Seoul Administrative Court 2009Guhap7226 ( October 18, 2009)

Cho High Court Decision 2008Do3188 ( December 05, 2008)

Where a judgment has been rendered null and void due to the rescission of agreement and collusion of a gift contract, the legal effect of returning the donated property

In the event of a judgment ordering cancellation registration by collusion, the contract between the parties is retroactively terminated by agreement cancellation, but its effect does not reach a third party, and even if the judgment invalidating the gift contract within the deadline for filing, it cannot be deemed that the donated property was returned in the absence of cancellation of ownership transfer registration.

1. The plaintiff's appeal is dismissed.

2. We dismiss the part of the claim for revocation of the disposition of additional dues added at the trial of the case.

3. The costs of the lawsuit after the appeal shall be borne by the plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 569,883,030 of gift tax for the year 2007 against the Plaintiff on January 23, 2008 and revocation of the disposition of imposition of KRW 4,967,610 of additional dues (the Plaintiff added the claim for revocation of the disposition of imposition of additional dues at the trial).

2. Purport of appeal

In the judgment of the first instance court, the part against the plaintiff falling under the order to revoke the below is revoked. The defendant appealed on January 23, 2008 the part exceeding KRW 441,005,955 of the disposition imposing gift tax of KRW 569,883,030 for the year 2007 against the plaintiff [the plaintiff shall be revoked [the part that exceeds KRW 128,877,075 in the judgment of the first instance (additional tax of KRW 88,974,712 in bad faith + Additional tax of KRW 36,034,758 in the amount of penalty tax for bad faith in payment + Additional tax of KRW 36,867,605 in the period from the date of notice of imposition of gift tax to the date of issuance of notice];

1. Judgment on whether to impose gift tax (cite the judgment of the court of first instance);

The court's explanation of this case is the same as the part of the reasoning of the judgment of the court of first instance. Thus, it can be accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the claim to revoke the disposition imposing additional dues

The plaintiff asserts that the disposition of this case by the defendant against the gift tax imposed on the plaintiff should be revoked since the disposition of this case is unlawful in the imposition of additional 4,967,610 won.

In light of the above legal principles, if a taxpayer fails to pay a national tax by the due date, the notice of additional dues cannot be deemed a disposition subject to appeal, as it naturally occurs under the provisions of law without the final procedure of the taxation office (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005). Of the instant lawsuit, the part of the claim for revocation of the disposition imposing additional dues is unlawful.

3. Conclusion

Therefore, the plaintiff's claim for revocation of the disposition imposing gift tax is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and the part of the claim for revocation of the disposition imposing additional dues added in the court of first instance among the lawsuits of this case is unlawful and dismissed as it is so decided as per Disposition