소득세법상 양도소득 및 대주주의 범위가 헌법상 위배되는지 여부.[국승]
Whether the scope of capital gains and large shareholders under the Income Tax Act violates the Constitution.
According to the law that was enforced at the time of stock transfer, taxation of capital gains tax seems clear in the interpretation of the statute or the legislative intent of the statute is legitimate.
Article 94 of the Income Tax Act: Scope of Transfer Income
Article 157 (Scope of Large Stockholders)
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the plaintiff.
1. Quotation of judgment of the first instance;
The reasons why a member should explain is that "Article 94 (1) 3" of the 5th judgment of the court of first instance is "Article 94 subparagraph 3", "Article 20 of the Framework Act on National Taxes" of Articles 12, 13 and 16, "Article 20 of the Enforcement Decree of the Framework Act on National Taxes" shall be "Article 20 of the Enforcement Decree of the Framework Act on National Taxes", and the following are the same as the reasons for the decision of the court of first instance, and therefore, it shall be cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act
2. Determination on the additional argument
A. The plaintiff's assertion
Even if the Plaintiff did not impose capital gains tax on the Plaintiff pursuant to Article 157 (4) 2 of the former Enforcement Decree of the Income Tax Act, the Plaintiff becomes subject to capital gains tax only after the amendment of the above Enforcement Decree, and the Plaintiff did not know that the Plaintiff was included in the major shareholder as a result of transfer of shares immediately after the enforcement of the Enforcement Decree, and thus, there is a justifiable reason that the Plaintiff did not report and pay capital gains tax. Therefore,
B. Determination
Additional tax is an administrative sanction imposed pursuant to the provisions of tax-related Acts in cases where a taxpayer performs his/her duty of return, tax payment, etc. prescribed by the law without any justifiable reason in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, and the taxpayer’s intent or negligence is not considered. However, in cases where a taxpayer is not aware of his/her duty, or where there is a justifiable reason for not being negligent in performing his/her duty, such as in cases where it is unreasonable for the taxpayer to not know the duty or where it is unreasonable to expect the party to perform the duty, etc. (see, e.g., Supreme Court Decision 2002Du476
However, according to the law that was enforced at the time of the transfer of the above shares, the taxation of capital gains tax seems to be clear in the language and text of the law or the legislative intent of the law. Therefore, it is difficult to deem that the Plaintiff has justifiable grounds for not paying capital gains tax after the transfer of shares. Accordingly, the Plaintiff’s assertion on this part is rejected
3. Conclusion
Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.