Whether aggregate taxation in joint projects is unconstitutional or not

By deeming the business income of a person with a special relationship as a common income amount with a large share or a large ratio of sharing profits and losses, it violates the principle of excessive prohibition under the Constitution by using any method more than necessary for preventing tax avoidance.

Article 43 (3) of the former Income Tax Act

1. The part of the judgment of the court of first instance against the plaintiff falling under the order to revoke the following is revoked. On April 15, 2002, the part of the disposition imposing global income tax of KRW 83,098,319 against the plaintiff on April 15, 200, KRW 67,402,503 among the disposition imposing global income tax of KRW 83,098,319 against the plaintiff, and the part exceeding KRW 125,730,924 among the disposition imposing global income tax of KRW 128,417,056 against the plaintiff on May 24, 2005 by the head of the tax office of Busan shall be revoked

2. The plaintiff's remaining appeals against the defendants are all dismissed.

3. 9/10 out of the initial costs of the lawsuit shall be borne by the Plaintiff, the remainder 1/10 by the Defendants.

The decision of the court of first instance shall be revoked. The disposition of imposition of global income tax of 83,098,319 won and 83,098,319 won and 83,098,319 won and 86,39 won and 86,391,679 won and 64,84,039 won and 64,846,039 won and 198 global income tax for 1998 against the Plaintiff on October 1, 2002 against the Plaintiff by the head of the tax office of first instance (the purport of the claim is described as April 5, 2002, but it appears to be a clerical error in the statement of claim as of April 15, 2002) against the Plaintiff shall be revoked as of October 1, 2002, each disposition of imposition of global income tax of 197 against the Plaintiff on May 24, 2005.

1. Quotation of judgments of the first instance;

The reasons for the court's explanation concerning this case are as follows: "No. 4 of the 4th 8th th th 8th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th 6th th th th th th th th 6th th th th th th th th th th th th th th th th th th th th th th th th th th th th 2th th th th th 2th th th th th th th th.

[Supplementary Parts]

(C) The Plaintiff’s omitted rental income (amount calculated by wrongful calculation)

(1) unconstitutionality decisions

With respect to the lease of the land of this case to ○○○, the Defendants: (a) the Plaintiff and her husband, who leased the land of this case free of charge, calculated the lease income by estimation method to be subject to the application of the denial of wrongful calculation under Article 41(1) of the Income Tax Act; and (b) calculated the lease income amount as the tax base of the Plaintiff’s total income amount in the corresponding year; (c) however, the Constitutional Court decided on May 29, 2008 that the pertinent case’s judgment is based on the premise of the judgment; (d) Article 43(3) of the former Income Tax Act (amended by Act No. 5191 of Dec. 30, 196); and (e) Article 43(3) of the former Income Tax Act (amended by Act No. 7319 of Dec. 31, 204) and a person with a special relationship prescribed by the Presidential Decree who jointly runs a business that incurs real income from realizing distribution of profits and losses (hereinafter referred to as “joint business income amount”).

Therefore, real estate rental income for free belonging to the year 196 through 1999, such as "the details of land rent income free of charge" in attached Form 1, should be calculated separately by dividing it into the plaintiff and the 000s, according to the purport of the above decision of unconstitutionality.

(2) The Plaintiff’s leased income

From among the revenues accrued from joint rental business from the portion of 1996 to the portion of 1999 for the land of this case, the amount of the Plaintiff’s lease income shall be as follows:

Year

Joint Revenue Amount

(Plaintiff, ○○)

Evaluation of Wrongful Acts and subordinate statutes

(Plaintiff, ○○)

Plaintiff’s income amount

Plaintiff Income Amount

196

70,280,703

70,280,703

35,140,351

27,058,070

1997

8,403,400

68,070,618

4,201,700

34,035,309

1998

95,770,350

73,743,169

47,885,175

36,871,584

199

76,739,062

61,391,249

38,369,531

30,695,624

Aggregate:

31,193,515

273,485,739

165,596,757

128,660,587

-The amount equal to wrongful calculation: The amount of rental income from the plaintiff and the Lee ○-developed real estate

- Revenue amount of the Plaintiff = Common revenue X 1/2

- The Plaintiff’s income amount = the Plaintiff’s income amount X standard income rate

(c) The Plaintiff’s global income amount

The following are calculated by reflecting the Plaintiff’s rental income amount calculated as above in 1996 to 199:

Omission

(4)Indivate

The reasonable amount of global income tax for the year 1996 against the Plaintiff was imposed in excess of KRW 67,402,503 or in excess of KRW 83,098,319. The global income tax for the year 197 was imposed in KRW 89,665,075 or the initial amount of global income tax for the year 1997. The global income tax for the year 1998 was assessed in KRW 82,814,691 or the initial amount of global income tax for the year 1998 was the amount of KRW 64,846,039. The legitimate amount of global income tax for the year 1999 was imposed in excess of KRW 125,730,924 or in excess of that for the year 128,417,056, and thus, the tax amount for the global income tax for the year 196 and each of the tax years 199 was unlawful. Thus, the imposition disposition and imposition of global income tax for the year 1997.

2. Conclusion

Therefore, the part of the judgment of the court of first instance, which exceeds 125,730,924 won among the disposition of imposition of global income tax of 83,098,319, which belongs to the plaintiff on April 15, 2002, 67,402,503 won among the disposition of imposition of global income tax of 83,098,319, which belongs to the plaintiff on April 15, 2002, and the disposition of imposition of 128,417,056 won which belongs to the plaintiff on May 24, 2005 by the head of the tax office of ○san, which belongs to the plaintiff on May 24, 2005, is unlawful. Since this part of the judgment of the court of first instance differs from its conclusion, it is improper to revoke the disposition of imposition corresponding to the revoked part