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, respectively.

A. At the time of January 2006, LA owned 5,000 shares (10% of the total number of shares issued) issued by the non-listed corporation (OO corporation on January 20, 2010; hereinafter referred to as “non-listed company”).

B. On February 27, 2006, the District Court assigned 4,182 shares of the non-party company (hereinafter referred to as "the shares of this case") to 8 persons such as the plaintiff, etc. (hereinafter referred to as "the plaintiff, etc.") who are related parties as shown below, at a par value of 00 won per share (hereinafter referred to as "transfer of this case").

C. On February 28, 2006, DoB, which is a protocol of DoA, donated to the non-party company a building of 42-1 square meters and 2,112 square meters and 3-story above ground (hereinafter referred to as "the real estate of this case") in Seoul Special Metropolitan City, Gwanak-gu (hereinafter referred to as "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 Nonparty Company: (a) included KRW 000,000, in the gross income, reported and paid KRW 000,000, corporate tax for the business year 2006.

E. On April 201, the director of the Seoul Regional Tax Office: (a) conducted an investigation on the change of stocks with respect to the non-party company; (b) applied the provision regarding the transfer of stocks in this case’s stock at a low price based on the transfer of unlisted stocks between the related parties; and (c) deemed the difference between the transfer value of this case and the value assessed by the non-party company’s stocks as a supplementary assessment method, and imposed gift tax on the Plaintiff, etc., the transferee; and (d) notified the Defendant of taxation data to impose gift tax, etc. on the Plaintiff by deeming that the Plaintiff was donated by the branchB regarding the increase in the value of the Plaintiff

F. Accordingly, on July 1, 201, the Defendant imposed 000 won for transfer income tax of 2006 with respect to the transfer of the instant shares on the ground that on the same day, the Defendant imposed on the Plaintiff the gift tax of 000 won for the low-price transfer of the instant shares (hereinafter “instant gift tax”) and the gift tax of 000 won for the instant real estate transaction (hereinafter “instant gift tax imposition disposition”) related to the instant real estate transaction (hereinafter “instant disposition”).

G. On September 23, 2011, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but the Tax Tribunal dismissed the Plaintiff’s claim on November 24, 201.

[Based on Recognition] Unsatisfy, Gap evidence (including a provisional number; hereinafter the same shall apply) to 3, Eul evidence 1 to 4, the purport of the whole pleadings

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

A. The plaintiff's assertion

1) Imposition of gift tax of this case

The Defendant imposed gift tax on the difference between the transfer value of the instant shares and the appraised value calculated by the Defendant based on the supplementary assessment methods, on the Plaintiff, a transferee of the instant shares, by deeming that the gift tax was a donation to the Plaintiff. This constitutes double taxation as to the difference between the market value and the actual transaction value, and thus, is in violation of the substance over form principle.

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

AB 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, is merely an incidental effect due to the Plaintiff’s real estate donation to the non-party company by the branchB, and thus, it cannot be deemed that there was any gift by the branchB against the Plaintiff. Even if there was a gift by the branchB against the Plaintiff, the Defendant was amended by Act No. 7010 of Dec. 30, 2003, and the Defendant issued a disposition imposing the gift tax of this case based on 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 shall apply) and Article 2(3) of the Inheritance Tax and Gift Tax Act (Article 42(3) of the Inheritance Tax Act), and it is unlawful to apply Article 42(1)3 of the Inheritance Tax and Gift Tax Act to the calculation of the value of donated property.

B) Taxation on unrealized benefits

(2) The imposition of gift tax of this case on unrealized gain, i.e., increase in stock value.

In order to impose unrealized benefits, it should be premised on the fair and accurate measurement of benefits subject to taxation, and the establishment of supplementary regulations for the decline of asset value. Nevertheless, the defendant's imposition of gift tax is contrary to the principle of excessive prohibition under the Constitution, considering the increase in stock value, which is the unrealized gain, as taxable income, under the state that such prior issues have not been resolved.

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 (this part on this case’s gift tax) was lawful, the Defendant authoritative interpretation to the effect that the gift tax is not imposed on a case similar to the gift of this case several times until March 2006. The Plaintiff trusted the gift of this case’s real estate at the time of March 2006, and did not report and pay gift tax, thereby constituting a case where there is a justifiable reason for violating the Plaintiff’s duty to report the gift tax. Accordingly, the penalty tax imposition disposition on this case’s gift tax ② is 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 the establishment of tax liability and the taxpayers, in a case where the tax authority imposes each disposition, it shall be independently determined in accordance with the respective taxation requirements, and if both of them meet the respective taxation requirements, it shall not be deemed possible to impose only one tax unless there is any special provision excluding double application. Article 2(2) of the Inheritance Tax and Gift Tax Act provides that gift tax shall not be imposed on a donee when income tax is imposed on donated property under Article 2(1) of the Income Tax Act, in light of the language and text thereof and the nature of the gift tax as a supplementary tax for income tax, in a case where gift tax is imposed on a donee, it does not fall under a special provision excluding overlapping application of capital gains tax and provisions on gift tax as a group of income for which no gift tax is imposed (see, e.g., Supreme Court Decisions 98Du11830, Sept. 21, 199; 2002Du12458, May 13, 2003).

2) As seen earlier, with respect to the transfer of Non-Party Company’s stocks to the Plaintiff, etc., the Defendant imposed gift tax on the difference between the actual transfer value of the shares and the value assessed by the supplementary assessment method under the Inheritance Tax and Gift Tax Act on the Plaintiff, etc., while imposing transfer income tax on the Plaintiff, etc. by using the assessed value as the transfer value.

3) Examining these factual relations in light of the aforementioned legal principles, the disposition imposing transfer income tax on DoA and the disposition imposing 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 thus, the disposition imposing gift tax of this case cannot be deemed to violate Article 2(2) of the Inheritance Tax and Gift Tax Act. Accordingly, the Plaintiff’s assertion

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, Dec. 30, 2003; hereinafter “former Inheritance Tax and Gift Tax Act”) borrowed the concept of donation under the Civil Act without the definition of donation. There is no way to prevent the avoidance of gift tax from the transfer of a gift without consideration in the form of donation under the Civil Act, i.e., an alternative donation provision (Articles 32 through 42 of the former Inheritance Tax and Gift Tax Act). However, the said individual donation provision alone points out the problem that it is difficult to deal with new types of gift financial instruments or financial techniques, and new types of gift from various types of gift transactions, etc. (Article 32 through 42 of the former Inheritance Tax and Gift Tax Act). The concept of donation under the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter “former Inheritance Tax and Gift Tax Act”) was amended by Act No. 23010, Dec. 30, 2003>

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

A) If a property is not a typical property or right provided under the Inheritance Tax and Gift Tax Act, even if it does not fall under the individual donation example provision, it is problematic whether a gift tax can be imposed pursuant to the said provision. In light of the background of the introduction of Article 2(3) of the Inheritance Tax and Gift Tax Act, legislative purport, structure of other provisions, etc., it is reasonable to deem that the gift tax based on Article 2(3) of the Inheritance Tax and Gift Tax Act can be imposed on the gift tax, in order to levy gift tax on the gratuitous transfer of property or increase in the value of property of various unforeseeable forms (see Supreme Court Decision 2(3) of the Inheritance Tax and Gift Tax Act, such as the change of the existing provision into the calculation provision of the value of donated property, etc. (see Supreme Court Decision 2(3) of the Inheritance Tax and Gift Tax Act, even if it is difficult to interpret Article 2(3) of the Inheritance Tax and Gift Tax Act as a confirmatory and declared provision (see Supreme Court Decision 208Du7828, Apr. 28, 2011).

In short, the concept of comprehensive donation included in Article 2(3) can be defined as "the transaction and act of the donation contract according to the concept of donation under the Civil Act + the transaction and act of individual exceptional provisions + transaction and act that causes the same division of property in the economic substance." Therefore, if there is no contract of donation under the Civil Act between the parties, and if it is possible to calculate the economic value of a new type of property which is not used in the existing law or transaction system, it shall be deemed as a donation under the above complete comprehensive donation provision for the transfer of the property without compensation, and if it is possible to calculate the economic value of the new type of property which is not used in the existing law or transaction system, it shall be deemed as a donation under the above complete comprehensive donation provision for the transfer of the property, or in accordance with the Inheritance Tax and Gift Tax Act or the evaluation provision under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act.

B) Meanwhile, there is a question as to whether gift tax can be imposed by applying only Article 2(3) of the Inheritance Tax and Gift Tax Act to the acts similar to the transactions and acts regulated by the individual contract terms and conditions, such as the personal conditions of the parties requesting the parties to the transaction to be a special relationship or to be the largest shareholder, conditions that the difference between the market value and the market value should be at least 30% compared to the market value, and the minimum requirements for gift tax for the imposition of gift tax. It is also a matter of whether the said comprehensive contract terms and conditions may be imposed by applying only Article 2(3) of the Inheritance Tax and Gift Tax Act to the acts that are similar to the transactions and acts regulated by the individual contract terms and conditions, and the conditions stipulated by the individual contract terms and conditions are merely an example of valuation of the gift tax. Thus, it is clear to view that the comprehensive contract terms and conditions are subject to gift tax pursuant to Article 2(3) of the Inheritance Tax and Gift Tax Act and that the comprehensive contract terms and conditions can be imposed on an individual act subject to taxation even after the comprehensive contract terms and conditions.

C) Ultimately, in determining whether an act or transaction beyond the scope of individual exceptional provisions can be taxed through the analogical application of the entire comprehensive donation provision and the individual exceptional provision, the determination should be made by comprehensively taking into account (i) the intent of the complete comprehensive donation provision and the clearness of taxation requirements and predictability of taxpayers, (ii) whether the taxation conditions of individual exceptional provisions are intended to regulate the limit of taxation or include simple types and cases as its subordinate concept under the same superior concept; (iii) whether the relevant exceptional provisions are specific and clear (where the nature of the regulation is abstract and broad range, more strict interpretation should be made); (iv) whether the method of calculating the value of donated property under the relevant exceptional provision is clear and reasonable; and (v) whether the relevant transaction or act is uniform with the subject matter of regulation and economic substance; and (vi) whether the taxpayer’s predictability and tax equity with respect to the imposition of gift tax, etc.

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

A) If Article 2(3) or 42(1)3 of the Inheritance Tax and Gift Tax Act is directly applicable

Article 42(1)3 of the Inheritance Tax and Gift Tax Act defines profits from transactions which increase or reduce the corporation's capital by capital investment, capital reduction, merger, division, conversion of stocks by convertible bonds, acquisition, and exchange, and profits from changes in the corporation's equity or value through business transfer, business exchange, corporate restructuring, etc. The real estate transaction in this case is defined as the value of donated property. The real estate transaction in this case is a profit and loss transaction which generated assets increase profits by acquiring real estate, which is fixed assets, without compensation, and does not have any change in the company's capital. Thus, there is no room to apply the above type 1. Meanwhile, the above type 2 transfer, business exchange, and corporate restructuring is not a legal concept, but a private law interpretation should be followed in principle, since the above type of business transfer, business exchange, and corporate restructuring are borrowed not a unique concept under the tax law, and there is no room to apply the real estate transaction in this case to the calculation of the value of assets of the stock transaction in this case.

B) In light of the aforementioned legal principles, the evidence and the facts acknowledged by the overall purport of the pleadings, which were presented before the possibility of analogical application of Articles 2(3) and 42(1)3 of the Inheritance Tax and Gift Tax Act, are applied to the real estate transaction subject to gift tax under Article 2(3) of the Inheritance Tax and Gift Tax Act, and on the basis of the following reasons, it is difficult to view that Article 42(1)3 of the Inheritance Tax and Gift Tax Act concerning the acquisition of business, business exchange, business exchange, corporate restructuring, etc., or profits derived from the change of shares or value of the real estate transaction (hereinafter “the instant provision”).

① The defendant argues that the provision of this case provides that "business takeover" and "business exchange and business change, etc. of a corporation" are exemplary reasons, and that even if there are reasons not corresponding thereto, such transaction and act is subject to taxation conditions, so long as the donor or donee abuse the status of controlling shareholder of the corporation and gratuitously transfers the shares or value of the corporation in an indirect manner using the corporate personality of the company, the above provision may be applicable. In this regard, the transfer of business or business exchange mentioned in the above provision of the corporation is distinguished from the merger in the state of maintaining the corporate personality (in this respect, it is distinguishable from the merger), which is owned by the corporation as it maintains the corporate personality (for example, where the controlling shareholder of the group transfers all of its affiliated companies with high profitability to its affiliated companies, it seems that there is a change in the concept of the existing company's business's share or value due to the change in the company's business structure to the extent that it is difficult to change the existing company's business type or value due to the change in the business structure of the corporation's business.

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 shall be 10 as a result of most of the corporation's profit and loss transactions." If it is deemed that the above provision can be applied in all cases, the subject of the regulation would be too wide, and if it is deemed that the above provision can be applied, the individual example provisions to Articles 33 through 41-5 of the Inheritance Tax and Gift Tax Act may be unreasonable. Therefore, the above provision needs to be interpreted narrowly.

③ In accordance with 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), taxation on unrealized capital gains is recognized since the provision of this case provides that the value of donated property under the provision of this case shall be the difference in the value of ownership before and after the change in the value of ownership, and thus, it shall be imposed on unrealized capital gains at the time of disposal of the relevant property: Provided, That our tax law does not impose taxes on the difference in the value of donated property under the provision of this case, unless it is imposed on the difference in the value of the relevant property, it shall be imposed as capital gains at the time when the relevant property is disposed of: (i) the Inheritance Tax and Gift Tax Act (Articles 42(4)); (ii) the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 19899, Feb. 20, 2007); and (iii) the foregoing provisions of this case shall be considered to be difficult. 9.

④ The instant real estate transaction, basically, appears to fall under the territory regulated by Article 41(1)1 of the Inheritance Tax and Gift Tax Act, as the transaction of profits and losses, which the instant real estate, which is fixed assets, was acquired without compensation by the non-party company. It is difficult to view that the instant provision was similar to the transaction

⑤ Since the introduction of the provision of the complete comprehensive gift tax, in cases where a taxpayer donated property to a black corporation (a corporation with no loss) which is not a specific corporation, the tax authority imposed gift tax pursuant to the provision of the complete comprehensive gift tax on its shareholders, as to whether the gift tax may be imposed on the said shareholders (see, e.g., Supreme Court Decision 4-85, Jun. 17, 2004; 4 team-409, Mar. 22, 2005; 4 team-539, Apr. 11, 2005). Such authoritative interpretation did not change the provision of the gift tax on March 3, 2006, which was made by the gift of this case, to the extent that the gift of this case may not be imposed on the said shareholders. In addition, in light of the aforementioned circumstances at around 207, the tax authority modified the provision of Article 27(1) of the Inheritance Tax and Gift Tax Act to the shareholder without any predictability, etc. (see, e.g., Supreme Court Decision 2007Du2747.

C) Sub-determination

As can be seen, the Plaintiff’s assertion that Article 2(3) and Article 42(1)3 of the Inheritance Tax and Gift Tax Act, which the Defendant was liable for taxation, cannot be applied to the real estate transaction of this case, is with merit. Meanwhile, since the non-party company has a business year 2006, which includes the date of donation (i.e., an amount of 00 won for each business year - an amount included in gross income as an increase in assets): (ii) the direct application of Article 41 of the Inheritance Tax and Gift Tax Act within the scope of the above deficit out of the donated property subject to the imposition of the gift tax of this case (i.e., a donation through a transaction with a specific corporation) is within the scope of the above deficit; (ii) the above provision can be applied to the portion exceeding the limit of the above deficit. However, the above type of transaction under the provision is entirely different from that under the provision of this case; and (iii) the donation amount is calculated by multiplying the shareholder’s equity ratio in the assets that the corporation received.

3. Conclusion

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