Where the tax authority has decided not to grant gift tax on donated property, the validity of calculating the gift tax by evaluating the donated property as of the time of non-taxation without stating the grounds for non-taxation (negative)

"At the time of gift tax imposition" in Articles 34-5 and 9 (2) of the Inheritance Tax Act, which is the time of assessing the value of donated property, shall be deemed to be the time when the tax authority became aware of the existence of the donated property on which gift tax may be levied. Therefore, even if the tax authority has decided not to impose gift tax on the donated property, it cannot be said that the tax authority had known that there was the donated property on which gift tax should be imposed at the time without stating the reason for non-taxation. Therefore, it shall not be deemed that the gift tax should be calculated based on the value

Articles 34-5 and 9(2) of the Inheritance Tax Act

Supreme Court Decision 90Nu3805 Delivered on November 27, 1990

Attorney Lee Jin-hoon et al., Counsel for the defendant-appellant

The director of the tax office

Seoul High Court Decision 89Gu5227 delivered on April 12, 1990

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal by the defendant litigant are examined.

According to Articles 34-5 and 20(1) of the Inheritance Tax Act, and Article 9(2) of the former Inheritance Tax Act (amended by Act No. 4022, Dec. 26, 1988), a person who received a donation shall submit to the Government a report stating the type, quantity, value, value of the donated property on which the gift tax is imposed, value of the donated property added to the value of the property, and other matters prescribed by Presidential Decree, within six months from the date of donation, a statement of amount to be deducted, and the value of the donated property which is not reported or omitted in the report shall be assessed as value at the time of imposing the gift tax. In this context, the term "at the time of imposing the gift tax" as at the time of assessing the donated property is deemed to be when the

In calculating the gift tax of this case, the court below held that the part of the defendant's taxation exceeding the tax amount calculated on the basis of the gift tax of this case at the time of the non-taxation decision of the above non-taxation decision is unlawful, on the ground that the defendant should calculate the gift tax of this case on the land of subparagraphs 6 through 9 of the first list at the time when the non-taxation decision of the gift tax was made after the non-taxation decision of the gift tax was made, which was then recognized as the donation and imposed again on the land of subparagraphs 6 through 9 of the first list at the time when the non-taxation decision of the gift tax was made, and since there was no report under Article 20 (1) of the Inheritance Tax Act as to the land of this case which was calculated on the basis of the value of the property at the time of the taxation decision of June 16, 198. Thus, even if the defendant decided on the non-taxation decision of the gift tax of this case, it cannot be said that the defendant knew that there was the gift tax of this case at the time when the non-taxation decision was made.

If there is a non-taxation resolution, the decision of the court below on the premise that the value of the donated property should be calculated at the price at the time of non-taxation is erroneous in the misapprehension of legal principles of Articles 34-5 and 9(2) of the Inheritance Tax Act concerning the evaluation of the donated property. Therefore, the argument

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon So-young (Presiding Justice)