A. The Defendant’s disposition of imposing penalty tax on the Plaintiff on September 1, 2008 (from March 1, 2005 to February 28, 2006) KRW OOO on the corporate tax attributed to the business year 2005 (from February 1, 2005 to February 28, 2006) is revoked.

B. The plaintiff's remaining claims are dismissed.

2. 80% of the total costs of litigation shall be borne by the Plaintiff, and 20% by the Defendant respectively.

The first instance judgment is revoked in the purport of appeal, and the plaintiff's claim is dismissed.

A. As an educational foundation located in the OO-gu OO-dong 31, the Plaintiff transferred the amount of OO-O-O(hereinafter referred to as "transfer money of this case") belonging to the profit-making business accounting from March 1, 2005 to February 28, 2006 (hereinafter referred to as "2005") to the non-profit business accounting, and there was no balance of the reserve fund for proper purpose business to offset the amount on an equal amount due to the absence of reserve fund for proper purpose business in the immediately preceding business year, the Plaintiff reported corporate tax for that business year by deeming that all of the transferred amount was spent from the reserve fund for proper purpose business to be appropriated in the corresponding business year, and that it was included in the calculation of losses.

B. From March 4, 2008 to March 17, 2008, the Defendant conducted a tax investigation with respect to the Plaintiff, and determined that the Plaintiff used only OOOO won for its proper purpose business, among the instant funds, and used the remainder OOO won for the acquisition of assets for profit-making business, not for the proper purpose business.

C. Accordingly, on September 1, 2008, the Defendant adjusted the calculation of the amount of OOO used as funds for the acquisition of assets for profit-making business in the business year of 2005, including the amount exceeding the limit of the reserve fund for proper purpose business, and the under-reported amount of the profits from the disposal of fixed assets, and included the amount of OOOO won in the calculation of the amount of earnings from the disposal of fixed assets, and adjusted the calculation of the amount of OO won for special profit by discretionary evaluation of the land value, and notified the Plaintiff of the correction and notification of the corporate tax for the business year of 2005 + additional OO won (hereinafter referred to as the “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on October 23, 2008, and was dismissed on August 25, 2010.

[Grounds for recognition] The descriptions of Gap, Eul, Eul, Eul, and Eul, 1 to 9, 10, and 11, and the whole purport of the arguments

2. The plaintiff's assertion

A. Main assertion

In 2005, the Plaintiff included the instant transfer in deductible expenses pursuant to Article 1129 (1) of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006, hereinafter referred to as the "former Corporate Tax Act") in the reserve fund for its proper purpose business. Thus, the instant disposition that the Defendant issued an additional correction or notice by adding the amount of income for the business year of 2005 as deductible expenses after adding the amount of income for the instant business year to deductible expenses, even though it is imposed after adding the amount not used for the proper purpose business among the instant transfer money within five years thereafter.

B. Preliminary assertion

In the disposition of this case, the defendant did not specify the grounds for calculation of additional tax in the notice of tax payment, and in the case that an educational foundation under the Private School Act transfers the assets belonging to the profit-making business accounting to the non-profit business accounting, there is a conflict of opinion due to significance in the interpretation of the relevant tax law as to the loss industry. In light of the above, there is a justifiable reason that the plaintiff could not cause any negligence that the plaintiff neglected to report and pay the corporate tax of this case, and the penalty tax of this case is illegal.

3. Related statutes;

It is as shown in the attached Form.

4. Facts of recognition;

A. On August 29, 2005, the Plaintiff acquired an OOO-gu OO-gu O-type 1 (hereinafter referred to as “OO-type 8,624m2”) from 23 to 8,624m2 (hereinafter referred to as “O-type 4m2”) and operated a real estate rental business as a profit-making business, and was permitted to dispose of the original asset, which is an basic property for profit, from the Minister of Education and Human Resources for the purpose of disposal of OO-type 1, etc.

B. On November 2005, the Plaintiff sold the original assets to BBB Co., Ltd. for purchase price to OOO (the sales contract date was completed on August 21, 2003 or the transfer registration was completed on November 16, 2005) and managed the said proceeds into the account for profit-making business.

C. On January 25, 2006, the Plaintiff rendered a declaration of business closure to the competent authority as the Plaintiff was no longer engaged in the rental business of the original asset.

D. On February 28, 2006, upon closing a profit-making business, the Plaintiff reported corporate tax by transferring the OOO members belonging to the profit-making business accounting to the non-profit business accounting at the time of settlement of accounts in the business year of 2005 and adding them to the deductible expenses.

E. However, the plaintiff's board of directors decided to acquire profit-making assets for the purpose of resumption of profit-making business (real estate leasing business) on December 18, 2006, and on December 22, 2006, the plaintiff purchased 797-21 square meters and 933.6 square meters under its ownership from the CCC for purchase of OO-dong 797-20 square meters and 994.2 square meters, and entered into a contract on March 30, 2007 with DDR as OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-20 square meters, and entered into a contract between DDR and the corporation on March 30, 2007 for the purpose of constructing a building for profit-making on the above land."

5. Determination

A. Judgment on the main argument

Article 29 (1) of the former Corporate Tax Act provides that where a non-profit domestic corporation appropriates its proper purpose business reserve funds as deductible expenses in order to use them for the proper purpose business of the corporation in the fiscal year in which income accrues, it shall be included in deductible expenses within a certain amount, and Article 29 (2) of the same Act provides that where a non-profit domestic corporation uses its proper purpose business reserve funds appropriated as deductible expenses for the proper purpose business, it shall be offset in order from the proper purpose business reserve funds for the fiscal year in which the funds are first appropriated as deductible expenses, but where there is any amount disbursed for the proper purpose business in the fiscal year in excess of the balance of the proper purpose business reserve funds as of the end of the immediately preceding fiscal year, it shall be deemed that it was disbursed from the proper purpose business funds to be appropriated as deductible expenses in the fiscal year concerned, and the provisions of paragraph (1) shall apply to the case where the non-profit domestic corporation establishes the proper purpose business funds for proper purpose business funds to be appropriated as deductible expenses in the calculation of deductible expenses, it shall be acknowledged as deductible expenses within a certain limit even after the funds are not appropriated as deductible expenses.

B. Judgment on the conjunctive assertion

1) When a single tax payment notice imposes both the principal tax and the additional tax, the tax amount and the basis for calculation thereof should be stated in the tax payment notice separately, and when multiple kinds of additional tax are to be imposed, it is natural that the taxpayer can per se know the details of each taxation disposition by classifying the amount and the basis for calculation thereof, even between the additional tax and the additional tax. As such, the imposition of additional tax cannot be avoided if the taxpayer merely states the total amount of the additional tax without disclosing the type and the basis for calculation of the amount thereof (see Supreme Court en banc Decision 2010Du12347, Oct. 18, 2012). However, even if there is any defect in which matters required by related Acts and subordinate statutes are omitted, if it is evident that the taxpayer has already entered all necessary matters in the tax payment notice prior to the tax payment notice, etc., and it does not interfere with the determination of objection to the disposition and appeal, and the defect in the tax payment notice can be corrected or cured (see Supreme Court Decision 2012Du3979, Mar. 39, 2019).

2) In light of the above legal principles, according to the health stand and evidence No. 1, and the defendant's disposition of this case, it can be acknowledged that the tax payment notice did not state all the basis or type of the calculation of additional tax in the tax payment notice, and there is no reason to deem that the defect was supplemented or cured. Thus, the part of additional tax in the disposition of this case is illegal without need to further examine.

6. Conclusion

If so, the penalty part in the disposition of this case is illegal, and the plaintiff's claim is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with some different conclusions, so the defendant's appeal is partially accepted and the judgment of the court of first instance is modified as above.