(영문) 서울행정법원 2016. 06. 02. 선고 2015구합74852 판결대물변제의 법률행위의 형식을 부인하고 두 개의 행위로 처분하는 것은 위법함 대물변제 약정으로 취득한 자산의 취득가액은 취득 당시의 시가임[일부국패]
early trial 2012west 2576 ( October 30, 2015),
The acquisition value of assets acquired under an agreement for payment in kind and disposed of by two acts shall be the market value at the time of acquisition in case of denying the form of a juristic act in kind;
It is the market price at the time of acquisition because the acquisition price of assets acquired through an agreement for payment in kind that cannot be justified as a principle of substantial taxation is the principle of substantial taxation to deny the form of a juristic act such as payment in kind, and to dispose of the assets by dividing them into two acts such as the donation of stocks in question and the waiver
Article 15 of the Corporate Tax Act: Scope of Gross Income
2015Guhap74852 Revocation of Disposition of Corporate Tax Imposition
○ Industrial Co., Ltd.
○ Head of tax office
April 28, 2016
June 2, 2016
1. The Defendant’s disposition of imposing corporate tax for the business year 2005 against the Plaintiff on February 1, 2012 exceeds KRW 1,208,58,890 (including additional tax) and the amount exceeding KRW 1,208,05,591 shall be revoked.
2. The plaintiff's remaining claims are dismissed.
3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.
Cheong-gu Office
The Defendant’s disposition of imposing corporate tax of KRW 3,208,58,890 (including additional tax) for the business year 2005 against the Plaintiff on February 1, 2012 is revoked (the date of the disposition listed in the complaint appears to be a clerical error).
1. Details of the disposition;
A. On November 2, 1996, when the deceased died of the deceased △△△△△△ (hereinafter referred to as the “the deceased”), Nonparty 1 succeeded to the Plaintiff’s shares 10,466 shares and 8,000 shares (hereinafter referred to as the “instant shares”) of the 10,466 shares of the Plaintiff, which were held in title by the deceased to the Hong Kong, and the 8,000 shares of the △△ corporation (hereinafter referred to as the “instant shares”) but left in the name of Hong Kong as they were.
나. 원고는 홍●●이 운영하던 주식회사 ■■산업, 주식회사 ■■섬유(이하 '주식회사' 표시는 생략한다)에 대한 물품대금 채권 합계 7,576,103,454원(이하 '이 사건 물품대금 채권'이라 한다)을 보유하고 있었는데, 두 회사가 부도위기를 맞게 되자 2005. 1. 7. 홍●●과 사이에 이 사건 물품대금 채권 중 4,232,874,000원(이하 '쟁점 채권'이라 한다)의 변제를 쟁점 주식으로 갈음하기로 하는 내용의 대물변제 합의서를 작성하였다(이하 '이 사건 대물변제 약정'이라 한다).
C. In addition, on March 2, 2005, the Plaintiff settled the total amount of KRW 3,343,229,454 of the remainder of the claim for the purchase of the goods due to real estate owned by Hong Bright, etc., and on March 2, 2005, the Plaintiff returned the total number of units of KRW 7,576,103,454 (hereinafter referred to as the “number of units of this case”).
D. On February 28, 2005, the Plaintiff transferred the claim for the price of the instant goods to the payment in kind of outstanding shares, etc.
by deeming that such shares have been recovered, the accounts shall be kept as follows, and on March 4, 2005, the shares at issue
Transfer is completed.
Changes in the motor vehicle;
Secretary
4,232,874,000 won in total of the shares in the issue
As of December 30, 2004
Total amount of 3,343,229,454 won
■■산업/■■섬유 받을어음 합계
7,576,103,454 won
E. The Defendant: (a) deemed that the Plaintiff received shares from ○○○○ in return for the gift of the shares at issue; (b) deemed that the Plaintiff performed a separate legal act that voluntarily renounces the claim; and (c) deemed that the Plaintiff made a disposition to rectify and notify the Plaintiff of KRW 1,760,69,69,8888,890 (including additional taxes) for the reason that the shares at issue with respect to the above act were to be evaluated as KRW 5,93,570 based on the closing price on February 28, 2005, on the ground that the shares at issue were under-paid as KRW 4,232,874,000; and (b) as to the above act, the Defendant made a disposition to rectify and notify the Plaintiff of KRW 4,125,59,749, which exceeds the entertainment expense limit of KRW 4,232,874,00 (including additional taxes) for the business year 2005.
F. On April 30, 2012, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on April 30, 2012, but was dismissed on June 30, 2015.
[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, Gap evidence 4, 5, 8, 13, 14, Eul evidence 1, 3, 4, 6, 14, and the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. Relevant legal principles
Article 14(2) of the Framework Act on National Taxes declares the principle of substantial taxation by stipulating that “The provisions on the calculation of tax base in tax-related Acts shall apply to the substance, regardless of the name or form of income, profit, property, act or transaction.” However, if the principle of substantial taxation is excessively expanded and applied, the principle of substantial taxation can be invalidated by the principle of no taxation without the law and may cause adverse effects that are abused by the authority to impose taxes. Therefore, the scope of application of the said principle ought to be limited to cases where the taxpayer proves exceptional circumstances, such as where the taxpayer took the form or appearance of an unreasonable transaction that is irrelevant to the substance for the purpose of evading tax (see, e.g., Supreme Court en banc Decision 2008Du8499, Jan. 19,
B. Determination
을 제5, 7, 8, 10호증의 각 기재에 변론 전체의 취지를 종합하면, 홍●●은 자신이 운영하는 ■■산업, ■■섬유 등을 통해 원고와 장기간 무자료 거래를 하면서 위 회사의 비자금 조성을 도운 사실, 망인은 홍●● 외에도 400여 명의 차명주주를 통해 원고와 대한화섬의 주식을 보유하고 있었던 사실, 홍●●이 운영하던 회사들이 부도위기에 놓이게 되자, 원고는 홍●●이 위와 같은 비자금 조성 사실이나 차명주식 보유 사실을 폭로할지도 모른다는 두려움에 이 사건 대물변제 약정을 체결하게 된 사실, 이 사건 대물변제 약정에 따라 당좌수표를 반환받음으로써 홍●●이 부정수표 단속법 위반 등에 따른 형사처벌을 면하게 된 사실이 인정된다.
According to the above disposition process and the above facts, in order to prevent the Plaintiff from making a wide amount of funds to raise funds and recover the core shares, we can find out that the Plaintiff was in need of entering into an agreement on the payment in kind of this case in order to be exempted from criminal punishment by returning the shares of this case. In the absence of one of the transfer of the shares of this case and the waiver of the claim for the payment of the goods of this case, it would be difficult for the Plaintiff to reach an agreement on the payment in kind with the Plaintiff. The both parties concluded a single legal act as above and concluded a mutual agreement on the payment in kind in this case with the intent to do so, and the tax problem was not the principal interest of both parties. Rather, re-converting the payment in kind of the shares of this case into two legal acts, such as the Defendant, which are the donation of the shares of this case and the waiver of the claim, are in conflict with the actual intent of the parties, and thus, it would be unlawful in view of these circumstances by dividing it into the form of a legal act between the Plaintiff and Red Share.
(c) Calculation of justifiable taxes;
Article 72(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21302, Feb. 4, 2009) (amended by Presidential Decree No. 21302, Feb. 3, 200; Presidential Decree No. 21302, Feb. 4, 2009; Presidential Decree No. 2085, Feb. 5, 2009; Presidential Decree No. 20085, Feb. 4, 2009; Presidential Decree No. 20085, Feb. 5, 2008; Presidential Decree No. 20085, Feb. 4, 2009; Presidential Decree No. 20085, Feb. 5, 2008; Presidential Decree No. 20065, Feb. 5, 2008; Presidential Decree No. 20675, Feb. 2, 2008).
3. Conclusion
Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.