Officers shall, in cases where five years have not passed since they retired from an enterprise group, have been in special interest as officers;

An officer constitutes a specially related person of contributor even under the Enforcement Decree of the Inheritance Tax and Gift Tax Act prior to the amendment, and an officer constitutes a specially related person under the Inheritance Tax and Gift Tax Act regardless of the interpretation of the Addenda of the amended Enforcement Decree of

Scope of related parties under Article 12-2 of the Enforcement Decree of Inheritance Tax and Gift Tax Act

2018Guhap5868 Demanding revocation of a disposition imposing gift tax

(z)○○ Scholarship Foundation;

○ Head of tax office

on October 24, 2019

on October 14, 2019

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant imposed a gift tax of KRW 27,305,778,200 on the Plaintiff on February 5, 2018.

All cancellations.

1. Basic facts

A. On December 22, 1983, the Plaintiff (hereinafter referred to as the “Plaintiff Foundation”) was a public interest corporation under the Act on the Establishment and Operation of Public Interest Corporations established by new ○○○ by contributing 500 million won stocks, etc., and has conducted projects such as scholarship payment, academic research and activity support after its establishment.

B. Of the shares of a domestic corporation held by the Plaintiff Foundation as of December 31, 2012, shares exceeding 5% of the issued voting shares of that domestic corporation are listed in the following table:

C. The value of property contributed by a public-service corporation pursuant to the former Inheritance Tax Act, which was partially amended by Act No. 4662, Dec. 31, 1993 (amended by Act No. 4662, Jan. 1, 1994), is not to be included in the taxable value of donated property. However, in cases where the aggregate of the shares contributed by the public-service corporation and the shares of the same domestic corporation held by the public-service corporation at the time of the contribution exceeds 5/100 (20/100 before the amendment) of the total number of outstanding voting shares issued by the domestic corporation, the excess portion is to

The amended Act on December 31, 2007 (amended by Act No. 8828, Jan. 1, 2008) was partially amended (amended by Act No. 8828, Dec. 31, 2007). In the case of a public-service corporation among public-service corporations, it exceeds 10/

In the case, the excess portion is included in the taxable value of donated property.

D. On December 29, 2009, the Plaintiff Foundation received an additional contribution from 26,800 shares of ○○ Agenda (1.88%) on December 29, 2009 with a contribution of 96,776 shares (6.81%) to ○○ Department Co., Ltd. (hereinafter referred to as “○○ Department”), but the Plaintiff Foundation received an additional contribution of 26,80 shares of ○○ Agenda (1.88%) and the Plaintiff Foundation is a bona fide public-service corporation (hereinafter referred to as “contribution”).

person or his/her specially related person shall not exceed 1/5 of the current number of directors of a public-service corporation.

The additional contribution was not included in the taxable value, because it falls under any of the following corporations.

2. Details of the disposition;

A. As of December 31, 2012, the Plaintiff Foundation held office with a total of six directors (including a director, ○, ○○, Red○, Red○, another ○○, ○○, ○○, and Kim ○○), and among them, new ○○, a woman of new ○○, is the president of the Plaintiff Foundation on February 8, 2012, and yellow ○○, an outside director of the ○○○○○ Company.

On July 4, 2012 after retirement from office on March 3, 2012, the director of the Plaintiff Foundation, and Red ○○○ was employed as the representative director of the ○○○○ Company, and was employed as a director of the Plaintiff Foundation on July 4, 2012 after retirement from office on February 4, 2010.

B. As a result of the investigation of gift tax on the Plaintiff’s foundation from June 7, 2017 to July 20 of the same year, the director of ○○ Regional Tax Office and ○○○○ Co., Ltd., Ltd., and ○○○, Inc., Ltd., on its management.

It constitutes an affiliated company of ○○ Group, which is an enterprise group having de facto influence over the company, and Yellow ○○ and Red ○○ constitutes a related party of ○○○ since five years have not passed since he/she was employed as an executive in each of the above affiliated companies, and thus, the Plaintiff Foundation determined that a related party was disqualified from the status of a public-service corporation more than 1/5 of the incumbent members

C. Accordingly, pursuant to Article 48(11)1 of the Inheritance Tax and Gift Tax Act, the Defendant shall assess the value of KRW 42,716,60,400 as to ○○○ and ○○○’s shares additionally contributed on December 29, 2009 and KRW 26,800 as to 42,716,60,40 as to ○○ and Red○○’s shares (the business year during which ○○ and Red○○ assumed office).

After December 31, 2012, which is the end date, the gift tax of 20,898,300,200 won was imposed on the Plaintiff Foundation on September 5, 2017.

D. The Defendant assessed the certificate of the largest shareholder for the said additional contributions, and on February 5, 2018, the Plaintiff

Additional imposition and notice to the Foundation by increasing or correcting KRW 6,407,478,00 for gift tax belonging to year 2012 (the foregoing)

The first imposition and notification was combined with the first imposition and notification, and hereinafter referred to as "the instant disposition").

E. On October 20, 2017, the Plaintiff filed an appeal with the Tax Tribunal seeking revocation of the imposition and notification as of September 5, 2017. During the inquiry, the Defendant changed the subject of the instant disposition on February 5, 2018, to the instant disposition on March 7, 2018, and the Tax Tribunal dismissed the said claim on June 22, 2018.

Facts that there is no dispute, Gap's evidence 1 through 4, Eul's evidence 1 through 31 (including branch numbers if there is a ground for recognition), the purport of the whole pleadings.

3. The plaintiff's assertion

For the following reasons, yellow ○○ and Red ○○ do not constitute a specially related person of New ○○, a contributor. Therefore, the instant disposition taken on a different premise is unlawful.

(a) Yellow ○○;

Article 12-2(1)3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 25195, Feb. 21, 2014) was amended by Act No. 25195, and a person who retired after being employed as an outside director from an enterprise group was excluded from a related party. Since the amended provisions under Article 3 of the Addenda of the Enforcement Decree of the amended Enforcement Decree (amended by February 21, 2014) provide that gift tax shall be determined after the enforcement of the amended Act (amended by Presidential Decree No. 21300, Feb. 21, 2014), in this case, where the gift tax was determined after February 21, 2014, ○○○, an enterprise belonging

(b) Red○○;

1) Standard for Inheritance Tax and Gift Tax Act

Before the Enforcement Decree of the Inheritance Tax and Gift Tax Act was partially amended by Presidential Decree No. 23591 on February 2, 2012 (hereinafter “Enforcement Decree of the Inheritance Tax and Gift Tax Act”), if the contributor is an individual who is not a corporation, the contributor does not constitute a person with special interest of the contributor even if the contributor was in office, but the Enforcement Decree of the Inheritance Tax and Gift Tax Act was partially amended by Presidential Decree No. 23591 on February 2, 2012 (hereinafter “Enforcement Decree of the Inheritance Tax and Gift Tax Act”), and Article 2 of the Addenda of the amended Enforcement Decree provides that the amended Enforcement Decree shall apply from the first inheritance or donation after enforcement ( February 2, 2012).

Therefore, even if the Hong○○ was retired from office as the representative director of ○○, a company belonging to ○○○○ Group, and was retired from office, the Plaintiff’s Foundation is not subject to the Enforcement Decree of the amended Inheritance Tax and Gift Tax Act, since the Plaintiff’s Foundation already received a donation from ○○○, prior to the enforcement of the amended provision, since it does not constitute a related party of ○○

2) Preferential application of the Framework Act on National Taxes

As the Framework Act on National Taxes was amended by Act No. 11124 on December 31, 201 (amended by Act No. 11124, Jan. 1, 2012), Article 2 (Definition Provisions) subparagraph 20 of the Enforcement Decree of the same Act (specific scope is stipulated in Article 1-2 of the Enforcement Decree of the same Act), there is no provision that retired officers are specially related persons.

Meanwhile, according to the main sentence of Article 3(1) of the Framework Act on National Taxes, the provisions of the Framework Act on National Taxes preferentially apply to individual tax laws, and the exceptions thereto are permitted only to the matters listed in each subparagraph of Article 3(1) of the Framework Act on National Taxes under the proviso of the same Article. Article 3(1) of the Framework Act on National Taxes does not stipulate in exceptional cases where Article 2(1) of Chapter I (General Provisions) of the Framework Act on National Taxes (General Provisions) provides that the scope of related persons may be provided for special cases by individual tax laws. In addition, since the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that retired executives as special cases, the provisions of the special cases under the Enforcement Decree of the Framework Act on National Taxes

Therefore, whether red ○○ is a specially related person should be determined on the basis of the Framework Act on National Taxes, and as seen earlier, the retired executive officer is not included in the specially related person, so red ○ does not constitute a specially related person of ○○.

4. Relevant statutes;

It is as shown in the attached Form.

5. Determination

A. Whether ○○ is a specially related person

1) Following the amendment of the Enforcement Decree of the Inheritance Tax and Gift Tax Act by Presidential Decree No. 25195 on February 21, 2014, a contributor was excluded from a company belonging to an enterprise group where the contributor exercises de facto influence over its management, and a person retired from office as an outside director was excluded from a contributor’s specially related person, and the amended provisions under Article 3 (Application of the Scope of Specially Related Persons) of the Addenda to the Enforcement Decree of

The gift tax was determined after February 21, 2014.

2) In this case, on July 4, 2012, 2012, prior to the retirement of ○○○, an enterprise belonging to an enterprise group (○○○○○ Group) where the contributor, is exercising de facto influence over its management, ○○○○, was appointed as an outside director, and then was appointed as a director of the Plaintiff Foundation on July 4, 2012, prior to the enforcement of the above amendment provision, but the Defendant did not determine gift tax on the Plaintiff Foundation who lost the status of the public-service corporation. However, in this case, whether the gift tax was related to the Plaintiff Foundation after the enforcement of the amendment provision, it should be determined whether it is a specially related person.

3) As to this, the defendant asserts that ○○ was a person who was employed by ○○ as ○○○○ as an outside director of ○○○○ Company, and retired from office as an officer regardless of the revised provision, and who was retired from office as ○○○○○ Company as a person with special relation.

However, Article 20(1)4 of the Enforcement Decree of the Corporate Tax Act provides that "all members of the board of directors, such as the chairperson, president, vice president, chief director, representative director, managing director, managing director, executive director, etc. of the corporation, "members of the board of directors," "general partner or director (b) of the partnership company," "members of the partnership company, limited partnership company, limited partnership company and limited company," "auditor (c)", and other persons (d) who perform duties corresponding to items (a) through (c) of the same item. However, it is difficult to regard "auditor who is a member of the audit committee established by the company in lieu of the auditor" as "auditor or a person who performs duties corresponding to the auditor", and the interpretation of tax laws and regulations as prescribed by the law, barring any special circumstance, shall not be interpreted as an "person who performs duties corresponding to the auditor" nor shall it be interpreted as an "person related to the auditor" without any reasonable reason (see, e.g., Supreme Court Decision 2012>

4) Therefore, the Plaintiff’s assertion on this part is with merit.

B. Whether the Hong○○ is a specially related person

1) Organization of issues

A) First of all, there is no dispute between the parties as to whether Hong○ constitutes the specially related person of New○○ in accordance with the Enforcement Decree of the Inheritance Tax and Gift Tax Act (i.e., Hong○○ is the principal (i.e., Hong○) who exercises de facto influence over the management through the exercise of the right to appoint and dismiss executives and the decision on business policies, etc. of an enterprise group as prescribed by Ordinance of the Ministry of Strategy and Finance, and for whom five years have not passed since retirement from the company belonging to the enterprise group, and the Plaintiff constitutes the specially related person (Article 12-2(1)3(a)). However, as to the interpretation of the Addenda to the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the Plaintiff asserts that the Enforcement Decree of the Inheritance Tax and Gift Tax Act prior to the amendment does not apply to this case. Moreover, under the Enforcement Decree of the Inheritance Tax and Gift Tax Act prior to the amendment, Red○ does not constitute the specially related person of New○○. Accordingly, the Defendant’s assertion that this case does not constitute the specially related person of the Inheritance Tax and Gift Tax Act (i.).

B) On the other hand, the plaintiff and the defendant are amended by the Enforcement Decree of the Inheritance Tax and Gift Tax Act and the amended Inheritance Tax and Gift Tax Act.

In relation to the application of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the interpretation of the "Additional Rule of the Enforcement Decree of the amended Inheritance Tax and Gift Tax Act" is disputed. However, even if the Defendant applied the Enforcement Decree of the amended Inheritance Tax and Gift Tax Act before and after the amendment, the red type constitutes a special relationship of ○○○, and it is meaningful to interpret the Additional Rule of the amended Inheritance Tax and Gift Tax and Gift Tax Act. Accordingly, the following is the Plaintiff’s ①, ② where the Enforcement Decree of the amended Inheritance Tax and Gift Tax Act is applied before and after the amendment, the Hong○○ constitutes a special relationship

B) Determination

According to Article 13(3)2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act before the amendment, "a person who has a special relationship with a contributor" means "a person who has a relationship with a contributor under any of the subparagraphs of Article 19(2)" and "a person who has been an executive (a person who has been an executive under Article 20(1)4 of the Enforcement Decree of the Corporate Tax Act and a person who has been an executive under any of the subparagraphs of Article 13(7)2 of the same Enforcement Decree."

D. The phrase "an enterprise group (including an executive of the company in question) as provided by Ordinance of the Ministry of Strategy and Finance" under Article 19 (2) 3 of the Enforcement Decree of the same Act includes a person who had been an executive for whom five years have not passed since his/her retirement.

Based on this, in light of the following circumstances, Red○ is deemed as a specially related person (Article 19(2)3) of the Inheritance Tax and Gift Tax Act even under the Enforcement Decree of the said Tax Act prior to the amendment. Therefore, Hong○ constitutes a specially related person under the Inheritance Tax and Gift Tax Act regardless of the interpretation of the Addenda to the Enforcement Decree of the said Tax and Gift Tax Act.

(1) According to Article 13 (3) 2 and Article 19 (2) 3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act before the amendment, "the relationship between the contributor and the enterprise group (including the executive officers of the enterprise)" is a special relationship. Here, whether the contributor and the enterprise group are in a relationship with the enterprise group or not is difficult to understand with its language alone. However, "enterprise group prescribed by Ordinance of the Ministry of Strategy and Finance" means "enterprise group" under the Monopoly Regulation and Fair Trade Act (see Article 9 of the former Enforcement Rule of the Inheritance Tax and Gift Tax Act (wholly amended by Ordinance of the Ministry of Strategy and Finance No. 223, Jul. 26, 201). Article 2 subparagraph 2 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (wholly amended by Act No. 1119, Dec. 2, 2011) provides that "a company under the control of the same person as an enterprise group under the control of the same person" can be known as "one or more companies under the premise of the same Act".

Thus, the term "contest relationship between the contributor and the enterprise group under the Ordinance of the Ministry of Strategy and Finance" can be interpreted as "the relationship between the contributor and the contributor," and "the affiliated company of the enterprise group under the control of the contributor and the contributor," and "the executive officers of the enterprise group under the control of the contributor and the contributor" can be viewed as a special relationship. Thus, in this case, red ○○, an executive officer of the ○○ and the enterprise group under the control of the new ○○○ (○○ group), who is the contributor,

(2) The plaintiff asserts that since it is a shooting investigation that "the division" is the object of the corporate group's affiliation (including the executive officers of the company in question) as provided by Ordinance of the Ministry of Strategy and Finance under Article 19 (2) 3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act prior to the amendment, "an enterprise belonging to the enterprise group as provided by Ordinance of the Ministry of Strategy and Finance (including the executive officers of the company in question)" and "an enterprise group as provided by Ordinance of the Ministry of Strategy and Finance," "an enterprise belonging to the enterprise group as provided by Ordinance of the Ministry of Strategy and Finance (including the executive officers of the company in question)," "a person in de facto control (b) of the enterprise group (c)" and "a person in a relationship as provided by Ordinance of the Ministry of Strategy and Finance (c) with the person in a relationship as provided by Ordinance of the Ministry of Strategy

However, in interpreting the language and text of Article 13(3)2 and Article 19(2)3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act prior to the amendment, "the relationship between the contributor and the enterprise group (including the executive officers of the company in question)" also constitutes a special relationship. It is reasonable to view that "the relationship between the contributor and the company belonging to the enterprise group (including the executive officers of the company in question) and the person with the relationship falling under any of the following items" also constitutes a special relationship. Article 19(2)1 of the Inheritance Tax and Gift Tax Act provides that "the lineal blood relationship within the second degree of relationship between the relative and the lineal descendant's spouse and the spouse of the lineal descendant's spouse within the second degree of relationship as well as the lineal descendant's spouse's spouse's lineal blood relationship within the second degree of relationship is also a specially related person. Therefore, the possibility of excluding the affiliated executive officers of the company in question through the strengthening of public interest and preventing the public interest of the corporation in question through the holding company is also contrary to the purport of the plaintiff.

③ In addition, the Plaintiff asserts that Article 19(2)3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is applicable only where the contributor is a corporation.

Based on the above interpretation, the specially related person of the contributor under Article 19(2)3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act prior to the amendment is ultimately divided into those who are affiliated with the enterprise group (including the executives of the enterprise in question), those who are affiliated with the enterprise group under item (a) (including the executives of the enterprise in question), those who are in a relationship with the enterprise group under item (b) (including the executives of the enterprise in question), and those who are deemed to exercise de facto influence on the management through the decision of the policy on the exercise of the right to appoint and dismiss officers of the enterprise in question, and those who are related persons under item (b)

However, in the case of the specially related persons falling under (a), as seen earlier, an enterprise group is premised on who is controlled by all group, and at the time, the Monopoly Regulation and Fair Trade Act (in the case of an individual, two or more companies controlled by the individual, and only one or more companies controlled by the relevant corporation and one or more companies in the case of the pertinent corporation are the enterprise group), and in the case of the specially related persons falling under (a), it is not unreasonable to interpret that the contributor is an individual, and it is difficult to find the grounds to exclude the contributor from the case of an individual. Rather, deeming that the contributor includes both the case of an individual and the case of a corporation, it is difficult to accept this part of the Plaintiff’s assertion.

3) Whether the Framework Act on National Taxes is preferentially applied

A) As the Framework Act on National Taxes was partially amended by Act No. 11124, Dec. 31, 2011 (amended by Act No. 11124, Jan. 1, 2012; hereinafter “the Framework Act on National Taxes”), the provisions concerning specially related persons under Article 2, a definition provision, have been newly established. In light of the content, “specially related persons” under Article 20 refers to a person who has any of the following relationships with the person himself/herself. In such cases, this Act and other tax-related Acts [referring to the Acts, etc., providing for items and rates of national taxes (Article 2 subparag. 2, hereinafter

In applying "individual tax law" (hereinafter referred to as "individual tax law") the person himself/herself is also deemed to be a specially related person of the specially related person, and defined the 'economic relationship prescribed by Presidential Decree such as blood relative, relative relative, etc. (a)', 'economic relationship prescribed by Presidential Decree such as executives and employees (b)', 'management control relationship such as shareholders, investors, etc. prescribed by Presidential Decree (c)', and the specific scope of the specially related person under Article 1-2 of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012) was newly established according to the above delegation.

On the other hand, Article 3 (1) of the revised Framework Act on National Taxes provides that "the law shall take precedence over the individual tax law," while Article 3 (1) of the revised Framework Act on National Taxes requires that the provisions of the individual tax law shall apply to the matters listed in the proviso. However, Article 2 of the revised Framework Act on National Taxes does not include the matters listed in the proviso.

B) However, in light of the following circumstances, it is justifiable to deem red ○ as a specially related person of ○○○○ under the Inheritance Tax and Gift Tax Act, other than the Framework Act on National Taxes.

① The amendment of the Framework Act on National Taxes was prepared after the amendment bill of the Framework Act on National Taxes and the amendment bill of the four National Assembly bills, which were proposed by the Government, were formulated after the amendment bill of the Framework Act on National Taxes and the amendment bill of the amendment bill of the amendment bill of the Act on National Taxes, and were included in the amendment bill of the Act on Special Cases Concerning Special Cases Concerning Special Cases Concerning National Taxes, the Ministry of Strategy and Finance, which is the competent authority of the Framework Act on National Taxes and the competent authority of the Act on Special Cases Concerning Special Matters Concerning the provisions of the Act on Special Cases Concerning the Act on National Taxes, stated that "The Act on Special Cases Concerning Special Cases Concerning the National Taxes,

② If the provision on specially related persons under the revised Framework Act on National Taxes is interpreted as alleged by the Plaintiff on the ground that the provision on specially related persons under the revised Framework Act does not clearly state the proviso to Article 3 of the same Act, the provision on specially related persons under other individual tax laws, which differs from the scope of specially related persons under the Framework Act on National Taxes, shall lose its validity. If the amendment of the Framework Act on National Taxes with such intent, it is natural that the amendment of the individual tax law is promoted together or at least followed by the subsequent amendment of the corresponding individual tax law. Furthermore, if the amendment of the Framework Act on National Taxes and its Enforcement Decree provide time time to meet the scope of specially related persons under the Framework Act on National Taxes or immediately implement it, the scope of specially related persons under the individual tax law varies due to the amendment of the Framework Act on National Taxes (in particular, where the scope of specially related persons under the Framework Act on National Taxes is wider than the scope of specially related

However, the Ministry of Strategy and Finance, while preparing the amendment of the Framework Act on National Taxes, did not promote the amendment of the individual tax law in line with the scope of the specially related persons under the Framework Act on National Taxes. The amendment of the Framework Act on National Taxes and its Enforcement Decree, without any separate grace period, did not have any transitional measures related to the specially related persons other than the enforcement date. Rather, on February 2, 2012 when the enforcement decree of the Framework Act on National Taxes newly established the scope of the specially related persons, the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which prescribes the scope different from

In addition, even until now, the scope of the specially related persons under the individual tax law, such as the Framework Act on National Taxes, the Corporate Tax Act, and the Inheritance Tax and Gift Tax Act, is still showing a significant difference, and the necessity to separately determine the scope of the specially related persons is also not

In light of the above circumstances, it is difficult to view that a related party should be determined only on the basis of the Framework Act on National Taxes, by excluding the provisions of individual tax law, solely on the ground that the provisions on the related party were not specified.

③ Ultimately, the purpose of the revision of the Framework Act on National Taxes that "the integration and simplification of the scope of specially related persons under tax-related Acts" is to clarify the meaning of the regulations of specially related persons under the Framework Act on National Taxes and individual tax laws.

C. Sub-committee

Yellow ○○ does not constitute a specially related person of ○○○, but as Red ○ constitutes a specially related person of ○○○○, two of the six directors of ○○ Foundation (new ○○, red ○○) constitutes a specially related person, the Plaintiff Foundation lost its status as a faithfully related person. Accordingly, this is premised on this.

The disposition is lawful.

6. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.