2. The remainder of the principal lawsuit of this case is dismissed.

3. The costs of litigation shall be borne by the plaintiff (the intermediate confirmation plaintiff and the designated party) by aggregating the principal lawsuit and the intermediate confirmation lawsuit.

중간확인의 소 : 피고가 이 사건 각 처분을 함에 있어 소득세법이 국세기본법 제18조에 우선하여 적용될 수 있는지 여부를 확인한다. 선정자 백○○이 ○○시 ○○구 ○○동 ○○번지 △△△△△ B동 XXXX호의 1/2지분에 관하여 자신의 명의로 지분이전등기를 경료한 후 양도하였으므로 이는 부동산인데 피고가 이를 분양권으로 본 것에 대한 적법여부를 확인한다.

가. 원고는 2002. 7. 22. ○○시 ○○구 ○○동 ○○번지 △△△△△ B동 XXXX호 (전용면적 244.657㎡, 이하 '이 사건 아파트'라고 한다)를 분양받아

On December 17, 2002, the apartment house of this case donated 1/2 shares to 00,00 of the 1/2 shares to 06,326,510 of the gift tax amount at the time (the gift tax amount at the time fell short of 500,00,000 won, and thus the gift tax was not imposed and notified to 00,000). On April 18, 2003, the Plaintiff and the appointee completed the registration of ownership transfer in the name of 00,000 with respect to the apartment of this case.

B. On November 20, 2003, the Plaintiff and the White○○○○○○, respectively, transferred 1/2 shares of the instant apartment to 00,000,000 won to 2,80,000,000 won. On January 28, 2004, the Plaintiff paid 159,19,320 won to 159,19,320 won to the Defendant, and 109,985,340 won to the Selection○○.

C. On March 30, 2004, 1,254,431,510 won of the acquisition value of the apartment 1/2 of this case at the time of the above preliminary return (i.e., KRW 406,326,510 of the donated property value + KRW 848,105,00 of the total sale price after the donation + KRW 406,326,510 of the donated property value + KRW 593,673,490 of the total sale price after donation + KRW 593,490), ○○ filed a claim for correction on the ground that the Defendant filed a claim for correction on March 30, 204 for refund of KRW 81,625,809 of the transfer income tax for the year 203, the acquisition value of the instant apartment 1/206,306,510 of the donated property value and KRW 848,510,000 of the sale price.

D. On April 6, 2004, the Defendant issued a revised and notified each increase of KRW 900,010,010, to the Plaintiff and the Appointed ○○○○○, on the grounds that the Plaintiff and the Appoint○○, while making a preliminary return of the said capital gains tax base, overlapping the capital gains tax deduction of KRW 2,50,000,000.

E. Meanwhile, in order to reduce the transfer income tax on the 1/2 shares of the apartment in this case unfairly, the Defendant: (a) deemed that the Plaintiff donated 1/2 shares out of the right to sell the apartment in this case to 00 ○○○, the wife of the Plaintiff with a special relationship, and then transferred the 1/2 shares of the apartment in this case on November 20, 2003; (b) on December 30, 2003, as amended by Act No. 7006 of Dec. 30, 2003; and (c) applied the denial provision under Article 101(2) of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; (b) deemed that the Plaintiff directly transferred the 1/2 shares of the apartment in this case to ○○○, the Defendant issued a notice of increase in the transfer income tax on 1/100 won in this case + 300 won in this case’s disposition on October 16, 200198.

[Reasons for Recognition] Facts without dispute, Gap 7, 9, 12, 14, Eul's evidence 1, 2, Eul's evidence 4, 5, Eul's evidence 8-1, 2, and 9's evidence 1

2. Determination on the lawfulness of an intermediate confirmation suit

As a lawsuit for intermediate confirmation of this case, the plaintiff is whether the income tax law can be applied preferentially to Article 18 of the Framework Act on National Taxes in rendering each of the dispositions of this case, and since 00 ○○ transferred the share transfer registration under his name with respect to the share 1/2 of this case, it is real estate, and it is necessary to confirm whether the defendant's right to sell this case is legitimate.

On the other hand, when there is a dispute between the parties as to the existence or absence of a legal relationship with respect to the determination of the original claim during the lawsuit, the lawsuit seeking confirmation of such legal relationship by combining the litigation procedures (see, e.g., Supreme Court Decision 83Nu554, 555, Jun. 26, 1984). In light of the content of the lawsuit, the lawsuit seeking confirmation of the intermediate confirmation of this case is unlawful, since it is not a legal relationship with respect to the determination of the principal claim of this case, but a legal interpretation or a confirmation of factual relations, rather than

3. Determination as to the claim on the principal lawsuit

A. Whether a request for revocation of the first disposition of this case is lawful

First of all, among the instant disposition 1, the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on the part on which the Defendant seeks the revocation of the imposition of gift tax on the designated person 00 on October 2004, and the lawsuit on the non-existent administrative disposition is unlawful as there is no interest in the lawsuit (see Supreme Court Decisions 95Nu108, Dec. 12, 1995; 96Nu1931, Sept. 26, 1997). Since there is no evidence to prove that the Defendant revoked the disposition on the imposition of gift tax on the designated person 00 on October 20, 204, the above part is unlawful as there is no interest in the lawsuit.

Next, among the instant disposition No. 1, the part on which the Defendant sought the revocation of the disposition of imposition of capital gains tax of KRW 110,885,350 for the transfer income tax of shares 1/2 of apartment housing of this case, which was made by the Defendant to 00, Oct. 2004 against 1/200, shall be examined, and in light of the fact that there is no benefit to seek the revocation of the disposition of reduction or correction by the tax authority, which is a favorable effect to the taxpayer, as a partial revocation of the amount of tax (see, e.g., Supreme Court Decision 95Nu8904, Nov. 15, 1996). In light of the above disposition of imposition of capital gains tax, the disposition of revocation also has no benefit to seek the revocation of the disposition as a favorable effect to 00

Therefore, among the principal lawsuit of this case, the part seeking revocation of the first disposition of this case is unlawful.

B. Whether the disposition No. 2 of this case is legitimate

(1) The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

First, even though the time when the White○○○ transferred the instant apartment 1/2 shares, the instant apartment 1/2 shares was amended by Act No. 7006 of Dec. 30, 2003 and applied Article 101(2) of the former Income Tax Act prior to the amendment by Act No. 7837 of Dec. 31, 2005, the instant disposition was in violation of the principle of prohibition of retroactive taxation, and there is no legal basis.

Second, the Defendant confirmed that the preliminary return of the capital gains tax base on January 28, 2004, by rejecting a claim for correction on KRW 109,985,340 of the capital gains tax belonging to the year 2003 on July 12, 2004 was legitimate, and thus, the Defendant established a non-taxable practice that the Plaintiff would not impose capital gains tax on the shares 1/2 of the instant apartment owned by the Selection○○, thereby violating the principle of prohibition of retroactive taxation on non-taxable practice.

Third, since the Plaintiff’s donation to 000 in 1/2 of the apartment in this case is not the ownership of 1/2 of the apartment in this case, it is not the ownership of 1/2 of the apartment in this case, it is only the subject of the taxation of carry-over of the spouse’s donation property under Article 97(4) of the Income Tax Act, and it is not the subject of the regulation of denial of unfair act calculation under Article 101(2) of the former Income Tax Act (amended by Act No. 7006 of Dec. 30, 2003).

(2) Relevant statutes

It is as shown in the attached Table related statutes.

(3) Determination

(A) As to the first argument

The prohibition of retroactive taxation refers to the principle that no retroactive taxation shall be levied on the income, profit, property, or transaction established with the obligation to pay national taxes under Article 18(2) of the Framework Act on National Taxes. In full view of the purport of each of the above evidence Nos. 2 and 7, the Constitutional Court rendered a donation to a person with a special relationship prescribed by the Presidential Decree for the purpose of unreasonably reducing the income tax on the capital gains tax on July 24, 2003, and then again transfers the assets to another person within 2 years from the date of donation, the donor shall be deemed to have transferred the assets directly to the Plaintiff. Article 101(2) of the former Income Tax Act (amended by Act No. 5031, Dec. 29, 1995); Article 101(2) of the former Income Tax Act (amended by Act No. 5191, Dec. 30, 196); Article 201 of the former Income Tax Act (amended by Act No. 5190, Dec. 1, 9996).

Therefore, the above argument is without merit.

(B) On the second argument

In order for a non-taxable practice under Article 18(3) of the Framework Act on National Taxes to be established, there exists an objective fact that has not been taxed over a considerable period of time, as well as an intent that the tax authorities are exempt from taxation due to any special circumstance, knowing that the tax authorities are able to impose taxes on the matter, and such public opinion or intent should be expressed explicitly or implicitly (see, e.g., Supreme Court Decision 2004Du6204, Oct. 28, 2004). However, even through erroneous interpretation or practice, it means that even if it was accepted as just by a general taxpayer who is not a specific taxpayer, and it is recognized that it is not unreasonable for the taxpayer to trust such interpretation or practice (see, e.g., Supreme Court Decision 2001Du403, Sept. 5, 2003).

Therefore, as seen earlier, even if the Defendant rendered a disposition to refuse to file a claim for correction against the Appoint○○○○, such circumstance alone is difficult to deem that the Defendant expressed to the Plaintiff an intention not to impose capital gains tax on the transfer income of the shares of the 1/2 apartment of the instant apartment of 1/2, and there is no other evidence to acknowledge that the non-taxation practice of the Plaintiff’s assertion was constituted, and therefore, the above assertion is without merit

(C) As to the third argument

In order to prevent a resident from evading capital gains tax by donating land, etc. to his spouse, Article 97 (4) of the Income Tax Act provides that the acquisition value shall be the acquisition value of the relevant spouse, and the amount equivalent to the gift tax paid or to be paid by the resident on the donated property shall be included in necessary expenses, in order to prevent the resident from evading capital gains tax by transferring the land, etc. to his spouse within five years retroactively from the date of transfer. Since Article 163 (7) (amended by Presidential Decree No. 18173 of Dec. 30, 2003) and Article 158 (1) 4 (amended by Presidential Decree No. 18173 of Dec. 30, 2003) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18173 of Dec. 30, 2003) provide that the right to use the specific facilities or the right to use the specific facilities, regardless of their titles, to be exclusively used for the relevant facilities or to the person entitled to use the above apartment facilities under the condition for general users.

5. Conclusion

Therefore, the intermediate confirmation lawsuit of this case and the part seeking the revocation of the disposition No. 1 of this case among the main lawsuit of this case are dismissed, respectively, and the remainder of the main lawsuit of this case is dismissed as it is without merit. It is so decided as per Disposition.

Related Acts and subordinate statutes

○ Scope of transfer income under Article 94 of the Income Tax Act

(1) The transfer income shall be the following incomes generated in the current year (amended by Act No. 7006 of December 30, 2003):

1. Income accruing from transfer of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings);

Article 97 of the Income Tax Act: Calculation of Necessary expenses for capital gains

(4) In calculating gains on transfer of assets under Article 94 (1) 1 donated by a resident within 5 years retroactively from the date of transfer, and other assets as prescribed by the Presidential Decree, the necessary expenses to be deducted from the transfer value shall be under paragraph (3), but the acquisition value shall be the amount under each item of paragraph (1) 1 at the time of the acquisition by the relevant spouse. In this case, if there is any amount equivalent to the gift tax paid or to be paid by the resident on the donated assets, the necessary

Article 101 of the Income Tax Act by Wrongful Calculation

(1) If it is deemed that any act or computation of a resident having any transfer income has reduced unreasonably the tax burden on such income through any transaction with the resident concerned, the superintendent of the district tax office or the director of the regional tax office having jurisdiction over the place of tax payment may calculate the income amount in the current year regardless of

(2) In case where any person, who donated any assets to the person having a special relationship under paragraph (1) (excluding the case where the spouse is subject to Article 97 (4)) in order to reduce unreasonably the income tax on the transfer income, transfers the assets to another person within three years from the donation date, the donor shall be deemed to have transferred the assets directly. In this case, the gift tax shall not be levied on the assets originally donated, notwithstanding the provisions of the Inheritance Tax and Gift Tax Act (amended by Act No. 7006 of Dec. 30, 2005).

(2) In case where any person who donated any assets to the person having a special relationship under paragraph (1) (excluding the case where the spouse is subject to Article 97 (4)) with the intention of reducing unreasonably the income tax on the transfer income, and the donee re-transfer such assets to another person within three years from the date of donation, the donor shall be deemed to have transferred directly the assets (amended by Act No. 7006 of Dec. 30, 2003).

(2) If any person who donated any assets to a person with a special relationship under paragraph (1) with an intention to reduce unreasonably the income tax on the transfer income, and then donated such assets to another person within two years from the date of donation, the donor shall be deemed to have transferred the assets directly to the third person (which was amended by Act No. 5031 of Dec. 29, 1995 and amended by Act No. 5191 of Dec. 30, 196).

(4) The scope of the related parties under the provisions of paragraph (1) and other necessary matters concerning the wrongful calculation shall be determined by the Presidential Decree.

The enforcement date of Article 1 of the Addenda to the Income Tax Act (Act No. 7006 of December 30, 2003)

This Act shall enter into force on January 1, 2004: Provided, That the amended provisions of Article 34 (2) 3-2 and 6 shall enter into force on the date of its promulgation, and the amended provisions of Article 99 (1) 1 (c) shall enter into force on January 1, 2005.

Application cases of wrongful calculation of capital gains under Article 11 of the Addenda of the Income Tax Act (Act No. 7006, Dec. 30, 2003)

The amended provisions of the latter part of Article 101(2) shall apply from the time of transfer or decision after this Act enters into force.

Article 158 of the Enforcement Decree of the Income Tax Act: Scope of Other Assets

(1) The term “other assets” in Article 94 (1) 4 of the Act means those falling under one of the following subparagraphs:

4. Rights to use specific facilities, membership rights, and other rights to use facilities awarded to a person becoming a member of an organization which agrees to exclusively use the relevant facilities or use them under favorable conditions compared with the general users, regardless of the titles thereof (including stocks, etc. in case where only possessing stocks, etc. of a specific corporation becomes entitled to exclusively use the specific facilities or use them under favorable conditions compared with the general users on December 30, 200) (including the relevant stocks, etc. in case where they are removed by Presidential Decree No. 18173, Dec. 30,

Article 163 of the Enforcement Decree of the Income Tax Act: Necessary expenses for transferred assets

(7) "Assets prescribed by Presidential Decree" in Article 97 (4) of the Act means the assets under Article 158 (1) 4 (amended by Presidential Decree No. 18173, Dec. 30, 2003).