Whether Article 9(2) of the Inheritance Tax Act is null and void

Article 9 (2) of the Inheritance Tax Act, which applies mutatis mutandis to the gift tax pursuant to Article 34-5 of the same Act, shall not be a provision to induce a faithful report of the gift tax and to reasonably evaluate the property which has no report or omitted in the report, which violates the Framework Act on National Taxes or violates the constitutional spirit to guarantee the property rights of the people.

Article 9(2) of the Inheritance Tax Act, Article 21 of the Framework Act on National Taxes, Articles 10, 22, and 95 of the Constitution

Supreme Court Decision 86Nu237 Decided September 9, 1986

[Judgment of the court below]

Head of Ansan Tax Office

Seoul High Court Decision 86Gu1278 delivered on March 19, 1987

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

As to the ground of appeal by the Plaintiff’s attorney:

1. The court below rejected the plaintiff's assertion on the premise that the title trust was terminated, and recognized that the plaintiff donated the real estate of this case from his mother does not err in the misapprehension of legal principles, such as the theory of lawsuit. The arguments are without merit.

2. The theory of lawsuit is an attacking the judgment of the court below that recognized the defendant's disposition of imposing gift tax as legitimate on the premise that Article 9 (2) of the Inheritance Tax Act is an invalid provision. However, Article 9 (2) of the same Act, which applies mutatis mutandis to the gift tax pursuant to Article 34-5 of the Inheritance Tax Act, applies mutatis mutandis to the gift tax, is a provision to induce a faithful report of gift tax, and to reasonably evaluate the property which is not reported or omitted from the report, which violates the Framework Act on National Taxes or guarantees the people's property rights (see Supreme Court Decision 86Nu237, Sep. 9, 1

Therefore, in imposing gift tax in accordance with Article 34(1) of the Inheritance Tax Act, since the plaintiff did not make a report as stipulated in Article 20 of the same Act, the court below's decision that supported the defendant's disposition that assessed and taxed the value of donated property at the price at the time of imposing gift tax in accordance with Articles 9(2) and 34-5 of the same Act is just and it is not erroneous in the misapprehension of legal principles as to the establishment and confirmation of tax liability such as theory, or in violation of the principle of no taxation without law and fair taxation as stipulated in Articles 10, 22 and 95 of the Constitution. The argument is without merit.

Therefore, the appeal is dismissed, 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.

Justices Kim Jong-chul (Presiding Justice)