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1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
[Claim]
Reasons
1. In addition to the reasoning of the judgment of the first instance that cited in accordance with the main sentence of Article 420 of the Civil Procedure Act, the Defendant’s disposition of gift tax on September 17, 2012 against the Plaintiff (hereinafter “instant disposition of taxation”), as in the judgment of the first instance, is naturally null and void.
Therefore, the Defendant shall return the gift tax collected from the Plaintiff according to the instant taxation disposition to the Plaintiff as unjust enrichment.
[Additional Decision] ① In order for a tax disposition to be deemed null and void as a matter of course, it is insufficient to say that there is an unlawful ground for the disposition is in violation of the relevant laws and regulations, and its defect is objectively apparent, and there is an objective reason to believe that it is subject to taxation on certain legal relations or factual relations which are not subject to taxation. If it can only be clarified whether it is subject to taxation or not, due to the objective circumstance, it cannot be said that it is apparent even if the defect is serious, it cannot be said that it is apparent that it is apparent even if it is serious, and thus, it cannot be deemed null and void as a matter of course. However, the tax disposition made to a person who does not have any legal relations or factual relations subject to taxation, which is not subject to taxation, is significant and obvious (see Supreme Court Decision 2012Da990, Mar. 29, 2012). In this case, the Defendant’s taxation disposition by the Plaintiff against the Plaintiff is the Plaintiff’s shares 2,200 shares (hereinafter referred to as “instant shares”).
D) The former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter the same) which was enforced by D at the time of the sale of the shares.
Article 41-3 (1) was in the position of the largest shareholder, etc. of the non-party company, and the plaintiff is also D.