2. The costs of lawsuit shall be borne by the Plaintiff.

A. On April 30, 2005, the Plaintiff (around April 30, 2005, hereinafter collectively referred to as “the instant house”) donated ○○○○○, ○○○, 977-9, 207.4 square meters and 447.58 square meters on its ground, and completed the registration of ownership transfer. The Plaintiff reported and paid KRW 405,7709, which is the standard market price at the time of the donated property, with the gift tax of KRW 381,508,620, which is the standard market price.

B. On April 27, 2007, the Plaintiff transferred 990,000,000 won to one person, other than YellowB, etc. < Amended by Presidential Decree No. 20083, Apr. 27, 2008>

5. 30. Transfer value: (a) the acquisition value of KRW 990,00,00, which is the actual transaction value, is KRW 853,000,000, which is the actual acquisition value of the instant real estate of the KimA pursuant to Article 97(1)1(a) of the Income Tax Act (the actual acquisition value of KRW 853,00,000,000, which is the actual acquisition value of the instant real estate of the KimA was reported and paid capital gains tax of KRW 7,939,630,00.

C. However, the Defendant denied that the acquisition value of the instant real estate is calculated as KRW 853,00,000,000 for actual acquisition value of KimA, a donor, and, in case of calculating the transfer income tax by the actual transaction price for the real estate acquired through the donation, the acquisition value is deemed as the actual transaction price at the time of acquisition in accordance with Article 163(9) of the Enforcement Decree of the Income Tax Act, that the value assessed under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the date of donation shall be deemed as the actual transaction price at the time of acquisition in accordance with Article 163(9) of the Enforcement Decree of the Income Tax Act, the acquisition value of the instant real estate shall be deemed as the acquisition value of KRW 381,508,620, which is the appraised value at the time of donation (hereinafter “the instant disposition”).

D. The plaintiff appealed and filed a request for a trial with the Tax Tribunal on September 29, 2009 after filing an objection on June 3, 2009, and was dismissed on December 2, 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 4, and 6 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Main claims

Article 101 (2) of the former Income Tax Act (amended by Act No. 8825, Dec. 31, 2007; hereinafter referred to as the "former Income Tax Act") applies to the provisions of Article 101 (2) of the former Income Tax Act (amended by Act No. 8825, Dec. 31, 2007; hereinafter referred to as the "former Income Tax Act") that the Plaintiff, as a person with a special relationship, transferred the instant house within five years after the date the Plaintiff donated the instant house, and thus, the value of the instant house purchased by

The provisions of Article 97 (4) of the Income Tax Act of the Republic of Korea (hereinafter referred to as "the Republic of Korea") shall be amended to include the acquisition value to be deducted from the transfer value on the basis of the actual transaction value at the time of the acquisition by the spouse or lineal ascendant or descendant, where the assets donated by the spouse or lineal ascendant or descendant of the spouse within five years from December 26, 2008 are transferred to another person. The above revised provisions are based on reflective consideration that the existing provisions of the Income Tax Act are unreasonable, so

(2) Preliminary assertion

Article 163(9) of the Enforcement Decree of the Income Tax Act provides that the actual transaction value required for the acquisition of donated assets shall be deemed as the assessment amount based on the supplementary evaluation method under the Inheritance Tax and Gift Tax Act as of the date of donation, because there is no specific basis for delegation by the mother law, and thus, is in violation of the principle of no taxation without law, and the acquisition value is invalid in violation of the same standard under Article 100(1) of the Income Tax Act (where the transfer value is calculated based on the actual transaction value, the acquisition value shall also be based on the actual transaction value), and thus, the instant disposition of taxation based on Article 163(9) of the Enforcement Decree of the Income Tax Act shall be revoked illegally. The calculation of gains on transfer of donated assets shall be based on

(b) Statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the main argument

(A) Even if a resident’s act or calculation is consistent with objective facts and is legally effective and lawful, where such act or calculation constitutes a type of transaction which unfairly reduces tax burden between a person with a special relationship under the Enforcement Decree of the Income Tax Act, it is intended to realize fair taxation by adding the substance over form principle by deeming that the taxation authority had income objectively reasonable. Thus, a wrongful calculation is established in cases where a certain transaction between a certain person with a special relationship cannot be deemed as a normal transaction to be done by a reasonable economic person in light of social norms and customs, and thus, it is deemed that the tax burden has been unjustly reduced (see, e.g., Supreme Court Decision 200Du1799, Jan. 11, 2002).

In addition to the above legal principles and Article 101 (2) of the former Income Tax Act, the purpose of legislation is to deny the transfer income tax in cases where a taxpayer makes a bypass transfer through the form of donation in order to reduce the transfer income tax unfairly, and impose the transfer income tax on a donor who is the actual income. Therefore, the above evidence and the statement of evidence No. 5 are to be applied only to cases where objective circumstances exist, such as unreasonably reducing the tax when the sum of the gift tax and the transfer income tax to be borne by a donee is smaller than the transfer income tax in cases where a donor directly transfers the house in this case by KimA. However, according to the above evidence and the statement of evidence No. 5, the Plaintiff’s transfer within five years after he donated the house in this case from KimA, which was borne by the donee, and the sum of the gift tax 405,770 won (base market price) and the transfer income tax 271,782,530 won and the transfer income tax 271,78,630 won, which is over the donor.

(B) On the other hand, the principle of prohibition of retroactive taxation is not applicable to the taxation requirement that is closed prior to the enactment or amendment of the tax law, or when the tax authority’s interpretation or handling guidelines with respect to the statutes are modified (see Supreme Court Decision 2008Du2736, Oct. 29, 2009). Therefore, the application of the tax law ought to be made by applying the statutes at the time of the establishment of the tax liability, and the amended statutes cannot be applied retroactively, unless there is a separate provision of retroactive application.

According to Article 1 and Article 2 of the Addenda of the amended Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008, hereinafter referred to as the "Amended Income Tax Act"), the amended Income Tax Act shall enter into force on January 1, 2010. However, Articles 97(2) and 101(2) apply from the first donation and transfer after this Act enters into force, unless there is a separate retroactive application to the amended Income Tax Act, the above amended Act cannot be applied to this case where liability for tax payment was established in around 2007, prior to the enforcement of the above amended Act, and even if the purport of the amended Act was based on the reflective consideration of the existing unreasonable practices, such grounds alone cannot be the grounds for the retroactive application of the amended provisions.

In the end, the plaintiff's primary argument is without merit.

(2) As to the conjunctive assertion

In full view of Articles 94(1) and 96(1), the main sentence of Article 97(1)1(a) and (b) and (5) of the former Income Tax Act, and Article 163(9) of the former Enforcement Decree of the Income Tax Act, in cases where a transferred asset is a general asset other than an inherited or donated asset based on the actual transaction value, and where the actual transaction value required for such transfer cannot be confirmed based on the actual transaction value, if the actual transaction value required for such transfer cannot be determined based on the actual transaction value, appraisal, or conversion value as prescribed by the Presidential Decree. However, in the case of an asset inherited or donated, there is no actual transaction value at the time of acquisition. Accordingly, in applying the provisions of the main sentence of Article 97(1)1(a) of the former Enforcement Decree of the Income Tax Act to the assets inherited or donated under the main sentence of Article 163(9) of the former Enforcement Decree of the Income Tax Act, the value assessed under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the date of commencement or donation.

Therefore, the main text of Article 163(9) of the former Enforcement Decree of the Income Tax Act is a provision based on Article 97(5) of the former Income Tax Act, which delegates necessary matters concerning the calculation of necessary expenses such as the "scope of actual transaction price required for acquisition" so that it can be prescribed by the Presidential Decree, and thus, cannot be deemed as a provision for invalidation without delegation of the parent law. In addition, in cases where assets inherited or donated are transferred, the value corresponding to the tax base of inheritance tax or gift tax (value assessed under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the date of commencement of inheritance or donation) can be deemed necessary expenses for the calculation of transfer margin and only when the transfer value exceeds the above value can prevent tax evasion or double taxation (see Supreme Court Decision 2006Du1326, Oct. 26, 2007).

Furthermore, in light of the provision that the market price at the time of donation under Article 163 (9) of the former Enforcement Decree of the Income Tax Act is considered as the actual transaction price, it does not violate Article 100 (1) of the former Income Tax Act (the acquisition price shall also be based on the actual transaction price if the transfer

Ultimately, the plaintiff's conjunctive assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.