Cho High Court Decision 201Do0879 ( December 16, 2011)

In addition, it is reasonable to deem that there is a justifiable reason for failing to perform his duty.

In light of the fact that the disposition authority’s revocation of the previous tax disposition on the ground that the previous tax disposition was erroneous, and the imposition of additional tax on the ground of a new tax disposition was done by the disposition authority, it is reasonable to deem that there was justifiable reason to believe that the additional tax was not paid due to the failure of performance of its duty

2012Revocation of revocation of disposition imposing gift tax

ThisAAA et al.

Head of Seocho Tax Office

April 25, 2013

May 30, 2013

1. The Defendant’s revocation of the part exceeding KRW 000,000, out of the gift tax of the year 2005 that reverts to the Plaintiffs on November 10, 2010.

2. The plaintiffs' remaining claims are dismissed.

3. Of the litigation costs, 70% is borne by the Plaintiffs, and 30% is borne by the Defendant, respectively.

The Defendant’s disposition of imposing gift tax of KRW 000 (calculated tax amount of KRW 000 + additional tax of KRW 0000 + additional tax of KRW 0000 + additional tax of KRW 000 on failure to file a return) on the Plaintiffs on November 10, 2010 is revoked.

1. Basic facts and circumstances of dispositions;

A. Acquisition and disposal of the shares of the Plaintiff 1BB, etc.

(1) The plaintiff 1BB, non-party 2, KimD, KimE, H, and UJ (hereinafter "PlaintiffBB et al.") acquired 3,498, and 750 shares of OB from April 19, 200 to September 26, 2005 (hereinafter "OO") from 0.5 shares of 0.0 to 00,06 shares were additionally acquired 50,000 shares, and 6.08 shares were additionally acquired from 0.0 to 00 shares, and 6.08 shares were additionally purchased from 0.5 shares from 0.0 to 8.0,00,000 shares, and 6.08 shares were so purchased from 0.0 to 4.08 shares, and 0.08 shares were so purchased from 0.05 shares, and 6.05 shares were so purchased from 0.05 shares each of the plaintiff's shares were so purchased from 0.13.05 shares.0.0.0

B. Taxation against the Plaintiff 1BB and EO

"1) After conducting an integrated investigation of corporate tax on OO Entertainment Co., Ltd. (hereinafter referred to as "OO"), the director of the Seoul Regional Tax Office issued shares under the name of the Plaintiff BB and 8 other than the Plaintiff BB for the purpose of bypassing the OO, and transferred 4,214,614 shares among them, and imposed capital gains tax on OO, and notify the Plaintiff BB and 8 other than the Plaintiff BB of the gift tax under Article 45-2 (1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007, and hereinafter referred to as "the Inheritance Tax and Gift Tax Act"), the Defendant issued a notice to the head of the competent tax office that "the gift tax is levied on the Plaintiff BB and EO, the taxpayer of the Plaintiff B and EO, as well as on February 13, 2007 (hereinafter referred to as "OB and increased additional tax").

(c) criminal case results and taxation against OO;

1) On December 11, 2006, the director of the Seoul Regional Tax Office filed a complaint with the investigation agency on the suspicion of violation of the Punishment of Tax Evaders Act that the company evaded capital gains tax through the title trust of O stocks. The Seoul Central District Prosecutor's Office prosecuted the Plaintiff, who is the punishment of OO, for the reason that the Plaintiff, who is the punishment of O, is the actual owner of stocks, and the Plaintiff, for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) (tax) (2007Da569, 831 (merged) and 1263 (merged). The judgment of the Seoul Central District Court (208No145) was maintained by both the 1A and the Prosecutor, who were convicted of the violation of the Punishment of Tax Evaders Act on December 21, 2007, and all the appeals (Supreme Court Decision 2008Do5399).

"2) On November 25, 2010, the Defendant revoked the initial disposition on the Plaintiff HanBB and Lee OO on its own. The Defendant, through OOO settlement, confirmed the list of beneficial shareholders by OO, there were 23,521 shares in the Plaintiff BB (including additional tax) and 39,951 shares (OOO securities account) as of August 1, 2005, and among them, confirmed that only 39,951 shares (hereinafter referred to as “the shares in this case”) were registered as entrusted shares, and the Plaintiff filed a request for the judgment on November 10, 2010 with the Plaintiff BB on its own name on its own on its own on its own, and the Plaintiff’s request for the judgment on November 10, 2010, notified the Plaintiff and the Plaintiff’s request for the judgment on December 31, 2010 (hereinafter referred to as “the Plaintiff’s request for the judgment on January 25, 2010).

(d) a corrective disposition;

(1) TheO adopted a resolution of the board of directors to consolidate three shares registered as general shares with one share at par value, suspended the capital reduction from July 29, 2005, and completed the capital reduction on August 3, 2005 (hereinafter “the capital reduction in this case”). The defendant was in the initial disposition, on August 1, 2005, under Article 63(1)1 (a) and (b) of the Inheritance Tax and Gift Tax Act, and Article 52-2 subparagraph 3 of the Enforcement Decree (amended by Presidential Decree No. 20621 of Feb. 22, 2008) on June 13, 2005 (the date of the capital reduction in this case), and on June 3, 2005 (the date of the capital increase in this case), on the ground that the capital increase in this case was completed on August 3, 2005, and on the ground that the average of the capital increase in this case was completed on June 3, 2005 (the date of the capital increase in this case).

3) However, in the instant lawsuit, the plaintiffs asserted that the period subject to evaluation should be seen as June 10, 2005, which is the day following the resolution date of the board of directors of the instant capital increase with respect to the capital increase, and that the period for the instant capital increase should be regarded as the period July 28, 2005 when the transaction of stocks was suspended for the purpose of the instant capital increase, and the defendant viewed the plaintiffs as the termination date for the assessment on September 25, 2012 as the date preceding the date when the capital increase was completed, and the average share price shall be KRW 00,000, and ② the period subject to evaluation on January 7, 2013 as the date following the resolution date of the board of directors of the instant capital increase with respect to the capital increase, as the average share price shall be adjusted to KRW 00,000, and the amount of the gift tax shall be reduced to KRW 000.

[Ground of Recognition] The facts without dispute, Gap evidence l through 4, and Eul evidence 1 through 13 (including the number), and the purport of the whole pleading

2. Determination on the legitimacy of the instant disposition

A. The plaintiffs' assertion

The instant disposition is unlawful for the following reasons.

1) Shares with an accrued point are shares owned by Plaintiff BBB, which were acquired for investment purposes after having been offered joint investments from Plaintiff AAAE during the OO acquisition process, and do not constitute title trust shares.

2) The instant shares were in front of the reduction of capital, and the transaction was suspended from July 29, 2005 to the date of reduction of capital, and the average market price should be calculated by considering the closing date of the period subject to evaluation as of July 28, 2005 (the base date of appraisal between the Plaintiff and the Defendant is no dispute between the Plaintiff and the Defendant, and the Defendant was partly accepted the Plaintiffs’ claims on the period subject to evaluation of the instant shares during the instant lawsuit, and the Defendant corrected the unit price per share to correct it, and ultimately, the issue is only the closing date of evaluation among the Plaintiff’s claims).

3) In the initial disposition, the Defendant: (a) considered the donor as OO error; (b) imposed gift tax on the Plaintiff B; and (c) on April 24, 2007, the Plaintiff BB trusted it and paid the gift tax in full. However, the Defendant revoked the previous disposition on the ground that the previous tax disposition was erroneous; and (b) there are justifiable grounds that the Plaintiff could not be any reason for neglecting the obligation to pay taxes; and (c) the penalty tax should be revoked.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether title trust of the instant shares was held

According to the overall purport of each of the statements in Eul evidence Nos. 3 through 5, and it can be recognized that this part of the plaintiffs' assertion is without merit, since this part of the plaintiffs' assertion is without merit, since this part of the plaintiffs' assertion is justified.

2) The appraisal period of the instant shares

In order to reduce the capital of this case, the transaction of stocks has been suspended from July 29, 2005 until August 3, 2005, which was the date of reduction of capital, as seen above. ① The evaluation of the shares under Article 63(1)1(a) of the Inheritance Tax and Gift Tax Act shall be based on the average amount of the market price publicly announced for 2 months before and after the date of evaluation as to the appraisal of shares, and the market price at this time shall be written just as to the existence of the transaction performance, and ② the period of evaluation is set as the period of evaluation by the day immediately before the date of the occurrence of the relevant cause where the increase of shares, etc. occurs after the assessment base date under Article 52-2(3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which means that the portion affected the market price of the shares is to be excluded from the assessment period, and theO is not subject to the assessment from 2005 to 2005.

3) Additional tax

When the final return tax amount is not paid within the payment deadline or is paid short of the payable tax amount, for the period from the day following the payment deadline to the date of voluntary payment or notice, as prescribed by the Presidential Decree.

In other words, in order to facilitate the exercise of taxation rights and the realization of tax claims, the amount of tax imposed by applying the interest rate is subject to imposition. In other words, in cases where a taxpayer violates various obligations, such as filing a return, and paying taxes, as prescribed by individual tax-related Acts without justifiable grounds, it is unreasonable for the taxpayer to be unaware of such obligations, and there is a circumstance that it is unreasonable for the taxpayer to be able to present it, or that it is unreasonable for the taxpayer to expect the fulfillment of such obligations to do so, or there is any other justifiable reason that it is unreasonable for the taxpayer to do so (see, e.g., Supreme Court Decision 2003Du4089, Apr. 15, 2005).

3. Conclusion

Then, the plaintiff's claim is reasonable within the above scope of recognition, and the remaining claims are dismissed. It is so decided as per Disposition.