Seoul Administrative Court-2015-Gu Partnership-67533 ( March 18, 2016)

Cho High-2013-Seoul Government-5026 ( May 19, 2015)

The instant agreement cannot be deemed as an initial agreement for division, and thus, the instant disposition of imposition is not unlawful.

As long as a trial on renunciation of inheritance is found permanently preserved in the Seoul Family Court, the instant agreement cannot be deemed as a division of inherited property, and thus, the instant disposition is not unlawful.

Article 31 of the former Inheritance Tax and Gift Tax Act

2016Nu41806

OO et al. 2

O Head of tax office

June 7, 2017

June 21, 2017

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

A. The part of the imposition of 2,OO, OO, or OO(including additional duties) imposed by the head of the defendant's office on the plaintiffs is revoked in excess of 1,OO,OO, or OO(including additional duties).

B. The plaintiffs' remaining claims against defendant OO director and the plaintiff OO's claims against defendant OO head of the Seoul Special Metropolitan City OOO are dismissed.

2. Of the total cost of litigation, 2/3 of the part arising between the plaintiffs and the defendant OO chief shall be borne by the plaintiffs, and the remainder by the defendant O chief of the tax office, respectively, and the part arising between the plaintiff OO and the defendantO chief of the Seoul Special Metropolitan City OO chief shall be borne by the plaintiff

1. Purport of claim

The judgment of the court of first instance rendered by the Defendants against the Plaintiffs is revoked each disposition of imposition stated in the instant disposition of imposition.

2. Purport of appeal

The judgment of the first instance is revoked, and all plaintiffs' claims against the Defendants are dismissed.

1. Details of the disposition;

The reasoning for this part is that the court's reasoning is that "(1)" of the first instance court's 3 Myeon 11, 12 Myeon 3, 12 Do 12 Do 12 Do 13 Do 'Do 13 'Do 12' and "the property of this case (hereinafter "the property of this case") is "the property of this case". In the calculation of "the property of this case 4,OO, OO, OO, OO, or gift tax decision resolution (hereinafter the same shall apply)" are the same as the corresponding part of the judgment of the first instance (2, 6, 3 Do 19 Do 19 Do 2). Thus, it shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 4

2. Whether the grounds for disposition are legitimate;

A. The plaintiffs' assertion

The director of the tax office of the defendantO changed the provision on the basis of the imposition of the gift tax of this case to the "Article 2 (1) and Article 4 (2) of the Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter "the Inheritance Tax and Gift Tax Act") of the previous "Article 31 (3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter "the Inheritance Tax and Gift Tax Act") at the time when the argument of the appellate court is imminent after the lapse of three years and two months from the date on which the imposition of the gift tax of this case was imposed. Such change constitutes the method of attack and defense for actual time, as well as the taxpayer, it cannot be deemed that the basic facts of taxation are the same, and thus, it is not allowed.

B. Determination

Considering the following points that the statement No. 9 states the whole purport of the oral argument, Defendant OOO chief of the tax office did not change the grounds for the disposition immediately after the closing of argument in the appellate trial, it cannot be deemed that the allegation on the grounds for the disposition by Defendant OO chief of the tax office constitutes a means of real-time attack and defense, or that the change of the grounds for the disposition is not allowed.

① There has been disputes between the parties as to whether the instant agreement is a divided inheritance or a gift agreement surrounding the nature or substance of the instant agreement. Defendant OO head of the tax office asserted in the first instance trial that the instant agreement is applied Article 31(3) of the former Inheritance Tax and Gift Tax Act as a redivision of inherited property (for example, 4 pages of the preparatory documents dated O.O.O. 200), and Plaintiff OO made a cash donation to Plaintiff OO and KimO, and the Plaintiff OO alleged that it was a disposition imposing gift tax on the Plaintiff O.O. 1 as of the date of donation (for example, 3 pages of the preparatory documents dated O.O. 200), even if the assertion by Defendant OO head of the tax office was not clearly identified, it appears that the grounds for the disposition were various.

② At the third date for pleading (20O.O.O.) of the first instance trial, the chief of the Defendant OO.O.O. does not claim that the previous arguments should be the date of re-division of the inherited property, but he/she stated that the time of donation shall be determined by 20O.O.O.O. as the date of re-division of the inherited property.

③ When the issue of review and arrangement of the legal principles related to inheritance was revealed at the first date for pleading (20O.O.O.O.) of the appellate trial, the head of the tax office stated that the instant agreement was a gift contract on the 200O.O.O.O.O.’s preparatory document, and that the first disposition reason was Article 31(3) of the Inheritance Tax and Gift Tax Act on the second date for pleading (20O.O.O.O.) but Article 2(1) and Article 4(2) of the Inheritance Tax and Gift Tax Act on the grounds that the first disposition was made during the proceeding of the instant lawsuit, but it was clearly stated that the first disposition was made as a preliminary disposition, and that the first disposition was made as a gift on the grounds prior to that disposition.

④ Furthermore, Article 31(3) of the Inheritance Tax and Gift Tax Act provides that “The value of property acquired by a specific successor in excess of the original share of inheritance” shall be deemed as the value of donated property. The taxable value of the disposition imposing the gift tax in this case is the sale price equivalent to the 1/10 of the land in this case that the Plaintiff PostalO, KimO, donated by Plaintiff OO, and the total amount of 4,OO,OO,OO, andOO, and the total amount of the transfer income tax and the local income tax, etc. shall be deemed as the value of each donated property, and does not include the value exceeding the original share of inheritance as the value of donated property as provided by Article 31(3) of the Inheritance Tax and Gift Tax Act (According to a re-certified copy, the deceased is not the head of OO, and thus, the deceased PostalO is not the heir at the time of death, and the Plaintiff OO and the deceased MaO can be recognized as an unmarried woman, and the inheritance in this case shall not be calculated based on the above inheritance.

3. Whether the disposition is lawful;

A. The plaintiffs' assertion

① At the time of the commencement of the inheritance, the Plaintiffs and PostalO agreed to make a subsequent consultation on the specific portion of inheritance in consideration of difficulties such as inheritance affairs by the Plaintiff’s PostalO, KimO, and PostalO residing in the U.S. at the time of the commencement of the inheritance, and first they completed the inheritance registration of the instant land with the 3/5 shares in the name of OO, and 2/5 shares in the name of OO.

② Subsequent to the 20O.O.O.O., the instant agreement was concluded between the Plaintiffs and PostalO to consult on and divide the inherited property including the instant land.

③ Under the above agreement, Plaintiff OO’s 4/10 shares in the instant land, Plaintiff OO’s 1/10 shares in each of the instant land, and Plaintiff OO’s 1/10 shares in each of the instant land are transferred to OO. It does not transfer 6/10 shares in the register, but Plaintiff OO and KimO did not receive a donation from Plaintiff OO’s 3,OO,OO,OO,OO, and its capital gains tax and local income tax amount equivalent to 1/10 shares out of the transfer proceeds and 1,00,000,000,000,000 won in total, 4,000,OO,OO,OO, and OO.

④ Nevertheless, Plaintiff OO is a capital gain holder for 6/10 of the instant land, and the instant disposition that Plaintiff OO and OO provided on the premise that Plaintiff OO received a donation of the KRW 1/10 of the instant land and the capital gains tax amount.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) As to the imposition of gift tax of this case

(A) Whether the instant agreement constitutes a consultation on division of inherited property or a gift agreement

① According to the evidence evidence No. 14, Plaintiff MaO and KimO (OO prior to the commencement of the title) reported the waiver of inheritance to the deceased, who was the deceased, due to the death of the deceased, the Seoul Family Court, OOOO-OOOOO, and the above court recognized that the above renunciation of inheritance was well-grounded and accepted the above renunciation of inheritance. According to the above waiver of inheritance, Plaintiff MaOO and KimO were in the same position as that of the commencement of inheritance, and thus, do not constitute an inheritor entitled to enter into an agreement on the division of inheritance.

② The Plaintiffs asserted that the instant agreement was an initial agreement on division of inherited property since the said declaration on renunciation of inheritance was made against the genuine will of the Plaintiff PostalO and KimO, and that the said declaration on renunciation of inheritance was not known to the Plaintiffs, and thus, the waiver of inheritance by the said declaration on renunciation of inheritance was null and void. According to the respective statements set forth in Nos. 4, 6, 8, 9, 15, 21, No. 7-1, 3, and No. 10-1 through 10, the Plaintiffs were found to have committed some contradictory acts after the Plaintiffs received the adjudication on renunciation of inheritance, but there is no objective evidence that the application for renunciation of inheritance was made against the truth of the Plaintiff PostalO and KimO, and there is no evidence to acknowledge it otherwise.

③ As long as Plaintiff PostalO or KimO does not constitute an inheritor entitled to enter into an agreement on division of inherited property by waiver of inheritance, the instant agreement ought to be deemed a gift agreement, not an agreement on division of inherited property, rather than an agreement on division of inherited property.

(B) Value of donated property

The instant disposition is comprised of 3,00,000 won in the sum of 1/10 of the transfer proceeds for each of the instant land donated by Plaintiff PostalO and KimO and 3,00,000 won in total of 1,00,000 won in the transfer proceeds, and 1,00,000,000 won in the transfer income tax and local income tax, 4,000,000,000 won in total. In light of the following circumstances, it is reasonable to view the value of the donated property as 3,00,000 won in total received by Plaintiff PostalO and KimO.

① As long as the instant agreement is a donation contract, the agreement between the Plaintiffs to distribute the instant land to Plaintiff OO 40%, Plaintiff OO 10%, and Plaintiff KimO 10% should be deemed that Plaintiff O made a donation of 1/10 out of 6/10 shares to Plaintiff OO and KimO. According to Article 31(2) of the Inheritance Tax and Gift Tax Act and Article 23(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 24358, Feb. 15, 2013), “the date of acquisition of donated property subject to registration or enrollment in the transfer or exercise of the right is the date of registration”. Since the instant land was sold or transferred to Plaintiff O immediately after Plaintiff O without the registration of transfer from Plaintiff OO and KimO, Plaintiff O Kim O and the transfer price of each of the instant land was equivalent to the shares actually received by Plaintiff 1O/100, 1300,000.

② Under the premise that Plaintiff OO transferred 6/10 shares of the instant land as the owner of the 6/10 share of the instant land, the assessment of the transfer income tax of Plaintiff OO was based on the premise that the transfer value as the owner of the 6/10 share of the instant land was based on the assessment of the transfer income tax of Plaintiff OO.

③ In accordance with the share ratio under the agreement of this case, the Plaintiffs reported capital gains tax as Plaintiff OO 4/10, Plaintiff UO PO, and PO 1/10 shares. However, the agreement of this case was merely on the ground that the Plaintiffs acquired each of the above shares retroactively from the time of commencement of inheritance on the premise that the agreement of this case was an inherited property division agreement. As long as the agreement of this case is a gift contract, the taxpayer of capital gains tax and local income tax arising from the transfer of the land of this case is not only Plaintiff OO but also Plaintiff UOO, and KimOO. The capital gains tax of 1/10 shares among the land of this case was reported and paid in the name of Plaintiff UO, KimOO, and there is no ground to deem that the capital gains tax and local income tax were donated to the Plaintiff.

(C) Justifiable tax base and tax amount of gift tax

(1) In a lawsuit seeking revocation of a taxation disposition, the subject matter of adjudication is whether the tax base and tax amount notified by the tax authority are objectively existing. In a case where the tax base and tax amount recognized by the taxation disposition are excessive compared to the legitimate tax base and tax amount, the relevant taxation disposition is unlawful within the scope exceeding the reasonable tax base and tax amount (see Supreme Court Decision 88Nu6504, Mar. 28, 1989).

② As seen earlier, each of the 3OO, OO, OO, andOO was donated by the Plaintiff OO, 200.O.O., 3O, OO, or OO. respectively. As such, each of the above 3OO, OO, or OO serves as the tax base for the value of donated property.

(3) When calculating the amount of legitimate gift tax according to the above tax base, each of the following members shall be 1,00,000,000 won:

(2) As to the instant disposition of transfer income tax and local income tax

As seen earlier, the instant agreement was a donation contract, and since the instant land was sold to, and transferred from, the Plaintiff OO immediately from the Plaintiff OO without the registration of transfer in the future, 2O, OO, OO, and OOO members equivalent to 6/10 of the transfer price of the instant land, which is the equity interest of the Plaintiff OOO, constitute the capital gains of the Plaintiff OO. The instant disposition imposing capital gains tax and imposing local income tax are lawful, premised on the premise that the said capital gains belong to the PlaintiffOO.

(3) Sub-determination

The legitimate amount of gift tax on the plaintiff OO, KimO, and the joint obligor of the plaintiff OO is each 1,00,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

4. Conclusion

The part of the imposition of gift tax by Defendant OO head of the tax office exceeds KRW 1,O,OO, andOO(including additional tax) of each gift tax imposed on the Plaintiffs is revoked. The Plaintiffs’ claim against Defendant OO head of the tax office shall be accepted within the scope of recognition as reasonable, and the remainder of the claim against Defendant OO head of the tax office and the Plaintiff OO’s claim against the head of Gangnam-gu Seoul Special Metropolitan City Office shall be dismissed for all reasons. The Defendants’ appeal partially accepted and the judgment of the first instance shall be modified as above.