Re-dispositions by the special exclusion period need to be exceptionally allowed in cases where a request for fair taxation is greater than the legal stability of taxpayers.

It is reasonable to allow the re-disposition within the same taxable unit. However, even if the initial disposition and the re-disposition are not the same taxable unit, it can be seen that the subsequent disposition are planned by a ruling or a judgment, and it is necessary to allow the re-disposition exceptionally in cases where a request for fair taxation is more strong than the legal stability of the taxpayer.

Article 26-2 (2) of the Framework Act on National Taxes

Seoul Administrative Court 2015Guhap6959

MoO

The director of the tax office.

Mar. 25, 2016

July 1, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s imposition of capital gains tax of KRW 2,216,096,110 against the Plaintiff on May 6, 2015 and the imposition of KRW 52,50,000 against the Plaintiff on July 3, 2015 shall be revoked in entirety.

1. Details of the disposition;

A. The Plaintiff’s status and transfer of shares

1) ㅇㅇ무역 주식회사(이하 'ㅇㅇ무역')의 대표이사이자 ㅇㅇ무역의 주식 25,188주(지분율 100%, 이하 '이 사건 주식')를 보유하고 있던 원고는 2006. 6. 7. 이**에게 이 사건 주식을 105억 원에 양도하기로 하는 계약(이하 '이 사건 주식양도계약')을 체결하여 같은 날 계약금 15억 원을, 2006. 8. 1. 잔금 90억 원을 각 지급받고 이**에게 이 사건 주식을 모두 이전하였다.

2) On September 11, 2006, the Plaintiff reported capital gains tax of KRW 52,50,000 on September 11, 2006, and KRW 2,216,096,110 on October 30, 2006, and paid in full within the payment period.

B. Progress of the transfer lawsuit

1) 삼성세무서장은 ㅇㅇ무역의 유일한 자산인 ㅇㅇ시 ㅇ구 ㅇㅇ로 ㅇ가 ㅇㅇ-ㅇㅇ 외 3필지 토지 164.6㎡와 그 지상 3층 건물(이하 '이 사건 부동산')이 이 사건 주식의 잔금지급일인 2006. 8. 1. ㅇㅇ무역으로부터 이**에게 이전되었다는 사정에 기초하여 이 사건 주식양도계약은 가장행위에 불과하고, ㅇㅇ무역이 이**에게 이 사건 부동산을 105억 원에 양도한 것으로 판단하고, 위 양도가액 105억 원을 ㅇㅇ무역의 2006 사업연도 익금에 산입하여 2010. 9. 1. ㅇㅇ무역에게 2006 사업연도 법인세 4,005,854,370원(이하 '이전 법인세'라 한다)을 부과하였다.

2) 삼성세무서장은 ㅇㅇ무역의 익금으로 산입된 위 105억 원이 ㅇㅇ무역의 대표이사였던 원고에게 귀속된 것으로 보아 소득세법 시행령(2008. 2. 29. 대통령령 제20720호로 개정되기 전의 것) 제192조 제1항 본문에 따라 2010. 9. 7. ㅇㅇ무역에게 원고를

In 2006, the income earner was notified of the change in the amount of bonus income of 10.5 billion won (for a corporation), and on November 16, 2010, the plaintiff was notified of the change in the amount of income of 10.5 billion won (for a corporation, the notification of the change in the amount of income) (hereinafter referred to as "Notice of the change in the amount of income before" in total).

3) On November 3, 2010, the Plaintiff filed a civil petition claiming a refund of the transfer income tax already paid to the Defendant, and appropriation of the global income tax to be paid in accordance with the notice of change in the amount of income. On November 10, 2010, the Plaintiff filed a revised return of the total income tax under the notice of change in the amount of income to the Defendant at KRW 3,493,831,630, and paid KRW 1,221,627,490 among them. The Defendant accepted the foregoing civil petition.

On November 15, 2010, the Plaintiff rendered a refund of KRW 2,216,096,110 of the capital gains tax that was paid by the Plaintiff. On December 7, 2012, the Plaintiff decided to refund KRW 52,50,000 of the securities transaction tax that was paid by the Plaintiff, and appropriated it for the above global income tax. The Plaintiff’s remaining global income tax that remains after appropriated it to the Defendant on December 29, 201.

54,075,00 won was paid in full.

4) 한편, 삼성세무서장은 ㅇㅇ무역이 이전 법인세를 납부하지 아니하자 원고를 2006. 12. 31. 당시 ㅇㅇ무역의 발행주식 100%를 소유한 과점주주로 보아 구 국세기본법(2006. 12. 30. 법률 제8139호로 개정되기 전의 것) 제39조 제1항 제2호에 따라 이전

On November 9, 2010, the corporate tax was designated as the secondary taxpayer and notified the Plaintiff to pay the previous corporate tax amounting to KRW 4,005,854,370 (hereinafter referred to as "transfer imposition disposition").

5) 원고는 2011. 9. 9. 삼성세무서장을 상대로 이전 각 소득금액변동통지와 이전 피고는 '원고가 2006. 6. 12. 이**에게 이 사건 주식을 105억 원에 양도한 이 사건 주식양도계약과 ㅇㅇ무역이 2006. 7. 10. 이**에게 이 사건 부동산을 177,965,101원에 매도한 부동산매매계약이 모두 가장행위이고 ㅇㅇ무역이 2006. 7. 10. 이**에게 이 사건부동산을 105억 원에 매도한 것이므로 ㅇㅇ무역의 익금으로 105억 원을 산입하여야 한다'고 주장하나, 이 사건 주식양도계약이 가장행위 혹은 조세회피행위에 해당한다고 볼 수 없으므로 ㅇㅇ무역이 2006. 7. 10. 이**에게 이 사건 부동산을 105억 원에 매도한 것으로 볼 수 없어 이를 익금으로 산입한 이전 부과처분은 위법하다. 부과처분의 취소 소송을 제기하였는바(서울행정법원 2011구합3****), 제1심 법원은2012. 6. 29. 이전 각 소득금액변동통지의 취소를 구하는 소 부분을 각 각하하고 아래와 같은 이유로 이전 부과처분을 취소하는 내용의 판결을 선고하였다

피고는 '원고가 2006. 6. 12. 이**에게 이 사건 주식을 105억 원에 양도한 이 사건 주식양도계약과 ㅇㅇ무역이 2006. 7. 10. 이**에게 이 사건 부동산을 177,965,101원에 매도한 부동산매매계약이 모두 가장행위이고 ㅇㅇ무역이 2006. 7. 10. 이**에게 이 사건부동산을 105억 원에 매도한 것이므로 ㅇㅇ무역의 익금으로 105억 원을 산입하여야 한다'고 주장하나, 이 사건 주식양도계약이 가장행위 혹은 조세회피행위에 해당한다고 볼 수 없으므로 ㅇㅇ무역이 2006. 7. 10. 이**에게 이 사건 부동산을 105억 원에 매도한 것으로볼 수 없어 이를 익금으로 산입한 이전 부과처분은 위법하다.

Since then, the Plaintiff and the head of Samsung Tax Office filed each appeal and appeal, but the dismissal of appeal on April 17, 2013 (Seoul High Court 2012Nu2****) and the judgment of dismissal of appeal on March 26, 2015 (Supreme Court 2013du9**) became final and conclusive on March 26, 2015.

C. The defendant's refund decision and taxation disposition

1) On April 15, 2015, the head of Samsung Tax Office revoked the notification of change in the amount of income to the Plaintiff and the decision of designating the secondary taxpayer in accordance with the said decision, respectively. On June 9, 2015, the Defendant decided to refund the global income tax of KRW 3,493,831,630 to the Plaintiff (1).

2) After May 6, 2015, the Defendant respectively decided and notified the Plaintiff of KRW 2,216,096,110, and securities transaction tax 52,50,000 on July 3, 2015 (hereinafter “instant disposition”).

3) On July 15, 2015, the Plaintiff dissatisfied with the instant disposition and filed the instant lawsuit with the Tax Tribunal on July 29, 2015, but the Tax Tribunal dismissed the instant lawsuit on May 31, 2016. [Grounds for Recognition] In the absence of dispute, each entry (including the serial number) in Gap’s 2, 3, 4, 5, and Eul’s 1 through 4, and the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 26-2(2)1 of the Framework Act on National Taxes (hereinafter referred to as “instant provision”) provides that “In the event of a judgment on a lawsuit filed under the Administrative Litigation Act, a decision of correction or other necessary disposition may be made according to the relevant judgment before one year has elapsed from the date the judgment became final and conclusive.” Since the period of exclusion extended under the instant provision (hereinafter referred to as “period of exclusion”) should be construed to be limited to the corporate tax or global income tax handled by the Plaintiff in the judgment of the lawsuit filed against the Samsung director of the tax office, the Defendant cannot make the instant disposition, the contents of which are capital gains tax and securities transaction tax, because the period of exclusion has expired, it is unlawful.

B. Relevant statutes

【National Tax Basic Act

Article 26-2 (Period for Excluding Assessment of National Taxes)

(1) No national tax may be levied after the period prescribed in the following subparagraphs expires: Provided, That where a mutual agreement procedure is in progress in accordance with a treaty concluded to prevent double taxation (hereinafter referred to as "tax treaty"), Article 25 of the Adjustment of International Taxes Act shall apply:

3. In cases that do not fall under subparagraphs 1, 1-2 and 2, a decision of correction or other necessary disposition may be made according to the relevant decision, judgment, mutual agreement, request for correction or recommendation for adjustment for five years from the date on which the relevant national tax is assessable.

1. An objection, or request for examination or adjudgment under Chapter VII, or request for examination or adjudgment under the Board of Audit and Inspection Act;

Where a decision or ruling is made on litigation instituted under the Administrative Litigation Act;

C. Determination

The key issue of this case is whether the scope of "decision of correction or other necessary disposition in accordance with the relevant judgment to which the special exclusion period applies in accordance with the provision of this case can include the cases where the tax items vary."

1) Purport of the exclusion period of imposition

The reason for setting the exclusion period under Article 26-2(1) of the Framework Act on National Taxes (hereinafter referred to as "ordinary exclusion period") is that a taxpayer subject to a disposition of imposition of tax after a long period of time is subject to so-called "influence" on a matter that has already been forgotten for a long period of time, and that it is difficult for the tax authorities to effectively defend because related data are lost, and that the State has a considerable human and material basis to support the exercise of the right to impose tax, including the right to impose tax, and has legal assistance. Therefore, it would be desirable to induce the state to exercise the right to impose tax as soon as possible, rather than imposing a heavy burden on the State that it is difficult to cope with the restriction period of imposition, and rather, to induce the state to exercise the right to impose tax as a matter of course. On the contrary, the exclusion period should be justified until the tax authorities newly issue a disposition related to a prior disposition after the revocation of the preceding disposition becomes final in the litigation procedure, and thus, it would be necessary to prevent the application of the tax law.

2) Interpretation of the scope of application of the special exclusion period

When establishing the scope of application of the special exclusion period, it seems that the following elements should be considered:

(1) The special exclusion period is extended to the taxation authority for a certain period of time even after the lapse of the ordinary exclusion period, and where there is a strong request for fair taxation that the taxpayer should bear a reasonable amount of tax than the taxpayer's rights and interests infringed, the re-disposition for the benefit of the taxation authority can be justified.

② Even though the taxation disposition is divided by the taxable unit and the period of exclusion from the special case has expired, it is reasonable to allow the tax authority to re-disposition within the same taxable unit, in principle, since the tax authority grants an opportunity for re-disposition. However, even if the initial disposition and re-disposition are not the same taxable unit, it is considerably closely related to the same taxation unit, and thus, it can be deemed that the subsequent disposition are scheduled in a ruling or judgment, and it is necessary to allow the re-disposition exceptionally if the taxpayer’

③ If the quoted ruling or ruling on taxation can be deemed to have been scheduled to supplement the illegal matters in light of the contents and purport of the ruling, it should be interpreted that it is possible to re-disposition by the special exclusion period.

3) Determination in this case

Considering the following circumstances that can be seen by comprehensively considering the purport of the entire argument in the facts of the recognition as above, the defendant can be deemed to have imposed a tax by transferring the shares of this case under the special exclusion period of the plaintiff. Therefore, the plaintiff's assertion is without merit.

① 이전 부과처분은 원고가 이**에게 이 사건 주식을 양도한 행위를 두고 위 양도 행위가 가장행위이고 ㅇㅇ무역이 이**에게 이 사건 부동산을 매매한 것으로 법률적평가를 한 것인데 반하여 이 사건 처분은 원고가 이**에게 이 사건 주식을 양도한행위를 진정하게 이루어진 것으로 보아 이에 대하여 과세한 것이므로 그 기초적 사실관계가 이 사건 주식 양도 행위로 동일하고, 이전 부과처분과 이 사건 처분은 그 법률적 평가만을 달리하였던 것이다.

② After the transfer of the instant shares in 2006, the Plaintiff paid transfer income tax and stock transaction tax to the same content as the instant disposition, but thereafter was subject to the previous disposition, and thereafter the transfer income tax and stock transaction tax were to be refunded from the Defendant. If the transfer disposition is revoked, it can be anticipated that the transfer income tax and stock transaction tax should be paid again. Therefore, there is no problem about the taxpayer’s trust protection or taxation related data.

③ Although the tax authority has a considerable human and material basis and has legal assistance, the proper evaluation of legal assessment for tax purposes demands a considerable burden on the tax authority, and the failure to re-dispositions the tax items to be returned entirely due to the error of the tax authority’s liability for illegal taxation due to the error of legal assessment is too harsh for the tax authority, and even though the tax authority clarified facts that can serve as the basis for taxation within the ordinary exclusion period, it goes against the tax justice.

④ If the instant disposition was rendered before the judgment on the previous disposition became final and conclusive, there was no room for doubt as to the application of the special exclusion period, and in such a case, it would be more unfavorable and harsh circumstances to the Plaintiff as a taxpayer.

3. Conclusion

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