Ulsan District Court-2017-Gu Partnership-5632 ( October 19, 2017)

The market price basis date of listed stocks shall be deemed as the date of sales contract rather than the date of settling the balance.

(As in the judgment of the court of first instance), it is necessary to evaluate listed stocks between related parties as of the date of the sales contract at the time of trading within the scope of the Korea Exchange and determine the acquisition level at high price.

Inheritance Tax and Gift Tax Act Article 35(1) of the Inheritance Tax and Gift Tax Act: Donations of profits from transfer at low price

Article 60 of the Inheritance Tax and Gift Tax Act

2017Nu24370 Revocation of the imposition, disposition, etc. of gift tax

Park ○

Defendant, (P) Appellants

지지지지

Ulsan District Court Decision 2017Guhap5632 Decided October 19, 2017

April 20, 2018

June 15, 2018

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The imposition of KRW 164,027,810 (including additional tax of KRW 15,424,974) of the gift tax on July 9, 2015 against the Plaintiff and the disposition rejecting correction of KRW 172,346,720 of the gift tax on October 2, 2015 shall be revoked.

1. Details of the disposition;

The reasons for this part are as follows: "8,38,321,200 won" for 1,138,321,200 won for 30 million won for 300 million won for 31,321,200 won for 300 million won for 32,392; "32,382.1 won for 12 others for 312 others" for 32,392.1 won for 34 others; "1,250,248,00 won for 314 others for 314 others (=32,392 won - 15,900 won) x 94,00 won for 94,00 won for 30 million won for 30 million won for 300 million won for non-taxation under Article 2 (3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act" for the corresponding part of the judgment of the court of first instance as it is citing Article 20 (2) of the Civil Procedure Act.

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

The reasons for this part are as follows: (a) the court added the new argument to this part of the plaintiff's new argument to 6th 10th son of the court of first instance; (b) the new argument to 6th son of the court of first instance; and (c) the court added this court's decision to 10th 5th 5th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 7th 7th 7th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6

(a) 6) Claims

Although Article 35 of the former Inheritance Tax and Gift Tax Act is stipulated as the date of calculating the value of donated property, Article 26(8) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act stipulating the date of calculating the value of donated property as the date of settlement of price goes beyond the bounds of delegated legislation, and thus, is invalid. In addition, Article 26(8) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act

B.6) As to the assertion 6

Then, in light of the contents of the former Inheritance Tax and Gift Tax Act, Article 26(8) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act does not deviate from the limit of delegated legislation, and it does not go against the principle of no taxation without law, and thus, the Plaintiff’s assertion

The gift tax taxable subject to the gift tax is not itself a gift contract, but it is reasonable to calculate the value of donated property on the basis of the date of transfer, i.e., when the low-price transfer income is reverted to the transferee, in applying Article 35 of the former Inheritance Tax and Gift Tax Act.

(1) Article 35 of the former Inheritance Tax and Gift Tax Act imposes tax on the profits acquired at a low price, and thus, on the grounds that Article 35 of the former Inheritance Tax and Gift Tax Act imposes tax on the profits acquired at a low price, and thus, on the basis that the transfer price is determined at the time of transaction, and on the basis that the transfer price is determined based on the transfer price. In calculating the transfer margin of the relevant land, it is reasonable to deem that the transfer price is determined based on the transfer price as different reasons and criteria for such choice, and thus, it is unreasonable for both parties to regard the transfer price differently (see, e.g., Supreme Court Decisions 9Du1731, Jun. 15, 2001; 2007Du14978, May 13, 201).

Article 35(1) of the former Inheritance Tax and Gift Tax Act provides that "if the relevant property is acquired or transferred, an amount equivalent to the difference between the price and the market price thereof shall be deemed a value of donated property which is equivalent to the profits prescribed by Presidential Decree." Accordingly, Article 26 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides for the method, etc. of calculating the profits from the transfer at low price and high price. According to the legislative purport and content of the aforementioned provision, "the amount equivalent to the difference between the price and the market price when the relevant property is acquired or transferred" shall be prescribed as the value of donated property, the specific method of calculating the value of donated property shall be prescribed by Presidential Decree, and the date of calculating the value of donated property shall be specified in the Presidential Decree. The above standard of calculation is an essential element for calculating the value of donated property. Thus, it can be deemed that Article 35(1) of the former Inheritance Tax and Gift

Article 35(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 2010, Dec. 15, 2015; hereinafter “amended by Presidential Decree”), which is a delegation provision on the date of calculating the value of donated property pursuant to the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 2010, Dec. 15, 2015; hereinafter “amended by Presidential Decree”), asserts that the amendment of the Inheritance Tax and Gift Tax Act goes beyond the limit of delegated legislation and becomes null and void. However, it is difficult to view that the amendment of the former Inheritance Tax and Gift Tax Act was made only by the delegation provision on the date of calculating the value of donated property.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed.