In a tax lawsuit, the standard point of time for determining the illegality of a taxation disposition (= at the time of disposition) and in a case where a lawsuit claiming the cancellation of ownership transfer registration based on the cancellation of a gift contract is filed and the judgment in favor becomes final and conclusive, whether the legality of the disposition imposing the gift tax can be asserted solely on the grounds

In a tax lawsuit, the time to determine the illegality of a taxation disposition is the time of the disposition, and in a case where the acquisition of the property by the gift is made, the relevant gift contract is lawfully rescinded before the tax authority imposes a taxation disposition, and when the registration of cancellation is made by the cancellation, the effect of the change in the real right arising from the performance of the contract shall be retroactively extinguished, and the gift shall not be deemed to have existed from the beginning. Therefore, a gift tax disposition that is a taxation ground shall not be made, since a lawsuit seeking cancellation of the registration of transfer of ownership arising from the cancellation of the gift contract is filed after the tax disposition was made, and even if the favorable judgment became final and conclusive, as long as the ownership transfer registration arising from the gift has been lawfully established, the tax claim is legally established, and the above judgment became final and conclusive or the registration was cancelled after the above decision becomes final and conclusive, the legality of the disposition imposing a gift tax cannot be asserted.

Article 29-2 of the Inheritance Tax Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Do-young and 1 other, Counsel for plaintiff-appellant)

Plaintiff (Attorney Kim Sang-hoon, Counsel for plaintiff-appellant)

Head of Seogsan Tax Office

Busan High Court Decision 91Gu476 delivered on October 23, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

(1) In light of the records, the court below is justified in holding that the gift contract of this case between the plaintiff and the non-party is an onerous donation and that it is not a conditional donation contract with the condition of suspending the repayment of the loan under the condition of suspension. There is no error of law by misunderstanding facts

(2) The time to determine the illegality of a taxation disposition in a tax lawsuit is the time when the taxation disposition is made. In the case of acquisition of property by gift, if the gift contract is lawfully rescinded before the taxation disposition is made, and the cancellation registration is made by the cancellation of the contract, the effect of the change in the real right arising from the execution of the contract shall be retroactively extinguished, and the gift shall not be deemed to have existed from the beginning. Therefore, even though a lawsuit seeking cancellation of ownership transfer registration was filed for the reason that the contract was cancelled after the taxation disposition was made and the favorable judgment became final and conclusive, as long as the ownership transfer registration by the reason that the gift was lawfully established after the above judgment became final and conclusive or the registration was cancelled after the above, the legality of the taxation disposition cannot be asserted (see, e.g., Supreme Court Decisions 90Nu20820, Mar. 22, 191; 9Nu134, Jun. 13, 191).

In the same purport, the court below is just in holding that even if the judgment, such as the statement, becomes final and conclusive after the disposition of this case was issued and the registration of transfer of the plaintiff's name was cancelled based on the judgment, such ground cannot be viewed as affecting the disposition of this case. There is no error of law by misapprehending the legal principles

(3) All arguments are without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-sung (Presiding Justice)