Cho Jae-2017-west-561 (2017.05)

The initial date of calculation for additional payment shall be the day following the deadline for voluntary payment.

Additional tax is imposed where an additional tax is not paid within the payment period prescribed by tax-related Acts, and even if the government provides that the tax liability is determined at the time of determining the tax base and amount of tax, it is not a provision to extend the period of return and payment of gift tax.

Article 47-5 of the Framework Act on National Taxes [Additional Taxes for Indecent Payment and Refunding Return]

Seoul Administrative Court-2017-Gu Partnership-4093

○○ et al.

○ Head of tax office

September 21, 2017

November 30, 2017

1. The plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s disposition of imposition of KRW 58,358,233 out of the gift tax of KRW 40,215,220 that was imposed on Plaintiff 00 on June 1, 2016, which was imposed by Plaintiff 14,493,941 and the gift tax of KRW 161,92,060, which was imposed on Plaintiff 00, respectively, shall be revoked.

1. Details of the disposition;

가. 원고들의 작은아버지인 최##은 2009. 12. 24. 주식회사 00무역의 발행 주식3,000주를 원고 최**에게, 1,000주를 원고 최00에게 각 명의이전하고, 증권거래세를 신고・납부 하였다(이하 위 주식 합계 4,000주를 '이 사건 주식'이라 한다).

나. 00세무서장은 2016. 2. 25.부터 2016. 4. 9.까지 이 사건 주식 양도에 대한 조사를 실시한 다음, 최##이 이 사건 주식을 원고들에게 증여한 것이라고 보아 피고에게 과세자료를 통보하였다.

C. The Defendant calculated the value of the instant shares as KRW 162,172 per share in accordance with the supplementary evaluation method, and on June 1, 2016, the Defendant decided and notified the Plaintiff 00 on December 24, 2009, the gift tax of KRW 40,215,220 (including additional tax for arrears 14,493,941), Plaintiff ** on December 24, 2009, respectively (including additional tax for arrears 58,358,223 won) of gift tax of KRW 161,92,060 (including additional tax for arrears 58,358,223 won).

D. The plaintiffs raised an objection and filed an appeal. However, the Tax Tribunal did not err by misapprehending the legal principles as to the appeal.

On April 5, 2017, the appeal was dismissed.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 4, 5, and Eul evidence 1 (including each number)

Statement, the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Defendant calculated an additional tax from March 31, 2010, the period of voluntary payment under Article 70 of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”) upon the instant disposition, and imposed an additional tax on the Plaintiffs. However, since gift tax is a tax item for which the duty to pay is finalized by the government’s decision, the Defendant’s tax liability is not nonexistent since the Plaintiff’s specific duty to pay was not finalized before June 1, 2016, and thus, the additional tax, which is the nature of interest, should be imposed from June 1, 2016. Therefore, the portion of imposing an additional tax on the period prior to the date of the instant disposition for which the Plaintiffs’ duty to pay was not finalized, is a disposition contrary to the basic principles of tax law and the principle

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same)

Article 21(1)3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") provides that a person liable to pay the gift tax shall report the taxable value and tax base of the gift to the head of the tax office having jurisdiction over the place of tax payment within three months from the last day of the month to which the date of donation belongs. Article 70(1) of the former Inheritance Tax and Gift Tax Act provides that a person who files a report on the gift tax pursuant to Article 68 shall pay to the head of the tax office having jurisdiction over the place of tax payment, the Bank of Korea, or the postal service office an amount calculated by subtracting the amount of deduction, etc. under one of the following subparagraphs from each calculated tax amount within the due date for each return. The main sentence of Article 47-5(1) of the former Framework Act on National Taxes provides that where a taxpayer fails to pay a national tax within

2) According to the above provision, an additional tax for additional payment is imposed on a case where the payment is not made within the payment period stipulated by the tax law, and Article 68(1) main sentence and Article 70(1) of the former Inheritance Tax and Gift Tax Act provides that "within three months from the last day of the month to which the date of donation belongs" shall be within three months from the last day of the month to which the date of donation belongs. Thus, if the plaintiffs fail to report and pay gift tax by March 31, 2010, which is the last day of the month to which the date of donation belongs, the date of March 24, 2009, the date of donation of the shares of this case belongs, the defendant may impose an additional tax for additional payment

Meanwhile, even though Article 22(1) of the former Framework Act on National Taxes and Article 10-2 subparag. 3 of the former Enforcement Decree of the Framework Act on National Taxes (wholly amended by Presidential Decree No. 22038, Feb. 18, 2010) provide that a tax liability becomes final and conclusive when the government determines the tax base and the amount of tax, it has the meaning that a specific tax liability becomes final and conclusive so that a tax obligation can be performed and enforced by specifying the details of a tax claim, such as the amount of tax, etc., and it does not include a provision to extend the deadline for reporting and paying the gift tax under Articles 68(1) main sentence and 70(1)

D. Sub-committee

The plaintiffs' assertion is without merit and the disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit. It is so decided as per Disposition.