2. The costs of appeal shall be borne by the plaintiff.

The Defendant’s imposition of KRW 3,920,646,440 on October 26, 200 against the Plaintiff (hereinafter “instant first disposition”) and the imposition of KRW 4,102,934,290 on the gift tax reverted to the same year (hereinafter “instant second disposition”) shall be revoked.

2. Purport of appeal

The part against the plaintiff falling under the order to revoke the below among the judgment of the court of first instance shall be revoked, and the part of KRW 3,800,103,310 among the disposition of second in this case shall be revoked.

The Plaintiff filed a lawsuit against the Defendant seeking revocation of each of the instant dispositions, and the first instance court revoked the part exceeding KRW 3,800,103,310 among the instant dispositions on July 9, 2008. The Plaintiff only rendered a judgment in favor of the Plaintiff that “the remaining claims of the Plaintiff are dismissed.” The only part of the Plaintiff’s KRW 3,800,103,310 among the instant dispositions is subject to the judgment of the court. However, for the convenience of the trial, the party members are to determine the whole of the instant dispositions on the second disposition.

2. Circumstances concerning the second disposition in this case

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence 1-1, 2, 2-2, 2-2, 1-1, 2-3, and 2-2:

A. On December 200, the Plaintiff was issued KRW 11,979,642,50 of the market price (the face value of KRW 16,705,00,000) with KRW 2,770 of the national housing bonds of this case (hereinafter “each of the instant bonds”) from SS, an external main office, around the end of December 200.

B. After all, the Defendant investigated the source of the purchase fund of each of the instant claims. Of them, the claim 1,013 of the amount of KRW 6,537,294,50 (the face value of KRW 7,355,00,000 (the face value of KRW 7,350,000) at the market value of KRW 1,013 (hereinafter “the claim 1 of this case”) revealed that the source of the purchase fund of KRW 5,442,348,00 (the remainder of the market value of KRW 9,350,000) at the Plaintiff’s father was the former KK. However, the claim 1,757 (the Defendant mistakenly identified it as KRW 1,758; hereinafter “the claim 2 of this case”) was not revealed.

B. Accordingly, on October 26, 2004, the Defendant imposed and notified the Plaintiff the instant First Disposition (the gift tax on the portion donated by the KS) and the instant Second Disposition (the gift tax on the portion donated by the KS, in particular, the amount included the amount added to the gift tax on the portion donated by the SS, and in accordance with Article 57 of the Inheritance Tax and Gift Tax Act) on the Plaintiff.

3. Whether the second disposition in this case is legitimate

A. The plaintiff's assertion

(1) The first argument

On January 1, 198, the Plaintiff asked SS to manage the amount of KRW 2 billion for the marriage congratulatory money owned by the Plaintiff. SS has been managed and reproduced for about 13 years thereafter, and around December 2000, returned to the Plaintiff in the form of each of the instant claims (In addition, according to the Supreme Court Decision 2004Do7232 Decided December 22, 2006 and the Seoul High Court Decision 2007No33 Decided June 15, 2007, Seoul High Court Decision 2007No33 Decided June 15, 2007, which was reversed and remanded, the Plaintiff was recognized to have donated the instant claim 1 from KS, but it was not recognized that the Plaintiff received the instant claim 2 from KR or SS).

Therefore, the Plaintiff’s claim No. 2 does not constitute the property donated to KK or ES, and the Defendant’s disposition of this case, based on a different premise, is unlawful ( insofar as the Plaintiff was not recognized to have donated the instant claim No. 2 from ES, the Plaintiff’s assertion that the gift gift taxation on the lineal descendants is unreasonable is unreasonable).

(2) The second assertion

Around January 1, 1988, when the Plaintiff received four head of a Tong and one seal containing the above marriage congratulatory from SS, and around February 1, 1988, at the latest, KK agreed to vest in the Plaintiff’s ownership of the above marriage congratulatory money, and as such, the above marriage congratulatory money belongs to the Plaintiff, the disposition No. 2 of this case constitutes a disposition after the expiration of the gift tax exclusion period.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

The following facts may be acknowledged, either in dispute between the parties or in full view of the purpose of the entire pleadings in Gap evidence Nos. 6, 11, 12, and Eul evidence No. 4:

(1) The prosecution conducted an investigation into the fact that the Plaintiff received a donation of each of the instant claims from ES or KK and evaded gift tax thereon, and then indicted the Plaintiff for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) at the Seoul Central District Court (2004Gohap195).

(2) On July 30, 2004, the Seoul Central District Court: (a) found that the Plaintiff evaded gift tax on the gift of the instant Claim No. 1 from the former KK while receiving the gift of the instant Claim No. 2 from the former K; (b) on the grounds that there is no evidence or lack of evidence as to the fact that the Plaintiff evaded gift tax on the gift of the instant Claim No. 2 from the former K while receiving the gift of the instant Claim No. 2 from the former K; (c) rendered a judgment of conviction of the former two years and six months of imprisonment with prison labor and fine of KRW 3.3 billion; and (d) rendered a judgment of innocence against the latter (However, since the crime was related to the convicted part, the judgment of

(3) The Plaintiff and the Prosecutor appealed against the above judgment of the first instance, and the Seoul High Court (Seoul High Court 2004No2154, Oct. 19, 2004) (Seoul High Court 2004) reversed not only the Plaintiff’s donation of the instant claim No. 1 from KS but also the fact that the Plaintiff evaded gift tax even after receiving the instant claim No. 2 from SS. 3. After reversed the judgment of the first instance court, the Plaintiff was convicted of a suspended sentence of three years and a fine of six billion won.

(4) The Plaintiff appealed against the above appellate judgment, and the Supreme Court (No. 2004Do7232) rendered a final appeal on December 22, 2006, based on the evidence presented by the Prosecutor, it cannot be readily concluded that the Plaintiff was evading gift tax on the gift of the instant claim No. 2 from SS even after having received the instant claim from SS. Accordingly, the above appellate judgment was reversed, and the case was remanded to the court.

(5) After remanding, the Seoul High Court (2007No33) reversed it ex officio on June 15, 2007 on the ground that there was an error in calculating the amount of gift tax on the grounds that the Plaintiff evaded gift tax on the gift amount of the first instance court’s judgment. However, it cannot be readily concluded as to the fact that the Plaintiff, while receiving the gift of the first credit from the former KK, received the donation of the second credit from the former KK, and the gift tax on the second credit, and the gift tax on the donation of the second credit from the SS cannot be avoided. The former was sentenced to a judgment of conviction of 3 years of suspended execution and 2.8 billion won as to the former, and the latter was found not guilty (However, since the crime was related to the part guilty, it did not separately be sentenced to a verdict of innocence). The above judgment became final and conclusive on June 23, 2007.

(6) While he is in office as the President, K has participated in various interest coupons, etc. and has raised a considerable amount of funds.

(7) On December 1987, the Plaintiff, who was studying in the U.S., left Korea and went to Korea to continue his studies after marriage. From around 1991, the Plaintiff returned to Korea to Korea and was treated as a stock company until 1994, and returned to Korea on 1999.

D. Determination

(1) Whether the defendant's grounds for disposition are legitimate

As to the Disposition No. 2 of this case, the Defendant changed the grounds for disposition to the effect that the Plaintiff received the gift of the Claim No. 2 from the former KK.

(A) On the other hand, even if there were errors or errors in part of the facts acknowledged at the time of the initial disposition by the tax authority, if the facts found thereafter are not different from the original facts identical to the facts of taxation, the identity of the disposition is maintained. In light of such legal principles, even if the person recognized by the tax authority as the donor was merely the funds manager of the donor, it is reasonable to view that the initial disposition of gift tax is lawful (Supreme Court Decision 96Nu3272 delivered on February 11, 1997).

However, it is reasonable to view that the changed reason for the disposition is the donor that the SS is merely the fund manager of KS and the actual donor is KS. The original reason for the disposition is the same fact and the changed reason for taxation are within the scope of the same fact. Thus, the defendant's change of the above disposition reason is lawful.

(B) In addition, the Defendant added the grounds to the effect that the second disposition of this case is legitimate as a disposition under the presumption of gift under Article 45 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301 of Dec. 29, 2000), but the facts of the initial taxation requirement are the subject of the gift act of the second claim of this case itself, while the added taxation requirement is the subject of ① the acquisition of the second claim of this case and the second claim of this case, ② the subject of below the acquisition value of the donee’s income, etc., so it is difficult to view that the basic facts are identical, and therefore the addition of the above disposition requirement is not allowed.

(2) Judgment on the Plaintiff’s first argument

(A) We examine the Plaintiff’s assertion related to the above cattle 3-1 to 32, Gap evidence 4-1 to 4-2, Gap evidence 5-1 to 9, and the witness Hah, YY, and Y-2 of the lower court’s trial. There is no other evidence to acknowledge it (In addition, the Plaintiff failed to submit objective evidence on the creation, extension, and details of marriage congratulatory, it is difficult to obtain 20 billion won when based on the general transaction concept. According to Gap evidence No. 13, it is recognized that the Plaintiff borrowed and repaid money several times from the Ministry of Foreign Affairs to the Ministry of Foreign Affairs, and it is difficult to accept the Plaintiff’s assertion that the Plaintiff borrowed money from the Ministry of Foreign Affairs to the Ministry of Foreign Affairs in consideration of the circumstances such as the Plaintiff’s request for management of the amount of 2 billion won of marriage stable, and that it is difficult to accept the Plaintiff’s assertion that the Plaintiff paid money on several occasions.

(B) The following circumstances revealed in the above facts: (a) former K has engaged in various interest coupons, etc. while in office as the President; (b) acquired the instant Claim No. 1 as part of the non capital; (c) had been in possession of sufficient funds to acquire the instant Claim No. 2 with the remainder of the non capital; and (b) has served as an administrator of Pyeongtaek-gu Seoul, by acquiring and delivering the instant Claim No. 1 with the funds of the former KK upon the request of the former KK’s request; and (c) has entered and refunded the instant Claim No. 2 to the borrowed account related to the Plaintiff after the issuance of each of the instant claims to the Plaintiff. Thus, it is highly probable that the purchase funds of the instant Claim No. 2 were non-funds as stated in the instant Claim No. 1; and (c) it is difficult to find that the Plaintiff purchased the instant Claim No. 2 with the amount of marriage congratulator. 5 for reasons as seen earlier, there is no reasonable doubt that the Defendant had to have been convicted of the Defendant’s donation or other evidence that the Plaintiff had been found guilty due to the facts charged.

However, in a tax lawsuit, in reality, the deliberation of tax avoidance has been postponed among the public in relation to the payment of taxes, and it is extremely difficult for the taxation data supporting the fact of taxation to find the taxation data without the taxpayer's cooperation in the living area controlled by the tax authority, if the tax authority demands the degree required in the criminal lawsuit, this would result in the tax authority's de facto impossibility of proof, which would lead to an unreasonable and unfair conclusion that disregards the special characteristics of tax legal relations. Therefore, in general, the burden of proof regarding the facts of taxation requirements in a lawsuit seeking revocation of tax imposition should be borne by the defendant who is the tax authority. However, unless it is proved that the facts that the other party are presumed to be eligible for the application of the empirical rule in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the other party is an illegal disposition that failed to meet the relevant taxation requirements (see Supreme Court Decision 2002Du6392, Nov. 13, 2002).

(C) Meanwhile, even if the source of the fund for acquiring the claim 2 of this case, as alleged by the Plaintiff, is the social practice established with the traditional public morals of our society, and in order to keep the economic burden of the parents of the married couple at the time of the marriage, most of the children in the relationship with them are to keep the financial burden of the married couple, and most of the children in the relationship with them free of charge without expressing their gender to the married parents. Accordingly, it is reasonable to view that the remainder except the portion that the father's relationship with the new father is considered to have been directly created on the basis of the marital relationship with the married couple, it is reasonable to view that the father's donation belongs to the married parent as the whole, and in full view of the subject, purport, amount, etc. of the delivery indicated in the attached Form, the father's donation should be considered to have been reverted to K as the father's father's whole amount.

(D) Therefore, this part of the Plaintiff’s assertion is without merit, even if it appears to be a mother.

(3) Judgment on the second assertion by the Plaintiff

Only with the descriptions of evidence Nos. 13 and 14, the Plaintiff received four head of Tong and one seal from the Ministry of Foreign Affairs around Jan. 1, 1988, which contain the above marriage congratulatory, from the Ministry of Foreign Affairs, and it is insufficient to recognize the fact that Jeon K on Feb. 2, 1988 consents to the Plaintiff to the ownership of the above marriage congratulatory, and there is no other evidence to acknowledge it.

Therefore, the plaintiff's assertion on this part is without reason.

E. Sub-decision

On the other hand, when the plaintiff calculates the amount of legitimate gift tax on the premise that all of the claims of this case were donated from KR, as shown in the separate calculation, the amount of tax is 7,720,749,750 won as stated in the separate calculation statement, which is 8,023,580,730 won (=3,920,646,440 won + 4,102,934,290 won) more than 302,930,980 won (=8,023,580,730 won - 7,720,749,750 won as principal tax due to the application of progressive tax rate, but the total amount of tax determined is less than the amount of tax determined since the failure of household is not recognized). Thus, the disposition of this case, which regarded the amount of tax to be the donor of this case as the donor of this case, should be reduced to the extent of the difference in the amount of tax of this case No. 1.

Therefore, the part of the Disposition No. 2 of this case (= KRW 4,102,934,290 - KRW 302,830,980), among the disposition No. 2 of this case, is legitimate, and the part exceeding it should be revoked in an unlawful manner.

4. Conclusion

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.