Cho High Court Decision 201Do1637 (Law No. 15, 2011)

Transfer profit substantially belongs to the donee and does not constitute an unfair act.

In light of the fact that a house has been expropriated after three or more years have elapsed since the donation of a house to the son, the implementation plan for urban planning facility project has been authorized after the donation of a house, and the compensation for expropriation of a house cannot be deemed to have been attributed to a donor by using a witness as a sale price, etc., the donation act does not constitute an unfair

Article 101 of the Income Tax Act

2011Gudan24302 Revocation of Disposition of Imposing capital gains tax

IsaA

Head of Geumcheon Tax Office

April 10, 2012

May 2, 2012

1. The Defendant’s disposition of imposing capital gains tax of KRW 000 for the year 2009 against the Plaintiff on February 9, 201 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

It is the same as the disposition.

1. Details of the disposition;

A. On December 21, 1994, the Plaintiff acquired and owned a house of 100 OOdong, 000, 104.3 square meters and 2nd floor of the ground brick sloping roof (hereinafter the above site and house collectively referred to as the “instant house”). On August 25, 2005, the Plaintiff donated the instant house to B, who is ASEAN on August 25, 2005.

B. The instant housing was expropriated by Geumcheon-gu on January 7, 2009 for urban planning facility projects, and this B filed a transfer income tax report to the Defendant on May 30, 2010, stating that the instant housing constitutes one house non-taxation for one household, upon receiving KRW 000 as compensation for expropriation.

C. However, on February 9, 2011, the Defendant: (a) deemed that the Plaintiff directly transferred the instant house pursuant to Article 101(2) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) and determined and notified KRW 000 of the transfer income tax for the year 2009 (hereinafter the “instant disposition”).

[Reasons for Recognition] The non-speed facts, Gap evidence 5, Eul evidence 6, Eul evidence 1, 3, and 4, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

The plaintiff asserts that this case's house was donated to IB for the future, including marriage of IB, and that all of the compensation for expropriation of this case was used by BB, and in this case, it does not constitute an unfair act under Article 101 (2) of the former Income Tax Act. In this regard, the defendant, the plaintiff, and the plaintiff, in order to reduce the transfer income tax unfairly, donate this case's house to I, and transfer it again within five years, and then, it constitutes an unfair act under Article 101 (2) of the former Income Tax Act.

(b) Fact of recognition;

(1) On March 10, 201, the decision of urban planning facilities (road) and approval on the change of topographical map was publicly announced (Ycheon-gu Notice No. 2001-4), and on April 3, 2008, the approval of the implementation plan was publicly announced on the urban planning (Ycheon-gu Notice No. 2008-10).

(2) On August 25, 2005, the Plaintiff donated the instant housing to B, and B was paid KRW 000 as compensation for expropriation of the instant housing around January 15, 2009.

(3) On February 7, 2009, this B leased 00 DDDDD apartment 00 000 000 dong, Geumcheon-gu, Seoul, and paid the above lease deposit with the above expropriation compensation.

(4) On March 3, 2011, B entered into a sales contract with the EEE Association to purchase apartment units of 00 dong 00 dong 000 dong 000 as a substitute house for the instant apartment units, and paid part of the purchase price of the said apartment units (contracts, part of intermediate payments, and part of the remainder) with the compensation for the aforementioned expropriation.

[Ground of Recognition] The above evidence, Gap evidence 1 to 4, Eul evidence 7 to 9, and Eul evidence 5 to 8, and the purport of the whole argument

C. Determination

The purpose of Article 101 (2) of the former Income Tax Act is to deny the transfer of a house in the form of donation in order to avoid the transfer income tax, and to impose the transfer income tax on the donor who is the actual income (see, e.g., Supreme Court Decisions 88Nu5228, May 9, 1989; 97Nu13979, Nov. 25, 1997; 2001Du4146, Jan. 10, 2003). It is reasonable to view that the donor’s actual intent to donate the house to the donee, and that the transfer income tax is not unfair if the Plaintiff acquired the house in this case to the donee, and that the house in this case was not subject to the transfer income tax under the generally accepted social norms, and that the Plaintiff’s transfer of the house in this case was not subject to the return of the house in this case for 200 or more years after the donation.

3. Conclusion

Then, the plaintiff's claim of this case is justified, and it is judged like the order.