Daegu District Court 2009Guhap2384 ( October 13, 2010)

Whether the cancellation date of permission for establishment of a public-service corporation shall be deemed the date of establishment of requirements for gift tax

If the permission for establishment of a public-service corporation has been revoked without determining the same purpose or a similar purpose for the use period approved by the competent Minister, etc., the date on which the permission for establishment is revoked shall be deemed the date on which the requirements for taxation of gift tax are established and the disposition imposing gift tax is legitimate.

2013Nu1219 Cancelling the imposition of gift tax

Medical Corporations AAA Medical Foundation

Head of North Daegu Tax Office

Daegu District Court Decision 2009Guhap2384 Decided October 13, 2010

Daegu High Court Decision 2010Nu2464 Decided May 13, 2011

Supreme Court Decision 2011Du12580 Decided June 27, 2013

November 1, 2013

November 22, 2013

1. The plaintiff's appeal is dismissed.

2. The plaintiff shall bear the total costs of the lawsuit after filing the appeal.

The decision of the first instance court shall be revoked. The defendant's decision shall be revoked in all the imposition of gift tax for the year 2004 equivalent to the amount stated in the column of "amount of revised tax on the same list as the plaintiff on each date stated in the column of "date of disposition of imposition of attached Table 1."

1. Details of the disposition;

" 가. 원고는 ① 1992. 8. 21. 김BB으로부터 OO시 OO구 CC동(이하CC동'이라 한다) 344-1 답 2,585㎡, CC동 345 답 817㎡' CC동 346 답 563㎡ 중 537/563 지분, CC동 400 답 4,598㎡, CC동 402-2 답 2,279㎡, CC동 1068-3 답 2,764㎡ 중 1/2 지분, CC동 1068-6 답 1,609며를 각 출연받았고, ② 1992. 4. 30.경 및 2003. 12. 15. 경 박DD으로부터 CC동 1068-5 답 1,552㎡ 중 1/4 지분을 두 차례 나누어 출연받았으며, ③ 1992. 4. 30.경부터 2003. 12. 15.경까지 사이에 김EE로부터 CC동 1068-2 답 714㎡(다만, 이 토지는 2000. 10. 31. CC동 1068-2 답 585㎡와 CC동 1068-9 답 129㎡로 분할되었다) 중 1/2지분(두 차례 나누어 출연), CC동 1068-3 답 2,764㎡ 중 1/2 지분, CC동 1068-5 답 1,552㎡ 중 1/4 지분(두 차례 나누어 출연)을 각 출연받았고, ④ 1992. 4. 30.경 김FF로부터 CC동 1068-2 답 714㎡ 중 327.5/655 지분, CC동 1068-5 답 1,552㎡ 중 352/1552 지분을 각 출연받았으며, ⑤ 1992. 4. 30.경 김GG로부터 CC동 1068-5 답 1,552㎡ 중 352/1552 지분을 출연받았다.", " 나. 원고는 1992. 4. 10. CC동 377 대 522㎡(전 소유자 배HH, 허II, 허JJ)에 관하여 1992. 3. 4.자 매매를 원인으로 한 소유권이전등기를 마쳤고, 1995. 1. 9. CC동 376-2 전 403㎡(전 소유자 임KK)에 관하여 1994. 10. 15. 매매를 원인으로 한 소유권이전등기를 마쳤으며, 1997. 8. 20. CC동 1068-4 답 294㎡(전 소유자 배LL)에 관하여 1997. 8. 8.자 매매를 원인으로 한 소유권이전등기를 마쳤고, 1998. 9. 4. CC동 355 전 321㎡(전 소유자 김MM)에 관하여 1998. 7. 25.자 매매를 원인으로 한 소유권이전등기를 마쳤다(이하 CC동 377 대 522㎡, CC동 376-2 전 403㎡, CC동 1068-4 답 294㎡' CC동 355 전 321㎡를 통틀어CC동 377 외 3필지'라 하고, CC동 377 외 3필지와 전항 기재 각 토지를 통틀어이 사건 각 토지'라 한다).", " 다. 피고는 2008. 7. 1. 원고에 대하여, 구 상속세 및 증여세법(2010. 1. 1. 법률 제9916호로 개정되기 전의 것, 이하구 상속세및증여세법'이라 한다) 제48조 제2항 제1호를 적용하여 원고가 김BB, 박DD, 김EE로부터 이 사건 각 토지를 출연 받은 이후 공익목적에 직접 사용하지 아니한 채 보유하다가 원고의 법인설립허가가 2004. 5. 31. 취소됨에 따라 2004. 5. 31.자로 김BB, 박DD, 김EE로부터 이 사건 각 토지를 각 증여받았다 는 이유로 별지 1부과처분 내역'의최초 고지세액'란 기재 각 금액 상당 증여세를 부과하는 처분(이하당초 처분'이라 한다)을 하였다.", 라. 원고는 2008. 9. 25. 당초 처분에 불복하여 조세심판원에 심판청구를 하였다가 2009. 6. 9. 기각결정을 받았다.

E. On June 10, 2009, the defendant decided that the portion of the additional tax (additional tax on negligent tax and additional tax on negligent tax payment) among the gift tax related to KimB is not legitimate, and issued a disposition to reduce or correct the amount of additional tax on the gift tax related to KimB, OOOwon of the additional tax, and OOOO in the gift tax related to Park DD (the amount of the first revised tax in the details of the imposition of attached Table 1 is the remaining tax after correction from the original disposition)." (F) The defendant issued a disposition to correct the amount of the additional tax on the ground that he mistakenly discovered some of the donor of each of the land of this case on April 1, 2010 on the ground that the amount of the additional tax on the original disposition was reduced by some gift tax related to KimB, EE, ParkG, and KimF, 100 or 2003 of the total amount of the tax on the gift tax on each of the following grounds, 2010 sheets or 303 of the separate statement for each of the notice.

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful on the grounds of relevant statutes and the above disposition. Accordingly, the plaintiff asserts that the disposition of this case is unlawful on the following grounds.

(1) The assertion that the CC did not have property donated to 377 et al.

“CC 377 et al. are indicated as “the purchase price for each real estate register” and presumed to have been purchased by the Plaintiff from the former owner, KimM, etc. As such, the Plaintiff does not receive contributions from CC 377 et al. In addition, even if KimB paid the purchase price for 377 et al. and 3 parcels, this is merely a donation of cash equivalent to the purchase price for 377 et al. and 3 parcels from CC 377 et al. to the Plaintiff. Accordingly, the instant disposition that the Defendant reported that the Plaintiff received the donation of 377 et al. and 3 parcels from CC 377 et al. is unlawful, and the instant disposition that the Plaintiff reported that the Plaintiff received the donation of 377 et al. from her KimB

In cases where the Plaintiff received contributions from KimB, etc. to each of the instant land and obtained approval for the extension of the business period from the Daegu Metropolitan City Mayor by May 29, 2004 due to unavoidable causes, but it was impossible for the Daegu Metropolitan City Mayor to commence the business within the extension period due to the revocation of the Plaintiff’s permission for establishment on May 31, 2004, the Plaintiff’s failure to use the land for the purpose of public business by the cancellation of the Plaintiff’s permission for establishment

In addition, although the permission for incorporation was revoked while the plaintiff did not use the property contributed to public interest projects, the plaintiff's articles of incorporation stipulates that the remaining property shall be donated to a non-profit corporation for the purpose similar to the plaintiff's purpose of establishment or reverted to the State if the corporation is dissolved, and the plaintiff's remaining property shall be reverted to the country in the future. In such a case, Article 48 (2) 5 of the former Inheritance Tax and Gift Tax Act and Article 38 (8) 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010; hereinafter "former Enforcement Decree of the Inheritance Tax and Gift Tax Act") shall apply, and in the case of the plaintiff, Article 38 (8) 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act shall not be imposed

Even if each land of this case is subject to gift tax, the disposition of this case, which the Defendant reported differently, was unlawful, even though the permission for the establishment of a medical corporation against the Plaintiff was revoked on May 31, 2004 at the expiration of three years from the date on which each land of this case was contributed or contributed.

(b) Related statutes;

The judgment on the assertion that the property was not donated toCC, 377 et al. is as stated in attached Table 2.

(1) According to the overall purport of evidence Nos. 11 through 14, KimB, the board of directors of the Plaintiff, held on October 10, 1991, agreed to purchase non-purchase land other than the land contributed by the Plaintiff and donate it to the Plaintiff corporation. On January 1, 1996, the Plaintiff, at the time of applying for extension of the establishment period of the Plaintiff corporation to the Daegu Metropolitan City Mayor, prepared and delivered a letter of promise to donate the land not yet purchased to the Plaintiff corporation. The Plaintiff, on the non-purchase site, contains 1068-4 294m2, 35m21m2, 37m2, 37m2, 37m2, 37m2, 37m2, 37m2, 37m2, 37m2, 197, 4m2, 37m2, 197, 37m2, 196, 37m2, 199.

Therefore, this part of the plaintiff's assertion is without merit.

(d) argument that it is not subject to gift tax.

(1) The main sentence of Article 48(1) of the former Inheritance Tax and Gift Tax Act provides that the value of property contributed by a public corporation shall not be carried out in the taxable value of donated property. Article 48(2) provides that if the public corporation, etc. to which the property is contributed under the provisions of paragraph (1) falls under any of the following subparagraphs 1 through 4 and 5, it shall be deemed that the value of the property is donated by the public corporation, etc. without delay, and the gift tax shall be levied on the property contributed under the main sentence of subparagraph 1 (including a case where the property is not used for profit-making or profit-making business) within three years from the date of its use or contribution. The proviso provides that if there is an inevitable reason prescribed by the Presidential Decree such as requiring a long-term use of the property, and it is difficult to use the property for the public interest within 7 years from the date of its receipt or notification to the head of the tax office having jurisdiction over the place of tax payment for such unavoidable reason as prescribed under the provisions of Article 18(2)1) of the former Enforcement Decree.

(2) According to the overall purport of the Plaintiff’s evidence and evidence stated above and evidence Nos. 4, 5, and 6, the Plaintiff’s disposal of each of the instant land as a medical corporation with permission for establishment around January 1992 by KimB, etc., but the implementation plan for urban planning facility projects (general medical facilities) was approved by the Daegu Metropolitan City Mayor, etc. to establish a medical corporation, but the size of the project site was reduced as a result of incorporation into the neighboring N1 Housing Site Development Zone, and consultation for purchasing real estate owned by another within the project site was not carried out smoothly, and the Plaintiff’s disposal of the land was delayed by the medical corporation for 20 years from January 194 to May 31, 199. However, in light of the legal principles as seen earlier, the Plaintiff’s disposal of the land was denied by the Daegu Metropolitan City Mayor for 20 years from the date of revocation of the permission for establishment of the instant medical corporation, and the Plaintiff’s disposal of the land was denied by the Daegu Metropolitan City Mayor for 20 years from January 6, 20004.

E. Determination of illegality in calculating the taxable value of gift tax

The main text of Article 48(2) of the former Inheritance Tax and Gift Tax Act provides that where a cause under subparagraph 1 occurs, the value prescribed by the Presidential Decree shall be deemed a donation by a public-service corporation, etc., and the gift tax shall be imposed immediately after the expiration of the use period approved by the Daegu Metropolitan City Mayor. In this case, on May 31, 2004, the cancellation of permission for the establishment of a medical corporation for the plaintiff on the plaintiff, which was immediately after the expiration of the use period approved by the Daegu Metropolitan City Mayor, the plaintiff is confirmed not to use each of the land of this case for the direct public-interest business, etc., and it is difficult to deem that there was any special circumstance that the land of this case is subject to gift tax under Article 48(2)1 of the former Inheritance Tax and Gift Tax Act. Therefore, it is reasonable that the defendant's disposition of this case calculated the taxable value of each of the land of this case on May 31, 2004 at the time of imposing the gift tax.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just and there is no ground for appeal of the plaintiff, and it is dismissed in its entirety. It is so decided as per Disposition.