Seoul Administrative Court-2014-Gu Partnership-68140

The market price of the right to refund each insurance premium of this case is paid for.

According to the terms and conditions of each of the insurance contracts in this case, the market price of each of the insurance contracts in this case is the payment insurance premium, and the content of each of the individual questioning questions alone does not constitute justifiable grounds for exemption from additional tax.

Article 65 of the Inheritance Tax and Gift Tax Act

2015Nu400 Revocation of Disposition of Imposing gift tax

1. AA;

2. BB

3. CCC;

4.D;

The Director of the sericultural Tax Office

The Director of Gangnam District Office

April 2, 2015

July 22, 2015

September 2, 2015

1. The part of the judgment of the court of first instance against the Defendants shall be revoked, and the plaintiffs' claims corresponding to the revoked part shall be dismissed.

2. All appeals filed by the plaintiffs are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

The imposition of gift tax of KRW 00,00,000 against Plaintiff AB on November 13, 2013 by the director of the sericultural Tax Office, the imposition of gift tax of KRW 000,000,000, which was made against Plaintiff BB on November 14, 2013 by the director of the Gangnam-gu Tax Office, the imposition of gift tax of KRW 00,000,000,000, which was made against Plaintiff CCC on November 8, 2013 by the director of the distribution tax office, and the imposition of gift tax of KRW 00,00,000,00,000, which was made against Plaintiff DD on November 14, 2013, is revoked, respectively.

2. Purport of appeal

A. The plaintiffs

The part against the plaintiffs in the judgment of the first instance shall be revoked. The same judgment shall be sought as the purport of the claim.

B. The Defendants

Paragraph (1) shall apply.

1. The part citing the judgment of the court of first instance

The reasoning of the judgment of this court is as follows: (a) the background of the disposition, the plaintiffs' assertion, and relevant statutes are as stated in the corresponding part of the judgment of the court of first instance (from 2 to 5th page), and thus, they are cited by Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Facts of recognition;

A. The main contents of each of the instant insurance contracts are as follows.

1) The first and second insurance contracts of this case

Article 2 (Withdrawal of Offer)

① 계약자는 청약을 한 날부터 15일 이내에 그 청약을 철회할 수 있습니다. 다만, 진단계약, 단체 (취급)계약 또는 보험기간이 1년 미만인 계약의 경우에는 그러하지 아니하며, 전화��우편��컴퓨터 등의 통신매체를 통한 보험계약(이하 "통신판매계약"이라 합니다)의 경우에는 청약을 한 날부터 30일 이내에 그 청약을 철회할 수 있습니다.

(2) If a contractor has withdrawn an offer, the company shall return the already paid insurance premium (the amount less the already paid survivors' pension) within three days from the date on which it receives the withdrawal of offer, and shall pay for the period for which the refund of insurance premium is delayed, plus the amount calculated by adding the interest rate for the loan of insurance contract to the annual welfare.

Article 7 (Modification, etc. of Details of Contracts)

1. The contractor may modify the following matters with the consent of the company. In such cases, the consent shall be notified in writing or written on the back of the insurance policy (certificate of insurance coverage):

1. Policyholders;

2. Details of other contracts.

(2) A contractor may change an insurance beneficiary (person receiving the insurance proceeds), and in such cases, consent of the company is not required: Provided, That if the contractor changes the beneficiary (person receiving the insurance proceeds), the beneficiary after the change (person receiving the insurance proceeds) may not oppose the company with his/her right unless he/she notifies the company thereof.

VIII.Rights to cancel contractor's voluntary termination and to withdraw written consent of the insured (persons insured)

(1) A contractor may terminate a contract at any time before the contract is terminated (Provided, That in cases of a life-long pension sentence, it shall not apply), and in such cases, the company shall pay a termination refund under Article 17 (1) to the contractor.

Article 13 (Types and Grounds for Payment of Insurance Money)

If any of the following events occurs to an insured (person subject to insurance) with respect to an insured worker, the company shall pay the insurance money agreed upon to the beneficiary (person who receives the insurance money) (see attached Table 1; hereinafter the same shall apply):

1. When the insured (person subject to insurance) lives on the date falling under the amount of annuity: A survival pension in the form of annuity payment;

Article 17 (Refunds upon Termination)

1. The termination refund payable upon termination of the contract under the terms and conditions shall be calculated in accordance with the manual for calculation of insurance premiums and liability reserves.

(2) The public disclosure interest rate applicable at the time of calculating the refund for termination (the annual welfare 3.0% and the minimum guarantee rate of 2.0% after 10 years) shall apply the interest rate prescribed in Article 16 (Application and Public Notice) and where the public disclosure rate is changed, the changed public disclosure rate from the date of change shall apply.

(3) In cases of punishment for inheritance pension, the company shall provide the contractor with a list of the refund for termination by the lapse period.

Pension Payment Type

Amount paid

Freeboard of Inheritance Pension

Life imprisonment;

When the insured (person subject to insurance) resides on the relevant date of each year in the payment of pension, the amount calculated by applying the publicly notified interest rate to the "amount to be accumulated in the pension contract" as at the relevant date of each insurance contract each year as the inheritance pension (payment of the "amount to be accumulated at the time of death").

1) The term “amount of accumulation of pension contracts” refers to the amount accumulated at a publicly notified interest rate on the basis of the date calculated from the date of payment of the net insurance premium under the pension contract (the amount obtained by subtracting the risk insurance premium and the additional insurance premium for the relevant month), as stipulated in the calculation method.

2. The calculation of the amount of the survivors' pension is calculated by applying the publicly notified interest rate, and if the publicly notified interest rate is modified, the amount of the survivors' pension will also be modified.

6. In the case of an inheritance pension type, the "amount accumulated" at the time of death shall be paid when the insured dies, and this contract shall be extinguished;

8. The insurance period of this insurance is from the time of accession to the life annuity type and that of an inheritance pension type, the life annuity type and that of an inheritance pension type, from the time of subscription, to the end of the annual payment period (10 years, 15 years, 20 years, 25 years, 30 years, and 30 years).

2) The third and fourth insurance contracts of this case

Article 2 (Withdrawal of Offer)

(1) The contractor may withdraw the offer within 15 days from the date of the offer or the date of the first installment payment.

(2) Where a company receives an order from a contractor pursuant to paragraph (1), it shall promptly return the already paid insurance premium, and shall pay the period during which the return of the insurance premium is delayed by adding the interest rate for the loan of this contract to the amount calculated as an annual welfare unit.

Article 7 (Modification of Details of Contracts)

(1) A contractor may modify the following matters with the consent of the company. In such cases, he/she shall notify the consent in writing or shall write his/her intention on the back of the insurance policy (insurance policy):

1. Amount of insurance coverage;

2. A contractor or a beneficiary (a person who receives an insurance money);

3. Details of other contracts.

Article 8 (Voluntary Termination of Contractors)

A contractor may terminate a contract at any time before the contract is terminated, and in such cases, the company shall pay the cancellation refund to the contractor pursuant to Article 17 (1): Provided, That a life-long pension type may be extended only for the insurance period prior to the commencement of a life-long pension.

Article 12 (Types and Grounds for Payment of Insurance Money)

If any of the following events occurs to the insured (beneficiary) during the insurance period, the company shall pay the insurance money agreed upon to the beneficiary (beneficiary of the insurance money) (refer to Table 1. table of the payment of insurance money):

1. When an insured person in cases of an individual contract during the insurance period after the commencement of pension benefits, and a principal insured person or an insured person in cases of a married couple's contract live each year on the relevant date of insurance contracts: Pension benefits;

Monthly survivors' pension benefits shall be paid according to the form of payment.

2. When an insured person in cases of an individual contract during the insurance period, or a principal insured person or an insured person in cases of a marital contract has died: Payment of the death insurance amount;

Article 17 (Refund Money for Loss)

1. The cancellation refund payable upon termination of a contract under this terms and conditions shall be calculated in accordance with the manual for calculation of insurance premiums and liability reserves.

(2) The public disclosure interest rate applicable at the time of calculating the refund for cancellation (the minimum interest rate shall be 3.0% per annum within ten years from the date of the contract, and 2.0% per annum within ten years) shall be the interest rate prescribed in Article 16 (Application and Public Notice): Provided, That where the public disclosure rate is changed, it shall be applied on the basis of the changed public disclosure rate from the date of change.

(3) A company shall provide a contractor with a ticket of refund upon cancellation of each transitional period: Provided, That a life annuity shall be limited to the insurance period prior to the commencement of a life annuity.

Article 31 (Insurance Contract Loans)

1. The contractor may receive a loan (hereinafter referred to as "insurance contract loan") in the manner determined by the Company within the scope of the refund upon cancellation of this contract.

(2) A contractor may repay the loan of insurance contracts and interest interest of insurance contract loans under paragraph (1) at any time, and if the repayment is not made, the principal and interest of insurance contracts may be deducted from the payment made on the date a cause for payment of insurance money, cancellation refund,

【Immediate pension type】

(c) Inheritance pension type;

(1) Franchises;

Benefits and Trade Name

Grounds for Payment

Payments

Life Pension

An insured worker (person eligible for insurance) during the insurance period shall continue to exist each year on the relevant date of the insurance contract.

The amount equivalent to the interest calculated based on the pension contract liability reserve on the date corresponding to the contract from the date corresponding to the contract each month after the commencement of guarantee shall be paid as the monthly amount of pension.

Death insurance proceeds

When an insured worker dies during the insurance period;

10% of the lump-sum payment premium + Liability reserve for pension contracts at the time of death

1. Insurance period

Name of insurance types;

Insurance Period

Pension Commencement Insurance Term

From the commencement of pension coverage

Immediate Pension Form

Life and inheritance pension type (franchis);

None

Date of accession – Life Correspondence

2. Payment cycle of pension and payment period of pension;

Pension payment cycle

Payment Period of pension

Monthly

Immediate Pension Form: Payment on the relevant day of each month after the date on which the contract falls;

3. The pension contract liability reserve means the amount calculated by applying the publicly notified interest rate based on the net insurance premium for the pension contract (the amount obtained by subtracting the net insurance premium and the estimated project cost from the business insurance premium) as stipulated in the "Calculation Method of Insurance Premiums and the Liability Reserve."

4. Since a survivor pension is calculated by applying the publicly notified interest rate, if the publicly notified rate is changed, the survivor pension will also be changed.

B. Under each of the instant insurance contracts, the period of withdrawal of subscription is until January 12, 2011.

[Ground of recognition] Facts without dispute, Gap evidence 1-1-2, Gap evidence 2-1-4, Gap evidence 5-1-2, Gap evidence 6-1, 6-2, and the purport of the whole pleadings

3. Determination

1) Appraisal of rights under an insurance contract

A) Article 31(1) of the former Inheritance Tax and Gift Tax Act provides that “The donated property shall include all things belonging to the donee and having economic value convertible into money and all de facto or de facto rights having property value.” Article 60 of the Enforcement Decree of the same Act provides that “The value of the property on which gift tax is levied under this Act shall be the market value as of the date of donation (paragraph (1)). Where it is difficult to calculate the market value, the market value shall be the value normally recognized to be established if transactions are conducted freely between many and unspecified persons (Paragraph (2). If it is difficult to calculate the market value, the value assessed by the methods prescribed in Articles 61 through 65 (3) shall be deemed the market value (Paragraph (3).” Article 65(1) of the same Act provides that “The value of the property shall be appraised by the method prescribed by Presidential Decree based on the nature, content, remaining period, etc. of the relevant right, and Article 60 subparag. 1 of the Enforcement Decree of the Framework Act on National Taxes shall be appraised the value of the property calculated based on the original value of the right until the date of appraisal.”

B) In light of the aforementioned relevant laws and regulations, the Plaintiffs succeeded to rights under each of the instant insurance contracts through the change of policyholders and beneficiaries regarding each of the instant insurance contracts on January 10, 201, as seen earlier, and thus, the status and rights of the policyholders and beneficiaries became donated property under Article 31(1) of the former Inheritance Tax and Gift Tax Act. In full view of the following circumstances, it is reasonable to view the “market price of each of the instant insurance contracts as of January 10, 201,” which is the acquisition date, as the payment insurance premium.

① In full view of the fact that Article 60(2) of the former Inheritance Tax and Gift Tax Act provides for a definition that corresponds to the essence of the market price and there is no other provision on the definition of the market price under the former Inheritance Tax and Gift Tax Act; Article 60(3) of the former Inheritance Tax and Gift Tax Act provides for an alternative where it is difficult to compute the market price under Article 61 through 65 of the same Act; and Articles 61 through 65 of the former Inheritance Tax and Gift Tax Act provides for a method of reasonably estimating the market price, the value assessed by the methods under Articles 61 through 65 of the same Act pursuant to Article 60(3) of the former Inheritance Tax and Gift Tax Act constitutes the market price that serves as the basis for calculating the value of the property on which the gift tax is levied (see Supreme Court Decision 2012Du3200, Jun.

(2) In light of the fact that a contract takes effect upon the conclusion of a contract, and the right to withdraw an application is a right to escape from a contractual relationship simply when a consumer makes an offer or changes his/her intention within a specified period after concluding a contract, an insurance contract becomes effective upon the conclusion of a contract, and even if it exists within the period for withdrawing an application, a right under an insurance

③ The Plaintiffs succeeded to and acquired the rights and obligations under each of the instant insurance contracts by changing the EE to a policyholder, but the period of cancellation of each of the instant insurance contracts was not expired as of the date of the change. As such, the Plaintiffs acquired the right to refund the premium and the right to receive the installment fund following the cancellation of insurance contract according to the terms and conditions of the instant insurance

④ The right to refund insurance premiums constitutes conditional rights acquired when the condition of suspension, such as cancellation of order or termination, is fulfilled (the right to depend on whether the validity or termination of a conditional juristic act established only on the fulfillment of the future uncertain fact), the market price under Article 65(1) of the former Inheritance Tax and Gift Tax Act and Article 60 subparag. 1 of the Enforcement Decree of the same Act can be assessed as “an adequate value in consideration of the fact that the market price constitutes the contents of conditions as of the evaluation base date based on the value of rights established in the future, the certainty of fulfillment of conditions, and all other circumstances,” and the fact that each insurance contract of this case can receive the total amount of the insurance premiums when the withdrawal of order is made within 15 days according to the terms and conditions of each insurance contract of this case.

On the other hand, the right to receive the installment payments is assessed against the market price under Article 65 of the former Inheritance Tax and Gift Tax Act and Article 62 of the Enforcement Decree of the same Act, and the market price is lower than the market price of the right to refund the

(5) If so, it is necessary to assess the rights of each insurance contract of this case by either the market price of the right to refund insurance premiums or the market price of the right to receive payment.

Even if an insurance contract is established and the contract becomes effective, the insurance claim is not an abstract right before the occurrence of the insurance accident, but can exercise its right from that time after the occurrence of the insurance accident (see Supreme Court Decision 2007Da19624, Nov. 13, 2008). Thus, the right of the policyholder to the insurance contract is an abstract insurance claim (in the case of a pension insurance, 'the maturity of the payment date of the insurance premium' shall be considered as an insurance accident for which specific insurance claims occur) of the right to refund the insurance premium to the Governor, and it is not determined as an insurance contract or an abstract insurance claim (in the case of a pension insurance, 'the maturity of the payment date of the insurance premium'). The supplementary evaluation method is applied when it is impossible to calculate the price traded by many unspecified persons, so it is reasonable to select the party whose market price is determined to be paid under the terms and conditions. However, the market price of the right to refund the insurance premium is not determined by calculating the amount of the insurance contract after the conclusion of the insurance contract or the gift tax base of gift tax.

Accordingly, the Plaintiffs asserts that the assessed value of the right to receive Periodical Fund, which is the actual remaining right, should be the market price. However, Article 60(1) of the former Inheritance Tax and Gift Tax Act provides that the value of donated property shall be based on the market price as of the date of donation, and even if the Plaintiffs’ failure to exercise the right to withdraw subscription within the period and the non-performance of the conditions became final and conclusive,

2) Whether the principle of retroactive taxation prohibition is violated

The principle of trust and good faith, the principle of trust and good faith, or the principle of respect for non-taxable practices, in tax and legal relations, are exceptional legal principles applicable only to cases where there are special circumstances deemed that the protection of taxpayer’s trust is consistent with the justice even if the principle of legality is sacrificeed. Therefore, in order to apply the principle of trust and good faith or the principle of protection of trust to a tax authority’s act, the average taxpayer’s trust given by the tax authority through the public opinion list, etc. should be able to have a reasonable and justifiable expectation. Even if the tax authority expressed a certain opinion through inquiry, if it is a result of questioning without revealing the important facts and legal issues properly, it cannot be said that there is a trust that can have a legitimate expectation by the public opinion list. Furthermore, the principle of respect for non-taxable practices can be applied to the interpretation of the tax law generally accepted by the taxpayers regarding non-taxation or the practice of national tax administration, which is not a specific taxpayer, and thus, it is unreasonable to accept the general taxpayer as just, and it does not constitute an interpretation or practice of the tax law (see 2016).

In light of the above legal principles, the issue of how to evaluate the value of donated property by any method when changing the name of the health group, policyholder, and beneficiary is in the nature of the determination by examining the terms and conditions of the relevant insurance product, the details and timing of the change of policyholders, etc., and it is insufficient to view that the contents, etc. (Evidence A to No. 8 through No. 12) presented by the plaintiffs would result in the assessment methods of the right to receive the fixed amount of money in this case, which is sufficient for general taxpayers to have formed trust or practice to the extent that it would have been expected, and there is no other evidence to acknowledge it.

(iii) the existence of “justifiable cause” as a ground for exemption from an erroneous payment for unfaithful payment

Under the tax law, penalty taxes are administrative sanctions imposed in accordance with the law in cases where a taxpayer violates a duty to report and pay taxes without justifiable grounds in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, and the taxpayer’s intention and negligence is not considered, and the land or mistake of the law does not constitute justifiable grounds (see, e.g., Supreme Court Decision 2013Du1829, May 23, 2013).

In light of the above legal principles, the content of the individual inquiry presented by the plaintiffs alone is insufficient to deem that the plaintiffs formed sufficient trust and practices to expect that the methods of evaluating the rights to receive a fixed amount of money for life are applied to this case. Therefore, the plaintiffs' assertion that the contents of the above inquiry were applied to this case, and that the above inquiry was performed with the belief that the contents of the above inquiry are applied to this case, cannot be deemed as a justifiable ground that constitutes a ground for exemption from penalty, since it is nothing more than the site or mistake of the law. Accordingly, the plaintiffs' assertion on this part is without merit.

4. Conclusion

Therefore, since each disposition of this case is legitimate, the plaintiffs' claim is dismissed in its entirety as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, the appeal by the defendants is accepted, and the part against the defendants in the judgment of the court of first instance is revoked, and the plaintiffs' claim corresponding to the cancellation part is dismissed in its entirety. It is so decided as per Disposition.