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(영문) 대법원 1985. 12. 10. 선고 85누667 판결
[취득세부과처분취소][집33(3)특,482;공1986.2.1.(769),264]
Main Issues

The meaning of "acquisition due to legacy" under Article 110 (1) 1 of the Local Tax Act

Summary of Judgment

The term "acquisition due to legacy" under Article 110 (1) 1 of the Local Tax Act, which is the object of tax exemption for acquisition tax, refers to a case where a will has an essential procedure under Articles 1065 through 1071 of the Civil Act, because the will does not take effect unless it is in accordance with the method prescribed by this Act, as an act of giving another person all or part of the legacy by a will.

[Reference Provisions]

Article 110(1)1 of the Local Tax Act, Article 1060 of the Civil Act

Plaintiff-Appellant

[Defendant-Appellant] Han-il shopping Co., Ltd., Counsel for defendant-appellant

Defendant-Appellee

Young-dong Gun

Judgment of the lower court

Seoul High Court Decision 85Gu83 delivered on June 21, 1985

Text

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

Reasons

The Plaintiff’s attorney’s ground of appeal is examined.

1. On the first ground for appeal:

According to the reasoning of the judgment of the court below, the court below recognized the plaintiff company's donation of 351 square meters and 18 m351 square meters and 2259.1 square meters, which is owned by the non-party 1 on May 29, 1985, to the extent that the tax disposition in this case is lawful. The judgment below recognized the plaintiff company's donation of the above land by the non-party 1 as a donation of the above land by will, although the plaintiff company actually received the above land by will, it is not deemed a donation for the reason that it did not receive testamentary gift under the Civil Act, but the testamentary gift does not take effect in whole or in part unless it takes place by will under the provisions of Article 1060 of the Civil Act, and therefore, the "acquisition due to testamentary gift" of Article 110 (1) 1 of the Local Tax Act, which is exempt from acquisition tax, does not constitute the acquisition tax by the non-party 1's acquisition of the above land by the non-party 1's heir.

2. On the second ground for appeal:

In addition, it cannot be seen that the plaintiff company applied for examination of witness on the records, and even if the plaintiff company applied for examination of witness, such as family litigation, and the court below concluded the pleading without examining it, in light of the records, it can sufficiently recognize the original facts by only the evidence presented by the court below. Thus, the court below did not err in the incomplete hearing. This issue is without merit.

3. Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Jong-soo (Presiding Justice)

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