among property contributed by many and unspecified persons, property
1. Where the property contributed is not used for a direct public project, etc. (including cases where it is operated for profit-making or profit-making projects to appropriate it for a direct public project; hereafter the same shall apply in this subparagraph) or is contributed to such public project, etc. within three years from the date on which it is used or contributed: Provided, That the same shall not apply where it is reported to the head of the district tax office having jurisdiction over the place of tax payment when submitting a report under paragraph (5) due to extenuating circumstances prescribed by Presidential Decree, such as requiring a long period to use it
(2) Enforcement Decree of Inheritance Tax and Gift Tax Act
Article 12 (Scope of Public Service Corporation, etc.) The term "public service corporation, etc." in Article 16 (1) of the Act means a person who operates a business falling under any of the following subparagraphs (hereinafter referred to as "public service corporation, etc."):
2. A business establishing and operating a school under the Elementary and Secondary Education Act and the Higher Education Act, or a kindergarten under the Early Childhood Education Act;
5. Business operated by a public interest corporation to which the Act on the Establishment and Operation of Public Interest Corporations applies;
Article 38 (Post Management of Property Received by Public Service Corporation, etc.) (1) "Property prescribed by Presidential Decree" in the proviso to the main sentence of Article 48 (2) of the Act means the donation (excluding real estate, stocks, or investment shares) contributed to religious projects under subparagraph 1 of Article 12.
(2) The direct use of the property for public interest projects under Article 48 (2) 1 of the Act shall be for the proper purpose projects (excluding cases falling under any of the following subparagraphs) stipulated in the articles of incorporation of a public service corporation, etc.: Provided, That it shall include the contribution of the property received to another public service corporation, etc. after obtaining permission from the competent
1. An amount not deemed disbursed for a proper purpose pursuant to Article 56 (11) of the Enforcement Decree of the Corporate Tax Act;
2. Repair expenses, electricity charges, telephone user fees, etc. incurred in facilities directly used for proper purpose business under the articles of incorporation of the relevant public service corporation, etc.
(3) Early Childhood Education Act
Article 7. The classification of kindergartens) Kindergartens shall be classified as follows:
1. National kindergartens: Kindergartens established and operated by the State;
2. Public kindergartens: Kindergartens established and operated by local governments (classified into city kindergartens and Do kindergartens according to the founding entities);
3. Private kindergartens: Kindergartens established and operated by juristic persons or private individuals.
C. Facts and determination
(1) According to the instant psychological data, the key kindergarten appears to have been changed to the name of the claimant on July 23, 1999 after obtaining authorization for establishment from the director on November 5, 1984 (the mother of the petitioner) by the head of the Gangnam Education Gu under Article 84-63.
(2) According to the registry of real estate register, etc., the main kindergarten building is used as the teacher of the main kindergarten. On October 30, 1984, the building was newly constructed by OOO and OOO (the mother of the petitioner) and registered the preservation of ownership as one half of the shares. After that, the shares of OOO are inherited on October 13, 1996, the shares of OOO are shown to have been transferred to each claimant on the ground of donation on June 20, 2012.
(3) According to the gift tax return, etc., it is confirmed that the donated value of the equity is an OO as a result of the evaluation by the standard market price of the gift tax, and at the time of reporting the gift tax, the date of reporting the gift tax is "20.6.20," "OO" "OO" "OO", "applicant", and "OOO's equity in the dispute kindergarten", and "OO's equity in the dispute kindergarten" are submitted in the contents of the contract.
(4) Comprehensively taking account of the above facts and relevant laws, the claimant received from the mother who established and operated the key kindergarten prior to the date of donation and completed the registration of ownership transfer for the key shares in the name of the claimant. It is recognized that the key kindergarten building is a property used as a teacher of a kindergarten under the Early Childhood Education Act, but it is difficult to recognize the key shares as property contributed to a public-service corporation due to the registration of ownership transfer in the name of the claimant.
Therefore, it is judged that the disposition of this case imposing gift tax on the claimant is not erroneous because the disposition of this case does not constitute the property contributed to the public service corporation.
This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for adjudication has no merit as a result of the review.