Seoul Administrative Court 2012Guhap4753 (O5, 08, 2013)

It is illegal to impose gift tax on the basis of the difference between the value of the stocks before and after the donation date.

(1) As with the judgment of the court of first instance, it is unlawful to impose gift tax on the basis of the difference between the value of the stock before and after the donation of real estate, as the portion of the shareholders increased the value of stocks by donation of real estate to their descendants to the extent that the difference after the donation was made, and the corporate tax already paid should also be considered.

2012Nu28034 Revocation of Disposition of Imposition of Gift Tax

Appellant and Appellant

AA

- Appellants

The director of the tax office.

Seoul Administrative Court Decision 2012Guhap4753 decided August 17, 2012

May 8, 2013

June 19, 2013

1. The plaintiff and the defendant all appeals are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The imposition of gift tax by the Defendant on July 4, 2011 and the imposition of gift tax by the Plaintiff shall be revoked.

2. Purport of appeal

A. Plaintiff: The part against the Plaintiff in the judgment of the first instance shall be revoked, and the Defendant shall revoke the disposition imposing OOO on the Plaintiff on July 4, 2011.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

1. cite the judgment of the first instance;

"The reasons for the judgment of this court are as follows: "The reasons for the judgment of this court shall be 6th below" and "the Inheritance Tax and Gift Tax Act" shall be hereinafter referred to as "the Inheritance Tax and Gift Tax Act", and the further determination shall be made in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act." 2.

A. Determination as to whether business transfer constitutes business transfer

The defendant asserts that the court also constitutes the transfer of real estate transaction in this case.

However, it is difficult to view that the entry of No. 3 and No. 2 through No. 7 alone constitutes the acquisition by transfer of the real estate in this case, and there is no other evidence to acknowledge it otherwise. Rather, considering the following circumstances recognized by comprehensively considering the overall purport of the pleadings in the entry of No. 2 and No. 3, the real estate transaction in this case is not the acquisition by transfer.

① 서울지방국세청은 조사 당시 증여세 완전포괄주의 과세방식에 따라 상속세및증여세법 제42조 규정이 적용된다고 보았을 뿐 |사업양수도l 요건에 해당하는지는 조사하지 않았던 것으로 보인다.

② AB, a shareholder of the non-party company, donated the instant real estate to the non-party company.

3. BB managed the instant real estate through its own employees, and the non-party company did not succeed to the employment relationship of the employee who received the instant real estate donation from BB, and managed the real estate.

④ There is no agreement between BB and the non-party company regarding the transfer of business, such as the evaluation of assets and liabilities related to the instant real estate, business licenses, and succession to employment of employees.

B. Judgment on the assertion that it falls under the scope of application of Article 41 of the Inheritance Tax and Gift Tax Act

The Defendant asserts that even if the court should apply Article 41(1)1 of the Inheritance Tax and Gift Tax Act to the instant real estate transaction, the amount of gift tax calculated by applying Article 41(1)1 of the Inheritance Tax and Gift Tax Act is larger than the amount of gift tax calculated by applying Article 42(1)3 of the Inheritance Tax and Gift Tax Act, and that the instant disposition of gift tax was lawful

According to Article 41(1)1 of the Inheritance Tax and Gift Tax Act, and Article 31(6)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, where profits earned from the donation of property are equivalent to the profits earned from the donation of property, and the amount is at least KRW 100 million, limited to the losses of the specific corporation that received the donation. However, in this case, the non-party company is not subject to the imposition of gift tax in the application of Article 41(1)1 of the Inheritance Tax and Gift Tax Act as the losses in the business year 2006 are merely an OO or less than KRW 100 million. Therefore, it is difficult to accept the Defendant’s assertion on this part (the Defendant did not calculate the amount of gift tax under Article 41(1)1 of the Inheritance Tax and Gift Tax Act, and did not submit any data to calculate

3. Conclusion

The judgment of the first instance is justifiable. All appeals filed by the plaintiff and the defendant are dismissed.