Seoul Administrative Court 2012Guhap4999 ( October 24, 2013)

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If the stock value has increased by donation from a person with a special relationship, it shall be applicable to a comprehensive donation.

If the net assets of the party is increased from the value of donated stocks less corporate tax and resident tax, and the stock value has increased by donation from a person with a special relationship, it shall be deemed an universal donation.

Article 41 of the Inheritance Tax and Gift Tax Act

2013Nu1772 Revocation of Disposition of Imposition of Gift Tax

1. AB 2.B 3.PCC

1. The director of the regional tax office: 2. The director of the regional tax office: and

Seoul Administrative Court Decision 2012Guhap4999 decided May 24, 2013

November 27, 2013

January 22, 2014

1. All appeals filed by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The Defendants’ imposition of each gift tax against the Plaintiffs as shown in the separate sheet No. 1 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiffs' claims are dismissed in entirety.

1. The part citing the judgment of the court of first instance

The reasoning of this court's judgment is that "the taxpayer is liable for tax payment that will reduce the 8th below below the 5th judgment of the court of first instance," and that further determination of the defendants' assertion is identical to the corresponding part of the judgment of the court of first instance, and therefore, the corresponding part shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act, the main sentence of Article 420 of the Civil Procedure Act."

"A. Whether the business under Article 42 (1) 3 of the Act constitutes "acquisition and transfer", and "the defendants shall also acquire and transfer the real estate of this case and the stock donation of this case (hereinafter "the gift of this case") under Article 42 (1) 3 of the Act.

However, in light of the various circumstances in the first instance trial, it is difficult to view the gift of this case as the acquisition and transfer of business as alleged by the Defendants and there is no other evidence to acknowledge it otherwise. Rather, the Seoul Regional Tax Office did not examine whether the provision of Article 42 of the Act was applied in accordance with the comprehensive taxation method of gift tax at the time of investigation, but did not examine whether the gift contract of this case prepared between ParkD and the company of this case falls under the requirements of acquisition and transfer of business, such as the acquisition and transfer of assets and liabilities related to the real estate of this case, the evaluation of business rights, the succession of employees, etc., in light of the fact that there is no stipulation on the agreement that can be seen as the acquisition and transfer of business as stipulated in Article 42 (1) 3 of the Act. This part of the defendants' assertion can not be accepted.

Even if the court should apply Article 41(1)1 of the Act to the gift of this case, Article 41(1)1 of the Act is applicable to the amount within the scope of loss of the chemical of this case among the donation amount, and Article 42(1)3 of the Act can be applied to the amount exceeding the above amount. Since the amount of gift tax calculated by applying Article 41(1)1 of the Act exceeds the amount of gift tax calculated by applying Article 42(1)3 of the Act, the amount of gift tax calculated by applying Article 41(1)1 of the Act exceeds the amount of gift tax calculated by applying Article 42(1)3 of the Act, the defendants asserts that each disposition within the scope of the amount of legitimate gift tax is legitimate.

Article 42(1) of the Act provides that "In addition to donations under Articles 33 through 41, 41-3 through 41-5, 44, and 45, where profits falling under any of the following subparagraphs and above the standard prescribed by Presidential Decree are acquired, such profits shall be deemed the value of property donated to the person who has acquired such profits." As seen earlier, even after the full comprehensive taxation principle has been introduced, the existing individual provision on deemed donation remains in the form of the provision on calculating the value of donated property (individual example provision). Considering the legislative intent of stipulating special taxation conditions that restrict the scope of transactions or acts, predictability and legal stability of taxpayers related to legal requirements for taxation, it is reasonable to consider that the provision set the limits on donation under tax law is established, and further, Article 42(1) of the Act merely applies to individual taxation provisions such as Article 41(1) of the Act if it does not apply to individual taxation provisions such as individual taxation provisions, it can be interpreted that the provision on individual taxation can be applied within the scope of individual taxation.

Furthermore, according to Article 41(1)1 of the Act and Article 31(6) of the Decree, profits under Article 41(1)1 of the Act are equivalent to the profits earned from the donation of property, which is equivalent to the profits earned from the donation of property, and may be imposed only when the amount of losses of a specific corporation that received the donation is at least KRW O0,000. However, since there is no dispute between the parties that both the profits earned from the donation of this case and the profits earned by the Plaintiffs are less than KRW O0, the imposition of gift tax may not be imposed on the donation of this case.

3. Conclusion

The judgment of the first instance is justifiable. All appeals filed by the Defendants are dismissed.