The Defendant’s disposition of imposing gift tax of KRW 55,575,600 (including additional tax) for the Plaintiff on March 16, 2015 shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The court's reasoning concerning this case is that "each of the dispositions in this case" in Part 18 of Part 4 of the judgment of the court of first instance (hereinafter "each of the dispositions in this case") is "the imposition of global income tax for 2004, 2005," "the imposition of global income tax for 2008," "the imposition of gift tax for 2008," "the imposition of gift tax for 2008," and "the imposition of transfer income tax for 2,583,620,000," and "the imposition of transfer income tax for 2,583,620,000" in Part 10 of the judgment of the court of first instance as "the imposition of gift tax for 2,583,620,000 won" (this case's return was later 268,620,000 won)" and "the imposition of gift tax for 200,000 won for 2,000 won" as stated in the judgment of first instance.

2. Additional determination

A. The plaintiff's assertion

1) The Plaintiff did not prepare a false double contract, but only reported the transfer income under the name of Nonparty 1, etc., and the Plaintiff paid the transfer income tax in full, and the Plaintiff’s act does not constitute “Fraud or other unlawful act” under Article 26-2(1)1 of the Framework Act on National Taxes. Therefore, the disposition imposing global income tax and the disposition imposing the transfer income tax in this case was imposed after the lapse of five years of exclusion period. Even if the Plaintiff’s act is assessed as “Fraud or other unlawful act,” the exclusion period for imposition of the transfer income tax in this case should be ten years of exclusion period for imposition of the transfer income tax, and as long as the Plaintiff’s act is not recognized as “Fraud or other unlawful act,” the exclusion period for imposition of the global income tax

2) Since the Plaintiff returned 268,620,00 won exceeding the amount agreed with Nonparty 4 as the settlement amount to Nonparty 4, the Plaintiff’s payment of each of the instant shares was KRW 2,315,00,000. Therefore, under the premise that the Plaintiff received KRW 2,583,620,000, the Plaintiff’s payment of the transfer income tax of this case calculated as KRW 2,254,694,381, based on the premise that the Plaintiff received KRW 2,254,694,381, and the disposition imposing the gift tax of this case was unlawful.

B. Determination

1) Determination on the first argument

A) The legislative purport of Article 26-2(1) of the Framework Act on National Taxes is to extend the exclusion period of the imposition of national taxes to 10 years, in principle, in a case where there is an unlawful act, such as making it difficult for the tax authority to discover the taxation requirements of national taxes or forging false facts, while the exclusion period of the imposition of national taxes is five years in order to promptly determine tax relations, it is difficult for the tax authority to expect the exercise of the imposition right. Therefore, the exclusion period of imposition of national taxes is extended to 10 years. Therefore, the term “Fraud or other unlawful act” under Article 26-2(1)1 refers to a deceptive scheme or other active act, which makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute simply a failure to file a tax return or filing a false tax return without accompanying any other act, but if the active intention of concealing such as not intentionally entering revenues or sales, etc. in the account book is shown, it may be deemed that the imposition and collection of taxes are impossible or remarkably difficult (see Supreme Court Decision 2015Du2524, 25, 20154, 2015).

B) Meanwhile, in the case of a national tax, the date following the deadline for filing a return or the deadline for filing a return on the tax base and amount of the relevant national tax is “the date on which the national tax can be levied” [Article 26-2(5) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010); Article 26-2(4) of the former Framework Act on National Taxes (amended by Act No. 8830, Dec. 31, 2007); Article 12-3(1)1 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 21316, Feb. 6, 2009); Article 12-3(1)1 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Act No. 21316, May 1, 200; Presidential Decree No. 21501, Oct. 16, 2001>

C) We examine the following circumstances in light of the aforementioned legal principles: (a) the Plaintiff: (i) under title trust with Nonparty 1, etc. of 20,700 out of each of the shares (total 36,300 shares) of this case; (ii) under title trust with income tax for 2004; (iii) under title trust with income tax for 2005; and (iv) under title trust with income tax for 15,60 shares owned by 15,40 shares and only KRW 895,40,00,000 were transferred by 15,60; (iii) the Plaintiff submitted a share transfer contract with the same content upon filing a transfer income tax return under the name of Nonparty 1; (iv) the Plaintiff did not have any other tax evasion or transfer income tax for 200 years; and (v) the Plaintiff did not have any other tax evasion or transfer income tax for 15 years and 20 years; and (v) the Plaintiff did not have any other tax evasion or transfer income tax for 20 years.

D) According to the above relevant provisions and the circumstances of the disposition above, since the imposition of global income tax in this case and the imposition of transfer income tax in this case were conducted before ten years have elapsed from the initial date of the exclusion period (the initial date of exclusion period of imposition is June 1, 2005, in the case of global income tax for which 2004 has accrued, June 1, 2006, and in the case of global income tax for which 2005 has accrued, June 1, 2006, in the case of global income tax for which 2008 has accrued, June 1, 2006, and June 1, 2009) of this case and the imposition disposition of transfer income tax in this case are not unlawful as the excluding the exclusion period of imposition. Accordingly, the plaintiff'

2) Judgment on the second argument

A) The following facts are acknowledged as either a dispute between the parties, or as a whole in light of the purport of the entire pleadings as a result of the submission of an order to submit financial transaction information to a Korean bank against Gap, Gap, 10, 11, 15, Eul's evidence No. 1-3, Eul's evidence No. 6-10, and Eul's evidence No. 6-10, and

① On July 4, 2006, the Plaintiff agreed with Nonparty 4 to receive KRW 2,400,000 as the price for the transfer of each of the instant shares. On July 5, 2006, the Plaintiff received KRW 500,000,000 as the down payment from Nonparty 4.

② On January 13, 2007, the Plaintiff and Nonparty 4 made an additional agreement (hereinafter “instant additional agreement”) with Nonparty 4 to the effect that “the amount of KRW 100,000,000 out of the remaining amount shall be reduced” (hereinafter “instant additional agreement”) [it is alleged that the Defendant cannot recognize that the evidence No. 8 was not submitted at the time of the initial tax investigation. However, the Defendant’s written opinion (Evidence No. 7) submitted by the Plaintiff on May 14, 2014, when the initial tax investigation was conducted, refers to the instant additional agreement in light of the fact that the evidence No. 8 was written.

③ On May 2, 2008, with respect to the transfer of each of the instant shares to Nonparty 4, the share transfer contract stating that shares of KRW 15,600 shall be transferred to KRW 895,440,000 for the Plaintiff’s name; the share transfer contract stating that shares of KRW 8,160 shall be transferred to KRW 468,384,000 for the Plaintiff’s own shares; the share transfer contract stating that shares of KRW 6,540 shall be transferred to KRW 375,396,00 for the Plaintiff’s own shares; the share transfer contract stating that shares of KRW 6,00 for the shares of KRW 344,40,000 for the shares of Nonparty 3, the Plaintiff’s wife (hereinafter collectively referred to as “each of the instant share transfer contract”) was prepared (the price of each of the instant shares transfer contract shall be equal to KRW 57,400 per share).

④ On May 6, 2008, to pay the Plaintiff the price for each of the shares in this case, the amount of KRW 2,083,620,000 was deposited in four times on May 6, 2008. Of these, KRW 268,620,00 and KRW 626,820,000 in total and KRW 895,440,000 in consideration of the shares held in the Plaintiff’s name, the amount of KRW 843,780,00 in consideration of each of the shares held in the name of Nonparty 1 and Nonparty 2, and KRW 344,40,00 in consideration of each of the shares held in the name of Nonparty 3.

⑤ On May 7, 2008, the Plaintiff issued a 268,620,00 foot check number (the check number omitted) with the National Bank No. 268,620,000 foot check number and paid to Nonparty 4. On the same day, Nonparty 4 presented a payment proposal to the National Bank No. Gay branch of the National Bank, and deposited KRW 268,620,000 into its account.

B) According to the above facts, it is reasonable to view that the transfer value of each of the instant shares was paid by the Plaintiff as the price for the transfer of each of the instant shares, i.e., the transfer value of KRW 2,315,00,000 (contract amount of KRW 500,000 + KRW 2,083,620,000 stated in each of the instant stock transfer and takeover contract - settlement amount of KRW 268,620,00).

As to this, the defendant argued to the effect that the transfer price of each of the shares of this case shall not be excluded from the transfer price, even if the plaintiff had already received the amount as the settlement price. However, in light of the agreement of this case and the contents of the additional agreement of this case, in full view of the fact that the transfer price of each of the shares of this case was agreed to be KRW 2,300,000, and that the Choyang Transportation paid the amount stipulated in the share transfer contract of this case, the plaintiff issued a 268,620,000 foot check and returned it to Nonparty 4, the above 268,620,000 won cannot be deemed to have been attributed to the plaintiff's income, and the above argument of the defendant

C) Therefore, in light of the following: (a) review of the disposition of gift tax of this case; (b) review of the details of the disposition of this case as seen earlier; (c) evidence Nos. 4, and evidence No. 3, the disposition of gift tax of this case is based on the premise that the Plaintiff’s receipt of each of the transfer of shares of this case is KRW 2,583,620,000; and (c) the disposition of gift tax of this case is based on the premise that the amount received by the Plaintiff as to the transfer of shares of this case

D) On the other hand, in a lawsuit seeking a revocation of the transfer income tax disposition of this case, the issue of whether the taxation disposition of this case was unlawful should be determined by whether the amount of the transfer income tax recognized by the taxation disposition exceeds a legitimate tax amount. Thus, even in a case where the taxation disposition was unlawful, if the taxation disposition did not exceed the legitimate scope of the tax base and tax amount, but the wrong method does not change the scope of the taxation unit and the reason for the disposition, it should not be deemed unlawful (see, e.g., Supreme Court Decision 2004Du3823, Jun. 15, 2006). Thus, according to the above details and evidence No. 5, No. 2004Du3823, Jun. 15, 2006, the transfer income tax disposition of this case was made by considering the transfer value of this case as 2,254,694,371 won, and thus, the transfer value of this case is identified as the transfer value of this case, and the taxation disposition of this case cannot be viewed as unlawful.

3. Conclusion

Therefore, the imposition of gift tax in this case must be revoked in an unlawful manner. Thus, the plaintiff's claim in this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance partially differs from this conclusion, the part of the judgment of the court of first instance which partly accepted the plaintiff's appeal against the plaintiff falling under the part to be revoked under the judgment of the court of first instance, and the disposition of imposition of gift tax in this case shall be revoked, and

Judges Cho Jong-tae (Presiding Judge)