Whether the proviso of Article 26-2 (1) 1 (a) of the former Framework Act on National Taxes (negative) stipulates the period for exclusion from the imposition of gift tax for a long time (negative)

According to the proviso of Article 26-2 (1) 1 (a) of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993), gift tax may not be imposed after the expiration of the exclusion period for five years from the date on which it can be imposed: Provided, That in a case where a return of taxable amount of gift tax is not filed under Article 20 of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996), which is applicable mutatis mutandis under Article 34-7 of the same Act, the exclusion period shall be extended to 10 years. In such a case, the provision of a long-term exclusion period is very low in the reporting period, and thus, it is intended for the tax authorities to prevent the exclusion period without neglecting the report or failing to register it in the reality where gift tax is imposed through a field investigation based on the confirmation of the fact of death and the registration of transfer through the family register or registry, etc., and it cannot be deemed that the legislative intent and the aforementioned exclusion period exceeded scope of property rights.

Article 26-2 (1) 1 (proviso) (a) of the former Framework Act on National Taxes (Amended by Act No. 4672, Dec. 31, 1993); Article 26-2 (1) (proviso) (Article 26-2 (1) 4 of the current Act); Article 20 (see current Article 68 of the Inheritance Tax and Gift Tax Act) of the former Inheritance Tax Act (Amended by Act No. 5193, Dec. 30, 1996); Article 23 (1) of the Constitution of the Republic of Korea

Plaintiff (Attorney Hwang Jae-ho, Counsel for the plaintiff-appellant)

The Director of Incheon Tax Office

Seoul High Court Decision 2001Nu1637 delivered on October 23, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. According to the proviso of Article 26-2 (1) 1 (a) of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993), a gift tax may not be imposed after the expiration of the exclusion period for five years from the date it is possible to impose the gift tax. However, if a return of the taxable amount of gift tax is not filed pursuant to Article 20 of the Inheritance Tax Act which applies mutatis mutandis under Article 34-7 of the same Act, the exclusion period shall be extended to ten years. In such a case, particularly, setting the exclusion period for a long period is very low, and the tax authority imposed a gift tax by a field investigation based on confirmation of the fact of death or transfer registration through a family register or registry, and the purpose of preventing the expiration of the exclusion period without neglecting to file such report or making registration, in light of such legislative intent and the ideology of fair taxation, it cannot be deemed that the above exclusion period has exceeded the reasonable discretion scope of legislators, and thus, it cannot be accepted in the grounds of appeal.

On the other hand, Article 26 of the Framework Act on National Taxes provides that when a national tax is not imposed within the period during which a national tax is imposed and the period expires (Article 26 (2)), when the extinctive prescription of a national tax collection right is completed (Article 3). Since the exclusion period for a right to impose a national tax under the substantive law and the extinctive prescription for a right to collect a national tax under the procedural law when a tax claim becomes final and conclusive, the provisions of Article 27 (3) of the Framework Act on National Taxes and Article 12-4 (1) of the Enforcement Decree of the Framework Act on National Taxes are not applicable to this case seeking confirmation of invalidity of the imposition of a gift tax, and the argument in the grounds of appeal that the above provision is unconstitutional or null

2. The court below rejected the plaintiff's assertion that the transfer registration of this case, which was completed in the name of the plaintiff, is null and void, and judged that the above transfer registration was completed on the basis of the intention of the plaintiff, the former owner Kim-tae, and rejected the plaintiff's assertion that the disposition of imposition of the gift tax of this case is null and void, since the above transfer registration is null and void.

In light of the records and evidence, the above fact-finding and fact-finding by the court below is justified, and there is no error in the misapprehension of the legal principles as to the rules of evidence, the misconception of facts due to the violation of the rules of evidence, and the principle of substantial taxation, as otherwise

Furthermore, the court below held that even if the above transfer registration is null and void, it cannot be deemed that there is an obvious defect in the disposition of this case, unless it is clear that the taxation data of this case lacks the state of the taxation data of this case, or it is impossible to recognize its establishment or its authenticity objectively, and thus, it does not become null and void as a matter of course. As seen earlier, the argument in the grounds of appeal disputing the reasonableness of the family-based and additional judgment is without merit, as long as the main judgment in front is legitimate.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)