Seoul Administrative Court 201Gudan24302 (05.02)

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

It is recognized that capital gains from a house certified as belonging to the donee, and thus does not constitute an unfair act.

Even if the sum of the gift tax and the capital gains tax of the donee is less than the capital gains tax in cases where the donor directly transfers, it is not immediately deemed that the capital gains tax has been reduced unfairly, and it is reasonable to view that the capital gains tax belongs to the donee as the applicable requirements that the capital gains tax has been actually reverted to the donor.

2012Nu15052 Revocation of disposition of imposing capital gains tax

IsaA

Head of Geumcheon Tax Office

Seoul Administrative Court Decision 2011Gudan24302 decided May 2, 2012

September 14, 2012

October 12, 2012

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The Defendant’s imposition of capital gains tax of KRW 000 for the year 2009 against the Plaintiff on February 9, 201 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons for this decision are as follows: Article 8(2) of the Administrative Litigation Act, and the main sentence of Article 420 of the Civil Procedure Act, except that the following are added to each corresponding part of the first instance judgment:

section 3.

2. The addition;

A. The last 5th 5th 5th son of the first instance trial (the defendant, and the above provision are transactions between related parties which are objectively reducing tax burden, and the purpose of this provision is to realize fair taxation by calculating the amount of income in the manner prescribed by law by denying it under the tax law, and it is not the requirement to apply it to the parties, and the sum of the gift tax and the transfer income tax of this BB, which is the donee, is less than the transfer income tax in the case where the plaintiff directly transfers the house in this case. However, in light of the above purpose of the above provision, even if the sum of the gift tax and the transfer income tax of the donee is less than the transfer income tax in the case where the donor directly transfers the house in this case, it is reasonable to view that the above provision does not immediately constitute a case where the transfer income tax is reduced unfairly on the ground of such external reason, and that the transfer income tax is to be actually reverted to the donor. Accordingly, the defendant's assertion to the purport that the above provision is satisfied can not be accepted).

B. The following parts of the first instance court Decision 4th 13th 13rd 13rd 13rd 1.

[Defendant, and there is no objective evidence to acknowledge that the compensation for the housing of this case was used as the funds for the payment of the lease deposit of this case and the acquisition of substitute housing of this case, and the proviso of Article 101 (2) of the Income Tax Act amended by Act No. 9898 on December 31, 2009 (Provided, That this shall not apply in cases where capital gains are actually reverted to the donee) was newly established as the above amendment, and this case B cannot be applied to this case on January 7, 2009 because it was applied after the transfer of the housing of this case. However, it is reasonable to acknowledge that the above provision was not applied to the plaintiff's new apartment house under the name of this case, and that it was not applied to the plaintiff's new apartment house transfer for the purpose of this case, and that it was not applied to the plaintiff's new apartment house transfer under the name of this case, and that it was not applied to the plaintiff's new apartment house transfer under the name of this case.

3. Conclusion

If so, the plaintiff's claim of this case should be accepted for the reasons, and the judgment of the court of first instance should be accepted.

The defendant's appeal is dismissed on the grounds that the conclusion is just.