Whether real estate constitutes donated property and the exclusion period for taxation expires;

In order to maintain a matrimonial relationship, real estate constitutes donated property, and it was imposed within 10 years from the filing date of the report, and thus lawful.

Article 14 of the Framework Act on National Taxes

1. Of the disposition of imposition of capital gains tax of KRW 51,240,910 against the Plaintiff on July 15, 2006, the part of additional tax of KRW 4,775,708 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 95% is assessed against the Plaintiff, and the remainder of 5% is assessed against the Defendant, respectively.

The defendant's disposition of imposition of gift tax of KRW 73,710,570,00 against the plaintiff on July 15, 2006, and the decision as set forth in Paragraph (1) and Paragraph (1) of this Article.

1. Details of the disposition;

A. The registration of ownership transfer was completed on July 16, 1998 on the second-story housing of 295-7, 294-3, 294-2, 295 square meters in Seoul, 294-3, 490 square meters in 294-11, 294-12 square meters in 294-12, 62 square meters in 295-4, 295-7, 208 square meters in 295-7, 294-3, 490 square meters in 290 square meters in ○○○○-dong, Seoul, ○○○○○○-dong, 294-2, 295, and 490 square meters in 20 square meters in 198.

B. On December 4, 200, 200, the head of ○○ Tax Office deemed that the Plaintiff did not report the gift of the instant real estate from the present ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ (at the time of the Plaintiff’s residence in the ○○○○○○○○○○○○○○○○○○○○○). The Plaintiff filed an appeal against this request with the National Tax Tribunal on January 10, 201, but the National Tax Tribunal dismissed the said request on April 11, 2001, and filed an administrative litigation seeking revocation

C. Meanwhile, the Republic of Korea, to which the head of ○○○ Tax Office belongs, transferred the instant real estate to ○○ on December 10, 1998 and reported the transfer income tax to 1,580,000 square meters and the 4th floor above that ○○○○, Seoul, ○○○-dong, 110-1,674.1 square meters and the 1,580,000 square meters above that were owned by ○○○, which was owned by ○○○○○, on July 21, 200, filed a lawsuit seeking revocation of fraudulent act against the Plaintiff on the ground that the instant real estate was donated to the Plaintiff for the purpose of evading the said transfer income tax. The head of ○○ Tax Office deemed that the said lawsuit cannot be compatible with the disposition of revocation of the gift tax as of December 4, 200 during the period of revocation of fraudulent act, and notified the Plaintiff of the disposition of revocation of the gift tax ex officio on April 1, 2001.

D. On June 28, 2001, the court of first instance rendered a judgment against the Republic of Korea on the ground that the transfer income tax claim against ○○○○ was established after donation of the real estate in this case, and thus, the Republic of Korea appealed with ○○○○○○○○○○○○○○○○○○○○○○○○○, but the appellate court also rendered a judgment dismissing the appeal on December 14, 2001, and the said judgment became final and conclusive on January 12, 2002.

E. On the other hand, on December 21, 2004, the Central Land Expropriation Committee concluded the expropriation of the instant real estate, other than the instant real estate acquired through consultation, ○○○-dong 294-3 large 490 square meters and 2nd above its ground, among the instant real estate incorporated into the Housing Site Development Project for Seoul ○○○ District, a project implementer, (hereinafter “construction”). The Corporation deposited KRW 941,176,050 of the instant real estate expropriation compensation, and completed the registration of the transfer of ownership in the name of the Corporation on February 11, 2005, on March 17, 2005.

F. However, the Plaintiff dissatisfied with the above ruling of expropriation and filed an administrative litigation with the Seoul ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, on July 27, 2005, received additional payments of KRW 151,847,00 from the Corporation on August 26, 2005 for the increased amount of compensation for expropriation and its delayed damages. While both appeals filed by the Plaintiff with the Seoul ○○○○○○○○○○○○○○○○○○○○○○, both appeals

G. However, the Plaintiff reported the transfer income tax only for the compensation initially deposited for the instant expropriateds, but did not pay the transfer income tax on the increased compensation for expropriation.

H. On July 15, 2006, the Defendant imposed KRW 73,710,572 on the Plaintiff on the instant real estate (hereinafter “instant disposition imposing gift tax”). On the increased amount of compensation for expropriation, the Defendant considered the time of transfer as March 17, 2005, and additionally imposed capital gains tax of KRW 51,240,910 (including additional tax of KRW 4,775,708) on the Plaintiff (hereinafter “disposition imposing capital gains tax”).

A. On August 14, 2006, the National Tax Tribunal dismissed the above appeal on June 20, 2007.

(In the absence of dispute, and the purport of the whole pleadings and arguments, each entry of Gap evidence 1-1 to Gap evidence 2-7, Gap evidence 7, Gap evidence 8-1 to Gap evidence 11-5, Eul evidence 1-7, and Eul evidence 1 to 7.

2. Whether the imposition of gift tax in this case and the imposition of transfer income tax in this case are legitimate

A. The plaintiff's assertion

(1) Imposition of gift tax of this case

The instant gift tax disposition is unlawful for the following reasons.

① On December 4, 2000, the head of ○○ Tax Office revoked ex officio on May 25, 2001 a disposition of imposition of KRW 73,710,570 on gift tax against the Plaintiff. This constitutes “when the imposition is revoked” under Article 26 subparag. 1 of the Framework Act on National Taxes, and thus, the Plaintiff’s obligation to pay gift tax on the instant real estate was extinguished.

② The instant real estate was an asset formed by the Plaintiff and ○○○○’s joint efforts in 1969, and the Plaintiff demanded the present ○○○○ to transfer the pro rata property portion, but the Plaintiff refused to request the confirmation of the intention of divorce. On June 5, 1998, a property division agreement was made with the instant real estate under the Plaintiff’s name through arbitration of the children. In light of these circumstances, the instant real estate was a type donation, but its substance is not subject to gift tax, because it is a property division agreement with the property formed during the marital life.

③ The Republic of Korea, to which the head of ○○ Tax Office belongs, filed a lawsuit seeking revocation of a fraudulent act against the Plaintiff. Accordingly, if the Plaintiff’s disposition of revocation of a fraudulent act is correct as of December 4, 2000, the lawsuit for revocation of the fraudulent act was erroneous, and if the lawsuit seeking revocation of the fraudulent act is correct, the above disposition of revocation of the gift tax was revoked ex officio on May 25, 2001 by the Republic of Korea, and the head of ○○ Tax Office, instead of maintaining the lawsuit seeking revocation of the fraudulent act, revoked the above disposition of revocation of the gift tax on May 25, 200. Nevertheless, as the Republic of Korea lost against the lawsuit seeking revocation of the fraudulent act, the Defendant again made the disposition of gift tax of this case after five

④ The Defendant’s imposition of gift tax of this case without separately revoking the revocation of the ex officio disposition of gift tax of December 4, 2000, which was made on May 25, 2001, violates Article 18 of the Framework Act on National Taxes, contrary to the fairness of administrative act, the purpose of administrative act, and the principle of unity. Even if the revocation of the ex officio disposition of gift tax of May 25, 2001 at the expiration of five years from the date of revocation of the said ex officio, the Defendant’s imposition of gift tax of this case is unlawful against the principle of self-defense of the administrative agency, the principle of gold speech, the principle of proportionality, and the principle of equality.

⑤ The Plaintiff’s filing deadline for gift tax was September 16, 1998, which was three months after the date of donation, and the date on which the Defendant is entitled to collect gift tax on September 17, 1998. Thus, the period of extinctive prescription of the collection right was completed on September 16, 2003, which was five years after the date of donation, and even if viewed otherwise, five years have elapsed on December 4, 200, which was five years after the date of the first tax payment notice.

6) The Defendant left the place of revocation of fraudulent act, imposition of gift tax, criminal charge under the Punishment of Tax Evaders Act, tax investigation, etc. to the extent that the Plaintiff has to defend. This is unlawful as it deviates from and abused the discretionary limit of tax officials under Article 19 of the Framework Act on National Taxes.

7. The duplicate tax investigation under Article 81-4 (2) of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007) is not permitted. It is unlawful for the head of ○○ Tax Office or the defendant to conduct a duplicate tax investigation before imposing gift tax on December 4, 200 and imposing gift tax on the same content.

(2) Additional tax in the disposition imposing the transfer income tax of this case

On September 8, 2006, the plaintiff filed a lawsuit against the expropriation compensation for the real estate of this case, and the amount of additional compensation became final and conclusive only by the Supreme Court decision of September 8, 2006, and the defendant imposed additional tax on March 17, 2005, which is the date of receipt of ownership transfer registration for the real estate of this case, by deeming the transfer time as the date of transfer. The defendant cannot report the transfer income tax for the additional compensation under the condition that the additional compensation is not finalized, and thus, the part of the disposition of imposition of transfer income tax of this case is illegal

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts may be acknowledged by adding the whole purport of the pleadings to each entry of Gap evidence 3-1 to Gap evidence 6-2, Gap evidence 17-1 to Gap evidence 21-4.

(1) On April 30, 1962, the Plaintiff was married to ○○○○ on the part of the married couple, and the Plaintiff was forced to retire on March 27, 1975 while working for ○○○○○○○○○○○○○, and the present ○○ was a teacher and voluntarily retired around 191.

(2) On June 5, 1998, the Plaintiff filed an application for confirmation of the intention of divorce with ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the ground that the cause of the assumption between ○○○ and

(3) After that, on June 15, 1998, the Plaintiff and ○○○ donated the instant real estate to the Plaintiff, and on the other hand, the Plaintiff acquired 30 million won of the agricultural cooperative’s debts, the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of KRW 60 million, and the Plaintiff agreed not to discuss the issue of divorce. Accordingly, the Plaintiff voluntarily withdrawn the application for divorce.

(4) On December 4, 200, the head of ○○ Tax Office conducted a tax investigation from October 19, 200 to November 20, 200, prior to the imposition of the gift tax on the Plaintiff. On or around December 28, 2000, he accused the Plaintiff as a crime of violating the Punishment of Tax Evaders Act on the ground that the said gift was excluded from the gift tax, but was treated without consultation on May 24, 2001, and again conducted a tax investigation on the Plaintiff from March 10, 2006 to April 10, 206, prior to the imposition of the gift tax in this case. The main contents were related to the imposition of the transfer income tax in this case, and the imposition of the gift tax in this case was to verify the details of the imposition of the gift tax as of December 4, 200, and the current donor’s share of the gift tax is subject to non-taxation 61 billion won as the previous house.

D. Determination

(1) Imposition of gift tax of this case

① We examine the first argument.

Article 26 (1) of the Framework Act on National Taxes stipulates "the revocation of imposition of national taxes" as one of the grounds for extinguishment of the obligation to pay national taxes. However, this is merely based on the retroactive effect of the cause, and it cannot be deemed that the obligation to pay national taxes is completely extinguished.

Therefore, the tax authority may impose a new disposition of the same content in accordance with the procedure for imposition prescribed by the Act and impose a taxpayer a duty to pay for the previous taxable subject matter (see Supreme Court Decision 94Nu7027, Mar. 10, 1995). Accordingly, the Plaintiff’s assertion against this can not be accepted.

② We examine the second argument.

Since real estate acquired by one side of a couple in the marriage is presumed to be the unique property of the nominal owner of the real estate, the presumption is not reversed solely on the ground that one side of the married couple actually acquired the consideration for the said property under a title trust for convenience as the actual owner of the said real estate, and on the ground that there was a cooperation by himself/herself in acquiring such real estate or there was an assistance in the marriage life (see Supreme Court Decision 98Du15177, Dec. 22, 1998).

In this case, according to the facts acknowledged above, since ○○○ acquired the instant real estate in its name during the marriage with the Plaintiff, the instant real estate is presumed to be the unique property of ○○○, and the evidence submitted by the Plaintiff alone is insufficient to reverse the above presumption, and rather, it is recognized as above that the Plaintiff agreed to receive the instant real estate from ○○○ to receive the donation in order to maintain a marital relationship with ○○○, and therefore, the Plaintiff’s assertion to the effect that the instant real estate was not received the donation from ○○, is not acceptable.

③ We examine the third argument.

After five years have passed since the Defendant revoked ex officio the imposition of gift tax as of May 25, 200 on December 4, 2001, the Defendant again imposed the gift tax of this case, but the imposition of the gift tax of this case was conducted within the exclusion period of imposition. Furthermore, according to the facts acknowledged earlier, the imposition of the gift tax of this case was revoked under the judgment that it is difficult for the Republic of Korea to impose the gift tax of this case among the lawsuits filed against the Plaintiff for revocation of fraudulent act and the lawsuits filed against the Plaintiff on December 4, 2000, and after the judgment against the Republic of Korea was affirmed in the revocation of the above fraudulent act, the imposition of the gift tax of this case was again made after the judgment against the Republic of Korea became final and conclusive. In light of the circumstances leading to the imposition of the gift tax of this case, the imposition of the gift tax of this case cannot be deemed unlawful. Accordingly, the Plaintiff’s assertion in this part cannot be accepted.

④ Fourth, we examine the argument.

Article 26 subparag. 1 of the Framework Act on National Taxes stipulates the cancellation of imposition as one of the grounds for termination of a national tax liability. However, there is no express provision for the cancellation of the imposition in a law regarding the requirements for cancellation or the procedure for objection to the cancellation of the imposition, so the tax authority may not bring the original register and disposition in so far as the cancellation of the imposition is not possible, and if the taxpayer bears the obligation to pay for the previous taxable object, it shall take a new disposition in accordance with the procedure for imposition prescribed by Acts (see Supreme Court Decision 94Nu7027, Mar. 10, 1995).

However, according to the facts acknowledged above, the defendant revoked ex officio a disposition imposing gift tax as of May 25, 2000 on December 4, 2000 and then revoked the disposition to impose gift tax of this case in accordance with the procedures prescribed by law. Thus, the defendant again issued a disposition to impose gift tax of this case according to the procedures prescribed by law. Thus, this cannot be viewed as going against the fairness of administrative act, the fairness of administrative act, the unity of purpose of administrative act, the principle of self-regulation of administrative agency, the principle of proportionality, the principle of proportionality, and the principle of equality. Accordingly, the plaintiff's assertion in this part cannot be accepted.

⑤ We examine the Fifth argument.

As long as the imposition of gift tax as of December 4, 200 was revoked ex officio, there is no need to regard the extinctive prescription of the right to collect, and the exclusion period is only a problem, and according to the provisions of Article 26-2 (1) 4 of the Framework Act on National Taxes, the exclusion period of imposition of gift tax is ten years in principle, and it can be known that the donee is 15 years if the donee fails to submit a report. Thus, the fact that the imposition of gift tax in this case was made within 10 years, the exclusion period of imposition, from the date of the filing deadline of the gift tax, is apparent from the calendar,

6. The fifth argument is considered as follows.

As seen earlier, the disposition imposing the gift tax of this case was revoked on December 4, 200, the Plaintiff’s tax investigation and accusation under the Punishment of Tax Evaders Act, etc., even if all of the procedures were based on law, the disposition imposing the gift tax of this case cannot be deemed to have exceeded and abused the bounds of discretion. Accordingly, the Plaintiff’s assertion on this part cannot be accepted.

7. On the third party argument, the argument is considered as follows.

According to Article 81-4(2) of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007) and Article 63-2(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19893 of Feb. 28, 2007), a tax official, in principle, shall not conduct a reinvestigation for the same items of taxation and the same taxable period, but shall be allowed a duplicate investigation in cases where there are evident evidence to prove the suspicion of tax evasion or a reinvestigation for the handling of all kinds of taxation data.

However, in the case of this case, it is reasonable to view that a tax investigation conducted by the Defendant against the Plaintiff prior to the disposition of gift tax in this case constitutes an exceptional case where a duplicate investigation is allowed for the handling of all kinds of taxation data. Thus, the Plaintiff’s assertion that the disposition of gift tax in this case is unlawful is not acceptable, based on the prohibition of

(2) Additional tax in the disposition imposing the transfer income tax of this case

Where the land was acquired and the compensation for losses was determined as it was incorporated into a housing site development project zone and the relevant land was deposited in the name of the project operator and the amount of compensation was increased due to the landowner's objection, the transfer time of the land, which serves as the basis for calculating capital gains, shall be the registration receipt on the register rather than the deposit price of increased compensation determined (see Supreme Court Decision 94Nu6154 delivered on October 25, 1994). However, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed as prescribed by the Act in cases where the taxpayer violates all kinds of obligations, such as a return, tax payment, etc. as prescribed by the Act without any justifiable reason, and it is unreasonable for the taxpayer to be aware of such obligations. Accordingly, if there is any circumstance to be deemed legitimate by the taxpayer, or if it is unreasonable to expect the relevant party to perform the obligations, it shall not be deemed that there is a justifiable reason for failure to neglect the obligation (see, e.g., Supreme Court Decision 197Nu7.

In this case, according to the above legal principles, the time of transfer of the expropriated real estate in this case shall be March 17, 2005, which is the date of receipt of the registration. However, since the amount of compensation of the expropriated real estate in this case is determined on September 8, 2006, which was sentenced by the Supreme Court decision regarding the adjudication of expropriation, it is reasonable to expect the Plaintiff to report and pay the transfer income tax on the increased compensation for loss as at March 17, 2005, which was the date of receipt of the above registration, as the amount is not determined at the time of March 17, 2005, which was the date of receipt of the above registration. Therefore, it is reasonable to deem that there is a justifiable reason that it is not attributable to the Plaintiff. Therefore, the part of the disposition of imposition of the transfer income tax in this case

3. Conclusion

Therefore, the penalty tax imposition disposition of this case is unlawful, and thus, it is legitimate to impose the gift tax of this case, and thus, the remaining claims of the plaintiff are dismissed. It is so decided as per Disposition.