Supreme Court Decision 2013Du6206 (No. 10, 2015)

The instant disposition is based on illegal duplicate investigations.

The taxation disposition based on the illegal tax investigation conducted in duplicate is illegal, and the disposition of this case is based on the illegal duplicate investigation, so the plaintiff's remaining arguments are not necessary to be examined.

Article 81-4 (Prohibition of Abuse of Right of Tax Investigation)

2015Nu165 Revocation of Disposition of Corporate Tax Imposition

AAAAA Corporation

○○ Head of tax office

Ulsan District Court Decision 2009Guhap1932 Decided January 5, 2011

December 8, 2015

January 15, 2016

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the order to revoke additional cancellation is revoked.

The part that was revoked before the remand was already finalized in the final appeal, except for this, the part that the Defendant imposed on the Plaintiff on March 27, 2006, which exceeded the ○○○○○○○○○○○○○○○○ on the disposition of corporate tax belonging to the year 2000, shall be revoked.

2. All costs of the lawsuit shall be borne by the defendant.

Effect, Purpose of appeal

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of corporate tax of 000 ○○○○○○○○○○○, which belongs to the plaintiff on March 27, 2006, shall be revoked.

1. Scope of adjudication of this court;

On March 27, 2006, the Plaintiff initially sought revocation of the disposition of imposition of corporate tax of 000 ○○○○○○○○○○, which was rendered by the Defendant to the Plaintiff on March 27, 2006, and the first instance court dismissed the Plaintiff’s claim. The Plaintiff filed an appeal, which was partially accepted the Plaintiff’s appeal, and the court prior to the refund, dismissed the part exceeding 00 ○○○○○○○○○, among the disposition of imposition of corporate tax of ○○○○○○○○○, and dismissed the Plaintiff’s claim for money. The Plaintiff and the Defendant appealed all of these appeals. The Supreme Court reversed the part against the Plaintiff’s judgment prior to the remand, and remanded this part to the court, and the Defendant’s appeal was dismissed. Accordingly, the scope to be

2. Details of the disposition;

A. On August 12, 199, the Plaintiff acquired new shares of 23,514,000 won (one acquisition price per share: 5,000 won per face value) to 117,570,000 won (this case’s primary acquisition price; 5,000 won per share; 8,505,5777 shares issued by the same company on April 25, 200; hereinafter referred to as “BB”) to 30,00 won (this case’s new shares; 5,000 won per share; 5,000 won per share; 60,000 won and 60,000 won and 60,000 won and 50,000 won and 50,000 won and 50,000 won and 60,000 won and 60,000 won and 500,000 won and 608,000 won and 67,00.

C. The plaintiff included 160,065,865,423 won in deductible expenses as the above investment securities disposal loss amount to the deductible expenses.

3. 31. The Defendant reported the tax base and amount of corporate tax for the year 2000 to the Defendant.

D. On March 27, 2006, the Defendant, while each of the instant new shares was to provide the Plaintiff with a gratuitous subsidy equivalent to the price of each of the above new shares acquired in the form of capital increase with the Plaintiff lent to BBB, and accordingly, deemed that the Plaintiff’s acquisition of each of the above new shares was subject to the avoidance of wrongful calculation under Article 152(1) of the former Corporate Tax Act, and imposed an increase in the corporate tax ○○○○○○○○○○○ (including additional tax) (including additional tax) for corporate tax for the year 200 after calculating the amount of the interest paid and the loss incurred in the

E. On June 16, 2006, the Plaintiff filed an appeal with the Tax Tribunal on the above disposition. On March 24, 2009, the Tax Tribunal decided to the effect that each of the instant new shares acquisition act is not a grant of funds under Article 88(1)6 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19328, Feb. 9, 2006; hereinafter referred to as the "former Enforcement Decree"), but a high-priced purchase of assets under Article 88(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19328, Feb. 9, 2006; hereinafter referred to as "former Enforcement Decree").

"The defendant, on April 3, 2009, purchased new stocks which cause zero won at the market price, and upon the above decision, corrected that each of the new stocks in this case constitutes the high-priced purchase of assets under Article 88 (1) 1 of the former Enforcement Decree, while excluded the above recognized interest from the calculation of earnings and the above paid interest from the calculation of losses (hereinafter "the disposition in this case") to reduce the corporate tax ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on March 27, 2006)."

3. Summary of the Plaintiff’s assertion disputing the illegality of the instant disposition

A. Each of the instant new shares was not subject to a wrongful calculation.

(1) Whether Article 88(1)1 of the former Enforcement Decree does not apply to capital transactions, such as each of the instant new shares acquisitions, to the extent that such transaction does not apply.

Although the Defendant asserts that each of the instant new shares acquisition acts constitutes Article 88(1)1 of the former Enforcement Decree, the issuance of new shares by BBB is not only the capital transaction stipulated in the Corporate Tax Act, but also the Plaintiff’s acquisition of new shares by BBB, but also does not affect BBB’s income. Therefore, each of the instant new shares acquisition acts cannot be deemed to have been made by profit-sharing to BBB, and thus, it does not constitute the subject of avoidance of wrongful calculation as stipulated in Article 88(1)1 of the former Enforcement Decree.

(2) Article 88 Subparag. 9 of the former Enforcement Decree cannot be applied to each of the instant new shares acquisition activities.

In addition, the defendant asserts that each of the new shares in this case does not constitute high-priced purchase of assets as stipulated in Article 88 (1) 1 of the former Enforcement Decree, so long as the CCC's guaranteed obligation in the position of a related party is terminated due to each of the new shares in this case, it constitutes a type of unfair calculation of the unfair act as stipulated in Article 88 (1) 9 of the former Enforcement Decree.

However, the settlement of the CCC’s guaranteed liability is irrelevant to the acquisition of each new shares of this case, and even if the acquisition price was used for the settlement of the guaranteed liability, it cannot be deemed that there was profit sharing merely because of the mere factual or anti-private interest.

Therefore, each of the instant new shares is not subject to the avoidance of wrongful calculation under Article 88(1)9 of the former Enforcement Decree.

(3) Each of the instant new shares acquisition does not constitute an abnormal transaction that disregards economic rationality.

Each of the instant new shares acquisition acts do not constitute an abnormal transaction that disregards economic rationality, for the purpose of evading the Plaintiff’s duty as a shareholder in the process of restructuring the aviation industry of the government-led Do to cope with the IMO crisis, and avoiding the burden of interest costs due to financial sanctions (designation of red trading place and credit rating decline) due to the default of BBBB.

B. The instant disposition is unlawful as it is based on a duplicate tax investigation.

The defendant conducted a tax investigation against the plaintiff, ① from February 20, 2001 to June 29, 2001, ② from December 13, 2001 to July 22, 2002, and ③ from February 21, 2005 to June 6, 2005, and confirmed all the circumstances of selling the shares acquired after the plaintiff conducted a tax investigation against the plaintiff, ③ from February 21, 2005 to January 5, 2006, the disposition of this case was made based on the duplicate tax investigation, and thus was unlawful.

C. Of the instant dispositions, the part concerning the primary acquisition of new stocks of this case related to the initial acquisition of new stocks is unlawful since the exclusion period has lapsed.

(1) The Defendant, and the substance of each of the instant new shares, asserted that BBB had CCC jointly and severally liable for debt payment with the funds raised by BBB through new shares acquisition, thereby getting out of the joint and several debt burden and settled BBB. If the Defendant alleged as above, even if the acquisition of each of the instant new shares is subject to the avoidance of wrongful calculation, it shall be deemed that the substance constitutes the gratuitous provision of assets under Article 88(1)1 of the former Enforcement Decree, not the high-priced purchase of assets under Article 88(1)6 of the former Enforcement Decree.

In addition, if the act of acquiring new shares of this case provides assets free of charge, the payment amount for the first new shares of this case shall be imposed as corporate tax for the year 199. The exclusion period of the disposition of imposition of corporate tax for the year 1999 shall be from March 31, 2000 to March 31, 2005, which was from March 31, 2000 when the taxable period ends. Thus, the part on the first new shares of this case concerning the first new shares of this case is illegal since the exclusion period is imposed.

(2) Even if the act of acquiring new shares of this case constitutes a high-priced purchase of assets under Article 88(1)1 of the former Enforcement Decree, in the case of a high-priced purchase of assets, tax adjustment or income disposition should be made as of the time of the purchase of the assets, and the right to tax adjustment or income disposition should be deemed as included in the scope of the right to impose tax, and it shall be applied 5 years to the exclusion period. Thus, the part concerning the first new shares of this case among the dispositions of this case is illegal as it was based on the tax adjustment and income disposition conducted after the lapse of 5 years

D. Illegal in calculating the market price of each of the new shares of this case

(1) The market price of each of the new shares in this case should be assessed as the price of the shares immediately after the payment of the capital increase. In this case, unless there is no actual transaction price, the market price should be calculated by the appraisal price or the supplementary assessment method stipulated in the Inheritance Tax and Gift Taxj, but the defendant did not calculate the market price by such method, and the market price of each of the new shares in this case was merely zero won. However, the market price of each of the new shares in this case should be 3,421 won per share or 4,105 won per share (the case where the increase rate is applied) in the case of the primary subscription of new shares. In the case of the secondary subscription of new shares, the second subscription of new shares should be assessed as 1,015 won per share or 1,218 won per share (the case where the increase rate is applied). Thus, the disposition in this case is unlawful under the premise that the market price of each of the new shares in this case is 0 won.

(2) The value of old stocks previously held by the Plaintiff due to the payment of new stocks has increased, and these increases in value should be excluded in calculating profits.

E. Illegal imposition of penalty tax

(1) The existence of justifiable grounds

In light of the fact that the interpretation of the taxation method on the share of profits through the acquisition of new shares under the Corporate Tax Act cannot be deemed as one-way, and that the defendant did not have conviction in the application of the provision on the share of profits through wrongful calculation, and that the exclusion period of the taxation disposition for the business year of 2000 is imminent, and that the disposition in this case was imposed on March 27, 2006, and thus, there is a justifiable reason for the plaintiff to neglect to report and pay the corporate tax on each of the above new shares acquisition.

(2) Illegality in applying the additional tax rate

As the Enforcement Decree of the Corporate Tax Act was amended by Presidential Decree No. 17826 on December 30, 202, the rate of additional tax under Article 119(1) of the Enforcement Decree of the same Act was lowered to 3/10,000 a day, and considering the legal nature of the additional tax, the principle of equality under the Constitution, the interpretation of the Corporate Tax Act, etc., the additional tax rate of 3/10,000 a day after the amendment of the Enforcement Decree of the Corporate Tax Act should be applied.

F. Violation of the form of duty payment notice

The instant disposition includes under-reported penalty taxes, under-paid penalty taxes, under-paid penalty taxes, and under-paid penalty taxes, and the tax payment notice that the Defendant sent to the Plaintiff by the Defendant does not include the above-mentioned penalty taxes. Therefore, the Defendant’s tax payment notice erred by failing to state the type of

4. Preferential review as to whether a double tax investigation is conducted.

(a) the need for a preferential review;

If a disposition based on an illegal tax investigation conducted in duplicate is unlawful (see, e.g., Supreme Court Decision 2004Du12070, Jun. 2, 2006); and if a disposition based on an illegal duplicate investigation is based on a disposition based on an illegal duplicate investigation, the disposition in this case shall not be exempted from its revocation as it is unlawful without examining the remaining claims of the Plaintiff. Accordingly, it should be first examined as to whether the disposition in this case was based on an illegal duplicate tax investigation.

(b) Fact of recognition;

(a) the first tax investigation;

"(A) The ○○ regional tax office has conducted a regular tax investigation with respect to the Plaintiff from February 2001, 200 to June 29, 2001, "196 to 1998", and the taxable period from 1996 to 2000 "from 1996 to 2000", and "from 1996 to 2000". (B) The Plaintiff submitted to the investigating public official the account books and related data for each of the 1999 and 200 business years, which reflect the instant disposition disposition.

(C) Based on the above tax investigation, the Defendant notified the Plaintiff of the results of the investigation for the five business years from 1996 to 2000 with the taxable period. In the case of the 2000 business year, the Defendant notified the Plaintiff that ① the sales of subordinated bonds issued by affiliates, ② the delayed collection of sales claims, ③ the excessive payment of affiliate affiliates, ④ the denial of expenses not related to the business, ⑤ the omission of payment of rents, and ⑤ the omission of revenue of foreign subsidiaries. Meanwhile, among the above items recovered by the Defendant, the Defendant was related only to the business year of 200, and the items related only to the business year of 199 and 200.

(2) the second tax investigation;

From December 13, 2001 to July 22, 2002, 00, ○○ Regional Tax Office issued to the Plaintiff a notice of the result of tax investigation stating the following purport: (a) ○○ Regional Tax Office conducted a tax investigation with respect to the Plaintiff for the business year 1999; (b) the tax items to be investigated; (c) all the tax items related to the investigation; and (d) the grounds for the investigation; and (c) ○ General Finance (State) over five times in 2002, 7, 22; and (d) the Plaintiff for the ○ General Finance (State) 96-98.

From February 21, 2005 to June 1, 2005, “○○ regional tax office issued a notice of the result of the tax investigation stating that “AAAAA(State) does not have any tax amount to be corrected and notified of the result of stock change investigation” after conducting a tax investigation for the Plaintiff’s taxable period of gift tax from January 21, 200 to December 2000, and then sending a notice of the result of the tax investigation in this case(4).

(A) around January 202, ○○○○○○○ 2, 202, conducted a tax investigation of BB 1 to BB 2, including the 20 BB ; EB 1 to BB 5, based on the 200 BB ; (b) the public official of the Ministry of Strategy and Finance, based on 200, conducted a tax investigation of 3B ; (c) on the 20th day of the 20th day of the 20th day of the 3rd day of the 20th day of the 20th day of the 3rd day of the 20th day of the 20th day of the 3rd day of the 20th day of the 20th day of the 2nd day of the 2nd day of the 20th day of the 2nd day of the 3rd day of the 2nd day of the 2nd day of the 2nd day of the 3rd day of the 3rd day of the 2nd day of the 3rd day of the 2nd day of the 3B. day of the 3. day. day. day. day.

C. Judgment on the Plaintiff’s assertion

(1) Article 81-3(2) of the former Framework Act on National Taxes (amended by Act No. 8139, Dec. 30, 2006; hereinafter the same) provides that "Where there are evident evidence to prove a suspicion of tax evasion, where investigation into the opposite contractual party is necessary, and where there are errors related to the opposite contractual party for two or more business years, or in other similar cases as prescribed by the Presidential Decree, a re-investigation shall not be conducted for the same item and the same taxable period."

In cases where a tax official conducts a tax investigation over a certain taxable period of a certain item, as well as where a tax official conducts a tax investigation for only a specific item of the taxable period, it constitutes a reinvestigation prohibited under Article 81-3(2) of the former Framework Act on National Taxes, and it does not change because a tax official conducted a tax investigation again only for other items except the specific items originally conducted, and the content of the tax investigation does not overlap. Provided, That it is unreasonable to conduct a tax investigation over all other items except for those items initially conducted a tax investigation under special circumstances, such as where it is unreasonable to conduct a tax investigation over all items at the time of the initial tax investigation, as the scope of tax investigation is extended, if the initial tax investigation is deemed to have the same error or suspicion of tax evasion in other items or in other taxable periods (see, e.g., Supreme Court Decision 2012Du16264, Feb. 26, 2015).

(2) Examining the case in light of the above legal principles, and the tax investigation of this case constitutes a reinvestigation prohibited under Article 81-3(2) of the former Framework Act on National Taxes, except in extenuating circumstances, which has been conducted again on the same tax item and taxable period as the corporate tax of 200 business year when compared with the first tax investigation.

D. Judgment on the defendant's assertion

(1) First of all, the Defendant asserts that the duplicate tax investigation should be exceptionally permitted on the ground that the Plaintiff took advantage of CCC’s profits through the acquisition of each new shares of this case through the process of acquiring the new shares of this case, based on the fact that CCC, which ordered BBBB, etc. to acquire each new shares of this case, was found guilty. As such, the instant tax investigation should be viewed as “where there is clear evidence to acknowledge the suspicion of tax evasion” after the first tax investigation.

Article 81-3 (1) and (2) of the former Framework Act on National Taxes, and Article 81-3 (2) of the former Framework Act on National Taxes, "where there is clear data to acknowledge the suspicion of tax evasion" shall be limited to cases where the possibility of tax evasion is acknowledged to a considerable extent through objective and reasonable data, and such data are not included in the previous tax investigation (see Supreme Court Decision 2010Du6083, Oct. 27, 201; Supreme Court Decision 2010Du6083, Jun. 27, 201). Accordingly, it is reasonable to interpret that the result of the tax investigation on BB, etc. is clear to acknowledge the suspicion of tax evasion, and the following circumstances, i.e.,: (a) the specifications of the shares of this case submitted by BB to the Plaintiff is merely the entry of the shareholders of BB, and the details of the new shares of the Plaintiff’s purchase and sale through the Plaintiff’s 1B, which appears to be the content of the new shares acquired by B.

In addition, when examining the overall purport of the arguments on the statements in the evidence Nos. 43 and 43 evidence Nos. 6-1 and 6-2, the investigation of the crime of breach of trust against CCC was initiated on or around May 2006, and the decision of the court of first instance which recognized the crime of breach of trust was found to have been sentenced on February 5, 2007, and the judgment of the court of first instance which found the crime of breach of trust against CCC is obvious after the tax investigation was conducted, and it cannot be deemed to fall under the objective and rationality data exceptionally allowed, and there is no evidence to deem that the defendant conducted the tax investigation of this case on the basis of objective and rationality of the possibility of the omission of tax.

Therefore, the defendant's above assertion cannot be accepted.

(2) In addition, the Defendant, even if the Plaintiff acquired new shares by participating in BBBB’s capital increase at the time of the first tax investigation, and submitted the sales data, such materials alone do not indicate that the Plaintiff’s participation in capital increase with benefit to CCC under tax law is subject to the avoidance of wrongful calculation. Such tax law meaning is revealed only through the investigation of changes in stocks and the investigation of breach of trust against CCC conducted after 2005, and it is unreasonable for the Plaintiff to conduct tax investigation over all items at the time of the first tax investigation.

"However, in light of the above facts, the defendant was found to have purchased new stocks, which are assets of BBB, at a high price, and the following circumstances, i.e., the defendant conducted a tax investigation on the overall corporate tax at the time of the first tax investigation, and found only for 2000 business years. ② The corporate tax for the 2000 business year, based on the first tax investigation, exceeds 12.2 billion won; ③ the defendant first taxation ground for the 2000 business year exceeds the corporate tax for the 200 billion won; ③ the plaintiff purchased new stocks, which are assets of BBB, at a higher price; and the changed reasons after the decision of the Tax Tribunal, also purchased new stocks, which are assets of BBB, at the time of the 1BB tax investigation, on the premise that the other party to the 2BBBB, was not related to the 19th tax investigation, and the data confirmed by the 1st tax investigation were not relevant to the 29th tax investigation, but to the 9th tax investigation.

(3) In addition, the defendant argues that the corporate tax investigation based on a stock change investigation is to verify the effects of unfair capital transactions conducted in the position of a corporate shareholder on the corporate income, and that there are different purposes, methods, and developments, and even after the regular corporate tax investigation has been already conducted, the corporate tax investigation limited to a stock change investigation should be allowed.

However, it seems that there is no theoretical and practical basis to conduct a tax investigation again for the same tax item and the same taxable period after conducting a tax investigation which omits a specific item, as seen earlier, and it seems that there is no theoretical and practical basis to regard only the stock change investigation differently.

Therefore, it is difficult to accept the above argument of the defendant.

F. Sub-committee

The instant disposition is issued on the basis of an illegal duplicate tax investigation and is unlawful without examining the remainder of the Plaintiff’s assertion as to whether the substantial content of the disposition is unlawful.

5. Conclusion

Then, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair, and it is so decided as per Disposition by the court of first instance on the grounds that the part against the plaintiff is revoked, except the part that was revoked before the remand in the judgment of the court of first instance which became final and conclusive before the remand, and that the disposition is revoked in whole;