Seoul Administrative Court-2016-Gu Partnership-5247 ( January 12, 2017)

Insurance premiums paid in the amount deposited in the name account of the father shall be applicable to the donation.

The recognition of the first instance court (the funding of the insurance premium of this case was paid out in the name account, etc. of the father, so this is equivalent to the payment of the insurance premium to the plaintiff by the father, which constitutes a donation).

Article 2 of the Inheritance Tax and Gift Tax Act

2017Nu5318 Revocation of Disposition of Imposition of Gift Tax

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O Head of tax office

November 22, 2017

January 17, 2018

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

A. On March 6, 2015, the Defendant dismissed the Plaintiff’s lawsuit as to the portion exceeding KRW ----------- of the imposition of gift tax on January 31, 2012, which was made against the Plaintiff on March 6, 2015.

B. On March 6, 2015, the Defendant dismissed the Plaintiff’s claim on the portion exceeding KRW --------------- of the imposition of gift tax as of January 31, 2012 against the Plaintiff on January 31, 2012 (including additional tax).

2. The plaintiff's appeal is dismissed.

3. 49/50 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

the Gu Office's place and place of action

1. Purport of claim

As shown in the attached Form.

2. Purport of appeal

The part of the judgment of the court of first instance against the plaintiff shall be revoked. Each disposition other than subparagraph b.19 of the disposition in the attached Form shall be revoked.

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

1. Details of the disposition;

This Court's explanation on this part is the same as the corresponding part of the judgment of the first instance except for the addition to the part of the judgment of the first instance as follows. Thus, the meaning of the abbreviations used in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act (hereinafter the same shall apply to the judgment of the first instance).

��제3쪽 제1행의 "증여세" 다음에 "(각 가산세 포함, 이하 생략)"을 추가한다.

��제3쪽 제1, 2행의 "결정・고지(이하 '이 사건 처분'이라 한다)하였다." 다음에 "피고는 2017. 10. 25. 원고에 대한 2012. 1. 31.자 증여세 ---------원의 부과처분[별지 나.19)] 중 ----------원을 초과하는 부분을 직권으로 취소하는 내용의 감액경정결정을 하였다. 그리하여 2012. 1. 31.자 증여세 부과처분은 ---------원만이 남게 되었다."를 추가한다.

��제3쪽 제5행의 [인정근거]에 "을 제24호증"을 추가한다.

2. Determination on the claim for revocation of ex officio cancelled tax amount among the instant lawsuit

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012).

ex officio, the Defendant rendered a decision of correction to revoke ex officio the amount exceeding KRW --------- of the imposition of gift tax on January 31, 2012 against the Plaintiff on October 25, 2017, as seen earlier. As such, the Defendant’s claim for revocation of the ex officio cancelled portion of the instant lawsuit is seeking revocation of the disposition that had not already become null and void, and is unlawful as there is no interest in the lawsuit.

3. Determination as to the claim for cancellation of the remainder of the instant disposition

The court's explanation on this part is based on the evidence additionally submitted in the trial and rejected Gap evidence Nos. 26 through 37 (including each number), which is insufficient to acknowledge the plaintiff's assertion. Except for the dismissal of part of the judgment of the court of first instance as follows, the corresponding part of the judgment of the court of first instance (Articles 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act are cited as it is in accordance with the reasoning of the judgment of the court of first instance.

��제8쪽 제10~13행의 "그리고 위 부분만 … 부분을 취소한다"를 "그리고 을 제6호증의 기재에 변론 전체의 취지를 종합하면, 위 부분만 취소할 경우 정당세액이 - ------원인 사실을 인정할 수 있는바, 피고가 2012. 1. 31.자 증여세 -------원의 부과처분 중 -------원을 초과하는 부분을 직권으로 취소하는 내용의 감액경정 결정을 한 사실은 앞서 본 것과 같으므로 이 부분 처분은 결과적으로 정당하다"로 고친다.

4. Conclusion

Therefore, "the part of the lawsuit in this case concerning the claim for revocation of ex officio among the dispositions in this case shall be dismissed as unlawful, and the remaining claims of the plaintiff shall be dismissed as they are without merit. Since the judgment of the court of first instance differs from this part of the judgment, it shall accept the defendant's appeal and revoke the part against the defendant among the judgment of the court of first instance, and shall dismiss the plaintiff's lawsuit seeking revocation of ex officio cancellation, and the plaintiff's claim concerning the portion exceeding ------------------ of the disposition of gift tax of January 31, 2012 among the disposition of imposition of gift tax------------

The reasons for this decision are as follows: Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just with this conclusion, and the plaintiff and the defendant's appeal are dismissed as it is without merit.