Joint Tax Liability Scope of donor's Joint Tax Liability for Title Trust

The donor's joint liability for payment refers to a joint liability for payment after tax liability of the donor, the principal taxpayer, has become final and conclusive by a taxation disposition.

Legal fiction of donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

Gwangju District Court-2014-Gu Partnership-1564 ( October 15, 2015)

LB 1

LB shall be tried by the Tax Tribunal on September 18, 2012, and HanCC on September 17, 2012.

The Tax Tribunal dismissed the plaintiffs' appeal on June 27, 2014.

[Grounds for Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1(s)

(2) The purport of the whole pleading

2. Plaintiffs’ assertion and relevant statutes

A. The plaintiffs' assertion

1) Plaintiff LB

The defendant did not decide and notify the KimA of the gift tax before KimA died.

After the death of AA, the Plaintiff, the heir of KimA, determined and notified gift tax to the largestB.

An inheritor is entitled to tax liability only to the extent of the inherited property, so the other party to the Plaintiff most BB

The amount of gift tax, which can be imposed, shall be limited to inherited property 000 won. Nevertheless, Defendant

Since the defendant determined and notified the amount of gift tax exceeding this, the defendant's disposition imposing the gift tax on the plaintiff largestB is unlawful.

2) Plaintiff Han-CC

The obligation to jointly pay can be established after the original obligation to pay taxes has become final and conclusive, and KimA's obligation to pay taxes.

Until the time of death, since gift tax was imposed on KimA, the primary liability for tax payment was not determined, and as long as it is no longer possible to determine the gift tax on the donee due to the death of KimA, the Defendant is liable for joint and several payment against the donor, and the Defendant imposes a joint and several liability on the Plaintiff HanCC. This is illegal disposition.

A donation to the donee, who is the heir of the donee, against the plaintiff ChoiB, who is the principal liability for tax payment

Therefore, even if the duty to jointly pay to Plaintiff HanCC may be established, the donee’s obligation on the part of the principal obligor at the time of the disposition imposing the tax is finalized, and the amount of tax that may be imposed on Plaintiff ChoiB is limited to KRW 000,000. Therefore, the joint payment obligation borne by Plaintiff HanCC may not exceed KRW 00,000.

B. Relevant statutes

It is as shown in the attached Form.

3. Whether each of the dispositions of this case is legitimate

A. As to the first disposition of this case

former Framework Act on National Taxes (Amended by Act No. 12848, Dec. 23, 2014; hereinafter the same shall apply)

Article 24 (1) provides that the heir shall be liable to pay national taxes, additional dues and expenses for disposition on default imposed on or to be paid by the decedent within the limit of the inherited property.

In addition, the purport of Article 24(1) of the former Framework Act on National Taxes that an inheritor is liable to pay national taxes, etc. to be paid by an ancestor within the limit of the property acquired by AA by inheritance is that an inheritor succeeds to the tax liability of the decedent, such as national taxes, within the scope of inherited property, and an inheritor succeeds to the entire amount of tax liability, such as national taxes, etc. of the decedent, but the tax authority does not mean that the heir may collect taxes from an inheritor within the scope of inherited property (see Supreme Court Decision 90Nu7395, Apr

In other words, the plaintiff ChoiB, the inheritor, inherited the gift tax to be imposed on KimA, the decedent.

The Defendant is obligated to pay within the limit of KRW 0000,00, which is the property received by it, and thus, the Defendant is the Plaintiff most.

B may determine and notify gift tax up to the limit of KRW 000,00, which is inherited property, to BB, and it does not mean that the gift tax to be imposed on KimA, who is the decedent, may be determined and notified, and the heir may collect it up to the limit of inherited property.

Meanwhile, the total amount of the gift tax in 2006 and the gift tax in 2007 is more than the total amount of the property inherited by inheritance. Tax obligations are legal obligations established under the provisions of law and are not freely determined by the parties. Tax obligations are legal relations under public law; tax obligations are public law relations; tax has characteristics of public interest and public nature, etc.

Considering the fact that the right of priority, the right of self-performance, etc. is recognized for claims (see Supreme Court Decision 2005Da11848, Dec. 14, 2007), etc., it should be deemed that priority succession is given in the order of the disposal date.

Therefore, Plaintiff LB is obligated to pay gift tax within the scope of KRW 0000,000 out of KRW 000,000 of the gift tax in 2006. Therefore, the imposition of excess of the gift tax in 2006 and KRW 00000 of the gift tax in 2007 should be revoked illegally.

B. As to the second disposition of this case

Liability for joint payment of the donor shall be imposed on the donor who is a principal taxpayer.

A joint and several liability after a disposition becomes final and conclusive (see, e.g., Supreme Court Decision 91Nu12813, Feb. 25, 1992) and KimA, which is a donee, was imposed on the donor by the time of death of KimA, and thus, the principal liability for payment was not finalized, and thus, the donor could not be held liable for joint and several liability for payment against the donor. However, insofar as the donee, the heir of the donee, succeeds to the donee’s liability for payment pursuant to Article 24(1) of the former Framework Act on National Taxes, so insofar as the gift tax was determined and notified to the Plaintiff B, the joint and several liability for payment with the PlaintiffCC may be established.

On the other hand, gift tax is a taxation method, which is determined only by the determination of the tax base and tax authority, and the tax liability is established specifically by such determination. The amount of tax that can be imposed on Plaintiff LB is limited to KRW 000,000 out of KRW 000 of the gift tax in 2006, and the joint payment obligation borne by Plaintiff LCC is subordinate to the principal tax liability. As such, the joint payment obligation borne by Plaintiff LCC does not exceed KRW 000,000 out of the amount of gift tax in 206.

Therefore, the imposition of gift tax amount of KRW 000 in excess of KRW 000 and KRW 0000 in 2007 should be revoked illegally.

4. Conclusion

Thus, the plaintiffs' claim of this case is justified within the above scope of recognition.

The remainder of the claim is dismissed as it is without merit, and it is so decided as per Disposition.

FF Head of FF Tax Office

December 11, 2014

January 15, 2015

1. On July 6, 2012, the Defendant revoked the imposition of more than KRW 000,000 among the imposition of KRW 00,000,000, which was made against Plaintiff LB on July 6, 2006, and the imposition of KRW 000,000 for the year 207, respectively. 2. On July 9, 2012, the Defendant revoked the imposition of KRW 000,000 among the imposition of KRW 200,000 for the year 2006, upon the designation of a joint and several taxpayer who was made against Plaintiff LCC on July 9, 2012, and the imposition of KRW 000,00 for the year 207, respectively. 3. The remainder of the Plaintiffs’ respective claims are dismissed.

4. One-third of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

On July 6, 2012, the imposition of gift tax of KRW 0000 for the year 2006 and the annual gift tax of KRW 0000 for the year 2007, which was made by the former Defendant against Plaintiff LB on July 6, 2012, and on July 9, 2012, the imposition of KRW 000 for the annual gift tax of KRW 2006 and KRW 0000 for the annual gift tax of KRW 2007 is revoked.

1. Basic facts

A. Status of the plaintiffs

On September 28, 2006, and December 24, 2007, the Plaintiff under title trust with the deceased KimA Co., Ltd. (hereinafter “instant shares”). KimA died on May 28, 2010, and Plaintiff B shall be the sole heir of KimA. (B) The Defendant shall apply the provision on the constructive gift of title trust under Article 45-2 of the Inheritance Tax and Gift Tax Act to the instant shares to the maximumB, and on July 6, 2012, deemed that it succeeded to donee’s tax liability under title trust with the deceased 200,000 won, and that it is jointly and severally liable to pay the Plaintiff’s gift tax to the maximum heir and heir of 00,000 won in 200, and that it is jointly and severally liable to pay the Plaintiff’s gift tax to the maximum heir and heir of 0,000,000 won in 20,000 won in 20,000 won in 20,000.