Whether a disposition of imposition based on objective grounds that is to be mistaken as a gift subject to taxation is void automatically;

If objective circumstances exist to mislead the factual basis of the object of taxation, it is not clear that the defect is serious even if it is not appearance, and if it is not a reason to nullify the disposition of taxation by a vague method, the disposition of taxation is legitimate.

Article 2 (Gift Tax Taxables) of Inheritance Tax and Gift Tax Act

1. The plaintiff's claim is dismissed.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The Defendant confirmed that the imposition of gift tax of KRW 473,200,000 against the Plaintiff on September 17, 2004 is null and void.

1. Details of the disposition;

A. On May 7, 1999, Kim Jong-soo sold the price of KRW 13,057 square meters for 2-1 forest land in 00,057 square meters in 00,000,000,000,000,000,000, and KRW 13,057 square meters in 2-8 forest land in 0,057, and 13,058 square meters in 2-9 forest land in 13,058 square meters in 4-4,000,000,000 won in 5.6 billion.

B. The Defendant: (a) purchased the instant land and entrusted it under the name of Kim○; (b) on April 17, 1994, the Defendant: (c) ○○○, the heir of the Plaintiff, Kim Jong-jin, who was the head of the Plaintiff’s seat, Kim○, Park Jong-jin, and the Plaintiff’s death on July 2, 1993; (d) agreed that the instant land would have been divided by 1/4 equal terms to the Plaintiff; (b) 5.6 billion won of the sale price of the instant land; (c) 250 million won of the sales commission for the instant land transaction; (d) 5.2 billion won of the sales commission for the instant land transaction; (e) 5.7 billion won of the gift tax paid to the Water Resources Corporation; and (e) 4.7 billion won of the gift tax paid to the Plaintiff by 200 billion won of the value of the instant land; and (e) 4.7 billion won of the gift tax paid to the Plaintiff by 4.7 billion won of the gift tax.

Each entry of Gap-4 No. 1 to 3

2. Determination on this safety defense

The defendant asserts that the lawsuit of this case is unlawful, since the plaintiff did not go through the procedure of the previous trial on the disposition of this case.

However, the plaintiff's petition in this case is a confirmation of invalidity of the disposition of this case, and it is only applicable to the case where the defendant files a lawsuit seeking revocation of a disposition of objection or an action seeking confirmation of illegality of omission. Thus, the above argument of the defendant is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of imposition of gift tax of this case, etc. of this case should be revoked on the following grounds.

The Plaintiff was unable to exercise the right to claim for ownership transfer registration as to the portion of the instant land due to the instant land disposition by ○○ Kim, and was unable to confirm the responsible property of Kim○, and there was no donation equivalent to 1/4 out of the sale price of the instant land to Kim Jong-soo. Therefore, the instant disposition was rendered by the Defendant, even though there was no objective legal relationship or fact to believe that there was a gift subject to taxation, and its defect is serious and apparent and null and void.

(b) Fact of recognition;

(1) On April 19, 1968, Park Jong-jin purchased the instant land through Kim Jong-soo and trusted the instant land to Kim Il-soo, and on January 21, 1984, on the above land, on April 29, 1968, the reason for the provisional registration of the right to claim ownership transfer on the ground of the purchase and sale reservation made on April 29, 1968 in the name of Kimjin-jin, a large number of children with respect to the above land.

(2) On July 2, 1993, Kim Jin succeeded to the inherited property at 3:2:2 by Lee Jin-jin, his wife, Kim Il-hun, and Kim Pung-hee, his wife, and accordingly, on November 26, 1993, Lee Jin transferred the inherited property at 3:2:2. In accordance with the above inheritance shares, on November 26, 1993, 4-4 land (the same 4-4 square meters prior to the division is the same 4-4 square meters prior to the division, 1,550 square meters, such as 4-4 square meters prior to the division, 1,427 square meters, and the above 4-9 square meters prior to the expropriation in foreign countries, the provisional registration on the above 4-4 land was cancelled) excluding the provisional registration on the deceased’s name.

(3) On April 17, 1994, the plaintiff et al. agreed to the effect that "where the whole of the land was sold, the sale price of the land was equal between the ○○, the plaintiff, the ○○, and the ○○, etc. shall deliver documents necessary for the cancellation of provisional registration in the name of the deceased Kim Jong-jin, and on April 8, 1995, the plaintiff et al. and the ○○○, et al. delivered a letter to ○○, "All assets are owned by ○○, and will follow the meaning of ○○○, and the ○○○○, et al. will follow the meaning of ○○○, and the ○○, et al. shall own the ○○○, and the remaining real estate owned by ○○ and 13○, et al., the ○○, et al. and the ○○, et al. shall be divided into two to ○○○, and the remaining real estate owned by 13○, et al.

(4) In the case of the claim for cancellation of registration of ownership transfer, the Seoul District Court 96Gahap73955 (the main lawsuit), the claim for cancellation of registration of ownership transfer, and the claim for cancellation of provisional registration registration of 96Gahap88322 (Counterclaim), which had been filed by the plaintiff, the plaintiff, and the Lee ○, etc. against Kim ○, the above court rendered a judgment citing the claim for the execution of each of the above procedures for registration of ownership transfer as a condition of simultaneous performance, such as cancellation of provisional registration under the name of Lee, etc., of the title, on April 17, 1994.

(5) 위 판결의 항소심《서울고등법원 98나51796(본소), 98나51802(반소)》 계속 중 이○자 등과 김○수는, 이○자 등이 12억원을, 이○자가 7,000만원을 각 지급받는 대신 이 사건 토지에 관한 1/4 지분을 포기하고, 위 가등기말소에 필요한 서류를 교부하여 주기로 하는 등의 합의를 하고, 각자 항소를 취하하였으며, 이○자 등이 김○수로부터 합계 12억 7,000만원을 지급받은 후 이를 김○수로부터 증여받은 것으로 하여 1999. 8. 6. 용산세무서에 이에 해당하는 증여세 187,135,700원을 신고, 납부하였다.

(6) On the other hand, Kim Jong-soo seized 17 square meters on September 22, 2003 ○○-dong 392-2, 392-2, and 17 square meters on February 20, 2004 in order to collect the aggregate of the gift tax notified to Kim Jong-soo 939,249,980 won, excluding transaction expenses and 1.2 billion won paid to Lee ○○-dong 57-24, 814 square meters from ○○○○○-dong 57-24, 814 square meters, and the defendant seized 1/3 shares on February 20, 2004 among 98, 199,649,389, 300, 196, 209, 196, 200, 209, 209, 206, 300, 296, 196, 2004.

Each description of evidence Nos. 1-8, evidence Nos. 1-6, evidence Nos. 1-6, evidence Nos. 3, evidence Nos. 6 and 7, respectively, 1-3, evidence Nos. 1-3, and evidence Nos. 2-5, and the purport of the whole pleadings.

C. Determination

In order to make a false taxation null and void, it is insufficient to say that there is an illegality in the disposition. It is objectively obvious that the defect violates the important laws and regulations, and it is necessary to consider the purpose, meaning, function, etc. of the laws and regulations that serve as the basis for the taxation, and to reasonably consider the characteristics of the specific case itself at the same time. From this point of view, if a tax assessment is conducted for a person who has no legal relations or factual relations that are subject to taxation, even though the defect is grave and obvious, it is possible to accurately examine the factual relations about a certain legal relationship or factual relations that are not subject to taxation, and if it is possible to ascertain that it is subject to taxation because it is apparent even if the defect is serious, it cannot be said that the taxation that misleads the facts of taxation cannot be deemed null and void, and if such defect is merely a ground for revocation, it is necessary to determine the tax base amount by a method of investigation, and it is also necessary to completely determine the tax base amount to be determined by the method of investigation and determination without any error in the determination of the tax base amount.

According to the above facts, on April 17, 1994, 1/4 of the share of the land of this case, which is owned by the plaintiff, Kim ○, Lee ○, etc., the plaintiff et al. donated 1/4 of his own share of the land of this case. Thus, the plaintiff et al. has the right to hold 1/4 of the remaining amount excluding transaction expenses, etc. out of the sale price of the land of this case. Kim ○, who received the above price and disbursed transaction expenses, paid 1.27 billion won out of the above amount to Lee ○, et al., and used the remaining 3.99 billion won out of the above amount to the plaintiff et al. for personal use. The plaintiff, Lee Jong-ok and Lee ○ did not request the payment of their share or shortage to Kim ○-soo. This is deemed to have been donated by the plaintiff et al., and this cannot be deemed to have been null and void since the plaintiff et al. received the cash of this case as the sale price did not actually undergo the transfer of possession.

Therefore, the plaintiff's assertion is without merit.

3. Conclusion

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