1.The judgment of the first instance shall be modified as follows:

A. The Defendant’s disposition imposing capital gains tax for the year 2001 against the Plaintiff on April 5, 2007 that exceeds KRW 146,317,190 shall be revoked.

2. The total costs of the lawsuit shall be divided into two parts, one of which shall be borne by the plaintiff and the other, respectively by the defendant.

Purport of appeal

1. The plaintiff;

The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant's imposition of capital gains tax of 315,894,620 won belonging to the plaintiff on April 5, 2007 shall be revoked in part 169,57,430 won.

2. The part against the defendant among the judgment of the court of first instance against the defendant is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

The reasoning for this Court’s explanation is as follows, and the reasoning for the judgment of the court of first instance (except for the part 3. conclusion) is the same as the reasons for the judgment of the court of first instance (except for the part 3. conclusion). Thus, this Court’s explanation is accepted in accordance with Article 8(2) of the

2. Parts to be dried;

(1) The following shall be added to the third 19 line of the judgment of the court of first instance:

(4) Although the Plaintiff paid KRW 174,398,040 to the capital gains tax from the transfer of the instant shares on October 31, 2005, the Defendant’s imposition of penalty tax in good faith for the whole period from June 1, 2002 to April 1, 2007, which is the date following the payment deadline of the instant disposition, without considering all of the aforementioned payments.

② Then, 'the number of regular workers under the Labor Standards Act shall be less than 400', 'the 6th 10th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th, the defendant shall include all fixed-term workers and daily workers under the Labor Standards Act. The above part of the defendant's assertion shall be added to 'the above part of the defendant', considering the characteristics of the construction industry type, there are many cases where the non-regular workers do not properly fulfill the withholding duty, and considering the result of the apartment supply in 200th 20 th th th th th th th th th th th th th th th th th th th th th th..

(3) The following shall be added to the sixth 13 line of the judgment of the court of first instance:

Although PP's sales revenue in 200 billion won reaches 39.8 billion won, it is unfair to determine whether the PP is a small or medium enterprise only under Article 2 of the Framework Act on Small and Medium Enterprises, and considering the actual size of the PP's business (property, capital, sales, etc.), it is reasonable to regard the PP as a general enterprise not a small or medium enterprise but a general enterprise. However, Article 167-2 (1) of the Enforcement Decree of the Income Tax Act provides that the "small or medium enterprise as prescribed by the Presidential Decree" under Article 104 (1) 4 (a) of the Enforcement Decree of the Income Tax Act refers to a small or medium enterprise falling under any of the following subparagraphs as of the end of the business year to which the transfer date of stocks, etc. belongs, and Article 2 of the Framework Act on Small and Medium Enterprises is listed in the principle of strict interpretation of tax-related Acts. Thus, the defendant, who is the tax authority under Article 2 of the Framework Act on Small and Medium Enterprises, should only be determined as a small or medium enterprise.

④ The Plaintiff’s assertion

Under the tax law, in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, the taxpayer’s intent and negligence are not considered as administrative sanctions imposed as prescribed by the individual tax law. On the other hand, such sanctions cannot be imposed in cases where justifiable grounds exist, such as where there are circumstances where the taxpayer could reasonably present his/her duties or where it is unreasonable for the taxpayer to expect the fulfillment of his/her duties to the party concerned, etc. (see, e.g., Supreme Court Decision 95Nu10181, Nov. 14, 1995).

However, according to the purport of Gap evidence 2, Gap evidence 3, Eul evidence 18, and Eul evidence 18, the defendant imposed capital gains tax of this case at KRW 174,398,040 on October 4, 2005, and accordingly, the plaintiff paid all of the above amount on October 31, 2005, and the defendant revoked the above disposition of capital gains tax in accordance with the purport of the decision made by the National Tax Tribunal, and the plaintiff defective the disposition of imposition of capital gains tax of KRW 315,894,620 on April 5, 2007, and the plaintiff paid all the above amount after deducting the refund amount to be received according to the refund procedure of the above tax refund and additional refund of KRW 184,353,50 on April 26, 2007.

According to the above facts, the Plaintiff’s previous disposition of tax base of transfer income tax and additional tax on the 20th anniversary of the transfer of stocks within the 0-year period. The Plaintiff’s previous disposition of tax base of transfer income tax and additional tax on the 20-year period prior to the initial disposition of tax base of transfer income cannot be deemed to have any justifiable ground for undermining the Plaintiff’s failure to pay tax due to the transfer of stocks. However, the Plaintiff’s previous disposition of tax base of transfer income tax and additional tax on the 20-year period after the Defendant’s disposition of tax base of transfer was issued on October 4, 2005, and the transfer of stocks was subject to imposition of capital gains tax for the 20-year period prior to the previous disposition of tax base of transfer income tax and additional tax for the 20-year period. The Plaintiff’s previous disposition of tax base of 20-year period prior to the cancellation of the disposition of transfer income tax based on the 20-year period’s previous disposition of tax base.

(5) Section 2.(c)(4) of the 7th sentence of the judgment of the court of first instance shall consist of the following parts:

(5) The reasonable amount of taxes;

On the other hand, the tax rate of 10% shall apply to the transfer of the shares in this case, and when calculating a reasonable tax amount by shortening the calculation period of the additional dues for failure to pay part of the amount as seen above, the disposition in this case is lawful within the scope of the above recognized amount, and is unlawful.

(6) The tax calculation table in attached Form 8 of the judgment of the first instance shall be applied as follows:

* Additional Tax for Indecent Payment

85,515,600 won x 5/10,000 x 1,222 days x 52,250,030 won (Tera forest less than ten won)

The unpaid number of days from June 1, 2002 to October 4, 2005 (the first day of the imposition and collection date)

3. Conclusion

Therefore, the part exceeding 146,317,190 won of the disposition of this case is illegal, and the judgment of the court of first instance is unfair in conclusion, and it is so decided as per Disposition with the decision of the court of first instance as above.