[1] Whether a withdrawing partner's heir due to death in the method of appraisal of business rights under the former Inheritance Tax Act can be used as the method of appraisal of shares between the remaining partner and the heir (affirmative)

[2] Legal nature of the general rules of the National Tax Service, and whether Article 5 (5) 1 (e) of the former Enforcement Decree of the Inheritance Tax Act applies mutatis mutandis to a private company by the method of calculating the net profit under Article 5 (4) 1 of the same Enforcement Decree (affirmative)

[3] Whether the business income tax, etc. imposed on the representative of business registration for the business activity during the business period of an individual company that is a partnership can be deducted from the share refund obligation to the withdrawing partner even before the actual payment is made (affirmative)

[4] Whether the goodwill is subject to evaluation when evaluating the shares of the company's withdrawal from the company with goodwill (affirmative)

[1] Among inherited property stipulated in Article 9 of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990), and Article 5 (4) 1 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 1990), the method of evaluating goodwill is also appropriate for the method of assessing goodwill among the successors of a union member who left the union due to death and the remaining union members in calculating partnership shares.

[2] General rules of the National Tax Service do not have a law that has the effect of binding the court or citizens but can be used as one material in interpreting tax-related Acts. Thus, the general rules of the Inheritance Tax Act, which provides that Article 5 (5) 1 (e) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 190), which provides that "net profit" under Article 5 (4) 1 (e) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 1990) shall apply mutatis mutandis to "net profit of an enterprise" under Article 5 (4) 1 (e) of the Enforcement Decree of the same Act, which was in force at the time of December 31, 1990, shall be deemed as one of the basic rules, and in cases of an individual company other than a corporation, it shall be deemed as one of the corporate income taxes enumerated in Article 5 (4) 1 (e) of the Enforcement Decree of the same Act.

[3] A tax imposed on a cooperative company's business activity during the period of the partnership business, including income tax, defense tax, resident tax, and value-added tax on sales during the partnership business period, is an obligation jointly borne by its partners. However, in cases where a cooperative company's business registration imposes a tax on its representative as a representative, unless there are special circumstances such as cancellation of the disposition of imposition or exemption from payment, the representative bears the obligation to pay the total amount of the tax to be collected including the portion to be shared by its withdrawing partners. Thus, even if the representative pays the tax to be collected in reality, it is fair in view of the nature of the partnership business contract to deduct the amount of the tax to be shared by its partners from the amount of the tax to be shared by its withdrawing partners from the equity refund liability for its withdrawing partners even if the representative pays the tax to be collected in reality.

[4] If a business entity has a profit-making power exceeding the normal profit ratio of the same kind of business, it is anticipated that the business entity with such a business right will be paid for that part of the business if it becomes the object of transaction. Therefore, in assessing the shares of the member who left the business from the business relationship due to the death of the business entity as a partner, the business right should be included in the business right.

[1] Article 719 of the Civil Act, Article 9 of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990), Article 5 (4) 1 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 1990) / [2] Article 719 of the Civil Act, Article 5 (4) 1, Article 5 (5) 1 (b), and Article 5 (5) 1 (e) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 190), Article 18 (2) and (3) of the Framework Act on National Taxes / [3] Article 719 of the Civil Act, Article 452 subparagraph 6 of the Commercial Act

[1] Supreme Court Decision 91Nu13205 delivered on September 22, 1992 (Gong1992, 3027) / [2] Supreme Court Decision 94Nu11347 delivered on December 22, 1994 (Gong1995Sang, 713) / [4] Supreme Court Decision 86Da2951 delivered on June 23, 1987 (Gong1987, 1230), Supreme Court Decision 89Da24728 delivered on March 9, 190 (Gong190, 872) 96Da19208 delivered on September 6, 1996 (Gong196Ha, 2982)

Kim Chang-deok et al. (Plaintiffs, East Law Firm, Attorneys Park Jong-yang et al., Counsel for the plaintiff-appellant)

Yellow Chang (Attorney Im-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 95Na23837 delivered on September 3, 1996

The appeal and appeal are dismissed. The costs of appeal are assessed against the plaintiffs and the costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. The plaintiffs' grounds of appeal

A. On the first ground for appeal

According to the reasoning of the judgment below, in calculating the net asset value (excluding goodwill) of the private company of this case as of December 31, 1990, the court below held that the income tax base and tax amount of the private company of this case should be added to each corresponding year which was omitted in the return of the income tax base and tax amount of the private company of this case as of December 31, 1990, as of December 31, 1990. Thus, the court below did not err in the misapprehension of the rules of evidence against the above facts against the rules of evidence as of December 31, 1990, since the income omitted in the return of the tax base and tax amount of the income tax of 198 and 1989 as of December 19, 199, as of December 31, 199, the court below did not err in the misapprehension of the rules of evidence as to the private company of this case's net asset value as of December 31, 1990.

B. On the second ground for appeal

Article 9 of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990), which was in force on December 31, 1990, the evaluation method of goodwill among inherited property under Article 5 (4) 1 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 1990) and Article 5 (4) 1 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 1990), is also appropriate in the method of assessing goodwill among the successors of union members who left the union due to death as in this case and the remaining union members in calculating partnership shares. Thus, Article 5 (4) 1 of the above Enforcement Decree of the Inheritance Tax Act provides that the evaluation method of goodwill shall not include the average net profit of the period of three years before the commencement date of inheritance 】 1/2 of the commencement date of inheritance 】 (the net profit of five years after the commencement date).

Article 5 (5) 1 (e) of the Enforcement Decree of the Inheritance Tax Act provides that the General Rules of the National Tax Service shall apply mutatis mutandis to the net income under Article 5 (4) 1 (e) of the Enforcement Decree of the Inheritance Tax Act and the Enforcement Rule of the same Act, which provides that the basic rules of the Inheritance Tax Act, which was enforced on December 31, 1990, shall apply mutatis mutandis to the net income of an enterprise under Article 5 (4) 1 (e) of the Enforcement Decree of the Inheritance Tax Act and the Enforcement Rule of the same Act, because a court or a company other than a corporation, is not the only provision concerning the method of calculating the net income of an enterprise under Article 5 (4) 1 (e) of the Enforcement Decree of the Inheritance Tax Act, but can be used as one material in interpreting the tax law (see, e.g., Supreme Court Decision 94Nu11347, Dec. 22, 194).

According to the reasoning of the judgment below, pursuant to Article 9 of the above Inheritance Tax Act, Article 5 (4) 1 of the Enforcement Decree of the same Act, general Rule 489 of the Inheritance Tax Act, and Article 5 (5) 1 of the Enforcement Decree of the same Act, the value calculation method of operating rights is "(average net profit for three years before the commencement date of inheritance 】 1/2 】 equity capital as of the commencement date of inheritance 】 the rate of time deposit with the maturity of one year) 】 1 years after the commencement date of inheritance (in principle 5 years)," and the net profit here is calculated by deducting corporate tax amount, defense tax amount, resident tax amount, etc. from the income of each business year of the above business year 1988 through 190, and it is just in the court below's determination method of operating rights based on the above evaluation method of operating rights, and there is no errors in the misapprehension of legal principles as to the above evaluation method of operating rights based on the evaluation method of the above business's net profit, etc.

C. On the third ground for appeal

According to the reasoning of the judgment of the court below, the court below acknowledged that the tax payer was imposed an additional tax on the income tax, defense tax, resident tax, and value-added tax on the sales during the above period, which correspond to the business income of the company of this case omitted from the defendant's income tax base and tax return from 1988 to 190, using the name of the representative of the company of this case conducted around 1993 as the result of the tax investigation of the company of this case. In light of the facts of recognition, the above additional tax should be imposed on the defendant for the business during the period of operating the company of this case as the business of this case. However, since the above partner's share should be shared in accordance with the above ratio of share of the deceased's company's business registration, the above additional tax should be deducted from the amount of share refund of the deceased's share of the above company of this case's business, and it should not be deducted from the amount of the above additional tax due to the plaintiff's assertion that the above additional tax should not be imposed on the defendant's company of this case's business.

2. The defendant's grounds of incidental appeal

A. On the first ground for appeal

원심판결 이유에 의하면, 원심은 거시 증거에 의하여 위 망 장기순은 1984. 5.경 피고와 사이에 자본금을 각 50%씩 출자하여 삼미화학공업사라는 상호로 플라스틱 및 합성수지의 제조, 판매업을 공동 경영하기로 하되, 영업 및 일반관리업무는 피고가, 회계관리업무는 위 망인이 각 담당하고 손익분배비율은 50:50으로 하는 내용의 동업계약을 체결하였고, 이에 따라 위 망인과 피고는 위 일시경부터 이 사건 사업체를 피고 명의로 경영하여 온 사실을 인정하였는바, 관계 증거를 기록과 대조하여 살펴보면 원심의 위와 같은 사실인정은 정당하고, 거기에 소론과 같은 채증법칙 위배의 위법이 있다 할 수 없다. 논지는 이유 없다.

B. On the second ground for appeal

(1) The appraisal requires special knowledge and experience in determining certain matters, and the result of the supplementary appraisal conducted on January 24, 1995 by the appraiser Lee Jong-soo, which points out the theory of the lawsuit, is not merely a supplementary means to use such knowledge or experience. The appraisal conducted on January 24, 1995, which assessed the net asset value of the company of this case, shall not be deemed unlawful unless it violates the rules of experience or logic, even if it acknowledged the net asset value of the company of this case, which is the representative of the company under the business registration of this case, from the net asset value to the year 1990 when it was imposed on the defendant as the representative of the above company under the business registration of the company of this case, in relation to the sales of the company of this case, and its additional taxes, resident tax, resident tax, and the total amount of retirement allowances to be paid upon retirement on December 31, 190.

According to the reasoning of the judgment below, the court below found the following facts as follows: (a) on December 31, 1990, the company's assets total amount of the company of this case was 992,418,96 won as of December 31, 1990; (b) 66,07,027 won for total debts; and (c) 326,341,969 won for total capital (279,754,321 + 46,57,648 won for current net income; (c) 46,57,721 won for each of the above facts as of December 31, 199; (d) the company's assets total amount was 95,000 won for the company of this case which was submitted by the defendant to the Commissioner of the Female Tax Office; (e) 197,45,000 won for net income for each of the above facts found as 97,000 won for net income for each of this case was found to be 97.

(2) Article 452 subparagraph 6 of the Commercial Act provides that one of the valuation methods of assets to be entered in the company's account books may enter the acquisition value only if the business right has been succeeded or acquired for a fee. In this case, the equal amount shall be depreciated at least at the end of each period for the settlement of accounts within five years after the acquisition of the business right. Article 13 of the Act on External Audit of Stock Companies provides that "the business right shall be acquired for a fee in the case of merger, takeover of business, acquisition of right of lease on a deposit basis, etc., which is approved by the Securities and Exchange Commission (amended by March 30, 1996)" under Article 36 subparagraph 1 of the Financial Accounting Standards (amended by the Act No. 30 of March 30, 1996). However, the above provisions provide that when the business right is created or acquired without compensation, it is difficult to evaluate the business right at a reasonable price and it is likely to arbitrarily evaluate the business right, and thus, it cannot be entered in the account books.

If a business entity has a profit-making power exceeding the normal profit ratio of the same company, it is anticipated that the business entity with such business right will be paid for that part of the business if it becomes the object of transaction, and therefore, if the business entity with such business right is managing the business as a partnership and is dead, the business right should be included in the business right as a matter of course in assessing the shares of the member who left the partnership due to the death of the company.

In the same purport, the court below, which assessed the deceased's share in the company of this case, is just, and there is no error in the misapprehension of legal principles as to the theory of lawsuit.

Meanwhile, according to the reasoning of the judgment below, the court below rejected the defendant's assertion that in assessing the value of business rights of the company of this case, additional taxes on income tax and defense tax imposed on income from the company of this case should be deducted from the income of the company of this case, on the ground that there is no provision that additional taxes on income tax and defense tax shall be deducted from income under the Inheritance Tax Act, and since the evaluation of business rights targets excess earnings, the additional tax imposed as a disciplinary punishment on the failure to pay taxes should not be deducted from the income. In light of the related Acts and subordinate statutes and the nature of business rights as seen above, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles, such as the theory of lawsuit.

3. Therefore, each appeal and incidental appeal are dismissed, and the costs of appeal and incidental appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)