Seoul Administrative Court-2013-Gu Partnership-18001 ( February 18, 2014)

A person who renounces the acquisition of new stocks in a special relationship under Article 29 (1) of the former Inheritance Tax and Gift Tax Act shall be determined based on the waived person.

It is invalid in light of the principle of no taxation without law to interpret that the person who renounced the acceptance of new shares in a special relationship under Article 29(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act is also a person liable for tax payment.

Inheritance Tax and Gift Tax Act Article 39 (Donation of Benefits)

2014Nu45934 Revocation of Disposition of Imposition of Gift Tax

AAA Foreign Affairs

BB Head of the tax office,CC Head of the tax office

The director of the tax office BB shall 20 】. 】. 】. 】 The gift tax on Plaintiff A in 209.

The imposition disposition of KRW 000,000, and the imposition disposition of KRW 200,00 by the director of the DefendantCC x 20 x. x. 】 】 Plaintiff DD

The decision that the imposition of gift tax of KRW 00,000,000 shall be revoked in all.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiffs' claims are dismissed.

November 18, 2014

December 9, 2014

1. The defendants' appeal is dismissed.

2. The costs of lawsuit are assessed against the Defendants.

1. Purport of claim

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: (a) changing “00,000 shares” to “0,000 shares”; (b) the end of Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, which are the part on the lawfulness of the disposition of this case, are the same as the part on the grounds of the judgment of the first instance, except for the following addition to the end of Article 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

2. The addition;

Meanwhile, only the phrase “a person who has given up the acceptance of new shares” in a special relationship under Article 29(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act can be interpreted as a person who has given up the acceptance of the relevant new shares as well as the person who has given up the acceptance of the new shares from the standpoint of the taxpayer. However, such interpretation would extend the scope of the revenue subject to the imposition of the gift tax under Article 29(1)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and further result in expanding the scope of the taxation of the gift tax in a manner unfavorable to the taxpayer. In addition, the extension of the taxation subject matter under Article 39(1)1(b) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act is not consistent with the language and text of Article 39(1)1(b) of the former Inheritance Tax and Gift Tax Act and thus becomes null and void against the principle of no taxation without law (see, e.g., Supreme Court en banc Decision 2010Du17564, Nov. 22, 2011>

3. Conclusion

Therefore, the plaintiffs' claims are justified, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.