Seoul Administrative Court 2009Guhap13153 ( October 08, 2009)

early 208west2839 ( December 30, 2008)

The donation that was returned after the deadline for filing the gift tax shall not be deemed to have existed from the beginning.

Since three months have passed after the filing deadline for the gift tax return and returned by completing the registration cancellation registration of transfer of ownership in accordance with an agreement, the gift cannot be deemed to have never existed due to such return, regardless of whether the disposition imposing the gift tax was made until the return.

2012Nu34954 Revocation of Disposition of Imposition of Gift Tax

Park A. 2 others

The Director of Gangnam District Office

Seoul Administrative Court 2009Guhap13153 ( October 08, 2009)

March 8, 2013

April 12, 2013

1. Among the plaintiffs' claims added at the trial after remanding the lawsuit of this case, the part on May 1, 2008 that the defendant sought revocation of the imposition of gift tax of KRW 000 on May 1, 2008 and the imposition of KRW 000 on the plaintiff ParkCC.

2. After remand, the plaintiffs' remaining claims added in the trial are dismissed.

3. 80% of the total costs of the litigation after the filing of the appeal shall be borne by the Plaintiffs, and 20% by the Defendant respectively.

The judgment of the first instance shall be revoked. The Defendant’s imposition of KRW 000 on May 1, 2008, each of the gift tax of KRW 00 on Plaintiff ParkA and ParkB, the imposition of KRW 00 on Plaintiff ParkCC, and the imposition of KRW 00 on KRW 00 on November 15, 2012 and the imposition of KRW 00 on KRW 00 on Plaintiff ParkCC, respectively, shall be revoked.

1. Details of the disposition;

The corresponding part of the judgment of the first instance except for amendments and additions as follows, and as described in paragraphs (a) and (b):

(a) Parts to be corrected;

No. 3, and No. 11 of the 11 were imposed on the plaintiffs, such as the claim, (hereinafter referred to as the "disposition in this case"), respectively, and the "No. 19 of the 12th revision was made to the following: (a) each of the disposition imposing gift tax of KRW 000 and additional tax of KRW 000, and the gift tax of KRW 00 and additional tax of KRW 000 on the plaintiff ParkCC, respectively; and (b) each of them was amended to the "No. 110."

(b) the addition;

B. On November 15, 2012, the Defendant issued a judgment of remanding the instant case, and issued a ruling of reduction of the penalty tax amount among the previous dispositions, and imposed penalty tax of KRW 000 on Plaintiff Gam and ParkB on November 15, 2012, and penalty tax of KRW 00 on Plaintiff GambCC.

2. Scope of the judgment of this court;

In the first instance court, the Plaintiffs lost the Plaintiffs when seeking revocation of the imposition of principal tax and additional tax as of May 1, 2008, and the first instance court rejected the Plaintiffs’ appeal. However, the Plaintiffs appealed to the Supreme Court. The Supreme Court partially accepted the Plaintiffs’ appeal, and the Supreme Court dismissed the part regarding the imposition of additional tax among the dispositions as of May 1, 2008, and dismissed the Plaintiffs’ appeal as to the imposition of principal tax. Accordingly, the Defendant issued a decision to reduce the amount of additional tax among the previous dispositions in accordance with the purport of the judgment of remanding the case, and then issued a new disposition to impose additional tax on the Plaintiffs on November 15, 2012, along with the calculation basis on the amount of additional tax imposed, and upon the Plaintiffs’ request for revocation of the imposition of additional tax as of May 13, 2013, and upon request for correction of the purport of the judgment of remanding the case, the first instance court and the first instance court sought revocation of the imposition of additional tax on May 15, 2015.

3. The plaintiffs' assertion

A. Whether the aggregate taxation is lawful

The registration of transfer of ownership in the name of the plaintiffs as to real estate 1 was made by mistake and registration of transfer of ownership has been completed before the imposition of gift tax based on the above donation was made, and the plaintiffs should be deemed not to have received the first real estate donation from the beginning. Nevertheless, the imposition of capital tax on May 1, 2008 and penalty tax on November 15, 2012, which was based on the value of the second real estate on the premise that the plaintiffs received the first real estate donation, are unlawful.

(b) Whether the applicant falls under a report;

Article 78 (1) of the former Inheritance Tax and Gift Tax Act, even if the value of the first real estate was not added to the taxable value of the gift tax when the Plaintiffs reported gift tax on the value of the real estate and the gift tax on the second real estate gift. Therefore, the imposition of penalty tax on November 15, 2012, premised on the fact that the Plaintiffs failed to report, is unlawful.

4. Relevant statutes;

The same shall apply to the corresponding part of the judgment of the first instance.

5. Determination as to the imposition of capital tax on May 1, 2008

After remand, the plaintiffs' request was made to revoke the disposition of capital tax on May 1, 2008, and as seen in paragraph 2 above, the remanded judgment of this case constitutes the plaintiffs' request for a new lawsuit since it dismissed the plaintiffs' appeal concerning the disposition of tax imposition on May 1, 2008. According to Articles 55 and 56 of the Framework Act on National Taxes, where an administrative litigation is filed against the disposition under the Framework Act on National Taxes or other tax-related Acts, the administrative litigation shall be filed within 90 days after the decision on the request for examination or adjudgment is notified. According to subparagraphs 4-1 and 2-2, the plaintiffs' request for a tax trial on May 1, 2008 to the Tax Tribunal for the revocation of the disposition of tax imposition on July 25, 2008, and the plaintiffs' request for a decision of dismissal on May 1, 2008 was dismissed, and the tax Tribunal dismissed the plaintiffs' request for a final decision of dismissal on December 30, 2008.

6. Determination as to the imposition of penalty tax on November 15, 2012

A. Whether the aggregate taxation is lawful

The judgment of a higher court in a trial is bound by lower court regarding the relevant case (Article 8 of the Court Organization Act), and this court decides as to the plaintiffs' assertion regarding aggregate taxation in accordance with the binding force of the judgment remanded. Article 31 (4) of the former Inheritance Tax and Gift Tax Act provides that "in case where the property donated (excluding money) is returned by the deadline for report under Article 68 after receiving the donation within the deadline for report under Article 68, donation shall be deemed not to have existed from the beginning: Provided, That this shall not apply in case where a person receives a determination of tax base and tax amount pursuant to Article 76 before returning, unless it is determined before receiving the donation." The plaintiffs asserted that Article 31 (4) of the former Inheritance Tax and Gift Tax Act is invalid from the beginning, since the registration of transfer of ownership as to miscellaneous real estate was completed on April 29, 2005, and three months after the deadline for report of gift tax was completed on October 19, 2005, since the agreement on cancellation of ownership transfer registration was returned to l real estate in their name, and thus, it cannot be viewed that it was invalid.

(b) Whether the report is deficient;

This Court determines as follows the plaintiffs' assertion on whether or not to report short of the binding force of the remanded judgment of this case.

The main sentence of Article 78 (1) of the former Inheritance Tax and Gift Tax Act provides that the amount equivalent to 10/100 of the amount calculated by multiplying the ratio of insufficient amount to the tax base determined pursuant to Article 76 by the calculated tax amount of the gift tax shall be added to the calculated tax amount, if the total amount of donated property received from the same person within 10 years before the relevant donation date exceeds 10,000 won, the value of donated property shall be added to the taxable value of the gift tax. Thus, in cases where the gift tax on the relevant donation is calculated without adding the amount of the gift tax to the taxable value of the gift tax and is short of the tax base when the gift tax is reported at the time of filing the return on gift tax, the additional tax under the main sentence of Article 78 (1) of the former Inheritance Tax and Gift Tax Act shall be imposed. Since the Plaintiffs reported the value of donated real estate and the gift tax on the donation of real estate 2 after filing the return on gift tax, the Plaintiffs’ act in violation of the main sentence of Article 78 (1) of the former Inheritance Tax and Gift Tax Act is without merit.

7. Conclusion

Therefore, the part of the plaintiffs' claims added at the trial after the remanding of the lawsuit of this case is unlawful as the defendant's request for the imposition of 000 won for each gift tax on May 1, 2008 against the plaintiff Park Ga and Park B and for the revocation of the imposition of 000 won for gift tax against the plaintiff Park CC. Thus, this part is dismissed, and the defendant's request for the revocation of the imposition of 000 won for each additional tax against the plaintiff Park Ga and Park B on November 15, 2012 and for the revocation of the imposition of 00 won for additional tax against the plaintiff Park CC. It is so decided as per Disposition.