2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the plaintiff, and the remainder by the defendant.

A. At January 2006, the branchB held 5,000 shares (100% of the total number of shares issued) issued by the CC Building Business Co., Ltd. (DDDD Co., Ltd. on January 20, 2010; hereinafter referred to as 'non-party company').

B. On February 27, 2006, the branchB transferred 4,182 shares of the non-party company to eight (hereinafter referred to as "the plaintiff et al.") such as the plaintiff et al. (hereinafter referred to as "the plaintiff et al.") at par value of 00 won per share (hereinafter referred to as "transfer of this case").

C. On February 28, 2006, DoGG, which is a protocol of the branchB, donated to the non-party company the buildings of 000 OO2,112 square meters and 3 stories above ground (hereinafter “the real estate of this case”) (hereinafter “the real estate of this case”) and completed the registration of ownership transfer on the real estate of this case in the name of the non-party company on March 3, 2006.

D. As to the donation of the instant real estate, the non-party company added 000 won to the gross income, and reported and paid 000 won of the corporate tax for the business year 2006.

E. On April 201, the director of the Seoul Regional Tax Office imposed capital gains tax on DoB, the transferor, by applying the provision regarding the wrongful calculation based on the low-price transfer of unlisted stocks between the related parties with respect to the transfer of the instant shares, and on the difference between the transfer value and the value assessed based on the supplementary assessment method, deemed the difference between the value of the instant transfer value and the value assessed by the non-party company’s shares as a gift income from a low-price transfer, and imposed gift tax on the Plaintiff, the transferee, etc., and the non-party company, upon the increase in the value of the Plaintiff’s shares following the donation of the instant real estate, notified the Plaintiff of taxation

F. Accordingly, on July 1, 201, the Defendant imposed a KRW 000 of the transfer income tax for the transfer of the instant shares on the branchB in 2006, and on July 4, 2011, on the Plaintiff, a disposition imposing a gift tax of KRW 000 (hereinafter “instant gift tax”) upon the low-price transfer of the instant shares and KRW 000 (hereinafter “instant gift tax”) related to the instant real estate transaction and KRW 200 (hereinafter “instant gift tax imposition disposition”) respectively (hereinafter “each of the instant disposition”).

G. On September 23, 2011, the Plaintiff appealed to the instant disposition and brought an appeal to the Tax Tribunal, and the Tax Tribunal dismissed the Plaintiff’s claim on November 24, 201.

[Based on Recognition] The non-contentious facts, Gap evidence (including household numbers, hereinafter the same shall apply) to 3, and Eul evidence 1 to 4, and the whole purport of the pleading

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) Imposition of gift tax of this case

In relation to the instant stock transaction, the Defendant imposed gift tax on the difference between the transfer value of the instant shares and the appraised value calculated by the Defendant’s supplementary assessment methods, considering that the transfer income tax was imposed on the instant stock transferor, and the Plaintiff, the transferee, as the gift tax was imposed on the Plaintiff. This is against double taxation as to the difference between the market value and the actual transaction value (transfer value). Therefore, it is unlawful as it is against the principle of substantial taxation.

2) Imposition of gift tax of this case

(2) The imposition of gift tax of this case is unlawful for the following reasons.

A) Non-existence of gift fact and illegality in the calculation method of gift value

GG only donated the instant real estate to the non-party company, which led to the increase in the value of the shares of the non-party company owned by the plaintiff, and this is merely an incidental effect from the real estate donation to the non-party company of the branchG, and thus, it cannot be deemed that there was any gift from the branchG against the plaintiff. Even if there was a gift from the plaintiff of the branchG, the defendant was amended by Act No. 7010 of Dec. 30, 2003, and the defendant was subject to the imposition of the gift tax of this case on the basis of Articles 2(3) and 42(1)3 of the Inheritance Tax and Gift Tax Act (amended by Act No. 8139 of Dec. 30, 206, hereinafter the same), and Article 2(3) of the Inheritance Tax and Gift Tax Act is unlawful since the subject of the application of Article 42(1)3 of the Inheritance Tax and Gift Tax Act on the calculation of the value of donated property is entirely different from the gift property type of this case.

B) Taxation on unrealized benefits

The imposition of gift tax of this case ② was made on unrealized gain, which is a stock value increase, and it should be premised on the fair and accurate measurement of taxable gain in order to impose unrealized gain, and the establishment of a supplementary provision for asset value decline. Nevertheless, the Defendant’s imposition of gift tax by deeming the unrealized gain as a taxable gain in the absence of such a prior determination problem as the gain subject to taxation is contrary to the principle of excessive prohibition under the Constitution.

C) Double taxation of corporate tax and gift tax

Although the non-party company paid corporate tax on the donation of the instant real estate, the Defendant again imposes gift tax on the Plaintiff, a shareholder of the non-party company, on the instant real estate transaction violates Article 2(2) of the Inheritance Tax and Gift Tax Act prohibiting double taxation on the same taxable object.

D) Violation of imposition of additional tax

Even if the gift tax imposition disposition (main tax portion) of this case was lawful, and the defendant has authoritative interpretation to the effect that gift tax is not imposed on the case similar to the gift of this case several times until March 2006, and the plaintiff trusted it at the time of March 2006 when the gift of this case was made and did not report and pay gift tax, and therefore, it constitutes a case where there is a justifiable reason for violating the plaintiff's duty to report gift tax. Accordingly, the penalty tax imposition disposition of this case was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination on the imposition of gift tax of this case

1) As gift tax and capital gains tax vary between the requirements and timing for establishing tax liability and taxpayers, in cases where the tax authority imposes each disposition, it shall be judged independently in accordance with the respective taxation requirements, and if both of them meet the respective taxation requirements, it shall not be deemed that only one taxation can be made, unless there are any special provisions excluding double application. Article 2(2) of the Inheritance Tax and Gift Tax Act provides that where income tax is levied on a donee pursuant to the Income Tax Act on donated property under paragraph (1), gift tax does not impose gift tax in light of the language and text thereof and the nature of the gift tax as a supplement tax, and does not fall under any special provision excluding overlapping application of capital gains tax and provisions excluding double application of gift tax where income tax is imposed on a donee (see, e.g., Supreme Court Decisions 98Du11830, Sept. 21, 199; 2002Du12458, May 13, 2003).

2) As seen earlier, the branchB transferred the non-party’s stocks to the Plaintiff, etc. at low price, and the Defendant imposed gift tax on the difference between the actual transfer value of the stocks and the value assessed by the supplementary evaluation method under the Inheritance Tax and Gift Tax Act on the Plaintiff, etc., and imposed transfer income tax on the branchB by using the assessed value as the transfer value.

3) Examining these facts in light of the aforementioned legal principles, the imposition of capital gains tax on the branchB and the imposition of the gift tax on the Plaintiff cannot be deemed to constitute double taxation on the grounds that the subject of taxation differs from the subject of taxation, and the imposition of the gift tax of this case ① cannot be deemed to violate Article 2(2) of the Inheritance Tax and Gift Tax Act. Accordingly, the Plaintiff’

D. Determination on the imposition of gift tax of this case

1) The system of introducing the complete comprehensive gift tax system and the provision of the Inheritance Tax and Gift Tax Act

A) The former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003, hereinafter "former Inheritance Tax and Gift Tax Act") did not stipulate the concept of donation, and borrowed the concept of donation under the Civil Act. The concept of loan alone does not have any way to prevent the avoidance of gift tax by transferring the concept of donation without compensation without compensation in the form of donation under the Civil Act, i.e., by changing the concept of donation, and the tax authorities have been taking measures to cope with the various statutory provisions on deemed donation (Articles 32 through 42 of the former Inheritance Tax and Gift Tax Act). However, this separate statutory provision on deemed donation points out that it is difficult to cope with new type of gift financial instruments or financial techniques, and new type of gift from various forms of gratuitous transfer, and at the same time, it was pointed out that the so-called comprehensive provision on deemed donation under the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003) has been introduced the so-called comprehensive provision 3(3).

B) Article 2(1) of the Inheritance Tax and Gift Tax Act provides that donated property from another person’s gift tax is subject to gift tax, and Article 2(3) provides that “The term “donation” refers to a transfer of tangible and intangible property which can calculate economic values to another person (including a transfer at a remarkably low price) by direct or indirect means, regardless of the name, form, purpose, etc. of the act or transaction, or a transfer of tangible and intangible property from another person’s property value without compensation (including a transfer at a remarkably low price) or a contribution increases the value of another person’s property, which is separate from a gift under the Civil Act, and Article 33 through 42 provides a separate concept of donation separate from a gift under the Civil Act, and Article 2(3) of the current Inheritance Tax and Gift Tax Act is converted into an example provision on calculation of the value of donated property by supplementing the previous provisions. In other words, the current Inheritance Tax and Gift Tax Act system can be divided into Article 2(3) of the current Inheritance Tax and Gift Tax Act, and Article 42(3) of the current comprehensive Provisions, and separate from a separate provision on capital transactions.

2) Whether the taxation is possible and its limit under Article 2(3) of the Inheritance Tax and Gift Tax Act

A) If a typical property or right is not a typical property or a right provided under the Inheritance Tax and Gift Tax Act, it is a question as to whether a gift can be taxed pursuant to the said provision even if it does not fall under the individual provision. It is reasonable to see that the concept of gift pursuant to the complete comprehensive taxation under Article 2(3) of the Inheritance Tax and Gift Tax Act has been introduced in order to levy gift tax on the transfer of property or increase in the value of property without consideration, and that it is difficult to simply interpret Article 2(3) of the Inheritance Tax and Gift Tax Act as a confirmatory and declared provision in light of the structure with other provisions, such as the change of the existing provision into the provision on calculation of the value of donated property (where Article 2(3) of the Inheritance Tax and Gift Tax Act is simply a confirmatory and declared provision, it is difficult to see that the taxation basis on the existing donated property is nonexistent from the perspective of introducing Article 2(3) of the Inheritance Tax and Gift Tax Act, the legislative purport, and the system with other provisions to impose gift tax without consideration.

B) On the other hand, among individual example provisions, the conditions of restriction are stipulated, such as the parties’ special relationship between the parties, or their personal conditions requesting the parties to the transaction to be a specific corporation or largest shareholder, and the transaction price to require the difference between the market price and the market price to be more than 30% compared to the market price, and requirements for the minimum amount of contribution to the gift tax for the imposition of gift tax. The issue is whether gift tax may be imposed by applying only Article 2(3) of the Inheritance Tax and Gift Tax Act to the transactions and acts similar to those regulated in the above individual example clause or acts failing to meet the above restriction conditions. The above comprehensive gift provision provision provides that whether to impose gift tax, and the conditions stipulated in the individual example provision are merely the cases of valuation of the value of donated property, and even the transactions or acts that deviate from the above conditions are subject to gift tax pursuant to Article

In addition, it can be said that the meaning of the entire comprehensive donation provision can be thoroughly implemented to view that the value of the donated property can be evaluated in accordance with the individual example provision which is the most similar to that.However, the interpretation can be made through a thorough implementation of the purpose of the entire comprehensive donation provision. However, ① the standards set up by the individual example provision as the limit of taxation can be punished, which may undermine the predictability and legal stability of taxpayers, and ② the legislator, when establishing the complete comprehensive donation provision, intends to keep the individual example provision only as the function of simply examples of transactions and acts in accordance with the complete comprehensive donation provision, it is sufficient to suggest only a certain transaction and acts, and ③ Even after the enactment of the separate comprehensive donation provision, there is a special taxation condition that limits the scope of such transactions and acts in the main sentence and Enforcement Decree of the individual example provision.

C) Ultimately, in determining whether an act or transaction beyond the scope of individual exceptional regulations can be taxed through the analogical application of the entire comprehensive donation regulations and individual exceptional regulations, the purpose of the entire comprehensive donation regulations and the clearness of taxation requirements and predictability of taxpayers are harmonized, and ① whether the taxation conditions of individual exceptional regulations are intended to regulate the limit of taxation or examples are examples of simple types and cases as its subordinate concept under the aforementioned concept in unification, and ② whether the regulations of the relevant exceptional regulations are specific and clear (where the characteristics of the regulations are abstract and broad range, more strict interpretation should be made) and ③ Whether the relevant exceptional regulations are in harmony with other tax laws such as income tax and corporate tax (if the regulations are in an exceptional nature for the tax system, it should be strictly interpreted), and ④ Whether the calculation method of donated property under the relevant comprehensive donation regulations are clear and reasonable, and ④ Whether the relevant transaction and act are the same as the economic substance of the individual regulations and whether the relevant transaction and act are the same as those subject to regulation in the individual regulations, and ③ whether the individual circumstances such as predictability and equity between taxpayers with respect to gift tax.

3) Whether this case’s real estate transaction is subject to gift tax

A) If Article 2(3) and Article 42(1)3 of the Inheritance Tax and Gift Tax Act are directly applied

Article 42(1)3 of the Inheritance Tax and Gift Tax Act defines profits from the transactions that increase or decrease the corporation's capital through investment, reduction, merger, division, and conversion, acquisition, and exchange of shares by convertible bonds as the value of property. ② The real estate transaction in this case is a profit and loss transaction that acquired real estate as fixed assets without compensation and causes a change in the company's capital as a result of the change in the company's equity or value. It cannot be deemed that there was a change in the profit and loss transaction that generated assets increase profits, and there is no room to apply the above type ①. On the other hand, the transfer of business, exchange, and change in the company is not a common concept under the tax law but a private law concept, and thus, the real estate transaction in this case is in principle subject to the interpretation under the private law, and there is no room to apply the above business transfer or the change in the company's organization. Accordingly, in calculating the value of the assets of the stock transaction in this case.

B) The possibility of applying Articles 2(3) and 42(1)3 of the Inheritance Tax and Gift Tax Act by analogy

In light of the above evidence and the facts acknowledged by the purport of the entire pleadings, it is difficult to view that the reason behind the part of Article 42 (1) 3 of the Inheritance Tax and Gift Tax Act concerning the calculation of the value of the real estate transaction, which is subject to gift tax under Article 2 (3) of the Inheritance Tax and Gift Tax Act, is applicable to the acquisition of the shares or the profits acquired by the change in the value of the shares or the profits acquired by the change in the value of the shares or the profits acquired by the change in the organization of the corporation.

① 피고는， 이 사건 조항은 '사엽양수도 ・ 사업교환 및 법인의 조직변경 등'이라고 규정함으로써 예시적 사유임을 들고 있고， 이에 해당하지 않는 사유라도 해당 거래 및 행위로 인하여 법인의 소유지분 또는 그 가액이 변동될 경우를 과세조건으로 규정하고 있는바， 증여자 또는 수증자가 회사의 지배주주의 지위를 악용하여 회사라는 법인격을 이용한 간접적인 방법으로 부를 무상으로 이전한 이상， 위 조항이 적용될 수 있다고 주 장한다. 살피건대，㉠ 위 규정에서 언급하는 사업양수도나 사업교환은 법인격을 그대로 유지한 상태에서(이 점에서 '합병'과 구별된다) 법인이 소유하고 있는 영엽용 인적 ・ 물적 자산 일체를 변경함으로써 법인의 수익구조에 변화를 줄 수 있는 사유(예컨대 그룹의 지 배주주가 수익성이 높은 계열회사의 영업 일체를 그렇지 않은 계열회사에게 양도하는 경우)를 들고 있는 것으로 보이고， 법인의 조직변경은 법인 내부의 조직형태를 변경함으로써 기존 주주들의 소유지분이나 가액이 변동될 수 있는 경우를 들고 있는 것으로 보이는 바， 이 사건 부동산 거래로 인하여 소외 회사의 물적 자산 가치가 증가되는 것 외에는， 소외 회사 자체 내에서 영업양수에 준하는 정도의 영업용 자산 일체의 소유관계 변동이 초래되어 사업내용이 변경되거내사업양수도의 경우)， 소외 법인의 법적 형태가 변경되는 등{조직 변경 의 경우) 위에서 열거된 사유와 유사한 성격의 변화가 발생하는 것으로 볼만한 자료가 부족한 점，상속세및증여세법 제42조 제1항 제3호의 규정형식을 보면， 제1문 전단에서 출자 ・ 감자 ・ 합병 ・ 주식전환 등을 예로 들면서 공통 개념으로 '법인의 자본을 증가시키거나 감소시키는 거래'를 규정하고 있음에 비하여， 제1문 후단은 '사업양수도 ・ 사업교환 및 법인의 조직변경 등 에 의하여' 소유지분 또는 가액이 변동되는 거래9)를 규정하고 있어 공통된 개념을 추출하기 어려운 점 등에 비추어， 이 사건 조항에 열거된 사업양수도 ・ 사업교환 ・ 법인의 조직변경 등 의 사유는 단순한 사례를 예시하는 것이라기 보다는， 과세의 한계를 규정히는 것으로 보인다.

② Article 42(1)3 of the Inheritance Tax and Gift Tax Act provides that "if the shares or value of the corporation is changed, it is accompanied by most of the profits and losses transactions of the corporation, lO), and if it is deemed that the above provision can be applied in all the above cases, the subject of the regulation is too wide, and the individual examples provisions of Articles 33 through 41-5 of the Inheritance Tax and Gift Tax Act may be unclear. Therefore, there is a need to interpret the above provision in a limited manner.

③ The latter part of Article 42(1)3 of the Inheritance Tax and Gift Tax Act and Article 31-9(2)5(b) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19899, Feb. 28, 2007; hereinafter the same shall apply), and Article 31-9(2)5(b) of the same Enforcement Decree are stipulated as the difference in the value of the donated property before and after the change in the ownership share, taxation on the unrealized capital gains is recognized. Our tax law does not impose any tax on the difference in the value of the transferred property at the time when the transferred property is disposed of: Provided, That in principle, the gift tax provisions by contribution (Article 42(4) of the Inheritance Tax and Gift Tax Act) and the gift tax provisions by listing (Article 41-3 of the Inheritance Tax and Gift Tax Act, Article 41-5 of the same Decree, and Article 31-9(2)5 of the same Enforcement Decree (the same shall apply to the foregoing provisions). This is an exceptional provision for taxation on unrealized capital gains.

④ The instant real estate transaction is basically a transaction of profits and losses, which the Nonparty Company acquired the instant real estate without compensation, and appears to fall under the territory governed by Article 41(1)1 of the Inheritance Tax and Gift Tax Act, and it is difficult to view that the instant provision is similar to the transaction that the instant provision plans.

⑤ Since the provision of the complete comprehensive gift tax was introduced, when the tax authority donated the property to a black corporation (a corporation with no loss) which is not a specific corporation (a corporation with no loss), it has authoritative interpretation that the shareholders are exempt from gift tax if the gift tax can be imposed under the comprehensive gift tax provision, and the property donated to a corporation that does not constitute a specific corporation pursuant to the Corporate Tax Act is imposed under the Corporate Tax Act (see, e.g., Supreme Court Decision 4-85, Jun. 17, 2004; Decision 4 team-4 Team-409, Mar. 22, 2005; Decision 4 Team-539, Apr. 11, 2005; etc.) and such authoritative interpretation was maintained without changing the provision of the gift tax until March 3, 2006. In addition, the tax authority modified the provision of this case’s taxation based on whether the above taxation can be imposed to shareholders in the above case at around 2007, and it appears that it modified the provision of this case’s taxation by applying the previous provision to the real estate.

c)Indivate

As can be seen, the Plaintiff’s assertion that the Defendant cannot apply Articles 2(3) and 42(1)3 of the Inheritance Tax and Gift Tax Act, which are the basis of taxation, to the real estate transaction in this case, is with merit. On the other hand, it is a juristic person with a loss in the business year 2006, where the donation date belongs to 00 won (i.e., an amount of income for each business year - an amount of 000 won included in gross income as an increase in assets). Therefore, within the scope of the above loss, the direct application of Article 41 of the Inheritance Tax and Gift Tax Act (in transactions with specific juristic persons) is within the scope of the gift subject to the imposition of the gift tax in this case, and the above provision can be applied mutatis mutandis to the portion exceeding the limit of the above loss. However, the transaction type under the above provision is entirely different from that under the provision in this case, and it is no longer necessary to determine whether the remaining amount of the gift tax in this case should be calculated by multiplying the shareholder’s share ratio in the property that the corporation received.

3. Conclusion

In the plaintiff's claim, the part on the imposition of gift tax of this case (2) is justified, and the part on the imposition of gift tax of this case (1) is dismissed as it is without merit, and it is so decided as per Disposition.