Supreme Court-2015-Du-50696 ( August 18, 2017)

The base date for the assessment of gift tax, when the public interest corporation is not used for the public service.

The reason for gift tax imposition arises because the public interest corporation does not use it directly for the public interest project within three years from the date of contribution.

Article 48 of the former Inheritance Tax and Gift Tax Act

2017Nu6802 Revocation of taxation disposition

GGGG as an incorporated foundation

o Head of the tax office

November 15, 2017

December 13, 2017

1. Of the judgment of the first instance, the part against the defendant who revoked the part exceeding KRW *,*,*,**,**,** in the disposition of imposition of KRW *,*,***,**,**, of the disposition of imposition of KRW *, the part against the defendant who revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

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

1. Purport of claim

The disposition of imposition of gift tax***,**,*** is revoked against the Plaintiff. The disposition of imposition of gift tax**,**.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

3. Objects to be tried by this court after remand.

The judgment of this court prior to the remand accepted part of the defendant's appeal against the judgment of the court of first instance that accepted the plaintiff's claim, and among the judgment of the court of first instance that accepted part of the appeal against the judgment of the court of first instance that accepted the plaintiff's claim, the defendant's appeal against the plaintiff **,*,**,***,***,****,****, the part against the defendant who revoked the part against the defendant, and the plaintiff's appeal against the revocation part. The Supreme Court reversed the part against the defendant (i.e., the disposition of imposition of gift tax **,**,*******,***, the part that revoked the part in excess of KRW **) and remanded this part to this court. Accordingly, the part of the disposition of imposition of gift tax in this case against the plaintiff **********,*,*,**, in the disposition of revocation of the above part of the disposition of revocation of gift tax in this case.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as stated in the reasoning of the judgment of the court of first instance except for the following modifications. Thus, the meaning of the language used in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act (hereinafter the same shall apply to the judgment of the court of first instance).

2. Parts to be dried;

○○ For the second reasons, “83,107 square meters” in the 6th place of the 6th place of the 6th place of the road shall be construed as “83,107 square meters and 41-1 forest and 1,190 square meters in each place of the 41-1 forest and 1,190 square meters in each place of the 12-13 places of the road.”

○ From 20th to 4th 7th 7th e.g., “it shall be inheritance tax, and the portion” shall be written in the following manner:

The main sentence of Article 48(2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 10411, Dec. 27, 2010; hereinafter referred to as the "Inheritance Tax and Gift Tax Act") provides that "where a public-service corporation, etc. to which the property was contributed falls under any of the following subparagraphs 1 through 4 and 6, the amount prescribed by Presidential Decree shall be deemed donated to the public-service corporation, etc. and the gift tax shall be levied immediately." In subparagraph 1 of the same paragraph, "where the contributed property is not used for profit-making or profit-making business (including where it is operated for profit-making business to appropriate it for direct public-service business; hereafter the same shall apply in this subparagraph) or directly for public-service business, etc. within three years from the date of its use or contribution: Provided, That this shall not apply where a report under paragraph (5) is filed with the head of the tax office having jurisdiction over the place of tax payment,

○ The fourth 7-8 portion of the Inheritance Tax and Gift Tax Act is the "Enforcement Decree of the Inheritance Tax and Gift Tax Act".

○ The 5th page 15 and the 7th page 12 "this Court" shall be applied to all "court of the first instance".

○ The 7th parallels 19 to 9th parallels shall be dried as follows:

“2) Calculation of the evaluation base date;

Article 48(1) of the Inheritance Tax and Gift Tax Act provides that the value of the property contributed by a public service corporation, etc. shall not be included in the taxable value of the gift tax, while Article 48(2)1 of the same Act provides that where the property contributed by the public service corporation, etc. is not used for the purpose other than the purpose of directly performing the public interest project or for the direct public interest project within three years from the date of receiving the contribution, the value prescribed by Presidential Decree shall be deemed the donation by the public service corporation, etc. In addition, Article 40(1)1(b) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the value of the property deemed the donation by the delegation under Article 48(2) of the Inheritance Tax and Gift Tax Act shall be deemed the value of the property used for the direct public interest project or short of the value of the property donated by the public service corporation, etc. shall be deemed the value of the property donated by the public interest corporation, etc. under the former part of Article 48(1)1 of the same Act.

In light of the above facts, since the Plaintiff did not use each of the instant lands for the purpose of public interest projects within three years after receiving the contribution of each of the instant lands, and there was a cause to impose gift tax under the main sentence of Article 48(2)1 of the Inheritance Tax and Gift Tax Act, the value of each of the instant lands should also be evaluated as at the time when the said cause to impose gift tax arises. If so, the instant disposition that was made by calculating the tax base on the date three years after receiving the contribution of each of the instant lands under the main sentence of Article 48(2)1 of the Inheritance Tax and Gift Tax Act is lawful. Accordingly, the Plaintiff’s assertion on the different premise is without merit.

○ The relevant Acts and subordinate statutes of the 10th place shall be amended in accordance with the attached statutes.

3. Conclusion

If so, the part of the plaintiff's claim against the defendant who has revoked the part exceeding KRW **,***,** among the dispositions of this case is dismissed for lack of reason, and the part against the defendant who has revoked the part exceeding KRW *,***,***,**, among the judgments of the first instance court that has different conclusions, is revoked and the plaintiff's claim corresponding to the revoked part is dismissed. It is so decided as per Disposition.