2. The costs of appeal are assessed against the Plaintiffs.

The reasoning for this Court's explanation is as follows: (a) revision of each corresponding part of the judgment of the court of first instance; (b) rejection of each statement of evidence Nos. 23 and 24, which is insufficient to recognize the plaintiffs' assertion as evidence submitted at the court of first instance; and (c) addition of judgment on the plaintiffs' assertion of unconstitutionality, etc., for additional reasons, it is identical to the entry of the reasoning of the judgment of the court of first instance (excluding the part of the judgment No. 4. conclusion). Therefore, it is cited by applying Article 8(2) of the Administrative Litigation Act, the main sentence of Article 420 of the

2. The part of the judgment on the “whether the claim for revocation of the tax amount exceeding 00 won is lawful in the case of the Plaintiff’s joint and several tax payment notice disposition of KRW 00 in excess of KRW 00,00 among the Plaintiff’s lawsuit on May 8, 200.”

Part 9, No. 3, "3. Whether each disposition of this case is lawful"

Ministry shall be the father of the Ministry.

2. Additional matters to be determined

(a) Provisions pertaining to penalty tax which is unconstitutional (hereinafter referred to as "the legal provisions of this case")

(1) The former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003) and amended on December 30, 2006

prior to the deletion by law No. 8139

Article 78 (Additional Taxes, etc.)

(2) The director of the tax office, etc. shall pay the tax amount under Article 70 by the time limit for report.

payment is made according to the tax base determined under Article 76.

If the tax amount has been paid short of the payable tax amount, the tax amount not paid or underpaid.

(in case of making an application for payment in annual installments or in kind pursuant to the provisions of Article 71 or 73, it shall be made.

Voluntary payment in annual installments or payment in kind shall include the tax amount not permitted to be paid in kind).

by multiplying the period up to the date and the interest rate of financial institutions by the rate prescribed by the Presidential Decree.

The amount calculated shall be added to the calculated tax amount.

(1) The former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010)

Article 47-5 (Penalty Taxes for Indecent Payment and Refunding Return)

(1) If a taxpayer fails to pay national taxes by the due date under tax-related Acts, or pays taxes.

Where the amount is below the amount payable, the amount calculated by applying the following formula:

any tax payable or payable shall be deducted from the amount of such tax (short payment omitted).

Amount of unpaid or insufficient tax 】 Voluntary payment date or tax payment from the following day of the payment deadline;

The period up to the notification date ¡¿ the interest rate applied by the financial institution to overdue loans;

interest rate prescribed by the Presidential Decree.

B. The plaintiffs' assertion

1) If a simple title trustee is obligated to report, it is impossible to propose tax avoidance itself as a result of reporting that he/she is a title trustee, and in such a case, gift tax cannot be imposed. Accordingly, additional tax cannot be imposed. Therefore, the duty to report the gift tax base under Article 68(1) of the Inheritance Tax and Gift Tax Act does not apply to a simple title trustee, and furthermore, Article 45-2(

(1) A person liable to pay gift tax under the provisions on deemed donation of a nominal trust property;

As long as a simple title trustee who is not a donee for the purpose of evading taxes does not have a duty to report, the exclusion period of 15 years shall apply in cases of reporting under Article 26-2 of the Framework Act on National Taxes

There is no room for action.

If it is recognized that there is no return of tax base for 15 years or longer, and the gift tax is imposed because of the occurrence of donation, notwithstanding the simple title trustee, there is unreasonable result that a tax exceeding the original value of the donated property is paid due to the addition of non-reported and unfaithful additional taxes to the principal tax.

2) The Inheritance Tax and Gift Tax Act provides for a provision on deemed donation for the exclusion period of 10 years (in cases where the title trust was discovered within the exclusion period) to the simple title trustee, who received the property such as stocks, cannot expect self-return and return. Thus, the Inheritance Tax and Gift Tax Act provides for the payment of penalty surcharge as a kind of gift tax on the sanction level, unless it is proved that there is no purpose of tax avoidance.

Moreover, the gift tax under the provision on deemed donation is a provision expanding the scope of the gift tax to impose a tax evasion other than the gift tax, and its substance is a penalty surcharge in that it imposes a gift tax entirely different from the tax to be avoided.

3) A gift tax imposed by a deemed donation provision is originally imposed on a trustee’s failure to fulfill his/her duty of cooperation, which is a report of title trust to the tax authority of the title trustee, and imposing penalty tax of the same punitive nature on the ground that he/she did not fulfill his/her duty of reporting tax base again on the gift tax as such penalty surcharge violates the principle of excessive prohibition as to the prohibition of double punishment under the Constitution.

4) In the case of the legal provisions of this case, without setting the limit of the additional tax for unfaithful payment, the imposition of the additional tax by simply multiplying the principal tax by a considerable interest rate and period, and thereby imposing excessive amount of additional tax compared to the principal tax, the degree of sanction to achieve the legislative purpose is too excessive, and thus, it is contrary to the principle of excessive prohibition or the principle of property right guarantee under the Constitution.

section 3.

C. Whether the legal provisions of this case are unconstitutional

1) As to the deemed donation of title trust property

A) The provision on constructive gift of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act is intended to prevent avoidance of gift tax on the ground of title trust, thereby achieving tax justice and equality, and to supplement it so that the substance over form is realized. The imposition of gift tax within a limited scope recognized as the purpose of tax avoidance is reasonable by means of concealing a gift. As such, it may be allowed as an exception to the principle of substantial taxation, given that it is reasonable as an appropriate method to realize the equity of tax justice and tax. In light of the responsibilities of the title trustee who made it possible for the title truster to avoid gift tax by acting in the title trust, imposing gift tax at the same rate does not violate the principle of equality, and as such, the gift tax imposed under such provision is only one of the taxes prescribed by the law, and it cannot be deemed a fine or other sanction under the Criminal Act.

B) Meanwhile, the avoidance of taxes by title trust is not limited to the gift tax, and it is possible to grant various national taxes, local taxes, and customs duties, such as inheritance tax, income tax, and acquisition tax. Therefore, other taxes than the gift tax, other taxes than the gift tax, should be prevented from being avoided by the method of title trust, and the necessity to impose sanctions on the act of evasion is

Therefore, in cases where the purpose of evading taxes other than the gift tax is recognized through the extension clause of the tax scope, deemed donation of gift tax to be imposed at all different tax rates from the tax items to be avoided may be in violation of the principle of systematic legitimacy and legitimacy. However, in cases where the purpose of evading taxes other than the gift tax is recognized to be in a title trust, there exists a reasonable reason in the choice of legislation that the gift tax should be imposed by deeming the title trust as donation, and there is no error of remarkably deviating from the limit of the legislative discretion or any problem of unconstitutionality due to the systematic inconsistency (see, e.g., Constitutional Court Decision 2004HunBa40, 2005HunBa24, Jun. 30, 2005).

2) Obligation to report the gift tax base under Article 68(1) of the Inheritance Tax and Gift Tax Act

A) In a case where a donation is deemed to have been made pursuant to the provision on the deemed donation of title trust property as seen earlier, the title trustee shall be deemed the person who received the donation so long as it does not prove that there is no purpose of tax avoidance. In other words, whether there is a deemed donation under the provision of the law or not is depending on the existence of the purpose of tax avoidance, or not, whether the title trust was made with the intention to receive the donation, or whether it was a mere mere loan of the name, does not vary depending on whether the title trust was made under a simple title trust. Furthermore, in this case, the Plaintiffs have failed

Meanwhile, a person who is deemed to have received a gift pursuant to the relevant statutes shall be deemed to have the duty to report as a person liable to pay the gift tax (see, e.g., Supreme Court Decision 2002Du2826, Oct. 10, 2003). Such duty to report is the same as the person who actually received the gift. As such, it is necessary to report various documents, etc. necessary for calculating the taxable value and the tax base of the gift tax pursuant to Article 68 of the Inheritance Tax and Gift Tax Act, and it cannot be deemed that a person who is deemed to have received a gift as a donee pursuant

B) Therefore, even if a simple trustee of title trust property is deemed to be a donation under the law, it is difficult to deem that there is a duty to report the gift tax base, and that there is no exemption from the duty to report on the mere title truster or any subsequent exclusion period (15 years) is applicable.

(iii) the legal nature of gift tax and additional dues pursuant to the regulations on deemed donation;

A) The purpose of imposing additional tax on taxpayers who did not pay gift tax is to secure the fulfillment of the duty of cooperation imposed under the tax law, and to deprive taxpayers of the benefit equivalent to the interest that they can obtain for unpaid amount due to the failure of taxpayers to observe the payment deadline. The additional tax is an administrative sanction imposed in cases where taxpayers violate the duty of return and tax payment as prescribed under the law without justifiable grounds in order to facilitate the exercise of the right of taxation and the realization of tax claims.

(1) On the other hand, tax is a member of a community of the nation that the people dump the financial demand required to perform the general task of the State without consideration according to their respective economic capabilities. On the other hand, tax is a monetary administrative sanction to secure the effectiveness of tax administration, i.e., the obligation to cooperate in tax payment, ii) the tax is taxed on the economic benefits and values that are currently held or incurred, but it is a disadvantage as a result of the "act of non-performance of obligation or breach of obligation".

While the tax is determined on the basis of the taxpayer's ability to pay taxes, the amount of penalty taxes should be determined differently in accordance with the content and degree of breach of duty under the tax law; the taxpayer's self-sufficiency is not considered in principle; ③ in the case of tax, it is limited to the purpose of excluding benefits in the case of non-performance of a certain obligation; on the other hand, in the case of penalty taxes, it is intended to secure the performance of a duty; on the other hand, in the case of penalty taxes, the two functions overlap in some of the two functions, but the amount of penalty taxes is satisfied as part of the financial revenue. However, each punitive function and the fulfillment of the fiscal revenue function are different from taxes in that the intrinsic function are different as incidental or anti-legal.

B) In order to prevent the act of tax evasion for title trust, there may be other alternative means more than imposing gift tax, and as an alternative, criminal punishment, penalty, penalty, etc. may be considered, but the imposition of penalty, penalty, etc. may not be always determined as heavy burden, and it cannot be said that it belongs to the legislative discretion of the legislators and that it violates the minimum infringement doctrine.

From the above perspective, the gift tax imposed pursuant to the provisions related to the Inheritance Tax and Gift Tax Act, i.e., the gift tax imposed pursuant to the deemed donation provision on the property held in title trust, even though there is a face of the nature of the penalty surcharge, this is only one of the taxes prescribed by the Act, that is, the tax, and thus, the intrinsic nature of the gift tax should be regarded as tax (see Constitutional Court Order 2002Hun-Ba66, Nov. 25,

Therefore, this cannot be regarded as administrative sanctions such as penalty surcharge, and so long as it should be strictly distinguished, penalty tax should be imposed to ensure the effectiveness of imposing gift tax, which is the principal tax, and prohibition of double infringement under the Constitution.

It is not a violation of the principle of excessive prohibition.

4) As to the limits on additional tax

A) The purpose of this case’s legal provision is to secure the effectiveness of the tax return system by inducing the taxpayer’s faithful return and payment, and to reduce the administrative power of the State or local governments to be invested for the determination and collection of tax liability, and to prevent the violation of the duty to report and pay duty, and it is appropriate to impose sanctions to additionally pay an amount equivalent to a certain percentage of the amount of tax to be paid to the violator of duty in order to achieve such legislative purpose.

B) According to the provision on additional tax under the legal provision of this case, the penalty tax is imposed in proportion to a certain interest rate (Article 80(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and Article 27-4 of the Enforcement Decree of the Framework Act on National Taxes) in proportion to the end of the period during which the payment was voluntarily paid or notified from the due date to the date of voluntary payment or notice based on the unpaid amount of tax or underpaid amount, so it appears that the degree of breach of duty and sanctions are maintained appropriately, and the applicable rate of 3/10,000 per day is reasonable in view of the system of the Inheritance Tax and Gift Tax Act, which

C) In addition, if there are special circumstances to deem that it is unreasonable to expect the taxpayer to fulfill his/her obligation with respect to additional tax, a taxpayer may file a lawsuit with a court to assert justifiable grounds, and if there are justifiable grounds for not being able to prove that the taxpayer neglected his/her obligation (see, e.g., Supreme Court Decision 2002Du666, Aug. 23, 2002), the possibility of judicial review is open, so it cannot be readily concluded that legislators did not take measures to minimize the taxpayer’s damage on the ground that there is no upper limit of the imposition rate of additional tax, and even if there is no upper limit of the imposition rate differently from the past provisions, it is within the legislative discretion in terms of the strengthening of the regulation following changes in social awareness of side effects caused by tax avoidance, and it is difficult to deem that there is an error of law in excess of the legislative discretion.

D) The imposition of additional tax under the legal provisions of this case is a critical role in realizing the public interest, such as securing the effectiveness of the tax return and payment system, by ultimately contributing to encouraging taxpayers to faithfully and accurately report, while the disadvantage suffered by the taxpayers is limited to the degree of proportional liability to the extent that it infringes on the public interest. Therefore, the disadvantage suffered by the taxpayers due to the legal provisions of this case cannot be deemed as significantly contrary to the principle of proportion that is larger than the public interest.

5) Sub-committee

Therefore, inasmuch as the instant title trust between the Plaintiffs is merely a simple title trust, not a real donation, unless it is proved that there is no tax avoidance purpose, the gift tax liability pursuant to the regulations on deemed donation occurs, and as long as specific gift tax liability arises, the gift tax base should be reported, and the exclusion period of 15 years shall apply unless it is reported.

On the other hand, the penalty tax is generated by not paying the gift tax. Since the penalty tax is distinct from the principal tax of the gift tax by administrative sanctions to ensure the effectiveness of tax payment, it cannot be deemed that the addition of the penalty tax is a double infringement. Since the legal provisions of this case on the penalty tax stipulate the proportional amount of the unpaid amount as the penalty tax, the method is not only appropriate, but also the excessive ratio is not determined. In order to strengthen the tax avoidance for the purpose of title trust, it cannot be deemed unfair from the perspective of the legal purpose or fairness, and it cannot be said that there is no upper limit of the penalty imposition rate from the perspective of the law, and therefore, it cannot be said that the benefit of the limited taxpayer is greater than the public interest of preventing the tax avoidance. Thus, it cannot be said that it is contrary to the principle of excessive prohibition or proportionality.

3. Conclusion

Therefore, the judgment of the court of first instance is justified, and the plaintiffs' appeal against the defendants is groundless.

All of the appeals are dismissed. It is so decided as per Disposition by the appellate court [In this case, the part which exceeds the ○○○○○○○○○○ in the joint and several tax payment notice of the gift tax on August 7, 2012 against the Plaintiff Gangwon-A in this case], the reduced part shall cease to exist from the beginning, and the judgment of the first instance on the part shall be null and void, and the judgment of the appellate court shall be excluded from the subject of the appellate court's judgment, and the appellate court may only dismiss the remainder only by "Dismissal of the appeal" if the judgment of the first instance on the remaining part is deemed justifiable (see Supreme Court Decision 192Da1334, Apr. 14, 1992).

[See Supreme Court Decision 91Da45653, etc.]