2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of capital gains tax of KRW 55,420,070 (including additional tax) for the Plaintiff on August 2, 2011 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

The following facts are either in dispute between the parties or in accordance with Gap evidence Nos. 1, 2, 9, and Eul evidence Nos. 1 and 2 (including paper numbers), and the whole purport of the pleadings.

[1]

On March 24, 1995, the Plaintiff completed the registration of transfer of ownership with respect to Songpa-gu Seoul ( Address 1 omitted) (hereinafter “the instant housing”) and owned it, and donated the registration of transfer of ownership with respect to the instant housing to Nonparty 1, an son on December 7, 2005. Nonparty 1 reported and paid KRW 8,100,000 as to the donation of the instant housing from the Plaintiff on February 24, 2006.

○ On behalf of Nonparty 1 on July 3, 2010, the Plaintiff entered into a sales contract with Nonparty 2 to sell the instant housing in KRW 250,000,00 on behalf of Nonparty 2, and completed the registration of ownership transfer with Nonparty 2 on August 20, 2010.

○ Nonparty 1 deemed that the transfer income of the instant housing is non-taxable as the transfer income of one house for one household, and did not report the transfer income tax to the tax authority on the transfer of the instant housing.

[2]

○ The Defendant determined that the Plaintiff should be deemed to have transferred the instant house to Nonparty 2 pursuant to Article 101(2) of the Income Tax Act (amended by Act No. 11146, Jan. 1, 2012; hereinafter the same) since Nonparty 1 again transferred the instant house to Nonparty 2 within five years after the Plaintiff donated the instant house to Nonparty 1, a person with a special relationship.

○ Accordingly, on August 2, 2011, the Defendant issued the instant disposition that determined and notified the Plaintiff of KRW 55,420,070 (i.e., principal tax + KRW 46,890,663 + penalty tax + KRW 8,529,411).

○ The Plaintiff filed an appeal with the Tax Tribunal on October 7, 2011, but the Tax Tribunal dismissed the appeal on December 15, 201.

2. The parties' assertion

A. The plaintiff's assertion

On December 7, 2005, the Plaintiff owned 3 bonds including the instant house. However, Nonparty 1, who was the Plaintiff’s son, had Nonparty 1 feel the need for independent residence with the age exceeding 31 years since 5 years passed since her marriage. On December 7, 2005, the Plaintiff actually donated the instant house to Nonparty 1.

Since March 7, 2007, Nonparty 1 sold the instant housing to Nonparty 2 because it was not necessary to continue holding the instant housing due to Nonparty 1’s business with Nonparty 3’s wife, and due to his residence in China, etc., the instant housing was sold to Nonparty 2. The transfer proceeds were reverted to Nonparty 1.

Therefore, since the transfer of the instant house does not constitute an unfair act under Article 101(2) of the Income Tax Act, the instant disposition that imposed capital gains tax on the Plaintiff on the ground that it constitutes such unfair act is unlawful.

B. Defendant’s assertion

After the Plaintiff donated the instant house to Nonparty 1, a person with a special relationship, to Nonparty 1, the Plaintiff transferred the instant house to Nonparty 2 within five years. The sum of Nonparty 1’s gift tax and transfer income tax, which is a donee, is less than KRW 8,100,000, the transfer income tax calculated regarding the case where the Plaintiff, a donor, transfers the said house directly to Nonparty 1, which is less than KRW 46,890,663, and it cannot be deemed that the transfer income tax of the instant

Therefore, the transfer of the instant house constitutes an unfair act under Article 101(2) of the Income Tax Act, and thus, the instant disposition is lawful.

3. Whether capital gains are substantially reverted.

A. Relevant provisions

Article 101 (1) of the Income Tax Act provides that where an act or calculation of a resident having capital gains is deemed reduced unreasonably due to transactions with a person having a special relationship with the resident, the amount of income in the relevant taxable period may be calculated regardless of the act or calculation of the resident.

Article 101(2) of the above Act provides that where a resident has donated an asset to a person with a special relationship under paragraph (1) and again transfers the asset to another person within five years from the date of donation, where the sum of the donated and the capital gains tax are less than the capital gains tax calculated on the direct transfer of the donor, the donor shall be deemed to have directly transferred the asset: Provided, That the foregoing shall not apply where the capital gains tax belongs to the relevant donee.

In full view of the above relevant provisions, it is sufficient to acknowledge that a transaction between persons with a special relationship cannot be deemed as a normal transaction to be conducted by a reasonable economic person in light of social norms or transaction practices, and thus, tax burden has been reduced unreasonably, and it does not necessarily have to be the purpose of tax avoidance or economic loss to the parties concerned (see Supreme Court Decision 2007Du7505 decided September 24, 2009, etc.).

Therefore, Article 101(1) and (2) of the Income Tax Act provides that a person who has a special relationship with a △△ may donate assets to another person within five years from the date of donation; the donee transferred assets to another person; the sum of the amount of the gift tax and the capital gains tax of the donee is less than the capital gains tax calculated on the direct transfer of the donor; and the capital gains tax of △△△△ shall be applied when the sum of the amount of

B. Key issue of the instant case

The Plaintiff donated the instant housing to Nonparty 1 who is a specially related party, and transferred the instant housing within five years from the date of donation, and the sum of the amount of Nonparty 1’s gift tax (8,100,000 won) and the amount of capital gains tax (0 won), which is the donee, is less than the amount of capital gains tax (46,890,663 won) in the event the Plaintiff directly transfers the instant housing, as seen above.

Thus, the issue of this case is whether the transfer income of this case belongs to the non-party 1.

(c) Fact of recognition;

The following facts are acknowledged in full view of Gap evidence 1 to 5, Eul evidence 7 to 10, Eul evidence 3 to 5 (including paper numbers), witness non-party 1 and non-party 3's testimony, and the whole purport of the arguments.

(1) Structure of the instant housing

According to the real estate registration register, an aggregate building to which the instant house belongs is a 301.17 square meters of the area of the first and third floors as a 3rd floor of reinforced concrete structure, which is a sloping roof, and a 3rd floor, respectively, and the area of the 298.47 square meters of the area of the 201.

There are five households each on the first and third floors of the apartment house in ○○○, and the sections for exclusive use by each household consisting of about 19.46 square meters in each house and a 2nd floor attached thereto.

(2) Use, profit-making and disposal of the instant housing after the date of donation

Around February 21, 2006, Nonparty 1 entered into a contract to establish a right to lease on a deposit basis with Nonparty 4, setting a lease term of two years, a lease term of 80,000,000 won for the instant housing. Nonparty 4 resided in the instant housing from around that time until February 21, 2008.

On March 6, 2008, Nonparty 1 entered into a lease agreement with Nonparty 5, setting the lease term of two years, lease deposit of one million won, and setting the lease deposit of this case as KRW 100,000. Nonparty 5 resided in the instant house from April 20 to April 19, 2010.

○ Upon the termination of the above lease agreement, the Plaintiff returned KRW 100,000,000 to Nonparty 5 on behalf of Nonparty 1, and the said KRW 100,000,000 was withdrawn from the Plaintiff’s Mars passbook.

○ The Plaintiff received an order from Nonparty 5 to repair the instant house, and sold the instant house to Nonparty 2.

(3) The details of Nonparty 1’s transfer of resident registration and entry into and departure from Korea

According to the resident registration card of Nonparty 1, the details of prior entry into and departure from the resident registration are as follows.

- Transfer to Songpa-gu Seoul ( Address 2 omitted) on November 17, 2003

- Transfer to the housing of this case on December 26, 2005

- Transfer to 305 on February 21, 2006 on the ground floor attached to the instant house

- Transfer to Gangnam-gu Seoul ( Address 3 omitted), which is the plaintiff's residence on August 6, 2009

According to the certification of entry and departure, Nonparty 1’s entry and departure details are as follows.

- Departure on November 8, 2007, and return on March 7, 2008

- Departure on October 9, 2009, and return on February 12, 2010

- The departure from Korea on February 21, 2010, July 15, 2010

- Departure from July 18, 2010, and return from September 30, 2010

- Departure from October 8, 201, January 31, 201

- Departure on February 6, 201, and return on June 21, 201

- The departure on June 28, 201

(4) The details and attribution of the sale price of the instant housing

○ The usage and reversion of KRW 250,000,000 for the sale of the instant housing that the Plaintiff received from Nonparty 2 is as follows.

- 3,000,000 won paid on July 16, 2010 shall be payable as brokerage commission, etc.

- 20,000,000 won paid on August 20, 2010 is deposited into the Plaintiff’s account.

- KRW 10,00,000 paid on August 20, 2010 is deposited into the Plaintiff’s account Nonparty 6’s wife.

- A total of KRW 217,00,000 received on July 18, 2010 and July 19, 2010 and August 20, was deposited into the account of Nonparty 1, and KRW 34,000,000 among them was transferred to the Plaintiff’s account on August 23, 2010, and KRW 180,000,000 to the Plaintiff’s account on March 25, 201 and April 4, 201.

○ Around June 11, 201, the Plaintiff received notice from the Defendant of the decision on tax investigation, and immediately thereafter transferred KRW 150,000,000 to the account of Nonparty 1 on June 27, 2011.

(5) Details of housing holding by the Plaintiff

The details of the Plaintiff’s housing holding are as follows:

- On March 24, 1995, acquired the instant house and donated it to Nonparty 1 on December 7, 2005.

- The old house was acquired on June 5, 1982, and the building site registration on November 19, 2005, and the building site registration on February 16, 2006, are owned until now.

- On May 13, 1996, the provisional registration of the right to claim ownership transfer registration was made on July 1, 2008 with respect to Gangdong-gu Seoul (No. 4 omitted), but the principal registration was made on July 1, 2008, and transferred it to another person on August 27, 2010.

D. Determination

(1) The circumstances examined in full view of the purport of the entire pleadings are as follows.

A 30,000,000 won out of the sales price of the instant house 250,000,000 won (=20,000,000 won + 10,000,000 won) was deposited into the account of the Plaintiff’s husband and wife. Of the remaining sales price, KRW 217,00,000 out of the remainder was deposited into the account of Nonparty 1, but thereafter, the said sales price was KRW 214,00,000 out of the said money (=34,00,000,000 + KRW 180,000,000) was transferred to the account of the Plaintiff’s husband and wife, and it is difficult to deem that the said sales price was actually reverted to Nonparty 1.

The Plaintiff asserts that the Plaintiff used 150,000,000 won of the sales price of the instant housing in lump sum. However, since the Plaintiff returned the said money to Nonparty 1’s account after receiving a notice of tax investigation from the tax authorities, it is difficult to view that the Plaintiff used the said money as an intention to return it to Nonparty 1 from the beginning to Nonparty 1.

The Plaintiff asserts that Nonparty 1 paid KRW 36,00,000, out of KRW 100,000 of the lease deposit received by Nonparty 5 when leasing the instant house to Nonparty 5, and Nonparty 1 paid KRW 30,000,000 to Nonparty 1’s inception treatment, and Nonparty 1’s wife Nonparty 1 paid KRW 30,00,000 to Nonparty 3 imported and sold a scambling scam in England. However, there is no other evidence to acknowledge it, and it is not clear whether Nonparty 1 actually used the lease deposit received from Nonparty 5. Accordingly, it is difficult to deem that Nonparty 1 acquired or enjoyed the lease profit of this case directly, which is the value of the use of the instant house after the donation by the Plaintiff.

/ The Plaintiff appears to have taken charge of the actual management and disposition of the instant house even after the Plaintiff donated the instant house to Nonparty 1, by repairing the instant house and concluding a lease contract with Nonparty 5 and a sales contract with Nonparty 2 on behalf of Nonparty 1.

In a case where Nonparty 1 donated the instant house from the Plaintiff on December 7, 2005, but from February 2006 to February 2008, it appears that Nonparty 1 did not reside in the instant house, such as leasing the house to Nonparty 5 from April 2008 to April 2010.

The plaintiff asserts that, after February 2006, the non-party 1 husband and wife resided on the land level of the instant house. However, the plaintiff asserted that "the non-party 1 husband and wife resided on the instant house from December 2005 to October 2008, 2008 in the first instance court only stated that "the non-party 1 husband and wife resided on the instant house from October 2008 to China," and that the non-party 1 husband and wife resided on the land level of the instant house to October 2008, and that the non-party 1 and the non-party 1 were living on the land level of the instant house from October 2008, and the plaintiff's assertion is not consistent.

In addition, the Plaintiff asserted that Nonparty 1’s husband and wife donated the instant house to Nonparty 1 for the purpose of creating an independent residential space for his own husband and wife since the donation date. Nonparty 1’s husband and wife resided in the instant house for 100,000,000 won and was not equipped with convenience facilities such as toilets for 2 months from February 2006 (the non-party 1 appears to have been residing in the Republic of Korea on October 2009). In addition, in light of such circumstances, it is difficult to view that Nonparty 1’s husband and wife resided in the instant house for 10,000,000 won and was living in the instant house and was not equipped with convenience facilities such as toilets for 2 months (the non-party 1 appears to have been residing in the Republic of Korea except for temporary business trip before being issued to China on October 2009). In fact, it is difficult to view that Nonparty 1’s direct residence after the donation date.

In the event that the Plaintiff did not donate the instant house to Nonparty 1, the Plaintiff actually possessed three houses. Therefore, it seems that the Plaintiff could have sufficiently anticipated that the Plaintiff would be obliged to bear the high-amount capital gains tax when directly transferring the instant house.

(2) In full view of the above circumstances, it is difficult to view that the transfer price of the instant housing was practically attributed to Nonparty 1. As seen above, the Plaintiff donated the instant housing to Nonparty 1 who is a specially related party, and the transfer of the instant housing was conducted within five years from the donation date. Since the sum of the amount of Nonparty 1’s gift tax and the amount of capital gains tax, which is a donee, is less than the amount of capital gains tax in cases where the Plaintiff directly transfers the instant housing, the transfer of the instant housing ultimately satisfies the requirements under Article 101(2) of the Income Tax Act. Accordingly, the Plaintiff’s assertion is without merit

4. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition

Judicial Enforcement Decree of Judges (Presiding Judge)

(1) The gift tax reported and paid by Nonparty 1 around February 2006 was fully refunded to Nonparty 1 on August 19, 201, in addition to additional dues for refund at the time of the instant disposition.

Note 2) Although the real estate register is indicated as the “agency” or “a shelter”, the “agency room” appears to be a clerical error in the “a shelter.”