(영문) 울산지방법원 2019.2.14.선고 2018구합5868 판결

The Defendant’s disposition of imposition of KRW 27, 305, 778, and 200, which was imposed on the Plaintiff on February 5, 2018, shall be revoked in entirety.

Reasons

1. Basic facts

A. On December 22, 1983, the Plaintiff (hereinafter referred to as the “Plaintiff Foundation”) was a public-service corporation under the Act on the Establishment and Operation of Public-Service Corporations, which was established by contributing the main consciousness equivalent to KRW 500 million by A on December 22, 1983, and operated projects, such as scholarship payment projects after its establishment, academic research activity support projects.

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

C. If the former Inheritance Tax Act was partially amended by Act No. 4662 on December 31, 1993 (amended by Act No. 4662 on January 1, 1994), and the value of property contributed by a public interest corporation is not included in the taxable value of donated property, but the sum of the shares contributed by the public interest corporation and the principal consciousness of the same domestic corporation held by the public interest corporation at the time of contribution exceeds 5/100 (20/100 before the amendment) of the total number of outstanding voting stocks issued by the relevant domestic corporation, the excess portion is included in the taxable value of donated property. The former Tax and Gift Tax Act partially amended by Act No. 8828 on December 31, 2007 (amended by Act No. 8828, Jan. 1, 2008). In cases of a public interest corporation, the aggregate of the total number of outstanding stocks issued by the public interest corporation exceeds 10/100 of the taxable value of donated property.

D. On December 29, 2009, the Plaintiff Foundation received an additional contribution from A on December 26, 2009, 26,800 shares of ○○ System (1.88%) with 96,776 shares of ○○ System and (26,80 shares of ○○ System (1.88%) with the contribution of 96,76 shares of ○○ System and (1/5 of the current number of directors of a public-service corporation) but was (8.69% in total), and the Plaintiff Foundation constitutes a faithful public-service corporation (a contributor or his/her specially related person does not exceed 1/5 of the current number of directors of a public-service corporation) and thus, the additional contribution was not included in the taxable value.

2. Details of the disposition;

A. As of December 31, 2012, the Plaintiff Foundation held office for six (6) directors of the Plaintiff Foundation (6) (2), C, D, E, F, and G). Among them, A’s head and female B was the president of the Plaintiff Foundation on February 8, 2012, and C was the outside director of the Plaintiff Foundation, and C was the outside director of the Plaintiff Foundation on July 4, 2012, after retired from office around March 2012 and retired from office as the director of the Plaintiff Foundation on July 4, 2012, while D was working as the representative director of △△△, and D was appointed as a director of the Plaintiff Foundation on July 4, 2012, after retired from office around February 2, 2010.

B. The director of Busan Regional Tax Office conducted a gift tax investigation with respect to the Plaintiff Foundation from June 7, 2017 to July 20, 2017, and determined that the Plaintiff Foundation constitutes a company belonging to the ○○○ Group, a business group in which A exercises de facto influence over its management, and C divisionD constitutes a related party of A, since five years have not passed since it was employed as an executive in the above affiliated company and was retired from office, and thus, the Plaintiff Foundation lost its status as a faithful public-service corporation exceeding 1/5 of the current directors.

C. Accordingly, in accordance with Article 48(11)1 of the Inheritance Tax and Gift Tax Act, the Defendant assessed the value of KRW 42,716,600, and 400 (as of December 31, 2012, which is the end date of the business year in which C and D assumed office) on December 29, 2009 (as of December 31, 2012, gift tax of KRW 20,898, 300, and 200 on September 5, 2017, the Plaintiff imposed and notified the Plaintiff of the gift tax of KRW 20,898, 300, and 200 on the Plaintiff’s foundation for the year 2012.

D. On February 5, 2018, the Defendant appraised the certificate of the largest shareholder on the said additional contributions, and on February 5, 2018, the Defendant additionally imposed and notified the Plaintiff Foundation of the imposition (the foregoing imposition, notice, and notice are combined; hereinafter referred to as the “instant disposition”) by correcting the amount of KRW 6,407,478, and 00 for the gift tax attributed to year 2012.

E. On October 20, 2017, the Plaintiff filed a request with the Tax Tribunal for revocation of the first imposition and notification. 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 issued the said request on June 22, 2018.

【Uncontentious facts, Gap’s evidence 1 through 4, and Eul’s evidence 1 through 31 (which have a number)

the purpose of each entry, as a whole, of the entire pleadings;

3. The plaintiff's assertion

For the following reasons, C.D. is not a specially related person of A, a contributor, and thus, the instant disposition taken on a different premise is unlawful.

7. C

As Article 12-2(1)3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act was amended by Act No. 25195 on February 21, 2014, a person retired from office as an outside director from an enterprise group was excluded from a specially related person. Article 3 of the Addenda of the Enforcement Decree of the amended Act provides that the amended provision shall apply from the first determination of gift tax after the enforcement ( February 21, 2014). Thus, in this case where the gift tax was determined after February 21, 2014, C, who was discharged from office as outside director from ○○ C, a company belonging to the ○○ Group, as an enterprise belonging to the ○○ Group, as an outside director, cannot be deemed as a specially related person A.

(b) D.

1) Standard for Inheritance Tax and Gift Tax Act

Before the Enforcement Decree of the Inheritance Tax and Gift Tax Act was amended by Presidential Decree No. 23591 on February 2, 2012 (hereinafter referred to as "Enforcement Decree of the Inheritance Tax and Gift Tax Act prior to the amendment"), if the contributor is an individual who is not a juristic person, he/she does not correspond to the contributor's specially related person even if the contributor was in office and was retired, but only when the Enforcement Decree of the Inheritance Tax and Gift Tax Act was partially amended by Presidential Decree No. 23591 on February 2, 2012 (hereinafter referred to as "Enforcement Decree of the Inheritance Tax and Gift Tax Act"). Article 2 of the Addenda of the amended Enforcement Decree of the Inheritance Tax and Gift Tax Act was enforced to ensure that the amended provisions were first commenced or donated ( February 2, 2012).

Thus, even if D was retired from office as the representative director of △○ Group, a company affiliated with ○○ Group, and was retired from office, it cannot be applied to this case where the Plaintiff Foundation already received a donation from A before the amended provision enters into force, and therefore D is not subject to the application of the amended Enforcement Decree of the Inheritance and Gift Tax Act.

2) Preferential application of the Framework Act on National Taxes

When the Framework Act on National Taxes was amended by Act No. 11124 on December 31, 201 (Enforcement January 1, 2012), Article 2 (Definition Provisions) Subparag. 20 of the Framework Act on National Taxes (specific scope is set forth in Article 1-2 of the Enforcement Decree of the same Act), there is no provision that the retired officer is a specially related person.

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 exceptions to this provision are allowed only to the matters listed in each subparagraph of the same paragraph under the proviso of the same Article, and each subparagraph of Article 3(1) of the Framework Act on National Taxes does not stipulate "Article 2(1) of the Framework Act on National Taxes, which provides for the scope of related persons, in exceptional cases where special provisions can be provided by individual tax laws, and in the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the provisions of the special relationship under the Enforcement Decree of the Inheritance Tax and Gift Tax Act cannot be deemed as an exception to the principle of preferential application of national tax law.

Therefore, whether D is a specially related person should be determined on the basis of the Framework Act on National Taxes, and as seen earlier, D does not constitute a specially related person of A, since retired executives are not included in the specially related person.

4. Relevant statutes;

As shown in the attached Form.

5. Determination

A. Whether C is a specially related person

1) The Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 25195, Feb. 21, 2014; Presidential Decree No. 25195, where the contributor exercises de facto influence over his/her management, the contributor was excluded from the employee’s specially related person, and the person retired from office as outside director was excluded from the contributor’s specially related person; and Article 3(1) of the Addenda of the Enforcement Decree of the amended Act (amended by Presidential Decree No. 25148, Feb. 21, 2014) applied the amended provision to determine gift tax after the starting of this Decree.

2) In this case, the health team, C, the contributor A, who is an outside director of the enterprise group (○○○ Group), is exercising de facto influence over its management, and C, was appointed as a director of the Plaintiff Foundation on July 4, 2012 before the above revised provision was enforced, but the Defendant did not determine gift tax on the Plaintiff Foundation that lost the status of a public-service corporation, and determined whether the gift tax was a specially related party pursuant to the amended provision, so C should not be deemed as constituting a specially related party A, since it should not be deemed as falling under a specially related party A.

3) For this, the Defendant: C is an outside director of the ○○ KFC and an outside director of the audit committee.

Since he/she was retired after being employed, he/she was employed as an "executive" in ○○○ C&C Co., Ltd. regardless of the amended provisions, and asserts that he/she is a related person A.

However, Article 20 (1) 4 of the Enforcement Decree of the Corporate Tax Act provides that "the scope of executive officers falling under a specially related person shall be governed by the Enforcement Decree of the Corporate Tax Act." 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," "members of the partnership company, limited partnership company and limited liability company," "auditor (c)" and other persons (d. d. d. ) who are engaged in duties corresponding to the provisions of items (a) through (c) shall be deemed as executive officers, but it shall not be deemed that "members of the audit committee, who are merely those of the audit committee established in lieu of the auditor," or "persons engaged in the duties of the audit committee", and it shall not be deemed that there are 20 grounds for interpretation or interpretation of the Act without reasonable grounds.

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

(b) Whether D is a specially related person

1) Organization of issues

A) First of all, there is no dispute between the parties that D is a specially related person of A in accordance with the Enforcement Decree of the amended Inheritance and Gift Tax Act [i.e., D is a specially related person of A, if five years have passed since it retired from an enterprise group as determined by Ordinance of the Ministry of Strategy and Finance, which exercises de facto influence on management through exercising the right to appoint and dismiss executives of A, and determining business policies, etc., of the company belonging to the enterprise group as determined by Ordinance of the Ministry of Strategy and Finance] However, as to the interpretation of the Addenda to the Enforcement Decree of the amended Inheritance and Gift Tax Act, it is argued that D does not constitute a specially related person of A before the amendment. In addition, in accordance with the Enforcement Decree of the amended Inheritance and Gift Tax Act, even if it is determined based on the principle of application of the Framework Act on National Taxes, D does not constitute a specially related person of A, not a specially related person of A, under the Enforcement Decree of the amended Inheritance Tax Act, even if it is determined based on the amendment of the Act.

B) Meanwhile, the Plaintiff and the Defendant are dissatisfied with the interpretation of the Addenda of the Enforcement Decree of the Inheritance and Gift Tax Act (amended Enforcement Decree of the Inheritance and Gift Tax Act) concerning which one of the "Enforcement Decree of the Inheritance and Gift Tax Act prior to the amendment" is applicable. However, even if the Enforcement Decree of the Inheritance and Gift Tax Act prior to the amendment is applied by the Defendant, D is argued to be the unique relation of A, and it is meaningful for the interpretation of the Addenda of the Enforcement Decree of the amended Inheritance and Gift Tax Act (amended Enforcement Decree of the Inheritance and Gift Tax Act) to which the contents should vary before and after the amendment. As such, under the following, whether D is a specially related party of A or not, and whether the Enforcement Decree of the former Inheritance and Gift Tax Act prior to the amendment is applied first of all.

2) Where the Enforcement Decree of the Inheritance and Gift Tax Act prior to the amendment applies.

A) Details of the Enforcement Decree of the Inheritance and Gift Tax Act before the amendment

B) Determination

According to Article 13 (3) 2 of the Enforcement Decree of the Inheritance and Gift Tax Act before the amendment, a special relationship with the contributor.

The term "person who has a relationship with the contributor in any of the subparagraphs of Article 19 (2)" and Article 13 (7) 2 of the Enforcement Decree of the same Act provides that "any of the executives (referring to any officer under Article 20 (1) 4 of the Enforcement Decree of the Corporate Tax Act and any person who was an executive officer thereof in whose case five years have not passed since his/her retirement; hereinafter the same shall apply)" is "an enterprise belonging to the enterprise group determined by the Ordinance of the Ministry of Strategy and Finance" under Article 19 (2) 3 of the Enforcement Decree of the same Act (including any executive officer of the relevant enterprise)", it is clear that "an executive officer of the enterprise group determined by the Ordinance of the Ministry of Planning and Finance is included

Based on this, in light of the following circumstances, it is reasonable to view that D constitutes a specially related person A (Article 19(2)3) even under the Enforcement Decree of the Inheritance Tax and Gift Tax Act prior to the amendment. Therefore, D is 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 amended Inheritance Tax and Gift Tax Act.

① According to Article 13(3)2 and Article 19(2)3 of the Enforcement Decree of the Inheritance and Gift Tax Act before the amendment, a company (including its executives) affiliated with an enterprise group as determined by Ordinance of the Ministry of Strategy and Finance is a special relationship. Here, whether the relationship between the contributor and the (which is determined by Ordinance of the Ministry of Strategy and Finance) is difficult to understand, by itself, the term "enterprise group as determined by Ordinance of the Ministry of Strategy and Finance" means "enterprise group as defined by the Monopoly Regulation and Fair Trade Act" [referring to Article 9 of the former Enforcement Rule of the Inheritance and Gift Tax Act (wholly amended by Ordinance No. 223 of the Ministry of Strategy and Finance as of July 26, 201) and "a company under the control of the same person" is defined as "a company under the control of the same person" and "a company under the control of the same person as of December 19, 201."

Therefore, the term "the relationship between the contributor and the enterprise group as prescribed by Ordinance of the Ministry of Strategy and Finance can be interpreted as "the meaning", and "D, an officer of the enterprise group under the control of the contributor and the contributor," as an officer of the enterprise group under the control of the contributor and the contributor, constitutes a special relationship. Thus, even in this case, D, an officer of the enterprise group under the control of the contributor and the contributor, as an officer of the enterprise group (OO group) assigned by A and A, constitutes a special relationship.

② In Article 19(2)3 of the Enforcement Decree of the Inheritance and Gift Tax Act prior to the amendment, the Plaintiff asserts that, “a person who is in a special relationship with an enterprise group as determined by the Ordinance of the Ministry of Strategy and Finance (including its executive officers) as stipulated under the Ordinance of the Ministry of Strategy and Finance,” the Plaintiff is a company belonging to the enterprise group as determined by the Ordinance of the Ministry of Strategy and Finance (including its executive officers) and a person who is in a relationship falling under any of the following items with an enterprise group as determined by the Ordinance of the Ministry of Strategy and Finance:

However, in interpreting the language and text of Article 13(3)2 and Article 19(2)3 of the Enforcement Decree of the Inheritance and Gift Tax Act prior to the amendment, the relationship between the contributor and the enterprise group (including the executive officers of the enterprise in question) constitutes a special relationship, and it is reasonable to view that the relationship between the contributor and the enterprise group (including the executive officers of the enterprise in question) and the person in the relationship falling under any of the following items constitutes a special relationship. It is also reasonable to view that Article 19(2)1 provides that "the lineal blood relationship within the second degree of the spouse of his/her lineal descendant and the spouse of his/her lineal descendant and his/her spouse as a person in a special relationship with the contributor." This also contradicts the purport of Article 19(2)1 that "the spouse of his/her lineal descendant and his/her spouse's lineal descendant within the second degree of "the spouse's lineal descendant within the second degree of relationship with the enterprise group is also a specially related person of the enterprise in question, and thus, it is likely that the Plaintiff's lineally controlled or other person with the enterprise group.

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

Based on the above interpretation, specially related persons of contributors pursuant to Article 19(2)3 of the Enforcement Decree of the Inheritance and Gift Tax Act prior to the amendment are as follows: <2> The companies belonging to an enterprise group (including the members of the company in question), 6. Persons belonging to an enterprise group (including the executives of the company in question) and persons who are in the control of each of the following items (three types), and persons who are deemed to exercise de facto influence on the management through exercising the right to appoint and dismiss officers of the company in question, and determination of business policies, etc. among them: 6. In the case of specially related persons falling under item (c), if the contributor is a corporation, it is naturally visible.

(2) However, in the case of a related party falling under the above, it is difficult to find the grounds for excluding the case where the contributor is an individual, and rather, it is in line with the purport of the above provision. In light of the above, it is difficult to accept this part of the Plaintiff’s assertion in light of the following facts: (a) the Act under the Monopoly Regulation and Fair Trade Act provides that a person who controls an enterprise group as well as a juristic person was presented not only to a juristic person but also to an individual (in the case of an individual, two or more companies controlled by the relevant juristic person, and only one or more companies controlled by the relevant juristic person, and in the case of a juristic person, one or more companies controlled by the relevant juristic person, and in the case of a related party falling under the item (a).

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 on December 31, 201 (amended by Act No. 11124, Jan. 1, 2012; hereinafter "the amended Framework Act on National Taxes"), Article 2, which is a definition provision, was newly established. In light of the content, "specially related person" in Article 20 refers to a person who has any of the following relationships with the person himself/herself. In such cases, when this Act and other tax-related Acts (referring to the Act on the Items and Rates of National Taxes; hereinafter referred to as "individual tax-related Acts" in Part 2), Article 2 of the former Framework Act on National Taxes, such as "the specially related person shall also be deemed the specially related person of the person in question," and Article 2 (a) of the former Act, such as "the person in special relationship with the person in question", was partially delegated to the person in special relationship with the person in question, as prescribed by Presidential Decree No. 2 (b) of the same Act. 2). 3).

On the other hand, the main sentence of Article 3(1) of the revised Framework Act on National Taxes provides that if the Act provides special provisions on the matters listed in the proviso, it shall be governed by the individual tax law, but it shall be governed by the provisions of the relevant individual tax law.

Article 2 was not included in the matters listed in the proviso above.

B) However, in light of the following circumstances, it is justifiable to deem D as a specially related person A under the Inheritance Tax and Gift Tax Act, not 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 original amendments, which was proposed by the Government, were prepared after the amendment bill of the Framework Act on National Taxes and the amendment bill of the amendment bill of the Act on National Taxes, and was included in the amendment bill of the Framework Act on National Taxes proposed by the Government. However, the Ministry of Strategy and Finance, which is the competent authority and the competent authority of the Framework Act on National Taxes, refers to the relevant authority under the Framework Act on National Taxes and the Ministry of Strategy and Finance, in relation to the provisions on the special relationship under the amended Framework Act on National Taxes, stating that “in individual tax law, it refers to the relevant authority under the Framework Act on National Taxes, but does not prohibit the legislative intent of the amended Framework Act on National Taxes

② If the provision on a specially related person under the revised Framework Act on National Taxes is interpreted as alleged by the Plaintiff on the ground that the provision on a specially related person under the Framework Act on National Taxes has not been specified in the proviso to Article 3 of the same Act, the provision on a specially related person under other tax-related Acts, which differs from the scope of the specially related person under the Framework Act on National Taxes, becomes null and void. If the amendment of the Framework Act on National Taxes, which has such intent, was made together with the amendment of the tax-related Acts, or at least subsequent amendment of the corresponding tax-related Acts, is followed. In addition, the amendment of the Framework Act on National Taxes and its Enforcement Decree also have time to meet the scope of the specially related person under the Framework Act on National Taxes or vary in the scope of the immediately related person under the individual tax-related Acts (in particular, the scope of the specially related person under the Framework Act on National Taxes is wider than the scope of the specially related person under the individual tax-related person).

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, and did not take any transitional measures related to the specially related persons other than the enforcement date, while immediately implementing the amended Framework Act on National Taxes and the Enforcement Decree thereof without any separate grace period. 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 under the Enforcement Decree of the Framework Act on National Taxes, the Enforcement Decree of the Inheritance Tax Act, which prescribes different scope, was amended and implemented (referring to the Enforcement Decree of the amended Inheritance Tax Act).

In addition, even until now, the scope of specially related persons under individual tax law, such as the Framework Act on National Taxes, the Corporate Tax Act, and the Inheritance and Gift Tax Act, is still showing a considerable difference, and there is no need to separately determine the scope of specially related persons in light of the purpose and characteristics of individual tax law.

In light of the above circumstances, even if Article 3 of the Framework Act on National Taxes does not stipulate the provisions on special persons, it is difficult to deem that a special relationship should be determined based on the Framework Act on National Taxes, excluding the provisions on individual tax.

③ Ultimately, the purpose of the revision of the Framework Act on National Taxes to consolidate and simplify the scope of related persons under tax law is to clarify the meaning of the regulations of related persons within the scope of common provisions under the Framework Act on National Taxes and individual tax laws.

C. Sub-committee

C is not a specially related person of A, but D is a specially related person of A, and as a result, two of six directors of Plaintiff Foundation (B and D) of Plaintiff Foundation constitutes a specially related person of this case, the Plaintiff Foundation lost its status as a faithfully beneficial corporation. Accordingly, the instant disposition based on this premise is lawful.

6. Conclusion

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

Judges

Judges Kim Tae-tae

Judge Al Jae-hun

Judges Kim Dong-dong

Note tin

1) According to the Addenda to the former Inheritance Tax Act amended on January 1, 1994, the Defendant shall be deemed to include the amount in the taxable value if the amount exceeds 5%.

The portion already contributed in excess of 5% prior to such date is not included in the taxable value, 96,776 note (6. 81%) received prior to January 1, 1994, on the ground that the portion was not included in the taxable value.

Over 5% 25, 706 note (1.81%) was excluded from taxation.

Site of separate sheet

Related Acts and subordinate statutes

Terms and conditions of Framework Act on National Taxes (wholly amended by Act No. 11124, Dec. 31, 201; January 1, 2012)

Part I General Provisions

Section A: General Provisions

Article 1 (Purpose)

This Act provides the basic and common matters concerning the national taxes and the procedure for protesting against any unlawful or unjust disposition of national taxes.

by clarifying the legal relations pertaining to national taxes, by ensuring the fairness of taxation (tax) and by prescribing the liability for national tax payment.

The purpose is to contribute to smooth implementation.

Article 2 (Definitions)

The terms used in this Act shall be defined as follows:

1. The term "international tax" means any of the following taxes imposed by the State:

(a) Income tax;

(b) Corporate tax;

(d) Comprehensive real estate holding tax.

(e) Value-added tax;

(f) Individual consumption tax;

(g) Traffic, energy, and environment tax;

(h) Liquor tax (tax on alcoholic beverages);

(i) Revenue stamp tax;

(j) Securities transaction tax;

(k) Education tax;

(l) Special rural development tax;

2. The term "tax-related Acts" means the Acts that prescribe the items and rates of the national taxes, the National Tax Collection Act, the Restriction of Special Taxation Act, and the State under the same Act;

The term "Tax Adjustment Act, the Punishment of Tax Evaders Act, and the Procedure for the Punishment of Tax Evaders Act" means the Act.

20. The term "specially related person" means a person who has any of the following relations with the principal. In such cases, such cases,

In the application of this Act and other tax-related Acts, the principal shall be deemed the specially related person of such specially related person.

(a) Relationship prescribed by Presidential Decree, such as blood relatives and affinity relatives;

(b) Economic relationship prescribed by Presidential Decree, such as executive officers and employees;

Article 3 (Relation with Tax-Related Acts, etc.)

(1) This Act shall take precedence over other tax-related Acts: Provided, That this Act shall take precedence over Section 1 of Chapter II of this Act and Section 4 and Section 26 of Chapter III of this Act.

Article 9-5 of the Restriction of Special Taxation Act (limited to special cases concerning extinction of liability for payment under Article 99-5 of the Restriction of Special Taxation Act) and Section 5 of Chapter V and Section 2 of Chapter IV (Article)

Article 104-7 (4) of the Restriction on Special Cases concerning Taxation Act shall apply only to secondary tax liability under Article 104-7 (4) of the Restriction on Special Cases concerning Taxation Act, Section 1 of Chapter V and Article 45-2 of Section 2

Section B, Article 45-3 (Special Cases concerning Reporting of Tax Base of Non-Profit Domestic Corporations under Article 62 of the Corporate Tax Act), and

Section 3 (limited to penalty taxes under Articles 100-10 and 100-34 of the Restriction of Special Taxation Act) and Chapter VI of the same Act.

51조 및 제52조와 제8장에 대한 특례규정을 두고 있는 경우에는 그 세법에서 정하는 바에 따른다 . ▣ 구 상속세 및 증여세법 ( 2013 . 1 . 1 . 법률 제11609호로 일부개정되기 전의 것 )

Article 16 (Non-Inclusion of Property Invested by Public Interest Corporations in Taxable Value of Inherited Property)

(1) Businesses, the predecessor or his/her heir of which aims at religion, charity, science, or other public interest, among inherited property.

(hereinafter referred to as "public service corporation, etc.") equivalent to the value of property contributed to a person (hereinafter referred to as "public service corporation, etc.") by the reporting deadline under Article 67.

Where a public service corporation, etc. is established by contributing property and there are extenuating circumstances, the reason thereof.

The value of property contributed within six months from the last day of the month to which the date of extinguishment belongs shall be the inheritance tax division.

shall not be included in the amount of customs duty.

(2) In applying paragraph (1), voting stocks or equity shares (hereafter referred to as "voting stocks or equity shares" in this Article, and Articles 48, 49 and 49) of a domestic

Where a person contributes stocks, etc. (hereinafter referred to as "stocks, etc.") under Article 78 (4) and (7), the stocks, etc. contributed and the following subparagraphs:

Total number of outstanding voting stocks or total amount of investment of a domestic corporation (hereafter referred to as "total number of outstanding voting stocks" in this Article)

5/100 of the total number of outstanding stocks, etc. (hereinafter referred to as "total number of outstanding stocks, etc.") under Articles 48, 49, and 63 (3)

External audits under Article 50 (3), and diversion under Article 50-2, among public service corporations, etc. meeting standards prescribed by Presidential Decree;

Public service corporations, etc. performing the opening and use of accounts, and the publication of settlement documents, etc. under Article 50-3 (hereinafter referred to as “faith”).

Where a contribution is made to an next corporation, etc. (hereinafter referred to as "the next corporation, etc."), the excess value shall be 10/100).

The taxable value of inherited property shall be included in the taxable value of inherited property: Provided, That a public service corporation, etc. falling under the proviso to Article 49 (1).

(u) Restriction on mutual investment under Article 9 of the Monopoly Regulation and Fair Trade Act.

Contributors and special relationship of the public service corporation, etc. to the public service corporation, etc. which does not have special relationship with the enterprise group.

In cases prescribed by Presidential Decree and in which stocks, etc. of an unregistered domestic corporation are contributed, and a mutual contribution system.

Faithful public service corporations, etc. (public service corporations, etc. established within three months from the date of establishment) not specially related to Han Enterprise

shall be deemed to be a bona fide public service corporation, etc. within two years after receipt of a contribution of stocks, etc. and the end of the established business year.

(2) within 3 years from the date of excess possession, in cases where the contribution was made in excess of 10/100 of the total number of outstanding shares, etc.

sale [the contributor of the stocks, etc. or his/her specially related person prescribed by Presidential Decree] of the portion contributed in excess of

(n) The foregoing shall not apply to sale to a person with a special interest in this section (hereinafter referred to as "person with a special interest").

of December 27, 2010, and December 31, 201, respectively.

1. Stocks, etc. of the same domestic corporation possessed by the relevant public service corporation, etc. at the time the contributor contributes;

2. Contributors and their specially related persons have contributed to the same domestic corporation, other than the relevant public service corporation, etc.

Stocks.

(4) 10 percent of the total number, etc. of outstanding stocks, of a public service corporation, etc. prescribed in paragraphs (1) through (3), methods of contributing inherited property.

Article 5 (Method of Calculating Value in Excess of 10/100 in a case of Faithful Public Service Corporation, etc. as Contribution, etc.)

Methods of determining persons, etc., scope of public service corporations, etc. which do not have special relationship with the enterprise group subject to limitations on mutual investment, and relevant public

The scope of a domestic corporation not in a special relationship with the contributor of a corporation, etc. and other necessary matters shall be prescribed by Presidential Decree.

shall be determined by the Regulations.

Article 48 (Non-Inclusion, etc. in Taxable Value of Property Invested by Public Interest Corporations, etc.)

(1) The value of property contributed by a public service corporation, etc. shall not be included in the taxable value of donated property: Provided, That a public service corporation, etc

Where stocks, etc. of a domestic corporation are contributed by a domestic corporation, the contributed stocks, etc. and any of the following stocks, etc.:

5/100 of the total number of outstanding voting stocks of the domestic corporation.

(10/100) If it exceeds 10/100 (excluding cases falling under the proviso to the part other than the subparagraphs of Article 16(2)).

(A) The excess calculated by the method prescribed by Presidential Decree shall be included in the taxable value of donated property.

1. Stocks, etc. of the same domestic corporation possessed by the relevant public service corporation, etc. at the time the contributor contributes;

2. A contributor and his/her specially related person prescribed by Presidential Decree (hereafter referred to as "specially related person" in this Article) for the relevant meritorious service;

The stocks, etc. of the same domestic corporation contributed to public service corporations other than the following corporations.

(2) The head of a tax office, etc. shall, upon receiving the contribution of property under paragraph (1) of this Article and Article 16 (1), subparagraphs 1 through 4

In cases falling under any of subparagraphs 6, the value prescribed by Presidential Decree shall be donated by a public service corporation, etc.

The gift tax shall be levied immediately by deeming that it has been received, and in cases falling under subparagraph 5, the addition under Article 78 (9) shall be made

tax shall be imposed: Provided, That the value of property contributed by many and unspecified persons for each contributor among property contributed by many and unspecified persons;

Property prescribed by Presidential Decree, the calculation of which is difficult, shall be excluded.

1. Profit-making or profit-making companies, etc. (for purposes of appropriating the contributed property for direct public-interest projects);

Part of the date used or contributed for purposes other than those of operation (including cases of operation for business purposes; hereafter the same shall apply in this subparagraph)

Where it is not used for a direct public project, etc. within three years of the base: Provided, That this shall not apply to a direct public project, etc.

Paragraph (5) shall apply to extenuating circumstances prescribed by Presidential Decree, such as where it takes a long time to use such property.

When submitting a report, it shall report it to the head of the tax office having jurisdiction over the place of tax payment, and one day from the date the reason ceases

The case where the relevant property is used directly for public interest projects, etc. within a year shall be excluded.

2. Where the property received as a contribution (where such property is managed for profit-making or profit-making business, or there is operating income thereof;

(2) If it is used to acquire a domestic corporation’s stocks, etc., the stocks, etc. so acquired and the following:

The total number of outstanding voting stocks, etc. of a domestic corporation shall be 10 percent of the total number of outstanding voting stocks, etc. of the domestic corporation:

5. (10/100 in the case of a conscientious public service corporation, etc.): Provided, That other than the subparagraphs of Article 49 (1) shall not apply.

A public service corporation, etc. which falls under the proviso of the part of the restriction on mutual investment and does not have special relationship therewith

In case of acquiring stocks, etc. of a domestic corporation which has no special relationship with the contributor of the public service corporation, etc.

In cases prescribed by Ordinance and an industry-academic cooperation foundation under the Promotion of Industrial Education and Industry-Academic Cooperation Act;

The acquisition of stocks, etc. prescribed by Ordinance shall be excluded.

(a) Stocks, etc. of the same domestic corporation possessed by the relevant public service corporation, etc. at the time of acquisition;

(b) The contributor in a special relationship with the relevant domestic corporation has contributed to public service corporations, etc. other than the relevant public service corporation.

Stocks of the same domestic corporation

3. A person directly serving public interest, who operates any contributed property for profit-making or profit-making business.

When used in addition to business;

4. Sale of contributed property, and the sale price thereof (including the property increased by the sale price, as prescribed by Presidential Decree;

Until three years have passed since the date of use or sale of public charges, etc. determined by the public interest;

Where it is not used for public interest projects, as prescribed by Presidential Decree.

5. The use of operational income under subparagraph 3 below the standard amount prescribed by Presidential Decree or each use of such income under subparagraph 4.

Where each purchase price falls short of the standard amount prescribed by Presidential Decree for three years from the date of sale;

6. He/she shall not operate any property contributed or projects directly for public interest, as prescribed by Presidential Decree.

(2) In the case

(3) Property, etc. contributed to a public service corporation, etc. pursuant to paragraph (1) shall be leased to any of the following persons:

Where use or profit-making is made by means of tea, loan for consumption (loan for consumption), loan for use (loan for free), loan for use (loan for free), etc., the President;

Gift tax shall be levied immediately by deeming that the value prescribed by Ordinance is donated to a public service corporation, etc.: Provided, That the Public Interest Act shall apply.

Presidential Decree, such as where persons, etc. are provided with services in connection with their own public interest projects and pay normal fees;

the same shall not apply to cases prescribed by Presidential Decree.

1. Contributor and his relative;

2. Other public service corporations, etc. contributed by contributors.

3. A person who has a special relationship prescribed by Presidential Decree with a person who falls under subparagraph 1 or 2.

(4) In the application of paragraphs (1) through (3) and (8), criteria for determining whether to use for a direct public project and mutual investments therein.

Scope of public service corporations, etc. not in special relationship with restricted enterprise groups, contribution and special officer of the relevant public service corporation, etc.

The scope of a domestic corporation not in the account, the scope of contributors in a special relationship with the domestic corporation, and other notes

Matters required shall be prescribed by Presidential Decree.

(5) Where a public service corporation, etc. receives the contribution of property pursuant to paragraph (1) of this Article and Article 16 (1), the use of the contributed property.

A report on the plan and Jindo shall be submitted to the head of the tax office having jurisdiction over the place of tax payment, as prescribed

section 22.

(6) When the head of the tax office imposes inheritance tax or gift tax on a public service corporation, etc.

notice of such fact.

(7) The competent authority of a public service corporation, etc. shall order the public service corporation, etc. to obtain permission for establishment, to cancel permission for establishment or

(b) Where a public service corporation, etc. discovers the facts falling under the proviso to paragraph (1), paragraphs (2) and (3) as a result of supervision.

The head of the tax office having jurisdiction over the place of tax payment, as prescribed by Presidential Decree.

of this section.

(8) Current number of directors (current number of directors) of contributors or their specially related persons of public service corporations, etc. prescribed by Presidential Decree.

In cases of less than five persons, it shall be deemed five persons) more than 1/5 of the number of directors, or the position of the relevant public service corporation, etc.

Where a member becomes a member (excluding directors; hereinafter the same shall apply), a penalty tax under Article 78 (6) shall be imposed.

(9) Public service corporations, etc. (public service corporations, etc. established by the State or local governments)

Public service corporations, etc. and corporations in a special relationship prescribed by Presidential Decree shall be excluded.

In holding stocks, etc., the value of the stocks, etc. of the domestic corporation shall be 30/100 of the total value of the assets.

External audits under paragraph (3) of this Article, opening and use of exclusive accounts under Article 50-2, and settlement of accounts under Article 50-3.

Where it exceeds 50/100 in cases of a public service corporation, etc. performing the publication of category, etc., 78

Additional tax under paragraph (7) of this Article shall be imposed. In such cases, the value of the stocks, etc. of the excess domestic corporation shall be calculated accordingly.

women shall be prescribed by Presidential Decree.

(1) In order to increase the interests of the domestic corporations in a special relationship, the public service corporation, etc. shall not receive justifiable prices.

Where high-level advertisements or public relations are conducted, penalty tax under Article 78 (8) shall be imposed. In such cases, in a special relationship.

The scope of a domestic corporation, methods of advertising and public relations, and other necessary matters shall be prescribed by Presidential Decree.

(1) Cases falling under any of the following subparagraphs in connection with the contribution, acquisition and possession of stocks, etc. of a public service corporation, etc.:

shall be governed by the main sentence of Article 16 (2), with the exception of its subparagraphs, or Article 48 (1), as prescribed by Presidential Decree.

The taxable value of inherited property or gift tax shall be included in the taxable value of the taxable value of inherited property or gift tax, or gift tax shall be immediately imposed.

1. Faithful public service corporation, etc. shall contribute stocks, etc. in excess of 5 percent of the total number, etc. of outstanding voting stocks of a domestic corporation;

(including acquisition of stocks, etc. with contributed property) and is not a bona fide public service corporation, etc. after receiving them.

section 38(1)(2).

2. Article 49 (1) by a public service corporation, etc. under the proviso to Article 16 (2) or the proviso to Article 48 (2) 2.

A person who is not a public service corporation, etc. under the proviso to the part other than the subparagraphs, or is specially related to the relevant contributor

있는 내국법인의 주식등을 해당 법인의 발행주식총수등의 100분의 5를 초과하여 보유하게 된 경우 ▣ 구 상속세 및 증여세법 시행령 ( 2012 . 2 . 2 . 대통령령 제23591호로 일부개정된 것 )

Article 12-2 (Scope of Specially Related Persons)

(1) "Person in special relationship prescribed by Presidential Decree" in the proviso to Article 16 (2) of the Act with the principal and the following persons:

A person who has a relationship falling under any of the following subparagraphs. In such cases, the principal is also defined in subparagraph 20 of Article 2 of the Framework Act on National Taxes.

Pursuant to the latter part of the part other than each item, it shall be deemed the specially related person.

1. A person falling under any of Article 1-2 (1) 1 through 4 of the Enforcement Decree of the Framework Act on National Taxes (hereinafter referred to as "relative");

The spouse of any paternal blood relative within the second degree of relationship and his/her lineal descendant and his/her spouse.

2. Any person, other than an employee (including any employee of a corporation controlled through investment; hereinafter the same shall apply) or employee;

person who maintains his livelihood with his own property;

3. Any of the following persons:

(a) Where the principal is a private individual: An executive officer with the principal directly or by a person having a relationship falling under subparagraph 1 with the principal;

Exercise of the right to appoint and dismiss and determine the business policy, etc., shall exercise de facto influence over the management thereof.

company belonging to an enterprise group prescribed by Ordinance of the Ministry of Strategy and Finance [executive officers of the relevant company (Article 20 of the Enforcement Decree of the Corporate Tax

An executive officer under Article 1 (1) 4 and a person who was an executive officer for whom five years have not passed after retirement; hereinafter the same shall apply.

(B) include B)

(b) Where the principal is a corporation: An enterprise group as determined by Ordinance of the Ministry of Strategy and Finance to which the principal belongs.

(including officers) by exercising the right to appoint officers of the company and by determining business policies, etc.

A person who exercises de facto influence over the management and a person who is in the relationship falling under subparagraph 1 with him;

4. Jointly contributing property to the principal, persons under subparagraphs 1 through 3, or persons under subparagraphs 1 through 3 with the principal.

nonprofit corporations that establish or occupy a majority of directors;

5. Nonprofit corporations, the chief director of which is an executive officer of an enterprise falling under subparagraph 3;

6. Total number of outstanding stocks jointly issued by the principal, persons under subparagraphs 1 through 5, or persons under subparagraphs 1 through 5 with the principal.

A corporation which invests 30/100 or more of the total number of stocks issued or total amount of investment (hereinafter referred to as "total number of stocks issued, etc.")

7. Total number of outstanding stocks jointly issued by the principal, persons under subparagraphs 1 through 6, or persons under subparagraphs 1 through 6 with the principal.

A corporation which invests 50/100 or more of the total amount of securities, etc.

8. Jointly contributing property to the principal or any person under any provision of subparagraphs 1 through 7, or the principal and any person under any provision of subparagraphs 1 through 7.

nonprofit corporations that establish or occupy a majority of directors;

(2) "Employees" in paragraph (1) 2 means executives, commercial employees, and other persons in an employment contract relationship.

(3) "Corporation controlled through investment" in paragraph (1) 2 and Article 39 (1) 5 means any of the following corporations:

corporation which falls under any of the following.

1. A corporation falling under paragraph (1) 6;

2. A corporation falling under paragraph (1) 7.

3. Where a person falling under paragraph (1) 1 through 7 invests 50/100 or more of the total number of stocks issued, etc.;

A corporation

Presidential Decree No. 23591, February 2, 2012

Article 1 (Enforcement Date)

This Decree shall enter into force on the date of its promulgation.

Article 2 (General Application Cases)

This Decree shall apply from the first commencement of inheritance or donation after this Decree enters into force.

▣ 구 상속세 및 증여세법 시행령 ( 2014 . 2 . 21 . 대통령령 제25195호 일부개정된 것 )

Article 12-2 (Scope of Specially Related Persons)

(1) "Person in special relationship prescribed by Presidential Decree" in the proviso to Article 16 (2) of the Act with the principal and the following persons:

A person who has a relationship falling under any of the following subparagraphs. In such cases, the principal is also defined in subparagraph 20 of Article 2 of the Framework Act on National Taxes.

A specially related person shall be deemed a specially related person pursuant to the latter part of the part other than each item:

1. A person falling under any of Article 1-2 (1) 1 through 4 of the Enforcement Decree of the Framework Act on National Taxes (hereinafter referred to as "relative");

Blood relatives within the second degree of relationship between the spouse, and lineal descendants, and their spouses.

2. Any person, other than an employee (including any employee of a corporation controlled through investment; hereinafter the same shall apply) or employee;

person who maintains his livelihood with his own property;

3. Any of the following persons:

(a) Where the principal is a private individual: An executive officer with the principal directly or by a person having a relationship falling under subparagraph 1 with the principal;

Exercise of the right to appoint and dismiss and determine the business policy, etc., shall exercise de facto influence over the management thereof.

An executive officer under Article 1 (1) 4 and a former executive officer for whom five years have not passed after retirement;

(1) (including a person who was not a person; hereinafter the same shall apply)

Presidential Decree No. 25195, February 21, 2014

Article 1 (Enforcement Date)

This Decree shall enter into force on the date of its promulgation.

Article 3 (Application Scope of Specially Related Persons)

제12조의2제1항제3호의 개정규정은 이 영 시행 후 상속세 또는 증여세를 결정하는 분부터 적용한다 . ▣ 구 상속세 및 증여세법 시행규칙 ( 2011 . 7 . 26 . 기획재정부령 제223호로 일부개정된 것 )

Article 9 (Scope of Specially Related Persons)

(1) "Enterprises belonging to an enterprise group prescribed by Ordinance of the Ministry of Strategy and Finance" in Article 19 (2) 3 of the Decree and Article 26 (4) 2 of

The term "enterprise group" means an enterprise group falling under any of subparagraphs of Article 3 of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act.

an affiliated company of this section.

(2) The Minister of Strategy and Finance shall, if necessary for applying paragraph (1), conduct the Monopoly Regulation and Fair Trade Commission.

A company recognized as an economic same body under social norms as defined in subparagraph 2 (d) of Article 3 of the Enforcement Decree of the Act.

standards for the scope of this Act may be determined and publicly announced.

▣ 구 독점규제 및 공정거래에 관한 법률 ( 2011 . 12 . 2 . 법률 제11119호로 일부개정된 것 )

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

2. The term “enterprise group” means an enterprise group in fact by the same person according to the following classification as determined by the Presidential Decree:

A group of companies that control the contents of its business.

(a) A group of the same person and one or more companies controlled by the same person, where the same person is a company;

(b) A group of two or more companies under the control of the same person, other than the company;

3. The term "affiliated company" means that where two or more companies belong to the same enterprise group, each company is comprised of the others;

is called an affiliate.

▣ 구 독점규제 및 공정거래에 관한 법률 시행령 ( 2011 . 12 . 30 . 대통령령 제23475호로 일부개정되어

January 1, 2012

Article 3 (Scope of Enterprise Group)

Article 2 (Definitions) The term "business activities in fact pursuant to the standards prescribed by Presidential Decree" in the part other than the items of subparagraph 2 of the Act.

A company under control means any of the following companies:

1. A person who falls under any of the following items independently or jointly with the same person (hereinafter referred to as "person related to the same person"):

(Non-voting stocks pursuant to the provisions of Article 370 of the Commercial Act) of the shares issued by the company concerned.

excluding this Article, Articles 3-2 (Exclusion from Enterprise Group), 17-5 (Exclusion from Prohibition of Debt Guarantee)

(Case) Total amount of Article 17-8 (Resolution and Publication by Board of Directors on Large-Scale Trading) and Article 18 (Report, etc. on Combination of Enterprises)

A company which owns not less than 30 percent of the number and which is the largest investor;

(a) A spouse, a blood relative within the sixth degree, or a relative by marriage within the fourth degree (hereinafter referred to as "relative");

(b) Where the same person makes independently or jointly with a person related to the same person not less than 30/100 of contributions;

a non-profit corporation or organization (a corporation) to which the largest contributor or one of the same person and persons related to the same person has established.

an unincorporated association or foundation; hereinafter the same shall apply)

(c) Major control over the composition of executives, business management, etc., directly or through persons related to the same person;

Non-profit corporations or organizations exercising efficiencies

(d) A company the businesses of which are substantially controlled by the same person as provided in this subparagraph or subparagraph 2; and

(e) Employees of the same person and persons having relations under items (b) through (d) with the same person (in the case of a corporation, an executive, and

in the case of a person, referring to a commercial employee or an employee under an employment contract)

2. A company falling under any of the following items and exercising controlling influences upon the management of the company concerned:

authorized corporation; and

(a) Appointment or dismissal of the representative director, or 1/100 of officers or employees of the same person by contract or agreement with other major stockholders;

50 or more companies that are eligible to appoint or appoint more than fifty

(c) Investments, etc. in organizational change or new businesses by the same person directly or through persons related to the same person; and

A company which exercises dominant influence over major decision-making or execution of business;

(c) A company under the control of the same person (including the same person, if the same person is a company; hereafter the same shall apply in this item) and other companies;

A company which has personnel exchanges falling under any of the following subparagraphs between the company concerned:

(1) If there is a concurrent office as an officer between the company under the control of the same person and the company concerned.

(2) Any officer or employee of a company under the control of the same person who has been appointed as an officer of the company

Where the company is reinstated to a company under the control of the same person, which is not the initial company.

(including)

(3) An officer of the corporation has been appointed as an officer or employee of the corporation under the control of the same person; or

be reinstated as an affiliated company of the company;

(d) transactions of funds, assets, goods, services, etc. with the same person or persons related to the same person beyond the ordinary scope;

(2) Any other company which has made or received a debt guarantee or has made or has received a debt guarantee, or

person with an economic same body as that of social norms, such as making business indications that can be recognized as an affiliated company of the group;

corporation established by the corporation

▣ 법인세법 시행령 ( 2012 . 2 . 2 . 대통령령 제23589호로 일부개정된 것 )

Article 20 (Scope of Bonuses, etc.)

4. Workers of a domestic corporation (excluding persons who perform any of the following duties (hereinafter referred to as "executive officers"):

C. A written agreement is made with regard to the performance assessment index and its goals, performance measurement and distribution method

Accordingly, the performance-sharing bonus paid to the worker.

(a) All members of the board of directors, such as chairperson, president, vice president, president, representative director, representative director, managing director, managing director, executive director, etc. of the corporation;

Liquidators

(b) Executive partners or directors of unlimited partnerships, limited partnerships and limited companies;

(d) Other duties similar to those under items (a) through (c).

참조조문

-국세기본법 시행령 제1조의2 제1항 제1호

-국세징수법