The disposition of the disposition authority shall not be deemed null and void only because the defect in the disposition is objectively obvious.

If it is merely a mistake of the fact that the disposition imposing gift tax is a requirement fact, or it can only be found that the fact should be accurately examined, it cannot be said that the defect is objectively apparent.

national discipline;

2013 Gohap31959 Unlawful gains

United StatesA

Korea

August 27, 2013

September 17, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant shall pay 5% interest per annum to the plaintiff from June 23, 2009 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. On June 28, 2005, the Plaintiff received each land listed in [Attachment List Nos. 1 through 5] from BB, the Plaintiff, as a gift, and received each land listed in [Attachment List Nos. 6 through 9] on December 28, 2006 (hereinafter “each land listed in the Attached List”) from the Plaintiff.

B. The Plaintiff filed an application for tax exemption pursuant to Article 58(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5584, Dec. 28, 1998; hereinafter referred to as the "former Regulation of Tax Reduction and Exemption Act") and Article 57(1) and (2) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 15976, Dec. 31, 1998; hereinafter referred to as the "former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act") and Article 15(2) of the former Restriction of Special Taxation Act (amended by Act No. 5584, Dec. 28, 1998; hereinafter referred to as the "former Restriction of Tax Reduction and Exemption Act").

C. On December 2, 2008, the Defendant: (a) determined that the Plaintiff’s acquisition of each of the instant farmland was not subject to gift tax reduction under the above provisions; and (b) issued a disposition imposing OOO on the Plaintiff (hereinafter “instant disposition imposing gift tax”).

D. On June 22, 2009, the Plaintiff paid the Defendant a total of KRW OO and additional OOO in the principal gift tax.

Facts without dispute over the basis of recognition, Gap 1 through 3, 8, 9, 18 through 21, and Eul 1, and the purport of the whole pleadings.

2. The parties' assertion

A. The plaintiff's assertion

According to Article 15(2) of the Addenda of the Restriction of Special Taxation Act, Article 58(1) of the former Regulation of Tax Reduction and Exemption Act, and Article 57(2) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act, whether a donee is eligible to be exempted from gift tax should be determined by whether a donee is engaged in direct farming continuously for two years retroactively from the date of actual donation of farmland not on January 1, 1999, the enforcement date of the Restriction of Special Taxation Act. Therefore, the Plaintiff has been engaged in direct farming continuously for two or more years retroactively from the date of donation of each of the instant farmland, and thus, gift tax should be exempted pursuant to Article 15(2) of the Addenda of the Restriction of Special Taxation Act.

However, as of January 1, 1999, the enforcement date of the former Restriction of Special Taxation Act, the Defendant imposed the gift tax in this case on the Plaintiff on the ground that the Plaintiff did not directly engage in farming for two years retroactively, and the disposition imposing the gift tax in this case is null and void as the defect is significant and apparent.

Therefore, the defendant is obligated to return the total sum of the principal amount of gift tax paid by the plaintiff and the additional amount of OOO and the delay damages for it as unjust enrichment.

B. Defendant’s assertion

The Plaintiff did not directly engage in farming for two years retroactively from the date of January 1, 1999, which was the enforcement date of the former Restriction of Special Taxation Act, and did not directly engage in farming for two years or more retroactively from the date of donation of each of the farmland in this case, and the Plaintiff’s acquisition of each of the farmland in this case does not constitute the object of exemption from gift tax, and the disposition of gift tax in this case is lawful. Even if the disposition of gift tax in this case is unlawful, the defect cannot be deemed to be serious and obvious, and thus, it cannot be deemed null and void.

3. Determination

(a) Relevant statutes;

It shall be as follows: Provided, That it shall be as follows.

B. Whether the disposition of gift tax of this case is unlawful

1) Whether the standard point of time to determine whether a donee’s continued farming, which is a requirement for exemption from gift tax, ought to be seen at any time

Article 15 (2) of the Addenda of the former Restriction of Special Taxation Act (amended by Act No. 7003 of Dec. 30, 2003, hereinafter referred to as "the Addenda provision of this case") provides that "the donations made by a self-employed farmer to his children until December 31, 2006 shall be exempted from the gift tax pursuant to Article 58 (2) through (5) of the previous Regulation of Tax Reduction and Exemption Act, and the main sentence of Article 58 (1) of the former Regulation of Tax Reduction and Exemption Act provides that if a self-employed farmer prescribed by Presidential Decree (hereinafter referred to as "self-employed farmer") donates farmland, grassland, and forest land (hereinafter referred to as "farmland, etc." in this Article) falling under any of the following subparagraphs to his lineal descendants engaged in farming as prescribed by Presidential Decree (hereinafter referred to as "farmland children, etc." in this Article), and Article 25 (1) of the former Enforcement Decree of the Tax Reduction and Exemption Act directly prescribes that the donation of farmland shall be exempted from the gift tax, etc.

In light of the provisions of each of the above statutes, in order to be exempted from gift tax pursuant to the provisions of the Addenda of this case, it shall be deemed that the farmland owned by a self-employed farmer at the time of the enforcement of the former Restriction of Special Taxation Act (amended by January 1, 1999) falls under the case where the farmland owned by the self-employed farmer is donated to farming children until December 31, 2006 after the enforcement of the above Act, but whether the donee who received a donation of farmland from the self-employed farmer satisfies the requirements for being exempted from gift tax, is determined as of the actual donation date of farmland as prescribed by Article 57 (1) and (2) of the former Enforcement Decree of the Restriction of Special Taxation Act (see, e.g., Supreme Court Decisions 2009Du23686, Apr. 15, 2010; 201Du30274, May 24, 2012).

2) Whether the Plaintiff was engaged in farming continuously for two years retroactively from the date of donation of each of the instant farmland

Therefore, the plaintiff had been engaged in agricultural business for 20.6.28 and 206.2 years retroactively from the date of this case's donation, and the plaintiff had been engaged in agricultural business for 20 years retroactively to December 28, 206, and had been engaged in agricultural business for 20 years retroactively to the above 20.3 years, and the plaintiff continued to be engaged in agricultural business for 20 years retroactively from the date of this case's donation to the 20.3 years retroactively to the date of this case's purchase, and the plaintiff had been engaged in agricultural business for 20 years retroactively to the 20.3 years retroactively from the date of this case's purchase, and the 20 days retroactively from the date of this case's purchase, and the 20 days retroactively from the date of this case's purchase, and the 20 days retroactively from the date of this case's purchase, and the 20 days retroactively from the date of this case's purchase.

3) Sub-decisions

Therefore, the plaintiff engaged in farming continuously for two years retroactively from the donation date of each farmland in this case, and met the requirements as a farming child exempted from gift tax pursuant to the supplementary provision of this case, and the imposition of gift tax in this case against the plaintiff is illegal.

C. Whether the instant gift tax imposition disposition is null and void as a matter of course

1) Even if an administrative disposition is unlawful, its effect cannot be denied without permission for the reason of the defect, except where there is a significant and obvious reason to believe that it is null and void. While its res judicata effect is not the same as res judicata effect of the judgment, if the defect belonging to the objective scope of the administrative disposition is merely a ground for revocation, it cannot be said that the benefit arising therefrom is no legal ground (see, e.g., Supreme Court Decision 94Da2800, Nov. 11, 1994). In addition, in order for the defective administrative disposition to be null and void, it is obvious that the defect is a material part of the laws and regulations, and it is objectively obvious that it is in violation of the objective and meaning of the laws and regulations, and it is obvious that the defect is 200, and it is obvious that there is no room for misunderstanding that the provisions of the law are applied to 10,000 if it is not applicable to 20, and it is obvious that there is no obvious ground to apply the above provisions of the law to 20-based legal relations or interpretation of the law.

2) In light of the above legal principles, as seen earlier, the Plaintiff engaged in farming continuously for two years retroactively from the date of donation of each of the farmland in this case, and the Plaintiff met the requirements of farming children exempted from the gift tax pursuant to the provisions of the Addenda of this case. However, the Defendant did not directly engage in farming for two years or more retroactively as of January 1, 1999, when the former Restriction of Special Taxation Act was enforced, and did not directly engage in farming for two years or more retroactively as of January 1, 199, when each of the farmland in this case was donated, on the ground that the Plaintiff did not directly engage in farming for two years or more retroactively as of the date of donation of each of the farmland in this case. The imposition of the gift tax in this case was erroneous in interpreting the relevant applicable Acts and subordinate statutes (the imposition of the gift tax in this case on the ground that the Plaintiff was not engaged directly in farming for two years or more retroactively as of January 1, 199, when the former Restriction of Special Taxation was enforced).

However, it is clear that the Plaintiff had been exempt from gift tax under the former Restriction of Special Taxation Act for 10 years or more, and that the Plaintiff did not directly engage in the taxation of gift tax under the former Special Taxation Act for 19 years or more, and that the Plaintiff did not directly engage in the taxation of gift tax under the former Restriction of Special Taxation Act for 2 years or more (including the number No. 1) as of January 1, 199, and the lower court’s ruling that the Plaintiff had been exempt from gift tax under the former Restriction of Special Taxation Act for 19 years or more, and that the Plaintiff did not directly engage in the taxation of gift tax under the former Restriction of Special Taxation Act for 19 years or more, 2 years or more, and the lower court’s ruling that the Plaintiff had been exempt from gift tax under the former Restriction of Special Taxation Act for 19 years or more, 2 years or more, 3 years or more, and 9 years later (see Supreme Court Decision 209Du3681, Apr. 15, 2010).

3) Sub-decisions

Therefore, the disposition imposing the gift tax of this case cannot be objectively clear that the defect is objectively and thus cannot be deemed null and void. The plaintiff's claim for return of unjust enrichment on the premise that the disposition imposing the gift tax of this case is null and void as a matter of course is without merit

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.