Busan District Court-2016-Gu 23326 (2.03, 2017)

Only if a trustee received dividend income under the name of the trustee and reported and paid the comprehensive income tax, it can not be deemed a fraudulent or other unlawful act under the Framework Act on National Taxes.

The fact that the trustee received dividend income through the account opened in the name of the trustee and reported and paid the comprehensive income tax under the name of the trustee is merely an ordinary act incidental to the title trust and its accompanying act, and thus cannot be deemed as a fraudulent or other unlawful act under

The exclusion period of national tax imposition under Article 26-2 of the Framework Act on National Taxes

2017Nu2068 Revocation of Disposition of Imposing global income tax, etc.

○ ○

The head of the tax office

Busan District Court Decision 2016Guhap23326 Decided February 3, 2017

November 24, 2017

January 12, 2018

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

The Defendant revoked each portion of global income tax of KRW 5,408,850 for the Plaintiff on August 3, 2015, global income tax of KRW 34,952,200 for the year 2005, global income tax of KRW 41,635,010 for the year 2006, global income tax of KRW 54,863,430 for the year 2007, global income tax of KRW 107,334,370 for the year 2008, global income tax of KRW 108,025,130 for the year 209 (including unjust under-reported additional taxes) and global income tax of KRW 183,275,950 for the year 2010 for the global income tax of KRW 89,740,709 for the year 207.

2. The plaintiff's remaining appeal is dismissed.

3. One-third of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance shall be revoked. The Defendant’s disposition of imposition of global income tax of KRW 5,408,850 for the Plaintiff on August 3, 2015, global income tax of KRW 34,952,200 for the year 2005, global income tax of KRW 41,635,010 for the year 2006, global income tax of KRW 54,863,430 for the year 207, global income tax of KRW 107,334,370 for the year 208, global income tax of KRW 1025,025,130 for the year 209, global income tax of KRW 183,275,950 for the year 204, and the imposition disposition of imposition of excess of KRW 32,408,3208,3208,3200 for the year 209, and penalty tax for unjust underreporting shall be revoked.

1. Details of the disposition;

The reasons for this part are as stated in Paragraph 1, except that "The court has decided and notified the plaintiff of KRW 445,924,290 of gift tax," in Section 1-B of the judgment of the court of first instance, "The court has decided and notified the plaintiff of KRW 445,924,290 of gift tax," and "the court has decided and notified the plaintiff of KRW 445,924,290 of gift tax," and this part is as stated in Paragraph 1.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) As to the tax investigation of the plaintiff

The Plaintiff’s tax investigation does not fall under the scope of the tax investigation under Article 81-6(3) of the Framework Act on National Taxes and does not fall under the requirements for expanding the scope of the tax investigation under Article 81-9(1) of the Framework Act on National Taxes. Thus, the instant disposition shall be revoked as it is based on

2) On the instant disposition imposing global income tax

The Plaintiff, at the time of the establishment of Hong B, CC, RoD, and DoE in title trust with a view to meeting the requirements of seven promoters, and thereafter, paid dividends under the name of the trustee for free increase of payments and cash dividend. The Plaintiff did not have the purpose of evading taxes, and the report of global income tax under the title trust was not an active act, and thus the exclusion period of imposition for five years is applicable, and the unfair under-reported additional tax may not be imposed.

3) As to the imposition of transfer income tax of this case

Considering that the title trust agreement on shares is effective, and the ownership is transferred to and reverted to the trustee, and that in the internal relationship, the ownership is reserved to the truster, the act of transferring the shares entrusted under the name of HongB to a third party and paying the capital gains tax in the name of HongB shall not be deemed unlawful means. Moreover, the Plaintiff and HongB constitutes a relative by marriage within the fourth degree and thus the special relationship with the △△△△△△△△△ is equally applied, there is no amount of tax evaded. Furthermore, HongB paid the gift tax of KRW 155,590,00 as the deemed donation for the instant title trust. The imposition of the penalty tax on the illegal non-declaration of the capital gains tax on the instant transfer income tax is unlawful

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The reasoning for this part of this Court is as stated in Section 2(c) of the judgment of the court of first instance. Thus, this Court shall accept it as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

D. Determination

1) Whether a tax investigation by the Plaintiff is lawful

According to Article 81-6 (3) of the Framework Act on National Taxes, a tax official may conduct a tax investigation in any of the following cases." Article 81-6 (1) 4 provides that "Where there are clear data to acknowledge a suspicion of omission or error in the details of a return," subparagraph 2 provides that "no tax official shall conduct a reinvestigation of the same item and the same taxable period unless it falls under any of the following subparagraphs." Article 81-4 (2) provides that "where there are clear data to acknowledge a suspicion of tax evasion" in subparagraph 1 and subparagraph 2, subparagraph 6 of the same Article provides that "where there are clear data to acknowledge a suspicion of tax evasion, it shall be deemed that there are the same aspect in the expression, but the reexamination of the same item and taxable period shall seriously infringe on taxpayers' rights and interests such as freedom of business, and it shall be deemed that there is a risk of arbitrary tax evasion by the tax authority," it shall be deemed that there is a considerable possibility of tax evasion or omission in the case of 20th judgment to the extent that it is reasonable and reasonable.

이 사건에서 보건대, 갑 제2, 8호증에 변론 전체의 취지를 종합하면, ▽▽세무서장은 ☆☆☆☆에 대한 주식변동서면을 확인한 결과 원고가 2010. 12. 2. 의붓아들인 정AA에게 ☆☆☆☆의 발행주식 5,975주(발행주식총수의 31.52%)를 매매 형식으로 양도한 것(이하 '이 사건 제1주식 양도'라 한다)이 구 상속세 및 증여세법상 특수관계자 간 저가양수에 따른 이익의 증여에 해당한다고 보고 ◎◎◎세무서장에게 이를 통보한 사실, 이에 따라 ◎◎◎세무서장은 2013. 9. 9. 이 사건 제1주식 양도에 대하여 특수관계자 사이의 저가양수에 따른 이익의 증여에 해당한다는 이유로 증여세 445,924,290원을 부과한 사실, 위 부과처분에 대한 정AA의 조세심판 청구에 따른 조세심판원의 심판 과정에서 □□□의 경리부장 남FF은 '주식의 양수도와 관련한 서류 및 사무처리를 원고의 지시를 받아 본인이 처리하였다'는 사실확인서를 제출하고, 원고와 정AA은 이 사건 제1주식의 양도가 명의신탁이라는 취지의 사실확인서를 제출하고 같은 취지의 의견진술을 한 사실, 조세심판원은 2014. 9. 25. 위와 같은 조사 내용과 정AA의 당시 나이, 근로소득 현황, 직업 등에 비추어 볼 때 이 사건 제1주식의 양도는 명의신탁에 해당한다는 이유로 위 부과처분을 취소하는 결정을 한 사실, ■■지방국세청장은 위 부과처분 취소 결정에 근거하여 이 사건 제1주식 양도를 포함하여 같은 기업집단인 □□□, △△△△△△, ☆☆☆☆의 주식변동에 대한 조사를 실시한 사실이 인정된다.

As seen earlier, in view of the fact confirmation by the NamF, the fact confirmation by the Plaintiff and the JungAAA, the statement of the same purport, the relationship between △△△ and Doe Agreement, and the relationship between the Plaintiff and the trustee, etc., the possibility that the shares of the instant enterprise group under the actual control of the Plaintiff were held in title trust under the Plaintiff’s initiative, and that there was a possibility of omission or error in the details of the report, and the possibility thereof was supported by such objective data. Therefore, it is difficult to deem that there was any illegality in the tax investigation by the Plaintiff against the Plaintiff.

2) Whether the instant disposition of global income tax was lawful

A) Whether the purpose of tax avoidance exists

Although the Plaintiff asserted that the title trust of this case was made in order to satisfy the statutory limitation on the number of promoters under the Commercial Act, the Plaintiff’s assertion that the title trust of this case was made is difficult to believe as it is, in light of the following circumstances, the following circumstances, which were acknowledged by comprehensively taking account of the overall purport of the arguments in the evidence No. 2 and No. 1, and Article 288 of the Commercial Act, which limited the number of promoters, was amended by Act No. 6488 on July 24, 2001, which led not to impose any limitation on the number of promoters necessary for the establishment of the corporation. The title trust of RoD among the title trust of this case, was made after the establishment of Doz., and the title trust of DoE was made after the deletion of the limitation on the number of promoters under the title trust of this case. The Plaintiff’s testimony that the instant title trust was made is insufficient to recognize that there was no purpose of tax avoidance only by the testimony of the evidence submitted by the Plaintiff and the witness Kim FF.

Ultimately, there is no objective and objective evidence to acknowledge that the title trust of this case was made by an obvious purpose, not a tax avoidance purpose, and in light of the relationship between the Plaintiff and the trustee, etc., it is difficult to readily conclude that the Plaintiff did not have any objective of tax avoidance, such as reducing the burden of global income tax, which is an oligopolistic shareholder, under the tax law, and there is no other evidence to deem otherwise. Therefore,

(b)the exclusion period;

According to Article 26-2(1)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same), where a taxpayer evades national taxes, or obtains a refund or deduction due to “Fraud or other unlawful act”, the limitation period for the imposition of national taxes shall be extended to 10 years. Here, “Fraud or other unlawful act” refers to an act that is deemed unfair under social norms as an act of enabling the evasion of taxes, i.e., an act that is recognized as an act that makes it impossible or considerably difficult to impose and collect taxes, i.e., a deceptive act that makes it impossible or considerably difficult to impose and collect taxes impossible. Therefore, it does not constitute an act of simply failing to file a tax return or filing a false tax return without accompanying other acts, but it may be recognized as making it impossible or considerably difficult to impose and collect taxes, in addition to active circumstances, such as intentionally omitting revenues, sales, etc. in the account book (see, e.g., Supreme Court Decision 2010Do6810).

Meanwhile, even if income is obtained through a disguised name, if it is not related to tax evasion, it does not constitute "Fraud or other unlawful act" under Article 26-2 (1) 1 of the former Framework Act on National Taxes solely on the basis of the nominal name. However, if such act is added to active acts such as the preparation of a false sales contract and false payment for the purpose of tax evasion, false return of capital gains tax, false registration and recording, and preparation and keeping of a false account book, it constitutes "Fraud or other unlawful act that makes it impossible or considerably difficult to impose and collect taxes (see Supreme Court Decision 2013Du7667, Dec. 12, 2013).

In this case, it is difficult to conclude that the Plaintiff did not have any purpose of tax avoidance, such as reducing the burden of global income tax, which is disadvantageous or progressive under the tax law as an oligopolistic stockholder.

However, there is no evidence to acknowledge the following circumstances: (a) the Plaintiff’s act related to the title trust of this case received dividend income through the account opened in the name of the title trustee and reported and paid the comprehensive income tax under the name of the title trustee; and (b) there is no evidence to support the special circumstances, such as the preparation of a false contract and the false payment of the price,

Therefore, the exclusion period of ten years under Article 26-2 (1) 1 of the former Framework Act on National Taxes cannot be said to apply to the disposition of global income tax imposition against the plaintiff, and the exclusion period of five years under Article 26-2 (1) 3 of the same Act shall be deemed to apply.

Article 12-3 (1) of the Enforcement Decree of the Framework Act on National Taxes provides that the date on which a national tax may be imposed shall be the day following the due date of the submission or the due date of the return of the tax base and amount of the national tax for which a return of tax base and amount of tax are filed, and Article 70 (1) of the Income Tax Act provides that "the resident having global income in the relevant taxable period shall report the tax base of global income to the head of the district tax office having jurisdiction

With respect to the imposition of global income tax for the year 2004 through 2009 among the disposition imposing global income tax in this case, the Plaintiff filed a return on the global income tax for the year 2009 to the Defendant by May 31, 2010, and the Defendant may impose the global income tax for the year 2009 from June 1, 2010 to the date following the filing deadline. However, it is apparent that the instant disposition was taken five years after June 1, 2010, which was the initial date of the exclusion period for the imposition of global income tax for the year 2009. Accordingly, the imposition of global income tax for the year 204 through 2009, among the disposition imposing global income tax in this case, was made with the exclusion period, and thus, it is unlawful. Accordingly, the judgment on unjust underreporting is limited to the imposition of global income tax for the year 2010 among the disposition imposing global income tax in this case.

C) Unfair underreported Additional Tax

Article 47-2 (1) of the former Framework Act on National Taxes provides that when a taxpayer fails to file a tax base return by the statutory due date of return, an amount of general non-reported penalty tax equivalent to 20/100 of the calculated tax amount under tax-related Acts shall be added to or deducted from the payable tax amount, and Article 47-2 (2) of the same Act provides that where a taxpayer files a return without filing a tax base return in an unjust manner, "the method prescribed by Presidential Decree as violating the obligation to report the tax base or tax amount of national tax by unlawful means" is defined as "the method prescribed by Presidential Decree as violating the obligation to report the tax base or tax amount on the basis of covering all or part of the fact that serves as the basis for calculating the tax base or tax amount of national tax", the taxpayer shall either pay the payable tax amount or deduct the refundable tax amount from the payable tax amount.

Article 47-3 (1) of the former Framework Act on National Taxes provides that "generally under-reported penalty tax equivalent to 10/100 of the amount calculated by multiplying the ratio of the underreported tax base to the tax base by the calculated tax amount shall be added to the payable tax amount or deducted from the refundable tax amount. Paragraph 2 (1) of the same Article provides that "unfair under-reported penalty tax amount equivalent to 40/100 of the amount calculated by multiplying the ratio of the amount equivalent to the underreported tax base by the calculated tax amount shall be added to the payable tax amount or the refundable tax amount shall be deducted from the refundable tax amount.

The legislative intent of Article 47-2(2)1 and Article 47-3(2)1 of the former Framework Act on National Taxes and Article 27(2)6 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012; hereinafter the same) is to impose heavy sanctions on taxpayers who violate the duty to report the tax base or tax amount by unlawful means, in cases where it is difficult to discover facts that constitute the basis of calculating the tax base or the amount of national tax or where there is fraudulent acts such as forging or withdrawing false facts. Therefore, “Fraud and other unlawful acts” referred to in Article 27(2)6 of the former Enforcement Decree of the Framework Act on National Taxes are deemed as one of improper methods or considerably difficult to impose and collect taxes, and it does not constitute a fraudulent act such as preparing a false report under the tax law or making a false report under the name of the taxpayer under the false name or making a false registration under the same Article 27(2)6 of the former Enforcement Decree of the Framework Act, even if the tax authority does not have any special intention to do so.

As seen earlier, there is no evidence to deem that the Plaintiff’s act related to the instant global income tax received dividend income through the account opened in the name of the trustee, and reported and paid the comprehensive income tax under the name of the trustee, and there is no other evidence to deem that the Plaintiff’s act was an active act, such as providing false data.

Therefore, among the disposition imposing global income tax in this case, the imposition of unfair under-reported global income tax for 2010 is unlawful, and the imposition of unfair under-reported penalty tax for global income tax for 2010 (124,713,654 won) which is imposed on global income tax for 2010 less the amount of general under-reported penalty tax [124,713,654 won x 1/454 won] [93,535,241 won (=124,713,654 won-31,178,413 won)] should be revoked as it is unlawful.

3) Whether the part of the imposition disposition of transfer income tax of this case is legitimate

The following facts or circumstances are acknowledged based on the aforementioned evidence and the overall purport of oral argument, namely, ① the Plaintiff transferred the shares 80,000 shares of HongB to △△△△△△△△△△ in the name of HongB on June 14, 2013, ② the sales contract was prepared in the name of HongB in the above shares transfer, ② the transfer price was made in the name of HongB; ③ the Plaintiff reported the securities transaction tax and the transfer income tax on the above shares transfer under the name of RedB; ④ the purchaser’s relation with the Plaintiff constitutes a specially related person under Article 101 of the former Income Tax Act (amended by Act No. 12169, Jan. 1, 2014); however, the Plaintiff and the specially related person under Article 128(2) of the Enforcement Decree of the Framework Act on National Taxes (the Plaintiff’s red income tax and the specially related person under Article 28(1)2 of the former Enforcement Decree of the Framework Act on △△△△△△△△△△△△△△△.

Examining such facts and circumstances in light of the legal principles as seen earlier, the Plaintiff’s act of transferring stocks in the name of HongB was conducted for the purpose of concealing that it constitutes wrongful calculation, as well as for the purpose of avoiding other legal regulations, and further, constitutes an active act, such as the preparation of a false sales contract and the false payment of the price, so as not to discover such fact.

In addition, deemed donation of title trust is a sanction against the Plaintiff’s act of title trust against the RedB, and unfair non-reportable additional tax is not a double sanction as a sanction against the act of transferring the shares in the name of RedB to △△△△△△△△△.

Therefore, it is legitimate that the Plaintiff imposed an unfair non-reported tax in imposing the transfer income tax of this case, and the Plaintiff’s assertion against this is without merit.

E. Sub-committee

1) Of the instant disposition imposing global income tax, the disposition imposing global income tax for the year 2004 through 2009 is unlawful, and thus, all of the disposition should be revoked.

2) Of the disposition imposing global income tax in this case, the portion exceeding KRW 89,740,70,709, excluding the amount obtained by subtracting the amount equivalent to the amount of the general underreported penalty tax from the unjustly underreported penalty tax ( KRW 93,535,241), among the disposition imposing global income tax in this case for the imposition of global income tax in 2010, should be revoked as it is unlawful.

3. Conclusion

Therefore, among the disposition imposing global income tax of this case, the claim for revocation of the disposition imposing global income tax of 2004 to 2009 is accepted on the ground of its reasoning. The claim for revocation of the disposition imposing global income tax of this case for 2010 among the disposition imposing global income tax of this case is with merit within the scope of the above recognition, and the remaining claim is without merit, and the claim for revocation of the disposition imposing global income tax of this case is dismissed on the ground of its ground of its ground. The judgment of the court of first instance is unfair on the ground that it partially accepted the plaintiff's appeal and partly revoked