Seoul Administrative Court 2012Gudan1207 (22 August 22, 2012)

early 2011west 2796 ( November 09, 2011)

The disposition of wrongful calculation on the expropriation of housing within five years that has been donated to women is legitimate.

In light of the fact that most of the compensation received due to the expropriation of donated houses was used for the donor's real estate acquisition funds, and it is difficult to view that it is a normal transaction to be done by a reasonable economic person in light of social norms and transaction practices, etc., the wrongful calculation of unfair act cannot be deemed as lawful and that the relevant provision regulating the act of evading capital gains tax by putting the donation act to a related party

2012Nu27826 Revocation of Disposition of Imposing capital gains tax, etc.

United StatesA

Director of the District Office

Seoul Administrative Court Decision 2012Gudan1207 decided August 22, 2012

February 7, 2013

March 7, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The Defendant’s imposition of KRW 000 of the transfer income tax belonging to the year 2009, which the Plaintiff on January 3, 201, and the imposition of KRW 000 of the special rural development tax reverted to the Plaintiff on February 1, 2011 shall be revoked, respectively.

1. Quotation of the reasons for the judgment of the first instance;

The reasons why the court should explain in this decision are as follows, and the reasons why the court added the judgment on the plaintiff's argument to "paragraph 2" are as stated in the judgment of the court of first instance, and they are cited in Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination

A. The part on the assertion that the provision of denial of wrongful calculation cannot be applied to the transfer of housing at issue

(1) Summary of the Plaintiff’s assertion

"The plaintiff is not a donation to the plaintiff's women (including JeonB, this sub-committee, and so on) and the income from the transfer of the controversial house was actually attributed to the elderly, and the tax disposition of this case applied to the wrongful calculation under Article 101 (2) (hereinafter "the provisions of this case") of the former Income Tax Act (amended by Act No. 9346 of Jan. 30, 200, hereinafter the same shall apply) to the plaintiff's housing at issue with the intention of unfairly reducing the tax burden." (2) The decision of this case is erroneous in the misapprehension of relevant legal principles.

(A) The purpose of the instant provision is to deny the transfer income tax and impose the transfer income tax on the donor who is the actual income, in order to avoid the transfer income tax. The purpose of the instant provision is not to readily conclude that the sum of the donee’s gift tax and the transfer income tax is less than the transfer income tax in the case where the donor directly transfers the gift, and it does not necessarily require that the transfer income tax would have been actually attributed to the donor if the gift is to reduce the transfer income tax unfairly (see, e.g., Supreme Court Decisions 88Nu528, May 9, 1989; 97Nu13979, Nov. 25, 1997; 2001Du4146, Nov. 10, 203). In addition, for the purpose of applying the instant provision, it is sufficient or sufficient to determine that the transaction between the specially related parties, and that the person would have to be subject to a reasonable tax reduction or tax reduction by 2014.27.14.

(B) However, according to the facts cited earlier and evidence, most of the compensation received by a woman who is a donee of the controversial house, and most of the compensation received by the donee of the controversial house was found to have been appropriated for the acquisition fund of the house purchased separately after being expropriated 000, which is owned by the plaintiff. Although the plaintiff asserts that 200 million won out of compensation for the controversial house was paid as a deposit for the second floor from women, the sum of deposit and monthly rent received from the existing lease agreements on the first floor and underground floor other than the above second floor out of the purchased house cannot be seen as 00 won and 00 won respectively (refer to the record 26 pages) compared with the general selection of the plaintiff's house, it is reasonable to view that the plaintiff's family members were not the head of the house, and it is difficult to conclude that the plaintiff's house acquired the house under the name of women, and that it was difficult to find that there was no other issue or practice of the plaintiff's house purchased the house under the name of women, and that there was no other issue.

B. The part on the assertion that the instant provision is unconstitutional provision

(1) Summary of the Plaintiff’s assertion

Where a donee transfers a gift within five years after the actual donation between a person with a special relationship, the provisions of this case which are taxable by deeming it as a transfer of a donor, and those of this case are unconstitutional provisions which excessively infringe on the fundamental rights guaranteed by the Constitution.

(2) Determination

The provision of this case provides that a donor shall be deemed to have directly transferred the property to another person within five years from the date of donation in order to reduce the transfer income tax in an unjust manner. The above provision aims to regulate any tax avoidance act in which a taxpayer conducts a gift to a person with a special relationship in the middle in order to extinguish the increased capital gains due to the long-term possession of assets, and to realize equality in taxation by taking a trading form into which a taxpayer conducts a gift to a person with a special relationship in the middle, and it is difficult to view that the provision of this case violates the provision of this case to be applied only to facts with high probability that the gift to a person with a special relationship would be evaluated as a genuine transfer act of a donor, and it is difficult to view that the provision of this case violates the provision of this case 207Hun-Ba on the premise that the provision of this case 204 is unconstitutional, and it is difficult to view that the provision of this case 2074 is unconstitutional even if the general public does not have any reasonable trading form, and it is not contrary to the provision of this case 2074.

3. Conclusion

Then, the plaintiff's appeal is dismissed as it is without merit.