Cheongju District Court-2015-Gu Partnership-764 ( December 10, 2015)

Whether it is a title trust after donation or a gift after title trust

(As in the judgment of the first instance court), a title trust of shares is deemed to have been given on the basis of the type of transfer.

Article 32 of the Inheritance Tax and Gift Tax Act

2016Nu1015 Revocation of Disposition of Imposition of Gift Tax

Aa and 1 other

Chuncheon Tax Office et al. 1

Cheongju District Court 2015Guhap764 ( December 10, 2015)

October 12, 2016

December 7, 2016

1.The judgment of the first instance shall be modified as follows:

A. Of the instant lawsuit, the part of the claim for revocation exceeding KRW 1,076,627,070 among the disposition imposing gift tax of KRW 1,229,92,760 (including additional tax) imposed on Plaintiff Aa on February 11, 2014 by the head of the Cheongju District Tax Office, and the part of the claim for revocation exceeding KRW 232,652,762,760 among the disposition imposing gift tax of KRW 1,07,070 (including additional tax) imposed on Plaintiff BB on February 11, 2014 by the head of the Chuncheon District Tax Office, and the part of the claim for revocation exceeding KRW 232,652,760, respectively.

B. Plaintiff Aa’s remaining claims against Defendant Cheongju Tax Office and the remaining claims against Defendant bB by Plaintiff B against Defendant Cheongju Tax Office are dismissed, respectively.

2. 6/7 of the total litigation costs is borne by the Plaintiffs, and the remainder is borne by the Defendants.

1. Purport of claim

Head of the Cheongju District Tax Office on February 11, 2014 (Gasan) KRW 1,229,92,760 (Gasan) of gift tax imposed on Plaintiff Aa on February 11, 2014

(C) A gift tax imposed on February 11, 2014 by the Director of Chuncheon Tax Office and on February 11, 2014 to Plaintiff BB.

265,794,180 won (including additional taxes) shall be revoked.

2. Purport of appeal

Plaintiffs: The part of the judgment of the court of first instance against the Plaintiffs shall be revoked, and the head of the tax office of Cheongju on February 2014 shall revoke

11. In the imposition of gift tax of KRW 1,229,92,760 (including additional tax) on Plaintiff Aa, an unjust non-performance

The portion exceeding KRW 306,731,360 of high penalty tax, and the head of Chuncheon Tax Office on February 11, 2014 by the Plaintiff

b. Additional Tax on Illegal Non-Filing in the disposition of imposition of 265,794,180 won (including additional tax) of the gift tax granted to B.

66,282,840 won or more shall be revoked.

Defendants: The part of the judgment of the first instance against the Defendants shall be revoked, and the Plaintiff corresponding to the revocation part shall be revoked.

The claims are dismissed.

The director of the Chuncheon Tax Office on October 19, 2016 impose a gift tax (including additional tax) on Plaintiff BB on October 19, 2016.

Of the above, the decision of correction to revoke ex officio the part exceeding KRW 232,652,760 (i.e., KRW 265,794,180 - KRW 33,141,420) is identical as seen earlier. As such, the claim to revoke the part of the lawsuit in this case concerning the revocation as above is seeking revocation of a disposition that has not already ceased to have effect, and is unlawful as there is no interest in the lawsuit (hereinafter referred to as the "decision of imposition of gift tax (including additional tax) as of February 11, 2014 against each of the plaintiffs of the remaining Defendants after such reduction).

3. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion and the related statutes

The court's explanation of this part of this Court's judgment No. 2-A and B

Since it is the same as the statement, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

C. Determination

1) Determination on each of the dispositions in the instant case (including additional taxes for insincerey payment)

The court's explanation on this part is without merit No. 2-C. 1 of the judgment of the court of first instance.

Since it is the same as the statement, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2) As to the plaintiffs' assertion of illegality regarding the unfair non-reported penalty tax

1) The former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the same shall apply)

Article 47-2 (1) 3 of the former Framework Act on National Taxes (hereinafter referred to as the "former Framework Act on National Taxes")

The Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Inheritance Tax and Gift Tax Act") shall apply where no return of tax base is filed under this Act.

C) Article 22(2) provides that a taxpayer shall either add to or deduct from a payable tax amount equivalent to 20/100 of the calculated tax amount, the amount of general non-reported penalty tax, which is equivalent to 40/100 of the calculated tax amount if the taxpayer files a non-reported tax amount by fraudulent or other unlawful means prescribed by Presidential Decree, shall either add to or deduct from a refundable tax amount.

2) The Defendants, even if gift tax is imposed on the instant shares, are based on the old national tax.

Additional tax on general non-declaration under Article 47-2 (1) of the Act, which is not an illegal non-declaration tax under paragraph (2) of the same Article;

As seen earlier, the Court accepted the Plaintiffs’ assertion that the reduction should be imposed and rendered a decision of correction as seen earlier.

(c)

3) Each entry of evidence Nos. 1-1, 2, 2, and 11-2, the purport of the whole pleadings is as follows.

together, the amount of tax calculated under the Inheritance Tax and Gift Tax Act on the Plaintiff Aa shall be KRW 766,828,400.

and the amount of tax calculated under the Inheritance Tax and Gift Tax Act on Plaintiff BB is 165,707,100.

under section 20/100 of the General Non-Filing Additional Tax Rate 20/100, Plaintiff Aa

in addition, the penalty tax to be imposed lawfully shall be KRW 153,365,680, and shall be lawfully against Plaintiff BB.

It is clear in the calculation that the penalty tax to be imposed is calculated in 33,141,420 won, and to the plaintiff Aa.

Additional Tax on Illegal Non-Filings 306,731,360 won and Additional Tax on Illegal Non-Filings imposed on Plaintiff BB

66,282,840 won, which exceeds the reasonable amount of tax, has already been revoked, and thus, this is ultimately void.

The amount equivalent to the penalty tax for general non-declaration remaining after reduction of the penalty tax on each disposition of this case

Part is legitimate.

4. Conclusion

Thus, the disposition imposing gift tax on the plaintiff Aa by the director of the Cheongju District Tax Office among the lawsuit of this case

The claim for revocation of the portion exceeding KRW 1,076,627,070 that has been reduced, and the claim for revocation of the portion exceeding KRW 232,652,760 that has been reduced, among the disposition imposing gift tax on Plaintiff BB by the director of Chuncheon Tax Office, shall be dismissed as unlawful. The remaining claims against the plaintiffs against the defendants shall be dismissed as there are no reasonable grounds. Since the judgment of the court of first instance is partially unfair, it shall be accepted in part of the defendants' appeal and the judgment of the court of first instance shall be modified as above. However, since the defendants accepted the plaintiffs' appeal only after the lawsuit of this case and ordered a decision of revocation, it shall be decided to bear part of the total costs of the lawsuit against the defendants who won the lawsuit by applying the exception under Article 8 (2) of the Administrative Litigation Act, the latter part of Article 99 of the Civil Procedure Act.

1. Details of the disposition;

The court's reasoning for this part is as follows: (a) deleted the "No. 11 and No. 12" of the main text of the judgment of the court of first instance, with the exception of the third page table (hereinafter. . . .) and the "No. 14 is the same as the "No. 1 of the judgment of the court of first instance"; (b) thereby cite it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, with respect to the imposition of gift tax of KRW 1,229,92,760 (including additional tax) on October 18, 2016, with respect to the imposition of gift tax of KRW 153,365,680 (the "No. 153,365,680 (the "No. . . . 100 won)", and the decision of revocation ex officio of the court of first instance on June 14, 2019b.

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012).

On October 18, 2016, the director of the Cheongju District Tax Office: (i) 1,076,627,070 won (including additional tax) of the imposition of gift tax (including additional tax) on Plaintiff Aa on October 18, 2016, after the closing of the instant argument (=1,229,92,760 won)

- correct a decision of reduction of the content ex officio revoking a portion above 153,365,690,