The part which was revoked by the previous revocation ruling should be deducted from the taxable value of donated property.

It is reasonable to view that gift tax may not be imposed on the portion of the gift contract which was revoked as it is deemed a fraudulent act and still remains effective.

Article 13 of the Inheritance Tax and Gift Tax Act

2012Guhap42618 Revocation of Disposition of Imposition of Gift Tax

KimA

The Director of the Pacific District Office

May 3, 2013

June 7, 2013

1. The part concerning the claim for revocation of the imposition of gift tax exceeding the OO members of the instant lawsuit shall be dismissed.

2. On November 5, 2011, the Defendant’s disposition imposing the gift tax on the Plaintiff on the part of the KRW OO in excess of KRW OO (OOO) is revoked.

3. The plaintiff's remaining claims are dismissed.

4. Of the litigation costs, 15% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

Cheong-gu Office

The Defendant’s disposition of imposition of OOO on November 5, 201 to the Plaintiff on May 30, 2008 is revoked.

1. Circumstances and basic facts of the disposition;

(a) Details of the disposition imposing gift tax;

“1) On May 1, 2008, NewB, the Plaintiff’s mother, transferred the right to move into the apartment (hereinafter “the right to move into the apartment) of 2303 Dong 703, 2303, 703 out of OOB to KimCC and NewlyD on May 1, 2008, while the Plaintiff’s mother transferred the right to move into the apartment (hereinafter “the right to move into the apartment) to the OOO, the down payment OOOO of the contract was received on May 14, 2008 and the intermediate payment was received on May 14, 2008, and the remainder OOOO of the newB agreed to be received on May 30, 2008 by the transferee, and (2) the above newB was old, and the Plaintiff, the newB of the newB, acting in the name of the Plaintiff, was deposited into the OO’s account.

(3) Around October 2011, the Defendant conducted a gift tax investigation with respect to the Plaintiff, and deemed that the Plaintiff received a donation from the newB on May 30, 2008, excluding the money distributed to other siblings. On November 5, 2011, the Defendant imposed an OOO on the Plaintiff on the gift gift tax on May 30, 2008.

(4) On March 22, 2012, the Seoul Regional Tax Office decided to deduct OOO members from the taxable value of donated property. Accordingly, the Defendant corrected OOO members from the gift tax on the Plaintiff pursuant to the above decision.

(5) The Plaintiff again filed an appeal with the Tax Tribunal, and the Tax Tribunal on November 20, 201

"The taxable value of gift tax determined to be additionally deducted OOOO won from the taxable value of the gift tax, and the defendant corrected OOO won from the gift tax imposed upon the plaintiff in accordance with the above decision (hereinafter the first imposition of the gift tax, which is subject to the disposition of imposition of the remaining OOO won (=OOO -OOOO - OOOO - OOO -) of the gift tax imposed upon the plaintiff, except for each reduced portion after filing an objection and a tax judgment)."

On April 10, 2010, the newB died, and the director of the Yongsan Tax Office calculated inheritance tax by including the transfer price of the right to move in in in the instant case in the inherited property, and then imposed the inheritance taxOO on the inheritor including the Plaintiff on December 1, 201.

(c) Lawsuit seeking revocation of fraudulent act;

On the other hand, on November 28, 201, the Republic of Korea filed a lawsuit seeking the cancellation of the gift contract between the newB and the Plaintiff on the transfer price of the right to move in in in the instant case as a preserved claim against the Plaintiff on November 28, 201. The Seoul East East District Court, which is the court of the lawsuit, accepted the claim from the Republic of Korea on April 17, 201 and rendered a judgment to the effect that the contract between the newB and the Plaintiff was revoked within the limit of the OOO, which is the preserved claim amount, and that the Plaintiff paid the said money and its delay damages to the Republic of Korea (the above judgment became final and conclusive around that time, and there was no ground for recognition, and the purport of the entire pleadings, including evidence Nos. 1 through 7, and the purport of the whole pleadings.

2. Whether the part requesting revocation of the disposition imposing gift tax exceeding the OO members among the lawsuit in this case is legitimate

According to the above facts, since the portion exceeding the above amount among the gift tax already imposed on the Plaintiff was reduced by both filing an objection and the tax judgment, the claim for revocation is unlawful because the subject of the claim is not nonexistent.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Regarding imposition of inheritance tax

As to a certain property, whether gift tax has been imposed or not by deeming it as a pre-living donated property, or by deeming it as an inherited property at the time of death, and imposing both the gift tax and the inheritance tax are unlawful as double taxation. However, since the head of the Yongsan Tax Office imposed inheritance tax on the transfer price of the right to move in in in in this case by deeming it as inherited property and levied inheritance tax on the transfer price of the right to move in in in this case, and there has occurred a dispute over the said disposition, the instant disposition imposing gift tax again on the transfer price is unlawful (the amount of inheritance tax already imposed and collected should be deducted from the gift

Article 13 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013; hereinafter the same) that provides for the addition of donated property in advance to the taxable value of inherited property is to prevent an act to avoid evading inheritance of an amount of money. Therefore, if the gift tax is larger, as in this case, it shall be interpreted that there is no room

(2) Regarding a lawsuit seeking revocation of a fraudulent act

Since the previous revocation judgment on fraudulent act was revoked by the gift contract between the new BB and the plaintiff within the limit of the OOO, the part so revoked shall be deemed be be be the bean from the gift value (as the defendant's revocation judgment against this is only relative effect, it is contrary to the purport that the disposition in this case does not affect the disposition in question).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Regarding imposition of inheritance tax

The fact that the director of the Yongsan Tax Office calculates the transfer value of the right of occupancy in this case by including the transfer value of the right of ownership in the inherited property, and imposes the OOOO won of the inheritance tax. According to the evidence No. 4, in calculating the above amount of inheritance tax, it can be recognized that the above amount of gift tax was calculated by deducting the amount of gift tax for the donated property included in the inherited property as above. Thus, there is no error of law as being made under Articles 13(1) and 28 of the former Inheritance Tax and Gift Tax Act, and there is no problem of double taxation

In addition, if the gift tax is more than the inheritance tax as alleged by the plaintiff, there is no ground to interpret that the application of Article 13 of the former Inheritance Tax and Gift Tax Act should be excluded.

Therefore, we cannot accept this part of the plaintiff's assertion.

(2) Regarding a lawsuit seeking revocation of a fraudulent act

The effect of revocation of a fraudulent act is relative as alleged by the defendant, and it is only null and void between the creditor who is the right holder to revoke and the beneficiary who is the other party to the revocation. According to the above facts, according to the previous judgment on revocation of the fraudulent act, the relationship between the plaintiff and the new creditor, and the plaintiff who is the beneficiary, the OOO member of the gift contract between the new creditor and the plaintiff has become null and void

However, such effect extends to the defendant who is in the position of the head of an agency affiliated with the Republic of Korea. As such, it is reasonable to view that the defendant cannot impose gift tax on the part of the gift contract, which was revoked on the ground that it still remains effective on the part of the gift contract, which was revoked as a fraudulent act before the closing of argument in the instant case (see Supreme Court Decision 2012Du8151, Aug. 23, 2012). The Supreme Court Decision 2012Du40286, Aug. 23, 2012, held that even if the title trust was revoked by a fraudulent act revocation judgment after the disposition imposing gift tax was rendered on the trust property as a gift, it does not constitute a ground for subsequent claim for correction pursuant to Article 45-2 (2) of the former Framework Act on National Taxes, but rather, it does not constitute a dispute over the disposition of refusal on the subsequent request for correction, which became final and conclusive prior to the disposition of revocation of a fraudulent act, and that the disposition of gift tax itself is different from the case or the local creditor of the Republic of Korea.

Therefore, the part which was revoked by the previous judgment of revocation of fraudulent act should be deducted from the taxable value of gift tax, and this part of the plaintiff's assertion is justified.

(3) Calculation and determination of reasonable amount of gift tax

The amount of gift tax calculated by deducting the amount of OOO won revoked by a judgment revoking the previous fraudulent act from the taxable value of gift tax, which is the premise of the disposition of this case, is an OO member as follows.

▷ 증여세 과세가액 : OOOO원(= 당초결정 OOOO원 - 취소부분 OOOO원)

▷ 증여재산 공제(직계존비속) : OOOO원

▷ 과세표준 : OOOO원

▷ 세율: 10%

▷ 산출세액(결정세액) : OOOO원

▷ 신고불성실가산세 : OOOO원

▷ 납부・환급불성실가산세 : OOOO원

▷ 총 결정세액 : OOOO원

Therefore, the part of the imposition of gift tax by the Defendant on November 5, 201 and the Plaintiff, which exceeds the OOO members, should be revoked as it is unlawful.

4. Conclusion

Therefore, the part of the claim for revocation of the disposition imposing gift tax exceeding the OO members of the lawsuit in this case is unlawful, and thus, the plaintiff's claim except this is accepted within the scope of the above recognition. The remaining claims are dismissed as they are without merit. It is so decided as per Disposition.