The imposition of gift tax is not void as a matter of course.

Even if there is a defect in the disposition of this case, the defect cannot be objectively apparent.

Seoul Central District Court 2016da5108253 Undue gains

Ma-○

○○ ○

November 29, 2016

January 17, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant shall pay to the plaintiff 5 X, a capital-level, and a party-level director at the rate of 5% per annum from X. XX to the date of delivery of a copy of the complaint, and 15% per annum from the next day to the date of full payment.

1. Basic facts

A. The Plaintiff submitted to the head of △△△ Tax Office on 201 X. X. XX. As his father ○○ (hereinafter “the decedent”) died on 201 X. XX., the Plaintiff submitted to the head of △△ Tax Office an inheritance tax return and the dispatch of the family tax base.

B. In order to determine the tax base and amount of inheritance tax of the property inherited from the decedent, the head of △△△ Tax Office conducted a tax investigation from X. XX to X. 201 X. As a result, the Plaintiff confirmed that ○○○○ apartment, etc. owned by the decedent was granted a loan from the bank as security, and that the Plaintiff’s act of offering security to the decedent constitutes “the donation of other profits” under Article 42 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 2011; hereinafter the “Inheritance Tax and Gift Tax Act”). The Plaintiff calculated the amount calculated by subtracting the amount of interest actually paid by the Plaintiff from the amount calculated by multiplying the amount of the loan by the appropriate interest rate by the gift tax base by applying Article 41-4(1)2 of the Inheritance Tax and Gift Tax Act on the calculation of the gift income accrued from the low interest rate of money, and then disposed of the Plaintiff as the total amount of gift tax and gift tax for each year of X 13.

C. The Plaintiff paid a total of 5 X, e.g., inheritance tax imposed on X. X. 201X. A. The Plaintiff paid a total of 5X, e.g.

D. The Supreme Court Decision 2011Du18458 Decided November 14, 2013 (cases where revocation of disposition imposing gift tax is revoked 1)

1) A received a loan from a bank by being provided as security for a fixed deposit claim from his father, and the tax authority received the benefit of the amount equivalent to the interest, and thus, imposed gift tax on A

Article 42(1)2 of the Inheritance Tax and Gift Tax Act and Article 31-9(2)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “The imposition of gift tax calculated by applying mutatis mutandis Article 41-4(1)2 of the Inheritance Tax and Gift Tax Act to the calculation of the gains from a loan at a low interest rate on the ground that, in principle, the value of donated property with a security should be calculated based on the market price, which is an ordinary payment between many and unspecified persons in a similar situation to the relevant transaction

E. Relevant statutes are as listed in the attached Form.

Facts without any dispute, Gap's 1 through 4, Eul's 1 through 6, and 8, and the purport of the whole pleadings.

2. The plaintiff's assertion

The instant disposition imposing the tax amount calculated by applying mutatis mutandis Article 41-4(1)2 of the Inheritance Tax and Gift Tax Act, with respect to the calculation of the profits of donation by the Defendant’s offering collateral for the Plaintiff, is in violation of the principle of interpretation of the tax law prohibiting extended interpretation and analogical interpretation, and is an unlawful disposition that does not have any legal basis for calculating the value of donated property, and its defect is significant and apparent and null and void. The Defendant is obliged to return to the Plaintiff the total amount of 5X, such as the said inheritance tax, etc. paid by the Plaintiff by the return of unjust enrichment.

3. Determination

A. Relevant legal principles

In order for a tax disposition to be deemed null and void as a matter of course, the mere fact that there exists an illegal cause is insufficient, and the defect must be objectively obvious as it seriously violates the relevant laws and regulations. In determining whether there is a significant and apparent defect, the purpose, meaning, function, etc. of the laws and regulations, which serve as the basis for the said tax disposition, should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the specificity of the specific case itself. In addition, in a case where a tax disposition is rendered by applying the provisions of a certain Act and subordinate statute to a certain legal relationship or factual relationship, it is clearly stated that the legal principle that the relevant provision cannot be applied to the legal relationship or factual relationship, and that there is no room for dispute over the interpretation thereof, if the tax authority imposed a tax disposition by applying the provisions of the relevant Act and subordinate statutes, it shall be deemed that the defect is significant and obvious. However, if an objective circumstance exists to mislead a certain legal relation or factual relationship that is not subject to an administrative disposition, and it can only be clarified whether it is subject to the disposition (see, etc.).

B. Determination

Comprehensively taking account of the following circumstances acknowledged by the aforementioned evidence, even if there is a defect in the instant disposition, such defect cannot be objectively apparent. Therefore, it cannot be evaluated that the Defendant, the State, holding the tax amount paid based on the tax claim confirmed by the Plaintiff, the taxpayer, and unjust enrichment cannot be assessed. The Plaintiff’s above assertion is without merit.

(1) Where an ancestor provided his/her own real estate as a collateral and had the Plaintiff obtain a loan, the ancestor granted credit on monetary loans by having the decedent use the secured value of his/her real estate for a certain period, and constitutes a donation of profits from providing a kind of service under Article 42 (1) 2 of the Inheritance Tax and Gift Tax Act, and thus, subject to gift tax

② Under Article 42(1)2 of the Inheritance Tax and Gift Tax Act, and Article 31-9(2)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the value of donated property provided by an inheritee as collateral shall be calculated based on the market price, which is an ordinary payment between many and unspecified persons, in a situation similar to the relevant transaction, in principle. However, it is difficult to readily conclude that the Defendant’s calculation of the amount calculated by subtracting the amount equivalent to the interest actually paid by the Plaintiff from the amount of loan multiplied by the appropriate interest rate,

Article 31-9(1)1 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act amended by Presidential Decree No. 26069, Feb. 3, 2015 stipulated that “where money, etc. is provided as security when it is borrowed by using another person’s property free of charge, the amount calculated by multiplying the value of the property gratuitously used by the appropriate interest rate under Article 31-7(2) by the amount calculated by multiplying the value of the property used by the appropriate interest rate under Article 31-7(2) shall be deemed as the value of donated property.” This differs from the method calculated by the Defendant’s

③ Before the instant disposition, the lower court’s judgment was rendered on the instant Supreme Court Decision 201Du18458, and it cannot be deemed that the calculation of the value of donated property was unlawful by applying Article 41-4(1)2 of the Inheritance Tax and Gift Tax Act by analogy. Rather, the foregoing legal doctrine was clearly revealed by the said Supreme Court’s judgment only when it was made on November 14, 2013, which was subsequent to the instant disposition.

④ The Plaintiff paid inheritance tax, etc. without raising any objection to the instant disposition, and sought a refund of the amount of tax that has been paid after the said Supreme Court decision, asserting that the instant disposition is null and void as a matter of course.

4. Conclusion

The plaintiff's claim is dismissed for lack of reason.