Seoul Administrative Court 2010Gudan1753 ( December 08, 2010)

early 209west2619 ( November 10, 2009)

It is recognized that the content of the stock transfer contract is valid.

The argument that the imposition of transfer income tax and gift tax on low-price transfer is unconstitutional because it is recognized that the ownership was transferred by transferring the ownership according to the contents of a stock transfer contract and that it is unconstitutional.

Article 101 of the Income Tax Act

2011Nu3502. Disposition of levy of capital gains tax

XX

The Director of Gangnam District Office

Seoul Administrative Court Decision 2010Gudan1753 decided December 8, 2010

April 19, 2012

May 10, 2012

1. The plaintiff's appeal shall be lodged.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of capital gains tax of KRW 000 on April 29, 2009 against the plaintiff on April 29, 200.

Quotation of the judgment of the first instance and the first instance;

The reasoning for this Court concerning this case is as follows, except for the addition of the corresponding part of the reasoning of the judgment of the court of first instance as follows, and the next 2. Additional Judgment, the reasoning for the judgment of the court of first instance is identical to the reasoning for the judgment of the court of first instance. Thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and Article

2. Additional determination

A. The plaintiff's assertion

1) Claim for cancellation of a stock transfer contract

Even if the transfer of the instant shares is not based on the share transfer agreement, but based on the share transfer agreement, which is not based on the share transfer agreement, the disposition of the instant shares under the premise that the transfer of the instant shares becomes null and void retroactively by cancelling the transfer agreement on April 17, 2012, since the Plaintiff’s husband, who acquired the instant shares from the Plaintiff, did not pay the price, and thus, the Plaintiff’s share transfer becomes null and void retroactively.

2) Deeming unconstitutionality

① Even if the Plaintiff’s low-price transfer of the instant shares to the husband, the pertinent provisions of the Income Tax Act and the Inheritance Tax and Gift Tax Act, which levy double a transfer income tax and gift tax on the transfer of low-price shares, are unconstitutional, and the instant disposition based thereon, is null

② Even if the provision on the basis of the instant disposition is constitutional, the instant disposition should be revoked as it results in unconstitutional consequences.

B. Determination as to the assertion on cancellation of a share transfer contract

According to the statement in Gap evidence No. 15, it can be acknowledged that the plaintiff notified Jung on April 17, 2012 that he would cancel the sales contract on the ground of the unpaid payment if the first stock transfer contract is valid.

However, this part of the Plaintiff’s assertion is without merit, which is based on the premise that the Plaintiff would not pay the share transfer price in accordance with the terms of the share transfer contract to her husband, and that the Plaintiff would have received the share transfer price from her husband and transferred it to her.

C. Judgment on the unconstitutionality argument

Article 101 (1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) which is the basis provision of the disposition of this case cannot be deemed as unconstitutional even if Article 35 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003), which is the basis provision of the disposition of this case, together with Article 35 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9897 of Dec. 3

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed.