Seoul Administrative Court 2014Guhap18961 ( October 14, 2015)

early 2014west 2844

It is reasonable to evaluate the value of donated property as the amount equivalent to the premium in case of changing the contractor of the inheritance-type immediate pension before the commencement date of the pension.

It is reasonable to view that the amount equivalent to a premium falls under the value of rights or status under an insurance contract that is generally established in a case where a free transaction is made between many and unspecified persons.

Article 60 of the Inheritance Tax and Gift Tax Act: Principles of Appraisal

2015Nu45986 Revocation of Disposition of Imposition of Gift Tax

AA

BB Director of the Tax Office

Supreme Court Decision 2014Guhap18961 Decided May 14, 2015

October 23, 2015

November 6, 2015

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim corresponding to the above cancellation part is dismissed.

3. The plaintiff's appeal is dismissed.

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

1. Purport of claim

On February 1, 2014, the Defendant revoked the disposition of imposition of ○○○, ○○, and ○○○○○, which the Plaintiff rendered on February 1, 2012.

2. Purport of appeal

A. The plaintiff

The judgment of the first instance shall be revoked. The imposition of ○○○○, ○○, and ○○○○○, which the Defendant rendered on February 1, 2014 to the Plaintiff on February 1, 2014 shall be revoked entirely.

B. Defendant

The same shall apply to the order.

1. Details of the disposition;

A. On October 9, 2012, ○○○, the Plaintiff’s external mother, concluded an inheritance-type immediate pension insurance contract with ○○ Life Insurance Co., Ltd. (hereinafter “○○○ Life”) (hereinafter “○○○”) as the contractor, and the beneficiary, and paid KRW 500 million for the insurance premium.

B. The instant insurance contract consists of “principal insurance” and “principal contract guarantee agreement”. Specifically, it consists of a life pension (the receipt of a certain amount of pension on the relevant day from one month after the date of commencement of the guarantee to one month during the insurance period), death insurance (the amount of guarantee to be paid if the insured died during the insurance period, and the amount of accumulation of the pension contract at the time of death) and maturity insurance (the amount of accumulation of the pension contract shall be paid if the insured is alive until the expiration of the insurance period).

C. On October 25, 2012, ○○ changed the policyholder, pension beneficiary, and beneficiary of the instant insurance contract to the Plaintiff.

D. On November 28, 2012, the Plaintiff: (a) deemed that “the right to receive a periodical payment (hereinafter “the right to receive a periodical payment”) as provided by Article 65(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013; hereinafter “Inheritance Tax and Gift Tax Act”) and the Enforcement Decree of the Inheritance Tax and Gift Tax Act (hereinafter “Enforcement Decree of the Inheritance Tax and Gift Tax Act”); and (b) evaluated the value of the instant insurance as KRW 343,989,210, and reported the value of KRW 00,000,000.

E. As a result of the investigation into the insurance of this case, the Defendant determined that ○○’s change of the policyholder and beneficiary prior to the commencement of the pension was identical to the Plaintiff’s donation of KRW 500 million to the economic substance, and that it should impose tax on KRW 153,010,790, which is the difference between KRW 543,989,210,000, which is the difference between KRW 543,000 and the above KRW 343,989,210. On February 1, 2014, the Defendant decided and notified the Plaintiff on October 25, 2012 (hereinafter “instant disposition”).

F. On May 12, 2014, the Plaintiff dissatisfied with the instant disposition and caused a request for a trial to the Tax Tribunal on July 29, 2014, and dismissed, the Plaintiff appealed and filed the instant lawsuit on October 28, 2014.

G. On October 20, 2015, the Defendant revoked ex officio KRW 0,000,000 for additional tax returns among the instant disposition.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 7, entry of Eul evidence 2, purport of whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

(1) The Plaintiff, through the instant insurance contract, shall make up for the settlement from ○○ to the maturity of the insurance contract.

The right to receive benefits shall be deemed to have been donated, and in fact the Plaintiff receives a fixed amount monthly amount from ○○ Life. Nevertheless, the Defendant deemed that the Plaintiff received a lump-sum donation of KRW 500 million from ○○○○○, thereby making the instant disposition unlawful.

D. There is a conflict of opinion regarding the evaluation of the gift value of this case, and the plaintiff is insured.

Since advice from experts of insurance products belonging to ○○○ Lifelong Insurance Co., Ltd. and the right to receive a regular payment according to advice from professional tax accountants in the field of such advice, the value of the donation of this case is assessed and reported and paid, there is a justifiable reason for not

(b) Related statutes;

Attached Form is as shown in the attached Form.

(c) Fact of recognition;

Article 7 (Modification, etc. of Terms and Conditions of Contracts)

1. The contractor may modify the following matters with the consent of the company. In such cases, the consent shall be notified in writing or shall be stated on the back of the insurance policy (insurance policy).

1. Amount of insurance coverage (limited to the pension type for inheritance);

2. Policyholders;

3. Details of other contracts.

(2) A contractor may change an insurance beneficiary (person receiving the insurance proceeds), and in such cases, consent of the company is not required: Provided, That if the contractor changes the beneficiary (person receiving the insurance proceeds), the beneficiary after such change does not oppose the company as his/her right unless it notifies the company thereof.

Article 8 [Right to Voluntary Termination of Contractors and to Revocation of Consent of Insured (Persons Subject to Insurance)]

(1) A contractor may terminate a contract at any time before the contract is terminated, and in such cases, the company shall pay a termination refund under Article 17 (Refund of Refund) (1) to the contractor: Provided, That in the case of pure life pension type and physical pension type, the contract may not be terminated after the commencement of pension benefits.

(2) When a contract is terminated after the commencement of pension benefits, the consent of the beneficiary (person who receives the insurance proceeds) shall be obtained.

③ 상속연금형의 경우 서면에 의한 동의를 한 피보험자(보험대상자)는 걔약의 효력이유지되는 기 간 중에는 언제든지 서면동의를 장래를 향하여 철회할 수 있으며, 서면동의 철회로 계약이 해지되어 회사가 지급하여야 할 해지환급금이 있을 때에는 제17조(해지환급금) 제1항에 의한 해지환급금을 계 약자에게 지급합니다.

Article 13 (Types and Grounds for Payment of Insurance Money)

When any of the following events occurs to the insured (subject to insurance), the company shall pay the insurance money agreed upon to the beneficiary (subject to the beneficiary) (referring to the attached Table 1 "Reference Table for the Payment of Insurance Money"):

1. When the insured (person subject to insurance) live on the corresponding day of each contract during the insurance period: The survival pension for each month according to the form of pension to be paid;

2. In cases of inheritance pension type: When an insured worker dies during the insurance period: The death insurance amount;

3. In cases of inheritance pension type, if the insured is living until the period of insurance expires: The maturity insurance amount.

Article 17 【Termination Refund】

1. Where a contract is terminated under this terms and conditions, the termination refund payable shall be calculated in accordance with the calculation method.

(2) The public disclosure interest rate applicable to the calculation of the termination refund (in the case of over ten years, 2.5% per annum; 1.5% per annum in the case of over ten years; hereinafter referred to as "public disclosure interest rate") shall be the fixed interest rate under Article 16 (Application and Public Notice of Publication Interest Rate).

(3) In cases of punishment for inheritance pension, the company shall provide the contractor with a list of the refund for termination by the lapse period.

Table of Insurance Payment Standards

(1) A survival pension (Article 13(1) of the Terms and Conditions)

Pension shall be paid according to the form of pension chosen by the contractor as follows:

(2) Death insurance money (Article 13 subparag. 2 of the Terms and Conditions) / [2]

When an insured worker subject to payment dies during the insurance period;

Amount paid 10% of the premiums already paid + Amount accumulated in pension contracts at the time of death

When the insured (person subject to insurance) is living until the expiration of the insurance period;

Amount to be accumulated in pension contracts (amount equivalent to insurance premiums already paid)

(3) Maturity Insurance Money (Article 13 subparagraph 3 of the Terms and Conditions) / [Payment only of Inheritance Pension Benefits]

The base cancellation refund of the instant insurance on October 25, 2012 is KRW 466,88,617.

[Ground for Recognition: Facts without dispute, entry of Gap evidence Nos. 1 through 8, and ○○ Life Insurance by the court below

As a result of fact-finding on the stock company, the whole purport of pleading

D. Determination

(1) Determination on the assertion regarding the market price of the pertinent donated property

㈎ 상속세및증여세법 제31조 제1항은 "증여재산에는 수증자에게 귀속되는 재산으로서 금전으로 환산할 수 있는 경제적 가치가 있는 모든 물건과 재산적 가치가 있는 법률상

Article 60 provides that "the value of property on which inheritance tax is levied under this Act shall be the market value as of the date the inheritance commences. The market value means the value generally recognized as being constituted when transactions are made freely between many and unspecified persons. In cases where it is difficult to calculate the market value, the value assessed by the methods prescribed in Articles 61 through 65 shall be deemed the market value, taking into account the type, scale, transaction situation, etc. of the property in question."

㈏ 위에서 인정한 사실들과 그 밖에 변론에 나타난 여러 자료들에 의하여 나타나는 다음 ①, ②와 같은 사정들에 비추어 보면, 조○○가 납입한 보험료 상당액이 원고가 증여받은 이 사건 보험계약상의 권리 또는 지위의 시가로 봄이 타당하고, 이를 전제로 한 이 사건 처분은 적법하다.

① The instant insurance premium was paid in lump sum, and the Plaintiff acquired the right to each of the instant insurance contracts. At the time of the conclusion of the instant insurance contract, ○○ was an insurance company to apply the same insurance premium to the instant insurance contract, and a large number of unspecified persons was paid in lump sum and could enter into the instant insurance contract with the insurance company. Therefore, it is reasonable to view that the amount equivalent to the said insurance premium falls under the value of rights or status under the instant insurance contract, which is generally recognized as being established when transactions are freely conducted between many and unspecified persons.

② At the time of October 25, 2012, which was the record date for appraisal of the instant case, ○○ insurance contract in the instant case

It is 16 days after the conclusion of the instant insurance contract, and there is no circumstance to deem that the appraised value of the rights under the instant insurance contract has fallen between the time after the conclusion of the instant insurance contract and the record date of appraisal.

(2) Determination as to the assertion on penalty tax

㈎ 세법상 가산세는 과세권의 행사 및 조세채권의 실현을 용이하게 하기 위하여 납세자가 정당한 이유 없이 법에 규정된 신고, 납세 등 각종 의무를 위반한 경우에 개 별세법이 정하는 바에 따라 부과되는 행정상에 제재이다. 이와 같은 제재는 납세의무 자가 그 의무를 알지 못한 것이 무리가 아니었다고 할 수 있어서 그를 정당시할 수 있 는 사정이 있거나 그 의무의 이행을 당사자에게 기대하는 것이 무리라고 하는 사정이 있을 때 등 그 의무해태를 탓할 수 없는 정당한 사유가 있는 경우에는 이를 부과할 수 없다(대법원 2005. 1. 27. 선고 2003두13632 판결 참조). 한편 세법상 가산세는 과세권 의 행사 및 조세채권의 실현을 용이하게 하기 위하여 납세자가 정당한 사유 없이 법에 규정된 신고・납세의무 등을 위반한 경우에 법이 정하는 바에 의하여 부과하는 행정상 의 제재로서, 납세자의 고의・과실은 고려되지 아니하고, 법령의 부지 또는 오인은 그 정당한 사유에 해당한다고 볼 수 없다(대법원 2013.05.23. 선고 2013두1829 판결 등 참조).

㈏ 위 법리에 비추어보면, 원고가 보험회사의 직원, 세무사의 조언을 믿고 이 사건 증여재산의 시가를 잘못 계산하여 신고・납부하였다는 사정은 원고에게 증여세 신 고・납부의무 해태를 탓할 수 없는 정당한 사유가 있는 경우에 해당한다고 할 수 없다.

3. Conclusion

If so, the plaintiff's claim shall be dismissed due to the lack of reason, and the judgment of the court of first instance shall be dismissed by accepting the defendant's appeal and it shall be revoked, and the plaintiff's appeal shall be dismissed.