[양도소득세부과처분취소][공2003.3.1.(173),638]
[1] The purport of Article 101 (2) of the former Income Tax Act
[2] The case holding that where the real estate was transferred after the additional donation to South Korea, it does not constitute the object of denial of wrongful calculation
[1] The purpose of Article 101 (2) of the former Income Tax Act (amended by Act No. 5191 of Dec. 30, 1996) is to deny the transfer of a gift through the form of donation in order to avoid the transfer income tax and to impose the transfer income tax on the donor who is the person to whom the actual income belongs.
[2] The case holding that since the act of donating real estate to the additional son and transferring it to the other son within 2 years from the date of donation to the son is viewed as a normal economic act in light of social norms and practices, it does not constitute an act of wrongful calculation under Article 101 (2) of the former Income Tax Act (amended by Act No. 5191 of Dec. 30, 196)
[1] Article 101 (2) of the former Income Tax Act (amended by Act No. 5191 of Dec. 30, 1996), Article 98 (1) 1 of the Enforcement Decree of the Income Tax Act / [2] Article 101 (2) of the former Income Tax Act (amended by Act No. 5191 of Dec. 30, 1996), Article 98 (1) 1 of the Enforcement Decree of the Income Tax Act
[1] Supreme Court Decision 88Nu5228 delivered on May 9, 1989 (Gong1989, 919) Supreme Court Decision 97Nu13979 delivered on November 25, 1997
Plaintiff
head of Dongjak-gu Tax Office
Seoul High Court Decision 99Nu14463 delivered on April 19, 2001
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The purpose of Article 101(2) of the former Income Tax Act (amended by Act No. 5191 of Dec. 30, 1996; hereinafter referred to as the "Act") is to deny that transfer is made through the form of donation in order to avoid capital gains tax and to impose capital gains tax on the donor to whom the actual income belongs (see, e.g., Supreme Court Decisions 88Nu528, May 9, 1989; 97Nu13979, Nov. 25, 1997).
According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, and determined that the disposition of this case was unlawful on the ground that the plaintiff denied the plaintiff's donation by applying the wrongful calculation rules under Article 101 (2) of the Act, on the ground that the plaintiff was deemed to have directly transferred the real estate of this case to the non-party 1, and that the transfer price of the real estate of this case cannot be deemed to have been attributed to the plaintiff, in light of the fact that the plaintiff was recognized as a considerable reason to donate the real estate of this case to the non-party 1, the non-party 1 and the transfer price of the real estate of this case cannot be deemed to have been attributed to the plaintiff.
Examining the above legal principles in light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the denial of unfair act under Article 101 (2) of the Act, or incomplete hearing as otherwise alleged in the ground of
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Song Jin-hun (Presiding Justice)