Suwon District Court 2017Guhap60755 ( October 14, 2017)

Early High Court Decision 2015Du1265 ( October 29, 2015)

Since the title truster is not certified, part of the tax amount must be revoked.

The defendant is unable to prove the title truster of the shares of this case, on the other hand, that the plaintiff is a title truster who is not a specific title truster, and therefore only the amount of disposition based on which the defendant is a specific title truster is subject to lawful disposition.

Inheritance Tax and Gift Tax Act

Seoul High Court 2017Nu38135 ( March 25, 2017)

literature*

○ Head of tax office

Suwon District Court Decision 2017Guhap60755 Decided October 14, 2017

2017.07.07

2017.08.25

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

A. The Defendant’s imposition of gift tax of KRW 52,019,80 against the Plaintiff on December 15, 2014, which exceeds KRW 36,786,40 (including additional tax of KRW 10,510,40) shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. 7/10 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

1. Purport of claim

The Defendant revoked the disposition of imposition of gift tax of KRW 52,019,80,00 against the Plaintiff on December 15, 2014.

(c)

2. Purport of appeal

[Plaintiff]

The part of the judgment of the first instance against the plaintiff shall be revoked. The defendant against the plaintiff on December 15, 2014

The imposition of gift tax of KRW 33,014,80,000, shall be revoked.

[Defendant]

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim corresponding to the revocation shall be revoked.

The dismissal is dismissed.

1. Quotation of the reasons for the judgment of the first instance;

The reasoning of this judgment is identical to the reasoning of the judgment of the first instance except for the revision of part of the reasoning of the judgment of the first instance as follows. Thus, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of

○ “No. 17450” shall be deemed to be “No. 17459” of 3 pages 10 of the first instance judgment.

Pursuant to Articles 54(1) and 56(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17459, Dec. 31, 2001; hereinafter referred to as the “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”) which provide for the assessment of non-listed stocks, the calculation method of net profit for the last three years per share shall not apply to a corporation less than three years after the commencement of the business. The "average value of presumed profit per share" under Article 56(1)2 of the same Decree applies to cases where a report is filed within the deadline for the base return of gift tax. The "net asset value" under Article 54(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act has a supplementary meaning only when the net value falls short of the net asset value.

In full view of the purport of the whole pleadings, 00 shipping established on February 24, 1999 was under three years after the commencement of business as of December 10, 2001, which is the base date of appraisal, and the Plaintiff did not file a report on the instant stocks within the base date of the gift tax return. When the Defendant cannot assess the value per share of the instant stocks by the methods prescribed in the former Inheritance Tax and Gift Tax Act and its Enforcement Decree, it was issued a disposition imposing the first gift tax by comparing the weighted average value of the instant stocks with the net asset value calculated by adding the net value of the two years to the net value of the instant stocks. The Defendant issued the disposition of this case by reducing the amount of gift tax by the determination of the tax base and amount of tax by the Tax Tribunal. The Defendant issued the disposition of this case to reduce the amount of gift tax by adding the net value of the instant stocks to the net asset value of 12,092 won per share (=27,782 x 40,000 won per share) or less than the above net asset value per share.

① There was no statutory provision applicable at the time to assess the value of the instant shares. The Defendant calculated the value per share by applying mutatis mutandis the same method as Article 54(1) and (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

② Under the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, only the net value of the shares is to be determined based on the net value of the shares, and the net value of the shares is to be supplementaryly applied only when the net value of the shares is below that of the preceding three years. Therefore, by applying Article 54(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, it would be reasonable to calculate the value per share by the defendant for a corporation with two business years before the base date of appraisal [in cases of calculating the value of non-listed shares donated in the imposition of gift tax, it would be based on the supplementary method of assessing the value of the shares used by the defendant (net value). However, Article 54(1) and (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act which was amended by Presidential Decree No. 18177, Dec. 30, 2003; Article 54(1)1 and (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the net asset value of the relevant corporation shall be less than the net asset value per share.

○ The 11th to 12th to 15th of the first instance judgment shall be set forth in the following: “The calculation of the amount of a legitimate tax.”

If a reasonable tax amount is calculated on the basis of KRW 12,092, which is the value per share of the shares of this case, for which the premium rate of 30% is not applied, such as the statement in the "Calculation of Amount of Political Tax", the gift tax to be paid by the plaintiff shall be KRW 36,786,40 (including additional tax of KRW 10,510,40), such as the statement in the "Justifiable Tax Amount". Therefore, the portion exceeding the above KRW 36,786,40 among the disposition against the plaintiff in this case shall be revoked.

2. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition and the remaining claim shall be dismissed as it is without merit. The judgment of the court of first instance is unfair in conclusion, and it is so accepted in part of the defendant's appeal, and it is modified as per Disposition.