[2] Whether Article 5 (3) 3 of the former Enforcement Rule of the Inheritance Tax Act is invalid as it violates the principle of no taxation without law (affirmative)

[2] In full view of the relevant provisions of Article 5 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14082 of Dec. 31, 1993), the net asset value assessment method, which is an element of the supplementary assessment method of stocks or equity shares under Article 5 (6) 1 (b) of the former Enforcement Decree of the Inheritance Tax Act, shall be deemed as a premise of the assessment based on the so-called liquidation value, which assumes the liquidation value of a corporation, unlike the assessment based on the premise of the corporation's continued value, unlike the other element of the profit-performance appraisal method or the comparative assessment method of similar listed corporations, the net asset value assessment method, which is an element of the supplementary assessment method of stocks or equity shares, shall be deemed as the premise of the corporation's continuous liquidation value, so long as the net asset value is calculated based on the liquidation value of the corporation, the total estimated amount of retirement benefits to be paid to all employees of the corporation at the time of such assessment, shall be deducted in full as it constitutes a debt under item (c).

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiffs acquired forfeited shares through the offering of new stocks by the company of the non-party as stated in its holding, and held that the plaintiffs' and forfeited shareholders constitute the persons having a special relationship under the relevant Acts and subordinate statutes as to whether they are the auditors of the company of the non-party, the plaintiffs 1 as the auditors of the non-party company, the plaintiff 2 as the wife of the non-party 1 who is the representative director of the non-party company, the plaintiff 3 as the managing director, the plaintiff 4 as the managing director, and the plaintiff 4 as the managing director as the non-party 1's third degree as the accounting director, and the non-party 1 as the forfeited shareholders are the representative director of the non-party company of the non-party company of this case, the directors, the non-party 2 as the directors, the non-party 4, and the non-party 5 as the managing director, and on the grounds that the facts other than the plaintiff 4 are clearly proved to the extent that they can receive new stocks at the

However, under Article 34-5 of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) and Article 41-4 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14082 of Dec. 31, 1993; hereinafter referred to as the "Enforcement Decree"), where a corporation’s shareholder, etc. renounces his/her preemptive right to new shares, and a person who has renounced his/her preemptive right to new shares is deemed to have received a donation of the amount equivalent to the benefits acquired by being allocated the forfeited shares, the tax authority shall have the burden of proving that the person who has a special relationship under Article 41(2)8 of the Enforcement Decree of the same Act and Article 11(2) of the same Act (amended by Presidential Decree No. 14082 of Dec. 31, 1993; hereinafter referred to as the "Enforcement Rule of the same Act") is deemed to have been one of the so-called “transfered person’s friendship”.

Thus, except between the plaintiffs and the non-party 1, the non-party 3 and the plaintiff 2, and the non-party 4 who are in a relative relationship, it is difficult to readily conclude that the facts of the relationship between the plaintiffs or between the non-party are objectively evident. In this case where there is no data to support this point different from the records, the court below erred by misapprehending the legal principles as to "the relationship between the transferor and the non-party" or by misunderstanding the facts against the rules of evidence. The part pointing this out in the grounds of appeal is with merit.

2. On the second ground for appeal

Article 5 (6) 1 (b) (2) of the Enforcement Decree provides for the method of calculating the average amount of net asset value of the corporation divided by the net asset value of the corporation as the total number of issued and outstanding stocks as a supplementary method of evaluating the market price of non-listed stocks or equity shares. (c) Item (c) provides that the net asset value of the corporation shall be deducted from the amount appraised as of the date of inheritance as prescribed by this Decree. However, Article 5 (3) 3 of the Enforcement Rule provides that the meaning of the liability shall not be separately prescribed by the Act or the Enforcement Decree, or delegated by the Enforcement Rule, unless all employees employed as of the date of the commencement of inheritance retire from office, Article 5 (3) 3 of the Enforcement Rule provides that "an amount equivalent to 50/100 of the estimated amount of retirement allowance to be paid if they retire."

However, in full view of the relevant provisions regarding the appraisal methods of inherited property under Article 5 of the Enforcement Decree, the net asset value assessment method, which is an element of the supplementary assessment methods of non-listed stocks or equity shares under Article 5 (6) 1 (b) of the Enforcement Decree, shall be deemed to be a premise of the assessment based on the so-called liquidation value, which assumes the liquidation value of a corporation, unlike the assessment on the premise of the continued value of a corporation by other factors, and as long as the net asset value is calculated based on the liquidation value of a corporation, the total amount of the estimation of retirement benefits to be paid to all employees of the corporation at the time of the assessment shall be deducted as the liabilities under item (c). Article 5 (3) 3 of the Enforcement Rule provides that the deduction scope shall be reduced by stipulating that the amount of retirement benefits to be paid to the taxpayer shall be included in the liabilities without any basis or delegation from the superior law, which is disadvantageous to the taxpayer (see Supreme Court en banc Decision 200Nu1364, Feb. 15, 1996).

Nevertheless, with respect to the plaintiffs' assertion that the defendants assessed the retirement allowance estimation amount in the evaluation of forfeited shares, the court below rejected the plaintiffs' assertion on the ground that the defendants assessed the retirement allowance estimation amount in the evaluation of forfeited shares, without examining the scope of appropriation of the retirement allowance estimation amount (Article 6-2, No. 7-2, No. 7-2, No. 8-3, and No. 9-3, etc., the defendants could have deducted only 50/100 from the estimated retirement allowance amount). Thus, the court below erred in the misapprehension of legal principles as to the appraisal of forfeited shares, and the part of the grounds for appeal pointing this out is also justified.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)