2013west 3817 (O3.11)

The defect is obvious because it is the case where it was difficult to know the substance relationship only based on the existing data.

Even if a separate investigation is not conducted newly, it is obvious that the defect falls under the case where it was possible to know the substantive relationship only based on the existing data.

2014Guhap50675 Invalidity of a disposition imposing gift tax

EAA

ㄱㄱ세무서장

June 26, 2014

August 28, 2014

1. The Defendant imposed a gift tax of KRW 3,753,732,00 on the Plaintiff on July 15, 2013.

Any portion exceeding 2,506,538,400 shall be confirmed as null and void.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On August 31, 2012, Hoa (hereinafter referred to as the “Bankruptcy Bank”) is a company declared bankrupt from the x District Court to 20x subxx, and the Plaintiff is a bankruptcy trustee of the Savings Bank, who is qualified as a party for the Bankrupt Bank in a lawsuit against the bankrupt estate.

B. On May 15, 2008, the Savings Bank was in effect with the non-party 2, 100,000 won credit transaction agreement between the non-party 2 and the non-party 2,200,000 won, 2.0,000,000 won, 2.0,000,000,000 won, 2.0,000,000,000,000,000 won, 2.0,000,000,000,000,000,000,000,000,000,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00.

D. On July 15, 2013, the Defendant imposed a total of KRW 3,753,732,00 (the amount reverted to year 2008) (the amount reverted to year 2008) on Kimb pursuant to the above notification + 2,128,920,000 (the amount reverted to year 2009). Under Articles 4(4) and 45-2(5) and 45-2(1) of the Inheritance Tax and Gift Tax Act, deeming the bankrupt bank as a donor and designated the bankrupt bank as a joint and several taxpayer for Kimb, and notified the payment (hereinafter “instant disposition”).

E. After October 23, 2013, the head of Sungnam District Tax Office appropriated the amount of national tax refund 2,506,538,400 to be refunded to the bankrupt savings bank for the amount of gift tax, and subsequently, notified the revocation of the amount of value-added tax 4,071,890 out of the amount of appropriation on October 23, 2013.

F. On January 14, 2014, the Plaintiff filed a lawsuit against the Republic of Korea for the claim for restitution of unjust enrichment with respect to the portion appropriated as above. On the same day, the Plaintiff filed the lawsuit in this case and filed the lawsuit in this case and sought confirmation of invalidity of the remainder of KRW 1,251,265,490 (=3,753,732,00 - 2,506,538,400 + 4,071,890) remaining after being appropriated as above among the disposition in this case (the Plaintiff sought confirmation of invalidity of the above portion of KRW 1,251,265,490 among the notice in this case’s claim, and the Plaintiff seeks confirmation of invalidity as described in paragraph (1) of this case’s disposition).

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 4, Eul evidence 1 and 2, the purport of the whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

1) It is true that u300 Kim bbb is merely a trustee of each of the instant loans, but that is, the actual borrower, that is, the title truster is not the bankrupt savings bank, but the non-party stock company (hereinafter referred to as the "suff"). Nevertheless, the Defendant deemed the bankrupt savings bank, not the actual title truster, as the title truster, to be the title truster, and issued the instant disposition. This is unlawful and obvious, and it is so invalid.

2) A tax claim based on the instant disposition was established on July 15, 2013 by the head of the sss office issued a notice of payment to the bankrupt savings bank. However, the bankrupt savings bank was declared bankrupt on August 31, 2012. A tax claim based on the instant disposition is a tax claim established after the date bankruptcy is declared against the bankrupt savings bank, and it does not constitute a bankruptcy claim or estate claim as provided in the Debtor Rehabilitation and Bankruptcy Act, and thus does not fall under the scope of the right to manage and dispose of the bankruptcy trustee. Accordingly, the instant disposition is null and void as it is against a person who is not a taxpayer.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

For an administrative disposition to be void automatically, there is not enough ground for illegality in the disposition, and the defect must be grave and obvious. Whether the defect is grave and obvious must be determined by reasonably examining the purpose, meaning, function, characteristics of the specific case, etc. of the relevant law (see, e.g., Supreme Court Decision 88Nu1210, Jul. 11, 1989).

First of all, in addition to the purport of each statement in Eul's evidence Nos. 3 through 7, Kimb is a family owner with no income at all, and the credit rating at the time of May 7, 2008 fell under the lower 22%. Kimbb is a mutual name "dog on May 7, 2008" and registered the business related to other real estate loans at the c c c 00-00 c c c b b b b b b c b b b b b b b c b c b c b c b c b c b c c b c b c c b c b c c c b c c b c c c b c c b c c c c c b c c c c c c c c c c c c c c c b c c c c c c c c c b c c c c b c c c c c c c c c c b.

However, in light of the legal principles as seen earlier, considering the following circumstances that can be seen by adding the description of Gap evidence No. 16 and the overall purport of oral pleadings to the background of the above disposition and the grounds for recognition, the defect of the disposition in this case is serious as it goes against the law, and thus, is deemed null and void, notwithstanding the existence of circumstances based on the above disposition as above.

"The Savings Bank for the Bankrupt for Compensation for Damages" was suspended by the Financial Services Commission on September 18, 201, and the Korea Deposit Insurance Corporation investigated the current status of illegal and non-performing loans received from the Bank from October 31, 2011 to July 20, 2012, and prepared "the report on insolvent financial institutions" (No. 16 evidence; hereinafter referred to as "the report on investigation of this case"). In the above report on investigation, the Savings Bank used the name of 11 borrower, including Kimbbb, when it executes a loan exceeding the credit limit for an individual borrower to the Savings Bank Co., Ltd. (hereinafter referred to as "the Savings Bank"), one of the details of the loan, one of the whom is stated that the Savings Bank used the loan limit to Kimbbb, 200,000 won to the customer on the ground that it is impossible for the Savings Bank to carry out the loan limit to the customer, such as the one who actually uses the loan limit to the Bank by the Savings Bank, i.e., the largest Bank's loan.

On the other hand, the investigation report of this case does not include the part which was already repaid before the Korea Deposit Insurance Corporation commences the investigation (Therefore, the part which was delivered on May 15, 2008 among each of the loans of this case was already repaid as seen earlier, so the contents of the investigation report of this case are not directly included).

Therefore, the actual borrower of each of the loans of this case is not a savings bank of this case, but a savings bank of this case, and the disposition of this case does not fall under the actual truster of each of the loans of this case, and its defect constitutes a serious violation of the law and subordinate statutes. The time when the payment notice of this case was made is more than one year after the investigation report of this case was already made and the payment notice of this case was made. Thus, from the defendant's point of view, even if the savings bank of this case was not newly conducted a separate investigation as to whether it is a truster, it is obvious that the defect falls under a case where the bankrupt bank of this case was able to know the substantial relation without any difficulty based only on the existing data. Ultimately, the disposition of this case is invalid without any further review

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.