Seoul Administrative Court 2012Guhap4722 (Law No. 26, 2012)

Cho High Court Decision 201Do3527 ( November 24, 2011)

The calculation of the value of donated property shall not be deemed an objective and reasonable method.

(1) In addition, it cannot be deemed that calculating the value of donated property is based on objective and reasonable methods only on the basis of the increase of the value of donated property by gratuitously transferring or contributing the profit equivalent to the difference between the value of stocks and the value of stocks prior to the donation of real estate after the donation of real estate. In addition, it is unlawful against predictability or taxation.

2012Nu26786 Revocation of Disposition of Imposition of Gift Tax, etc.

Appellant and Appellant

DistrictAAA

- Appellants

The Director of Gangnam District Office

Seoul Administrative Court Decision 2012Guhap4722 decided July 26, 2012

May 8, 2013

June 19, 2013

1. The plaintiff and the defendant all appeals are dismissed.

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

1. Purport of claim

The Defendant’s imposition of KRW 000 on July 1, 201, and the imposition of KRW 000 on capital gains tax, and KRW 000 on securities transaction tax, and the imposition of KRW 000 on local income tax shall be revoked.

2. Purport of appeal

A. Plaintiff: The part against the Plaintiff in the judgment of the first instance is revoked, and the Defendant’s imposition of capital gains tax of KRW 000, securities transaction tax of KRW 000, and imposition of KRW 000, local income tax of KRW 00 shall be revoked on July 1, 201.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

1. cite the judgment of the first instance;

The reasoning of this court's ruling is as follows, and the judgment on the defendant's argument is added in the following paragraphs, and therefore, it is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ 3rd to the disposition of this case, ' who is dissatisfied with the disposition of this case' is 'the imposition of the transfer income tax of this case, the securities transaction tax of this case, and the imposition of the gift tax of this case' (A evidence 2 1, 2)'.

○ 4 The following shall be added to the 6th below:

In addition, even though the Plaintiff was imposed the local income tax of this case around July 1, 201, the Plaintiff filed the instant lawsuit on February 10, 2012 past 90 days from that time, and the claim for revocation of the disposition imposing the local income tax of this case is unlawful after the lapse of the filing period.

2. Additional determination

A. Determination as to whether business transfer constitutes business transfer

The Defendant asserts that the instant real estate donation constitutes a transfer of business. However, the entries in Gap evidence 3, Eul evidence 1, and Eul evidence 1 through 19 alone cannot be deemed as a transfer of business and there is no other evidence to prove otherwise. Rather, in light of the following circumstances recognized by comprehensively considering the overall purport of the pleadings in Gap evidence 6, Eul evidence 1-3, and Eul evidence 4, and the instant real estate donation is deemed not a transfer of business.

① At the time of investigation, the Seoul Regional Tax Office did not examine whether the provisions of Article 42 of the Inheritance Tax and Gift Tax Act were applied only to the taxation method of the complete comprehensive taxation method of gift tax and whether it falls under the requirements for business transfer.

② The Plaintiff’s fatherB donated the instant real estate to the Nonparty Company.

③ The branchB managed the instant real estate through its own employees, and the non-party company did not succeed to the employment relationship with the employee who managed the instant real estate after being donated the instant real estate from the branchB.

④ There is no agreement between the branchB and the non-party company regarding the transfer of business, such as the assets and liabilities related to the instant real estate, the evaluation of goodwill, and whether the employee succeeds to employment.

B. Determination as to the assertion that falls under the scope of application of Article 41(1)1 of the Inheritance Tax and Gift Tax Act

Even if the court should apply Article 41(1)1 of the Inheritance Tax and Gift Tax Act to the gift of this case, the Defendant asserts that the amount of gift tax calculated by applying Article 41(1)1 of the Inheritance Tax and Gift Tax Act is more than the amount of gift tax calculated by applying Article 42(1)3 of the Inheritance Tax and Gift Tax Act, and that the imposition of gift tax of this case is lawful. According to Article 41(1)1 of the Inheritance Tax and Gift Tax Act and Article 31(6) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, where the gains under Article 41(1)1 of the Inheritance Tax and Gift Tax Act are equivalent to the gains earned from the donation of property, and is more than KRW 00,000,000,000 for the business year of 206 and less than KRW 100,000,000. Therefore, the Defendant’s assertion that this part of this case is difficult to accept, and thus, did not calculate the amount of gift tax under Article 41(1)1(1)1)1.

3. Conclusion

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