Even if a defect is serious, it shall not be deemed obvious to appear in appearance.

Where it is apparent whether it is subject to taxation or not that it is obvious that it is apparent whether it is serious, even if the defect is serious.

Article 24 of the Inheritance Tax and Gift Tax Act

2013Revocation of revocation of imposition of gift tax

HongA

Head of Si Tax Office

November 28, 2013

December 12, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

On June 8, 2012, the Defendant confirmed that the imposition of the gift tax OOO on the Plaintiff is not effective.

1. Details of the disposition;

A. The Plaintiff’s PB held 5,420 non-listed shares of the SCC business (hereinafter “CC”), but the transfer and acquisition contract was made on June 23, 2009 that HongB transferred the above shares to the Plaintiff. Around that time, the transfer value was reported to the head of the relevant tax office as an OOO, and the statement of changes in stocks reflecting the above transfer of shares was submitted to the head of the Seocho District Tax Office. B. The head of the relevant tax office conducted a survey of transfer income tax and conducted a survey on the market price of shares based on the standard market price so that the transfer value of the shares reported by HongB is inappropriate, and the transfer value related to the purchase and sale of shares was corrected as OO(OB) under the Inheritance Tax and Gift Tax Act as the gift of low-price transfer, and the Defendant notified the Plaintiff of the purport that OB’s gift tax was included in the list of donated shares under the OB’s inheritance tax and Gift Tax Act(OB’s gift tax No. 28) as the basis for the assessment.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The above shares were traded without any delegation or consent of the Plaintiff’s mother, and it was confirmed that HongB and one other party filed against the Plaintiff (Seoul Central District Court Decision 2011Na243040) have won a favorable judgment in a lawsuit such as confirmation of invalidity of the share purchase and sale contract (Seoul Central District Court Decision 2011Da243040). The disposition of this case is null and void as there is no taxation ground.

B. Determination

In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect violates an important part of the law and it is objectively apparent. In case where there are objective circumstances that could mislead the misunderstanding of any legal relation or fact which is not subject to taxation, and it can only be clarified whether it is subject to taxation, it cannot be said that it is apparent even if the defect is serious, and thus, it cannot be deemed that the taxation disposition that misleads the misunderstanding of the fact subject to taxation is null and void as a matter of course (see, e.g., Supreme Court Decisions 2012Du3743, Nov. 29, 2012; 96Nu12634, Jun. 26, 1998).

In full view of the following circumstances, Gap evidence Nos. 9, 10, and Eul evidence Nos. 4, including the purport of the entire pleadings, namely, the declaration of transfer income tax under the name of HongB, accompanied by a contract for transfer and acquisition of shares between HongB and the plaintiff, and the tax base return of securities transaction tax was filed at the competent tax office with regard to the transfer and purchase of shares between the transferor and HongB, and the plaintiff, and the plaintiff was deemed to have taken over the shares of HongB as well under the statement of change of shares, it shall be deemed that there were objective circumstances to regard the plaintiff as the transferee of shares. The issue of whether the above shares are subject to gift tax can only be examined only without the delegation or consent of HongB's share transfer. Thus, in light of the above legal principles, the defects of the disposition of this case cannot be deemed to be serious and clear. Therefore, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.