Seoul High Court 2008Nu21654 (209.06.09)

National High Court Decision 2007west0862 (207.08.06)

In a lawsuit seeking revocation of a taxation disposition, only the portion exceeding the reasonable amount of tax must be revoked.

The legality of a taxation disposition is determined depending on whether the amount of taxation exceeds a legitimate amount of tax, and the parties concerned may submit arguments and materials supporting the objective amount of tax liability until the closing of arguments in the fact-finding proceedings, and when a legitimate amount of tax is calculated based on such materials, only the portion exceeding the legitimate amount of tax shall be revoked,

The contents of the decision shall be the same as attached.

The judgment of the court below shall be reversed, and the case shall be remanded to the Seoul High Court.

The grounds of appeal are determined.

1. Ground of appeal No. 2

원심판결 이유를 기록에 비추어 살펴보면, 원심이 그 채용 증거들을 종합하여 판시 사실을 인정한 후, 그 판시 사정을 종합하여 보면 원고 조☆☆가 망인에게 이 사건 낙찰대금의 자금으로 12,713,366원을 대여하였고, 원고 최★★이 망인에게 이 사건 낙찰 대금의 자금으로 20,000,000원을 대여하였다고 봄이 상당하고, 이 사건 지급액 중 12,713,366원과 20,000,000원은 위 각 대여금의 반환에 해당한다는 이유로, 이 사건 증여재산가액 및 상속재산가액에서 위 각 대여금의 반환에 해당하는 금액이 공제되어야 한다고 판단한 조치는 정당하고, 상고이유로 주장하는 바와 같은 채증법칙 위반 등의 위법은 없다.

2. Ground of appeal No. 1

The legality of a taxation disposition is determined depending on whether the amount of taxation exceeds the reasonable amount of tax, and the parties concerned may submit arguments and materials supporting the objective amount of tax liability until the closing of argument in the fact-finding court. When the amount of tax is calculated based on such materials, only the portion exceeding the reasonable amount of tax shall be revoked, and the entire amount of tax shall not be revoked (see, e.g., Supreme Court Decisions 90Nu8459, Apr. 12, 1991; 96Nu1502, Mar. 28, 197).

According to the records, the plaintiffs only dispute the amount to be deducted from the value of the donated property and the value of the inherited property of this case, and do not dispute the remaining method of calculating the tax amount. Therefore, the court below should only revoke the excess amount, if the amount to be deducted from the value of the donated property of this case and the value of the inherited property of this case is compared with the amount to be deducted, and if the amount to be imposed on each of the inheritance and gift taxes of this case

Nevertheless, the decision of the court below that revoked the entire imposition disposition of each gift tax and gift tax in the case of debt transfer without calculating the legitimate amount of tax after deducting the amount to be deducted from the value of donated property and the value of inherited property is unlawful.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.