The Ministry of Land, Infrastructure and Transport

Since it is confirmed that the apartment house was transferred to children within five years after the donation, the plaintiff's direct transfer of the apartment is deemed to be a wrongful calculation and the decision of wrongful calculation is legitimate.

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

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The rejection disposition against the Plaintiff regarding the claim for correction of capital gains tax of 34,353,840 won paid by the Defendant on December 26, 2008 shall be revoked.

A. On January 13, 2006, the Plaintiff donated ○○○○○○○-dong 284-338, 284-339 ground-based apartment 3, 309 (hereinafter “the apartment of this case”) to ASEAN, and thisA reported gift tax on February 28, 2006, and paid KRW 90,000 on March 6, 200.

B. After that, the apartment of this case was designated and announced as an urban development zone on August 28, 2006 and was transferred through consultation with the Korea National Housing Corporation on July 8, 2008. The plaintiff filed a preliminary return on the gains from the transfer of the apartment of this case as the plaintiff directly transferred the apartment of this case in accordance with Article 101(2) of the Income Tax Act and paid in installments on September 30, 2008 and November 14, 2008 but filed a claim for the refund of the gains from the transfer, which was reported on November 26, 2008, but the defendant rejected the correction on December 26, 2008 (hereinafter referred to as the "instant rejection disposition").

2. Related statutes;

It is as shown in the attached Form.

3. The plaintiff's master;

Since the plaintiff's ASEAN needed to enter into a marriage on March 13, 2008, the plaintiff has a reasonable reason to donate the apartment of this case to the plaintiff as a donation.

The transfer proceeds acquired through the transfer of the apartment of this case shall not be financed by the Plaintiff’s acquisition of the Plaintiff’s AA and its wife, and shall not be reverted to the Plaintiff.

Therefore, as the Plaintiff directly transferred the apartment of this case by applying the provision of calculating unfair practices under Article 101 of the Income Tax Act to the transfer of apartment of this case, the Plaintiff made a false report even though it does not need to make a preliminary return of transfer income tax, the Defendant’s rejection of correction against the Plaintiff’s request for correction is

4. Determination

The provision regarding the statement of wrongful calculation is intended to realize fair taxation by denying it under the tax law where a resident’s actual act or calculation is legally effective, lawful and accurate calculation, and where such act or calculation constitutes a transaction between a person with a special relationship as prescribed by the law and objectively reducing the burden of taxation, and does not require the parties to the transaction to achieve tax avoidance (see, e.g., Supreme Court Decision 2007Du7505, Sept. 24, 2009).

Therefore, if the plaintiff donated the apartment of this case to the children of the plaintiff who is a related party and there is an unreasonable decrease in the tax burden, the return and payment of the plaintiff on the transfer of the apartment of this case is based on the proper calculation, and the request for correction is not reasonable, and the disposition of refusal of this case is legal.

On January 13, 2006, when the plaintiff donated the apartment of this case to this case, he owned ○○○○○○○○, 595-3 1704 and 1704, in addition to the apartment of this case. The husband of the plaintiff, a householder of the same household, owned ○○○○○○○ 284-221 and the plaintiff's transfer of the apartment of this case to the Korea National Housing Corporation on July 8, 2008, the fact that this case's transfer of the apartment of this case to this case was not disputed between the parties, or can be recognized by the purport of the entire pleadings as a whole under subparagraphs 1 through 9, and there is no counter-proof.

According to the above facts, the rejection disposition of this case is legitimate, and the plaintiff's request is dismissed as it is so decided as per Disposition by the assent of all participating Justices.