Whether a gift tax imposition disposition, which applies the progressive tax rate by adding the values of the previous gift in accordance with the comprehensive taxation provisions in the former Inheritance Tax Act, is an increase or decrease in the original disposition or a separate disposition (= separate disposition)

According to Article 31-3(1) and (2) of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996), in relation to re-donations, in cases where the aggregate of the values of donations received from the same person within five years prior to the relevant donation is at least 10,000 won, gift tax shall be imposed by adding up the values of the donations. In such cases, the amount calculated by applying the provisions of Article 31-2 of the same Act, which deducts the tax amount paid for the value of the previous donation, shall be imposed. The purport of such provision is that the original gift tax constitutes a separate taxation requirement for each individual donation, and thus, the imposition of gift tax should also be different in cases of multiple donations whose timing is different, so it is necessary to prevent the act of making a single donation without deducting real estate at a different rate. Thus, since the second donation requires a separate comprehensive taxation rate, the subsequent disposition of gift tax after deducting the value of the previous donation from the original one, which shall be subject to a separate taxation rate of taxation, but shall be imposed.

Article 31-3(1) of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996) (see Article 47(2) of the current Inheritance Tax and Gift Tax Act) (2) (see Article 58 of the current Inheritance Tax and Gift Tax Act)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Law Firm Rate, Attorneys Shin Sung-sung et al., Counsel for the plaintiff-appellant)

Head of Suwon Tax Office

Seoul High Court Decision 2002Nu13965 delivered on July 29, 2003

The judgment of the court of first instance is reversed, and the judgment of the court of first instance is revoked. The litigation costs are assessed against the plaintiff.

1. The judgment of the court below

In full view of the selected evidence, the court below found the plaintiff's original decision on August 18, 199 on the land No. 1, which was owned by the non-party 1, his father, and received a registration of ownership transfer on the ground of donation on August 18, 1995, and determined and notified gift tax to the plaintiff on June 16, 1996 (hereinafter referred to as "the first decision"), and rejected the plaintiff's claim for the second decision on August 23, 1995 that the plaintiff received a registration of ownership transfer on the ground of sale from the non-party 2, who was the non-party 1's title trustee, on the ground of the non-party 1's original decision on the land No. 2, which was the non-party 1's original decision on August 6, 199, by adding the total amount of gift tax to the value of the land No. 1,51,89,76, which was the non-party 2's original decision on the gift tax.

2. The judgment of this Court

However, this decision of the court below is not acceptable for the following reasons.

According to Article 31-3(1) and (2) of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996), in relation to re-donations, in cases where the total sum of the value of donations received from the same person within five years prior to the relevant donation is at least 10,000 won, the gift tax shall be imposed by adding up the value of the donation, but in such cases, the amount calculated by applying the provisions of Article 31-2 of the same Act, subtracting the tax amount paid for the value of the previous donation, shall be imposed. The purport of such provision is that the gift tax originally constitutes a separate taxation requirement for each individual donation, and thus, a disposition of imposition should also be imposed separately, but with respect to multiple donations received from the same person, it is to prevent the act of making a donation by dividing the total amount of real estate without causing damage to real estate at one time, by cumulative taxation.

Therefore, the imposition of gift tax in the form of deducting the already paid tax amount after adding the value of the previous gift according to the second donation does not increase the tax base or tax rate of the original disposition by changing the tax base or tax rate of the original disposition, but merely conducts the cumulative taxation by the progressive tax rate as a separate disposition due to the second donation, and thus it cannot be said that the original decision was absorbed. Therefore, objection to each of the above dispositions should be

In full view of these legal principles and facts established by the court below, the defendant's original decision is not extinguished by absorption of the subsequent subsequent decision, but it exists as a separate disposition against the original decision. Thus, in order to dispute this issue, it should undergo a separate procedure of appeal. Since it is clear that the plaintiff only appealed against the second decision after three years from the date of the initial decision, and the plaintiff filed the lawsuit of this case without undergoing separate procedure of appeal against the original decision, the lawsuit of this case seeking revocation of the original decision is not dismissed.

Nevertheless, the court below affirmed the judgment of the court of first instance which dismissed the plaintiff's claim without merit on the premise that the second decision was a disposition to increase or correct the original decision, and that the plaintiff's claim was lawful. Thus, the court below erred by misapprehending the legal principles as to the legality of the lawsuit, such as the filing period, and thereby affecting the conclusion of the judgment

3. Conclusion

Therefore, the judgment of the court below is reversed, and this case is sufficient to be tried by the court, and the judgment of the court of first instance is revoked, and the lawsuit of this case is dismissed, and all costs of the lawsuit are borne by the plaintiff who is the losing party. It is so decided as per Disposition

Justices Shin Shin-chul (Presiding Justice)