Busan District Court 2009Guhap3874 ( October 14, 2010)

National High Court Decision 2009J0917 (No. 18, 2009)

Where a right donation is made by means of transfer to a third party, the obligation of joint payment.

Among the methods of transfer to a third party, it cannot be deemed as a deemed donation in the case of bypassing a third party by means of the most sale, etc., so a donor is deemed directly donated and bears joint tax liability

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The Defendant’s disposition of imposition of KRW 1,007,152,170 against the Plaintiff on November 17, 2008 shall be revoked.

2. Purport of appeal

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

1. Details of the disposition;

The following facts are either in dispute between the parties or in accordance with Gap evidence 1-2, Eul evidence 1-2, Eul evidence 2-1, Eul evidence 2-2, Eul evidence 3-1, 2-2, and the whole purport of the pleadings.

A. On December 18, 1999, LAA, the plaintiff and his spouse, transferred 10,000 shares ofCC hotel (hereinafter referred to as "CC hotel") to B, and this BB re-transfer 10,000 shares of CC hotel (hereinafter referred to as "the shares of 10,00 shares owned by the plaintiff) to E on February 28, 200, and E transferred MaD, the plaintiff's child, on June 22, 2000.

B. Accordingly, in order to evade gift tax, the Defendant deemed that the Plaintiff donated the instant shares to Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd by the Plaintiff’s spouse within 10 years before the date of donation

C. After that, on November 17, 2008, the Defendant designated the Plaintiff, a donor, as a joint and several obligor for gift tax, and issued a notice of payment of the gift tax at the same time (hereinafter “instant disposition”) on the ground that DoD, a donee, was not able to pay the gift tax and it is difficult to secure the tax claim even after taking a disposition on default (hereinafter “instant disposition”).

D. On February 11, 2009, the Plaintiff filed an appeal with the Tax Tribunal against the instant disposition. However, on May 20, 2009, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim.

2. Determination

A. The parties' assertion

The plaintiff asserts that the disposition of this case should be revoked because it is unlawful for the following reasons.

① It is true that the Plaintiff is registered as the representative director of theCC hotel, and that the Plaintiff is the owner of the instant shares. However, the agreement on the transfer of the instant shares between the Plaintiff and the EB appears to have been made known to the Plaintiff, the husband of the Plaintiff, and each transfer agreement between BB, E, E, E, and ED is entirely known.

② Even if the Plaintiff entered into each of the above transfer contracts, it constitutes “where the assets are de facto gratuitously transferred by indirect means through a third party” under Article 42(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301, Dec. 29, 2000; hereinafter “the Act”), and thus, it does not bear the duty of joint payment pursuant to the proviso to Article 4(3) of the Act.

③ Even if the Plaintiff’s obligation to jointly pay the gift tax is recognized, the Defendant calculated the gift tax by adding the amount that the Plaintiff, her husband, to the taxable value.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

(1) As to the first argument

In full view of the aforementioned evidence, Gap evidence, Eul evidence No. 2, Eul evidence No. 1, Eul evidence No. 2, Eul evidence No. 2-2, and Eul evidence No. 7,CC hotel was originally owned by the plaintiff's family member with 10,000 shares of the plaintiff's other child, shipG, and ship No. 35,000 shares of the plaintiff's hotel with 10,000 shares owned by the plaintiff's husband, and it was hard to view that Eul's shares were owned by the non-party's family member with 30,00 shares of the non-party hotel No. 2, Eul No. 2, and Eul No. 7, and that it was hard to view that Eul transferred the shares of this case to the plaintiff's account no. 10,000 shares, and that Eul transferred the shares to the plaintiff's account no more than 30,000 shares of this case to the plaintiff's account no more than 10,000 shares.

Therefore, this part of the plaintiff's assertion is without merit.

(2) On the second argument

(A) According to Articles 4(3) and 42(1) of the Act, where the property is actually gratuitously transferred by indirect means through a third party, the person to whom the property is transferred shall be deemed to have been donated to the person who transferred the property through the third party at the time of transfer. If the donation is deemed to have been made, the donor shall not be jointly and severally liable for the gift tax to be paid by the donee. Thus, if the Plaintiff’s donation of the shares constitutes the donation of gift as above, the Plaintiff shall not be jointly and severally liable for the gift tax to be paid by Madddi.

(B) On the premise that the intermediate transaction is effective, Article 42(1) of the Act is understood as a provision to deny it under the tax law, and it seems unreasonable to apply this provision to the case where the intermediate transaction is the most invalid under the private law. In light of the purport of the provision regarding a donor’s joint and several tax liability, Articles 35, 37, and 41 of the Act, which excludes a joint and several tax liability, transfer property at a low price or at a higher price, are premised on effective transaction, and in the case of gratuitous use of land of a person in a special relationship to own a building, it seems that there is no reason to exclude the Plaintiff’s complementary joint and several tax liability. (3) If the method of donation through the most effective transaction is deemed as deemed as deemed donation under Article 42(1) of the Act, anyone can in fact choose a gift through a third party’s direct donation, not by the means of avoiding a joint and several payment obligation, and if so, there seems to be no possibility that the transfer of property through the third party’s indirect method through the transfer of stocks.

In addition, in light of the above facts, it is reasonable to see that the act of transferring the shares of this case is the fictitious sale, and therefore, it is not deemed that the act of transferring the shares of this case constitutes the deemed donation under Article 42 (1) of the Act, but it should be deemed that the plaintiff directly donated the shares of this case to DaD, and therefore, the plaintiff bears the duty of joint

Therefore, this part of the plaintiff's assertion is without merit.

(3) Scope of joint and several liability

(A) Article 47(2) of the Act provides that “where the aggregate of the value of donated property received from the same person (if the donor continues to exist, including his/her lineal ascendant’s spouse) within ten years before the date of the relevant donation exceeds 10,000 won, such value shall be added to the taxable value of donated property.”

(B) The purport of Article 47(2) of the Act is to prevent the act of distributing several real estate without making a single donation in order to avoid progressive taxation by cumulative taxation. In particular, in the case where a donor is a lineal ascendant, the donor includes the spouse of his lineal ascendant. Therefore, it is reasonable that the Defendant considers the Plaintiff’s spouse, who is the mother of Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

Even if the amount of gift tax is calculated, so long as DoD deducts the amount of gift tax paid on the property donated by Na as long as DoD deducts the amount of gift tax paid on the property donated by Na, this merely prescribes the method of calculating the amount of gift tax on the donee in order to impose a progressive taxation, not the Plaintiff’s spouse’s portion of gift tax exceeding the gift tax pursuant to the gift tax

Therefore, the plaintiff's assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit. However, since the judgment of the first island is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed as per Disposition.