Supreme Court-2017-Du-31866 ( April 28, 2017)

Early High Court Decision 2014J 3628 ( October 30, 2014)

The propriety of a disposition appraised by reflecting the amount of the claim secured by the mortgaged property, and existence of the grounds for request for retrial, etc.

(As stated in the judgment of the court of the third instance) Any disposition that assessed and taxed the stocks of the issue on the basis of the larger of the value assessed based on the amount of secured claims and the supplementary assessed value with respect to the property for which the mortgage, etc. has been created under Article

Article 66 of the Inheritance Tax and Gift Tax Act

Seoul High Court 2017Nu54 Disposition Revocation of Imposition of Gift Tax

Gu 00 Foreign Affairs

00 Other than the head of tax office

Judgment of the High Court

Seoul High Court Decision 2016Nu45655 Decided December 07, 2016

November 29, 2017

2018.01.24

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

Purpose of request for retrial

The judgment subject to a retrial and the judgment of the first instance court against the Plaintiff (hereinafter referred to as the “Plaintiff”) shall be revoked. The Defendant (the Defendant for a retrial; hereinafter referred to as the “Defendant”) revoked on May 1, 2014 all the disposition of imposition stated in the attached Table 1 against the Plaintiffs (the Plaintiff’s claim was reduced in accordance with the Defendants’ reduction and correction disposition before the retrial, and accordingly the purport of the appeal was reduced).

1. Determination of the original judgment

The following facts are clear in records:

A. On January 31, 201, the representative director of AA General Construction (hereinafter referred to as “AA General Construction”) of the Plaintiff KimA Construction Co., Ltd. (hereinafter referred to as “the instant shares”) 2,750 shares issued by AA General Construction (on January 31, 201, KRW 10,000 per share; hereinafter referred to as “instant shares”); on August 11, 201, 201, the instant shares were 25,00 shares; on October 1, 201, 200 shares; and on October 1, 201, 200 each of the instant shares was married to the Plaintiff GG that was one’s own wife, and on October 1, 201, 200 each of the instant shares was married to the Plaintiff on October 25, 201 (hereinafter referred to as “Plaintiff”).

B. In addition, on January 31, 2011, Plaintiff hhh, the birth of Plaintiff sss, calculated the amount of KRW 2,750 per share to Plaintiff ss in the face value of KRW 10,00,000 in total, and transferred KRW 27,50,000 in total.

C. According to the supplementary evaluation method under Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23527, Jan. 25, 2012; hereinafter referred to as the "former Enforcement Decree of the Inheritance Tax and Gift Tax Act"), the Defendants assessed the value per share of the instant shares as stated in the "value per share in attached Table 1 of attached Table 2" as stated in the "value per share in attached Table 1 of the same Table," and on the basis of this, on May 1, 2014, on the basis of the judgment, Defendant X director of the tax office imposed penalty tax on Plaintiff Gag on the networkfff and Plaintiff KimA on the same day, and on the same day under Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1130, Dec. 31, 2011; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act"), and on the premise that the said Plaintiffs did not file an unfair tax base return by 40%.

D. In addition, Defendant x director of the tax office deemed that Plaintiff hh transferred the instant shares at a low price to Plaintiff ssss who are specially related to the instant shares and denied the transfer value reported by Plaintiff hhh, and based on the supplementary evaluation method under Article 63 of the former Inheritance Tax and Gift Tax Act and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, Defendant 2 assessed the value per share of the instant shares as indicated in the “value per share” column in attached Table 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and imposed capital gains tax on Plaintiff hhh on May 1, 2014 as indicated in the “principal tax” column and “additional tax” column. The above Defendant applied an unjust under-reported penalty tax rate of 40% on the premise that Plaintiff hhh had under-reported the tax base by an unjust method.

E. Meanwhile, on August 19, 2016, in which the trial was in progress before the review, the head of the ccc tax office reduced or corrected each gift tax amount on August 19, 2016, as stated in the column for "principal tax" and "additional tax" column for "the separate gift tax" (hereinafter referred to as the "assessment of each gift tax in this case") against the Plaintiff hh on August 11, 2016, and the head of the xc tax office corrected the transfer income tax by reducing or correcting the transfer income tax amount (hereinafter referred to as the "disposition of imposition of the transfer income tax in this case") as stated in the column for "principal tax" and "additional tax" column for "the remaining portion after reduction", and each of the disposition of imposition of the gift tax in this case and each of the disposition of imposition of the transfer income tax in this case shall be referred to as "each of the instant dispositions").

F. The Plaintiffs against the Defendants as Suwon District Court 2014Guhap61690, Attached Table 2 attached hereto 1

The term "principal tax" and "additional tax" filed a lawsuit seeking revocation of the imposition of each gift tax and transfer income tax imposed as stated above (the Plaintiff sss, KimAA, andj, the heir of the networkf, died during the lawsuit, took over the lawsuit). On April 19, 2016, the above court revoked the part in excess of each of the dispositions of this case, and rendered a judgment dismissing the Plaintiffs' claim against each of the dispositions of this case. The Plaintiffs appealed as the court 2016Nu45655, and the court rejected the Plaintiffs' appeal on December 7, 2016. Although the Plaintiffs appealed as the Supreme Court 2017Du318666, the Plaintiffs appealed as to the judgment subject to the judgment, but the court dismissed the Plaintiffs' appeal on April 28, 2017, and the judgment became final and conclusive on May 2017.

2. Whether there exists a ground for retrial

A. Summary of the plaintiffs' assertion

The Plaintiffs asserted that, without regard to whether AA General Construction had an accounting perception that it is impossible to recover and had been included in the deductible expenses for a business year with such accounting perception, the claims recoverable without regard to the corporate net asset value and net profit and loss value should be excluded from the time of assessing the corporate net asset value and net profit and loss value. However, around February 5, 2009, when considering the debtor's property status, financing capacity, the creditor's management status of AA General Construction, the cause of occurrence of claims, amount of claims, timing, etc., the claim for construction payment against AA General Construction was an impossible collection, and the claim for construction payment against AA General Construction was excessively assessed on the basis of the value per share of each of the instant shares, as it was not excluded from the time of assessing net asset value and net profit and loss value.

The first instance court made a decision that the above claim for construction price cannot be recovered, without omitting the judgment on the plaintiffs' above assertion, and since the judgment subject to a retrial was merely divided, there are grounds for retrial "when the judgment was omitted on important matters affecting the judgment" under Article 451 (1) 9 of the Civil Procedure Act in the judgment subject to a retrial.

B. Determination

A) According to Article 451(1)9 of the Civil Procedure Act, which applies mutatis mutandis to an administrative litigation pursuant to Article 8(2) of the Administrative Litigation Act, where a judgment is omitted on a material fact that may affect the judgment, an action for retrial may be brought against the finalized final judgment. However, if a party asserts or does not know the grounds for retrial by an appeal, he/she may not bring an action for retrial (proviso to Article 451(1) of the Civil Procedure Act). The same applies to a case where an appeal against a judgment subject to retrial was dismissed by a trial non-speed judgment under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal (see Supreme Court Decision 2014Da50944, Nov.

B) On February 16, 2017 and March 9, 2017, in the supplemental appellate brief, the plaintiffs asserted the grounds for retrial of this case that "it is unlawful to exclude the claims for construction payment from the calculation factor of net asset value and net profit value of AAA General Construction in light of the circumstances related to the exercise of claims by AA General Construction as the grounds for final appeal against the judgment subject to a retrial, and the debtor's ability to repay debts and financial status, etc. as a whole, should be excluded from the calculation of net asset value of AA General Construction and net profit and loss, even though it should be excluded from the calculation of net asset value and net profit and loss value," and the facts that the plaintiffs' appeal was dismissed by a judgment that was rejected by a non-trial decision are as seen earlier, the plaintiffs cannot file a lawsuit for retrial by making the omission of the judgment subject to a retrial as the grounds for final appeal.

Therefore, it cannot be deemed that there are grounds for retrial under Article 451(1)9 of the Civil Procedure Act.

3. Conclusion

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

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