Daegu District Court-2015-Gu Partnership-24286 ( October 17, 2016)

Conditions of administrative disposition subject to appeal litigation;

Administrative disposition, which is the object of an appeal litigation, is, in principle, an act of public law of an administrative agency that directly affects the rights and obligations of the general public by ordering the establishment of rights or the burden of obligations pursuant to Acts and subordinate statutes or by causing other legal effects with regard

Article 60 of the Inheritance Tax and Gift Tax Act

Daegu High Court 2016Nu4677

00

00. Head of tax office

Daegu District Court Decision 2015Guhap24286

September 30, 2016

October 21, 2016

1. To dismiss the instant lawsuit that has been changed in exchange at the trial;

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On December 14, 2015, the Defendant revoked the “decision of the tax base and tax amount of gift tax” that the Plaintiff rendered to the Plaintiff on December 14, 2015 (the Plaintiff sought at the first instance trial to revoke the disposition of refusal of the gift tax base and tax amount of gift tax against the Plaintiff on December 16, 2015, but the court changed the above claim in exchange).

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant's rejection disposition against the plaintiff on December 16, 2015 shall be revoked.

1. Basic facts

A. On October 11, 2013, the Plaintiff donated from AA to 00 00 -00 -00 - 00 - 00 - 775-3 - 344 m2 (hereinafter “instant land”) and completed the registration of ownership transfer in the name of the Plaintiff on October 16, 201.

B. On November 28, 2013, the Plaintiff assessed the value of the instant land as KRW 230,000,000 by referring to transaction example, etc., and filed a gift tax return with the Defendant on November 28, 2013 by deeming the said amount as the value of donated property, and submitted an order

C. The defendant decided that the value of donated property reported by the plaintiff does not fall under the "market price" under Article 60 of the Inheritance Tax and Gift Tax Act (hereinafter referred to as "Inheritance Tax and Gift Tax Act"), and Article 61 Paragraph 1 of the Inheritance Tax

On August 7, 2014, by applying the officially assessed individual land price in accordance with subparagraph 1, the value of donated property was calculated as KRW 65,016,00,00, and on August 7, 2014, the following notice was given to the plaintiff (hereinafter referred to as "previous notice").

【Notification of Determination of Gift Tax】

India, as regards the assessment report of gift tax reported on November 28, 2013 and the dispatch of a gift tax, as follows:

It is known that the decision of correction has been made.

1. Marking of the property;

- The land of this case

2. Status of determination of gift tax;

- Value of donated property subject to reporting: 230,000,000 won

- The value of donated property upon decision: 65,016,000 won

D. On August 26, 2014, the Plaintiff appealed, and filed a request for review on August 26, 2014. On November 12, 2014, the Commissioner of the National Tax Service rendered a decision to dismiss the request on the ground that: (a) transaction examples asserted by the Plaintiff do not meet the requirements for assessment base date or are difficult to be deemed as similar land; and

E. The Plaintiff filed a lawsuit seeking the revocation of the previous notification on February 13, 2015, but was sentenced to a dismissal judgment on June 17, 2015 (Seoul District Court 2015Guhap20741) on the ground that the previous notification does not constitute an administrative disposition (Seoul District Court 2015Guhap20741), and appealed, but was sentenced to a dismissal judgment on November 20, 2015 (this Court 2015Nu5734) (this Court 2015Nu5734). The said judgment became final and conclusive on December 8, 2015.

F. After all, on December 14, 2015, the Plaintiff rendered a request for correction of the tax base and amount of gift tax for the transfer of donated property from KRW 65,016,00 to KRW 230,000,000 to the Defendant. Accordingly, on the same day, the Defendant issued a notice of the determination of the tax base and amount of gift tax for each of the taxable value and the deductible amount, KRW 65,016,00, the tax base0, the total determined tax amount, the already paid tax amount, and the notified tax amount, which are KRW 0,00 (No. 2, document title is called the “report of gift tax”, and hereinafter referred to as the “instant notice”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The parties' assertion

The plaintiff asserts that the notification of this case is an administrative disposition subject to appeal litigation, and that the appraisal price assessed in an objective and reasonable manner exists with respect to the land of this case without reflecting it. The defendant asserts that the notification of this case is unlawful. The defendant is not an administrative disposition that is subject to appeal litigation, and thus, the lawsuit of this case seeking its revocation is unlawful.

B. Whether to recognize the disposition of the instant notification

Administrative disposition subject to appeal litigation is, in principle, an act of public law of an administrative agency.

It refers to an act that directly affects the rights and obligations of the general public by ordering the establishment of rights or the burden of obligations, or giving rise to other legal effects on a specific matter (see, e.g., Supreme Court Decision 2010Du3541, Sept. 27, 2012). Furthermore, the determination of the tax base and the amount of tax is a prior decision on a tax disposition, which is not immediately effective due to the said decision, and there is no way to dispute the said disposition when a tax disposition is issued later, and thus, it cannot be said that the determination of the tax base and the amount of tax is an administrative disposition subject to appeal litigation (see, e.g., Supreme Court Decision 95Nu12842, Sept. 24, 196).

On the other hand, the notice of this case is merely a re-verification of the previous notice that reduced the value of donated property calculated by applying the officially announced value under the premise that the value of donated property reported by the Plaintiff does not fall under the market price under the Inheritance Tax and Gift Tax Act. Moreover, since both the taxable value reported by the Plaintiff and the Defendant’s reduced taxable value fall short of KRW 600 million, the tax base is equal to KRW 0,000, and the amount of gift tax does not occur, and it is difficult to deem that there is a special change in the Plaintiff’s rights and duties by the notice of this case. In the event that the taxable value of donated property is reduced in the future, the Plaintiff asserts that there is a risk of excessive capital gains tax when disposing of the land of this case, but this is merely an uncertain risk that may occur in the future, and cannot be deemed a direct violation of the Plaintiff’s legal status. Furthermore, if the Plaintiff imposed capital gains tax on the land of this case by disposing of it in fact, the Plaintiff may file a tax appeal against it and file an objection procedure, and thus, there is no need to dispute.

3. Conclusion

If so, the decision of the court of first instance is to dismiss the lawsuit of this case that is changed in exchange at the trial (the judgment of the court of first instance is invalidated since the lawsuit of this case is deemed to have been withdrawn) and it is so decided as per Disposition