Invalidity of Disposition of Imposition of Gift Tax

Even if a tax disposition and a seizure and a public auction disposition are null and void, if it is possible to seek a claim for restitution of unjust enrichment against the amount of tax appropriated by a disposition for arrears directly through a civil lawsuit, there is no benefit of lawsuit.

Article 31 of the Inheritance Tax and Gift Tax Act: Scope of donated property

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant confirmed that the imposition of gift tax of KRW 64,805,320 against the Plaintiff on December 1, 2004 is null and void.

1. Facts of recognition;

A. On November 19, 2003, 00 ○○○○○○○○○○○○○○○○○○○○○○○○○○○, a parent-child, changed the name of the building owner in the future of the Plaintiff, as to the building permit for multi-household housing located in ○○○○○○○○, a subsidiary of the Plaintiff.

B. On December 1, 2004, the Defendant determined that ○○○ donated the said multi-household house (unregistered state) to the Plaintiff at the time of the above change in the name of the owner of the building, and issued a notice of decision on KRW 64,805,320 to the Plaintiff (hereinafter “instant disposition”).

C. As the Plaintiff did not pay gift tax, the Defendant, on January 31, 2005, designated ○○, a donor, as a person jointly and severally liable for gift tax under Article 4(4) of the Inheritance Tax and Gift Tax Act, and notified ○○○○, a person jointly and severally liable for gift tax, of the tax base and calculation statement of the gift tax, and notified the notification of payment of gift tax on April 20, 2005, and the ○○○ also did not pay it. As ○○, upon seizing ○○’s deposit claim, collected KRW 70,50,500 on June 22, 2005.

[Recognizing Facts: Facts without dispute; Gap evidence Nos. 1 and 2; Eul evidence No. 1-1, 2, 3; Eul evidence No. 2-1 through 6; Eul evidence No. 3; Eul evidence No. 4-6, 7; Eul evidence No. 7-1 through 4; the purport of the whole pleadings]

2. Determination

A. The plaintiff's assertion

Since ○○○○ issued the instant disposition on the ground of an act of changing the name of the owner of the building, which was invalid without the consent of the Plaintiff without the consent of the Plaintiff, this is null and void.

B. Determination

(1) In a lawsuit seeking confirmation of the invalidity of an administrative disposition, there is a dispute between the parties as to the legal relation subject to the lawsuit, and thereby, it is necessary and appropriate to confirm the existence of the legal relation by a judgment on the ground that the plaintiff's right or legal status is unstable and dangerous. Thus, even if a tax disposition and a seizure and a public sale disposition are null and void, in a case where a person can seek restitution of unjust enrichment against the amount of tax appropriated by a disposition for arrears in a civil procedure, or seek cancellation of a transfer of ownership registered in a third party's future by a disposition for arrears, the above tax disposition and seizure and public sale disposition cannot be deemed as having been directly and appropriately effective and appropriate to resolve the dispute, and thus there is no benefit in the lawsuit (see, e.g., Supreme Court Decision 98Du4375, Sept. 22, 1998).

(2) We examine the facts that the Defendant seized ○○○○○’s deposit claim, a joint and several tax obligor for the instant disposition, and collected the gift tax and additional tax. As seen earlier, even if the instant disposition is null and void as alleged by the Plaintiff on domestic affairs, the Plaintiff may have ○○○ seek a return of unjust enrichment on the amount of tax collected by direct civil succession, and thus, filing a lawsuit seeking nullification of the instant disposition cannot be deemed a direct, effective and appropriate method, and thus, there is no benefit in the lawsuit.

3. Conclusion

Therefore, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.