early 208west 4183 ( October 17, 2009)

lease of land to a person with a special relationship without compensation constitutes denial of wrongful calculation.

An act of gratuitous use of land without receiving any consideration shall constitute an act of wrongful calculation that lacks economic rationality, regardless of whether the income tax was paid on the whole income of the rent, and constitutes an act of wrongful calculation.

The contents of the decision shall be the same as attached.

Article 41 (Calculation by Wrongful Acts)

Article 98 (Dispudiation of Wrongful Calculation)

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s imposition of global income tax of KRW 1,604,90 (including additional taxes), global income tax of KRW 1,755,480 (including additional taxes), global income tax of KRW 2,238,610 (including additional taxes), global income tax of KRW 2,182,260 (including additional taxes), global income tax of KRW 2,182,260 (including additional taxes), global income tax of KRW 3,197,120 (including additional taxes) for the year 2007, global income tax of KRW 4,530,060 (including additional taxes), and KRW 4,530,060 (including additional taxes) for the year 207, and KRW 428,60 (including additional taxes) for the year 203,02, and KRW 3604 (including additional taxes) for the Plaintiff’s global income tax of KRW 201 for the year 202.

1. Circumstances of the disposition;

A. The Plaintiff is the wife of the Gadong-ri, the Plaintiff, the Gadong-ri, the Gadong-ri, the Gadong-ri, the Plaintiff.

함께 1987. 5. 28. 김★★으로부터 서울 강남구 ◎◎동 119-11 대 381.4㎡(이하 '이 사건 토지'라 한다)를 각 1/3지분씩 증여받아 같은 달 30. 이에 관하여 각 소유권이전등기를 마쳤다.

B. On September 8, 1988, Kim Dong-won, Kim, Do-dong, newly constructed the three-story neighborhood living facilities and offices of reinforced concrete structure sloping roof (hereinafter referred to as the “instant building”) on its own name (after that, on October 10, 1988, the four-story of the instant building was extended on July 30, 2003, and the five-story of the instant building was extended on July 30, 2003). At that time, the Defendant registered his business with his trade name by making the head building, the business operator Kim Do-dong, and the type of real estate business as the real estate business in the instant building.

C. From September 8, 198 to December 31, 2007, Kim Dong-won, Kim & Lee, a building of this case, owned the building of this case, leased the building of this case to another person, and the lease income from this building has been reported and paid the comprehensive income tax in its name.

D. The Defendant, in accordance with Article 41(1) of the Income Tax Act, Article 98(1)1 and 98(2)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890, Feb. 28, 2007; hereinafter the same) and Article 98(1)2 of the Enforcement Decree of the Income Tax Act, denied the Plaintiffs’ use of 1/3 shares of the land in this case among the land in this case’s land in his relatives, and calculated rent for 1/3 shares of the land in this case each year from 2001 to 2007, based on the following application of Article 98(4) of the former Enforcement Decree of the Income Tax Act, Article 89(4)1 of the Corporate Tax Act, and Article 89(4)1 of the Enforcement Decree of the Corporate Tax Act. The Defendant imposed global income tax on the Plaintiffs on October 8, 2008.

[Ground of recognition] Each entry of Gap evidence Nos. 1, 2, 3, 5, 6, 7, Eul evidence Nos. 2, 4, and 6 (including branch numbers), and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiffs' principal

The instant global income tax disposition against the Plaintiffs is unlawful for the following reasons, and thus, should be revoked.

(1) In running the building leasing business of this case on behalf of the plaintiffs, Kim Dong-won, while running the building leasing business of this case on behalf of the plaintiffs, leased each of the 1/3 shares of the land of this case on behalf of the plaintiffs, and the lease profits accrued therefrom are not returned to the plaintiffs, and the comprehensive income tax on the lease income of each 1/3 shares of the land of this case on behalf of the plaintiffs was reported and paid on behalf of the plaintiffs. Thus, even if the plaintiffs allowed Kim Dong-won to use the 1/3 shares of the land of this case free of charge, this does not constitute an act of unfairly reducing the tax burden, the imposition disposition of global

(2) Since the actual owner of the leased income from each of the instant parcels of land owned by the Plaintiffs is Kim Do-won, the instant disposition imposing global income tax against the Plaintiffs, who are mere nominal holders, is in violation of the principle of substantial taxation.

(b) Related statutes;

It is the same as the entry of the attached statutes.

C. Determination

(1) In accordance with the theory of the Prevention of Wrongful Acts and Subordinate Statutes

(A) According to the above facts, the plaintiffs' act of using 1/3 shares of the land of this case owned by the plaintiff title to the father or father of Kim-dong, the plaintiff's act of lending or providing assets to a related party under Article 41 (1) of the Income Tax Act, Article 98 (1) 1 of the former Enforcement Decree of the Income Tax Act, and Article 98 (2) 2 of the Enforcement Decree of the Income Tax Act.

(B) In addition, when a certain transaction between a person with a special relationship cannot be seen as a normal transaction to be established by a reasonable economic person in light of social norms and customs, the wrongful calculation does not require any tax avoidance purpose or economic loss to the party concerned (see Supreme Court Decision 2000Du1799, Jan. 11, 2002). The determination of whether to reduce the tax burden should be based on the relevant resident. As long as the tax burden of the relevant resident has been reduced, as long as the tax burden of the relevant resident has been reduced, the relevant person’s total tax burden has not been reduced, it shall be subject to the avoidance of wrongful calculation (see Supreme Court Decision 97Nu13184, Feb. 11, 200). In general, even if a person who owns a building on another’s land rents the building to a third party, it shall not be deemed that the owner of the building becomes the user of the site and the lessee of the building, and thus, even if Kim Ho-ri leased the building in this case, the land and the land of this case are still being used by the landowner of Do.

(C) Ultimately, the plaintiffs' act of allowing the Kim Do-won to use the land of this case free of charge without receiving the payment for each one-third share of the land of this case is an act of lacking economic rationality, regardless of whether Kim Do-won reported and paid the income tax on the whole revenues of the building of this case, and is an unfair act stipulated by the relevant laws, such as Article 41 (1) of the Income Tax

Therefore, this part of the plaintiffs' assertion is without merit. (2) With respect to the assertion of violation of the substance over form principle, the plaintiff's assertion alone cannot be deemed to be the actual owner of the lease proceeds from the ownership of the plaintiff's mold in the land of this case to be Kim Do-won.

3. Conclusion

Therefore, the plaintiffs' claim of this case seeking revocation on the ground that the disposition of global income tax imposition against the plaintiffs is unlawful is without merit, and all of them are dismissed.