When it is possible to demand and dispose of a donor's joint and several liability for gift tax payment.

According to Article 29-2(2) of the Inheritance Tax Act, Article 38, Article 39 of the Enforcement Decree of the same Act, Article 9 of the National Tax Collection Act, etc., a donor’s joint and several liability for payment of gift tax pursuant to Article 29-2(2) of the same Act shall be established abstractly when any of the grounds prescribed in each subparagraph of Article 38 of the Enforcement Decree, such as when a donee is delinquent in paying gift tax, etc., but the head of a tax office shall issue a written notice to a donor pursuant to Article 9 of the National Tax Collection Act and notify the donor of the tax payment. Thus, the head of a tax office may not exercise his/her right to demand

Article 29-2 (2) of the Inheritance Tax Act, Articles 9 and 23 of the National Tax Collection Act

Supreme Court Decision 86Nu109 Decided September 23, 1986 88Nu2120 Decided June 14, 1988

Plaintiff 1

[Defendant-Appellant] Plaintiff 2

Head of Yongsan Tax Office

Seoul High Court Decision 86Gu764 delivered on February 15, 1988

All appeals are dismissed.

The costs of appeal shall be assessed against each party.

1. Judgment on the ground of appeal by Plaintiff 2’s attorney

The court below held that even if there were such defects as alleged by the plaintiff in the disposition imposing the gift tax of this case, such defects cannot be deemed as significant and obvious defects, and thus, the plaintiff's claim for nullification of the tax disposition of this case was not reasonable. In addition, the court below held that there is no such defects in the disposition of this case. The court below, which did not affect the conclusion of the judgment below, is merely an assertion that the above additional and constructive judgments of the court below, which do not affect the conclusion

2. Determination on the grounds of appeal by Defendant Litigation Performers

According to Article 29-2(2) of the Inheritance Tax Act, Articles 38 and 39 of the Enforcement Decree of the same Act, and Article 9 of the National Tax Collection Act, a donor’s joint and several liability for payment of gift tax under Article 29-2(2) of the same Act is established abstractly when any of the grounds prescribed in each subparagraph of Article 38 of the Enforcement Decree of the same Act, such as when a donee is delinquent in the payment of gift tax. However, the head of a tax office specifically determines only by issuing a written notice to a donor pursuant to Article 9 of the National Tax Collection Act and notifying the donor of the tax payment. Thus, even if the head of a tax office notified the donor of the payment of gift tax pursuant to Article 39 of the Enforcement Decree of the Inheritance Tax Act, the head of a tax office may not exercise his/her right for collection and urge a disposition (see, e.g., Supreme Court Decisions 88Nu2120, Jun. 14, 198; 86Nu109, Sept.

The judgment of the court below that held as above is just, and it cannot be accepted merely because it is an independent opinion that the notice of payment of gift tax under Article 9 of the National Tax Collection Act can be replaced by the notice of payment of gift tax under Article 39 of the Enforcement Decree of the Inheritance Tax Act.

3. Therefore, all appeals by plaintiffs 2 and the defendant's appeals against plaintiffs 1 are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Jae-sung (Presiding Justice)