Seoul Administrative Court-2017-Gu Partnership-6848 (Law No. 19, 2018)

Cho-2016-west-4277 (2017.03.09)

Where the proceeds from the sale of the property donated to the public interest corporation are not used for the proper purpose business, the initial date of the imposition of the gift tax shall be the date of using the property.

If a public corporation fails to perform its obligation to use the property donated to it for its proper purpose business, gift tax shall be levied immediately, and the "date of using the proceeds of sale" falls under the date on which the reason of collecting the gift tax originally exempted under Article 12-3 (2) 3 of the Enforcement Decree of the Framework Act on National Taxes occurs, the "date of using" shall be deemed the date on which the period of exclusion for imposition begins.

Articles 4 (Liability for Payment of Gift Tax), 68 (Report on Standard for Imposition of Gift Tax) of the former Inheritance and Gift Tax Act, Article 12-3 of the Enforcement Decree of the Framework Act on National Taxes

2018Nu58198 Revocation of Disposition of Imposition of Gift Tax

Incorporated Foundation Aaaa

AA Head of the Tax Office

December 5, 2018

January 31, 2019

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

the Gu Office's place and place of action

1. Purport of claim

The Defendant’s disposition of imposing gift tax of KRW 0,00,000,000 against the Plaintiff on August 3, 2016 is revoked.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The part of the disposition imposing gift tax of KRW 0,000,000,000 against the plaintiff on August 3, 2016 by the defendant shall be revoked.

Defendant: The part against the Defendant among the judgment of the first instance court is revoked, and the Plaintiff’s claim corresponding to the revocation portion is dismissed.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows, and it is identical to the entry of the reasoning of the judgment of the first instance except for adding the judgment equivalent to that of paragraph (2) with respect to the allegations added by the defendant in this court. Thus, it is accepted by the main text of Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

Parts to be removed or added

○ 7면 2〜18행 부분을 다음의 내용으로 고친다.

1) In a case where the notice of tax payment determines the amount of tax and states that the voluntary tax payable should be deducted in the notice of tax payment, and only the remaining tax amount should be deemed a disposition upon which the total amount of the final tax payable should be determined and the remaining tax amount should not be deemed a disposition (see Supreme Court en banc Decision 9Da44526, Dec. 10, 199). In addition, even though it is unclear whether the subject matter of a lawsuit is included in the complaint’s purport, if it is apparent that the claim is asserted from the initial date in light of the cause of the claim, it shall be deemed that the subject matter of a lawsuit is included in the complaint’s purport, and it shall not be deemed that the subject matter of a lawsuit was added only if the parties clearly specified the subject matter of a lawsuit by arranging the claim in accordance with the cause of the claim’s modification to the purport, and thus, whether the period for filing a lawsuit regarding the subject matter of a lawsuit should be determined at the time of submission of the complaint, rather than at the market price (see, e.g., Supreme Court en banc Decision 20014Du1374, Dec.

2) Comprehensively taking account of the facts as seen earlier, Gap evidence 5-1 to 3, Eul evidence 1-2, and the purport of the argument as to 0.1,00,000 won per original gift tax (=0,000,000 won per gift tax on October 4, 2001 +0,000,000 won per gift tax on October 24, 2001) but the defendant stated 0,000 won as 0,000 won per gift tax on March 30, 200, after deducting 0,000 won per claim for the above disposition of gift tax on March 30, 200, the plaintiff stated 10,000 won after deducting 0,000 won per claim for the gift tax on August 3, 201, but the plaintiff rejected the remainder of the disposition of this case as 0,000 won for the gift tax on March 30, 200.

According to the above facts, the plaintiff's claim and the cause of claim in the tax appeal are deemed to be written in the tax appeal, and the amount of the disposition tax in this case is specified as KRW 0,000,000,000, which is the notified tax amount, or a specific amount of the disposition tax in this case, through the amendment of the purport of the lawsuit in this case, is merely a different method to specify the determined tax amount in the disposition tax in this case. It is evident that the plaintiff's purport is to dispute all of the final tax amount of KRW 0,000,000,000, which is the final tax amount. The plaintiff can be deemed to have filed the lawsuit in this case through the prior trial procedure. As of the time when the plaintiff submitted the complaint, the plaintiff was served the decision of the Tax Tribunal on March 13, 2017, which was within 90,000, or 000,000,000,000,000,000 won prior to the filing of the lawsuit.

In addition, the attached Form of the judgment of the court of first instance is added to the attached Form of the judgment of the court of first instance.

2. Additional determination

A. The defendant's argument

For the following reasons, the exclusion period for imposition of gift tax has not elapsed since the Plaintiff used 00 billion won as the acquisition price of the preemptive right of this case among the disposition of this case.

① Even in cases where the reason for the disposition of this case is deemed to be Article 48(2)4 of the former Inheritance Tax and Gift Tax Act, the starting date of the exclusion period for imposition of the above part of the disposition of this case shall be deemed to be from July 13, 2001 to be the date following the date on which the plaintiff used 00 billion won as the donation date, and on October 14, 2001 to be the date on which three months have elapsed from that time, or on March 31, 2002, which is the date on which the tax base and tax amount return were submitted, the date on March 31, 2002, which is the date on which three months have elapsed from that time. The disposition of this case was made on July 1, 2002 or on the date following that on which the deadline for submission of the report on the plan for use of Jindo-do property contributed to, or on the date on which the plaintiff used the above part within the exclusion period for imposition of the gift tax of this case, as alleged by the defendant.

B. Determination

1) Article 26-2(1)4 (a) of the former Framework Act on National Taxes provides that “No gift tax may be levied after the lapse of 15 years from the date on which a taxpayer is entitled to evade, receive a refund or deduction of gift tax by unlawful means.” Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes provides that “The date on which national tax may be imposed pursuant to Article 26-2(5) of the Act shall be the date following the due date for filing a return or the due date for filing a return of the tax base and amount of national tax, in cases of national tax, the date on which the tax base and amount of tax are reported, shall be the date following the due date for filing a return or the due date for filing a return of the tax base and amount of national tax.” The “national tax that files a return of tax base and amount of tax

2) 그런데 공익목적 출연재산 등의 과세가액 불산입 원칙과 그 예외, 증여세 신고의무 등을 정한 구 상속세및증여세법 규정들과 부과제척기간의 기산일을 정한 국세기본법 시행령 규정의 문언, 체계 및 입법 취지 등에다가 앞서 인정한 사실을 비추어 알 수 있는 다음과 같은 사정들을 종합하면, 국세기본법 시행령 제12조의3 제2항 제3호 또는 구 상속세및증여세법 제48조 제2항 제4호의 해석상 피고는 원고가 이 사건 신주인수권 및 주식을 취득하기 위하여 ㅁㅁ동 부동산의 매매대금을 "사용한 날" 증여세를 부과할 수 있으므로, 그 날을 부과제척기간의 기산일이라고 봄이 타당하다.

A) Under Chapter 3 (Calculation of Tax Base and Amount of Gift Tax), the former Inheritance Tax and Gift Tax Act provides for the scope of donated property in Section 1 (Gift 1) with respect to the gift tax, and Article 3 (Gift 2 (Presumption of Donation, etc., and Articles 32 through 45) provides that "the relevant property shall be deemed to have been donated" or "the donated property shall be presumed to have been donated." On the other hand, the former Inheritance Tax and Gift Tax Act provides that "No gift tax shall be levied on the non-taxable donated property under Section 3 (Taxable Value of Gift Tax and Articles 46 through 47)." On the other hand, the former Inheritance Tax and Gift Tax Act provides that "in principle, the value of the property contributed by a public-service corporation, etc. shall not be included in the taxable value of donated property, but in certain cases, the gift tax shall be imposed on the public-service corporation, etc., on the donation of donated property, which is deemed to have been donated to the public-service corporation or the public-service corporation, etc., which is separately imposed on the property."

나) 국세기본법 시행령 제12조의3 제1항의 예외로서 같은 조 제2항 제3호는 "공제, 면제, 비과세 또는 낮은 세율의 적용 등에 따른 세액을 의무불이행 등의 사유로 징수하는 경우, 해당 세액을 징수할 수 있는 사유가 발생한 날은 제1항에도 불구하고 국세를 부과할 수 있는 날로 한다."라고 규정하고 있다. 앞서 살펴본 바와 같이 원고는 출연받은 기본재산인 ㅁㅁ동 부동산 내지 그 매각대금을 이 사건 신주인수권 취득에 "사용"함으로써 이를 'ㄷㄷ문화의 도덕성 회복운동과 ㄹㄹ활동'이라는 정관상 고유목적사업에 맞게 사용할 의무를 불이행하였다. 원고가 위와 같이 매각대금을 "사용한 날"은 피고가 당초 비과세하였던 증여세를 국세기본법 시행령 제12조의3 제2항 제3호에 따라 징수할 수 있는 사유가 발생한 날에 해당하므로, 위의 날을 부과제척기간의 기산일로 보아야 할 것이다.

C) Even if Article 12-3(2)3 of the Enforcement Decree of the Framework Act on National Taxes does not directly apply to the instant case, in light of the following circumstances in view of the language and text of Article 68 of the former Inheritance Tax and Gift Tax Act, it is reasonable to determine the starting date of the exclusion period for imposition of the portion at issue among the instant disposition pursuant to Article 48(2)4 of

(1) The main sentence of Article 68 (1) of the former Inheritance Tax and Gift Tax Act provides that "any person liable to pay the gift tax under the provisions of Article 4 shall, within three months from the date of donation, file a report on the taxable value and tax base of the gift tax under the provisions of Articles 47 and 55 (1) with the head of the tax office having jurisdiction over the place for tax payment under the conditions as prescribed by the Presidential Decree." Article 68 (2) of the same Act provides that "in case of paragraph (1), the report shall be submitted to the head of the tax office having jurisdiction over the place for tax payment along with documents proving the type, quantity, appraised value, various deductions, etc. of the donated property necessary for the calculation of the tax base of the gift tax, and Article 31 through 45 of the same Act as of the date of donation." Article 47 of the former Inheritance Tax and Gift Tax Act provides that "the amount obtained by subtracting the amount acquired by the donee from the total amount of donated property secured by the donated property," and Article 55 (1) of the above provision provides that the person liable for tax payment can be calculated.

② Meanwhile, Article 48(2) of the former Inheritance Tax and Gift Tax Act, which applies to the instant case, provides that “if a public-service corporation, etc. to which property was donated pursuant to paragraph (1) falls under subparagraph 4, the head of a tax office shall deem the value prescribed by the Presidential Decree as donated to the public-service corporation, etc., and impose gift tax immediately.” According to Article 40(1)3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act and Article 13(1)2 of the former Enforcement Rule of the Inheritance Tax and Gift Tax Act, the public-service corporation, etc. will be deemed to have donated “amount used for the purpose other than the public-service business.” In comparison with the language and structure of the above provisions, in the case of the gift tax imposed pursuant to Article 48(2) of the former Inheritance Tax and Gift Tax Act, the taxable value and tax base of the gift tax are already set in accordance with the former Enforcement Decree of the Inheritance Tax and Gift Tax Act and the Enforcement Rule, it is difficult to view that the Plaintiff, who is the taxpayer, separately.

라) 결국 이 사건 처분에 관한 증여세 부과제척기간의 기산일은 납세의무자에게 신고의무가 있는 경우를 전제로 한 국세기본법 시행령 제12조의3 제1항 제1호에 따를 것이 아니라, 구 국세기본법 제26조의2 제1항 제4호 단서, 국세기본법 시행령 제12조의3 제2항 제3호 또는 구 상속세및증여세법 제48조 제2항 제4호에 따라 판단함이 타당하다. 위규정들에 따르면 원고가 이 사건 신주인수권 인수대금 000억 원을 사용한 것에 관하여 피고가 증여세를 "부과할 수 있는 날"은 원고가 출연받은 재산인 ㅁㅁ동 부동산의 매매대금을 공익목적사업 외인 이 사건 신주인수권 취득에 "사용한 날"인 2001. 7. 13.이라고 할 것이다. 이 사건 처분 가운데 원고가 이 사건 신주인수권 인수대금으로 000억원을 사용한 부분에 관하여 증여세가 부과된 부분은 그로부터 15년이 경과하였음이 역수상 명백한 2016. 8. 3. 이루어졌으므로 무효이다.

3) 따라서 앞서 살펴본 바와 같이 이 사건 처분에 관하여 구 상속세및증여세법 제48조 제2항 제4호의 과세요건이 충족되었다고 보고, 원고가 ㅁㅁ동 부동산의 매매대금을 이 사건 신주인수권 취득에 사용한 날인 2001. 7. 13.을 부과제척기간의 기산일로 보는 이상, 이와 다른 전제에 선 피고의 주장은 모두 이유 없다.

3. Conclusion

The judgment of the first instance is justifiable, and all appeals filed by both the plaintiff and the defendant are dismissed.