Seoul Administrative Court-2013-Gu Partnership-23577 ( October 24, 2014)

The imposition of penalty tax is illegal if only the total amount of penalty tax is stated.

In the event that the imposition of penalty tax is called the imposition of penalty tax and only the sum of the grounds for calculation of penalty tax are stated, the imposition of penalty tax cannot be exempt from its illegality.

Article 81 of the Income Tax Act

2014Nu57203 Revocation of the disposition of imposition of corporate tax, etc.

The "price" was paid.

B. On September 27, 2010, the instant company holds a total number of the special shareholders’ meeting and hold not more than 158,500 shares.

44,909 shares of this case, i.e., a resolution to reduce capital by free retirement, and accordingly public;

On December 9, 2010, the registration of change for capital reduction has been completed through the procedures, such as ancient, etc.

C. The director of the Central Regional Tax Office of China has received against the plaintiffs due to the reduction of the capital of this case

As the difference between the price of this case and the acquisition price of the stock of this case, Article 17 (1) of the Income Tax Act

Each tax authority shall impose comprehensive income tax on deemed to constitute constructive dividend referred to in subparagraph 3 of paragraph (3).

notice was given to the Company.

D. On January 11, 2013, the director of the final tax office made notification to Plaintiff A on January 11, 2013.

The total of KRW 460,385,840 and penalty tax of KRW 102,396,980 and the total of KRW 562,782,820 for global income tax of KRW 2010.

The disposition of the class, the disposition of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class.

A total of KRW 1,605,56,290 in total of KRW 1,310,923,275, additional tax 294,63,015

The disposition was imposed (hereinafter referred to as "each disposition of this case").

[Ground of recognition] Unsatisfy, Gap evidence 1 to 5, 7, Eul evidence 1 to 5 (including provisional number)

each entry, the purport of the whole pleading

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

(a) Related Acts and subordinate statutes;

It is as shown in the attached Form.

B. Determination of the plaintiffs' assertion on the main tax amount of global income tax

(1) Determination as to the assertion regarding the disposition of imposing corporate tax on the instant company

(A) The plaintiffs' assertion

The director of the Western District Tax Office (Law No. 10600, Apr. 14, 2011) shall revise the instant contract by the former Commercial Act (amended by Act No. 1060

under the presumption that the failure to meet the requirements of Article 341 is null and void; hereinafter the same shall apply)

The corporate tax was imposed on the company of this case in view of the fact that the purchase price is an office-free provisional payment.

Each disposition of this case is based on the premise that the contract of this case is valid, and thus, the above disposition is imposed.

is inconsistent with division. Accordingly, the above disposition of imposing corporate tax shall not be null and void or cancelled as a matter of course.

Each disposition of this case is unlawful.

(B) Determination

In accordance with the contract of this case, the acquisition of the Company's own shares by the Director of Seocheon-gu, Seocheon-gu

on the premise that the payment in this case is null and void because it does not meet the requirements of Article 341 of the Act, it shall be free of duty

204 204 2004 204 2004

from 208 to 2008, the recognized interest shall be included in the gross income, and the loan of the company of this case for the same period

Among the interest paid, the interest paid on the instant loan was excluded from deductible expenses, and the instant company was included in deductible expenses.

The corporate tax for the business year 2004, February 24, 2010, KRW 458,092,830, and ② May 7, 2010

India 390,980,270 won, corporate tax for the business year 2007 331,259,140 won, and corporate tax for the business year 2008

382,165,240 won, and 351,721,430 won of corporate tax for the business year 2006 May 6, 2010, respectively, shall be corrected and notified.

The facts do not conflict between the parties.

However, in full view of the aforementioned evidence’s reasoning, the following facts are revealed.

This is recognized. ① The instant company’s contract against the director of Seocheon District Tax Office on January 4, 2012

A lawsuit was brought to seek the revocation of the above corporate tax imposition disposition by asserting that it is valid.

The Incheon District Court (2012Guhap106), which is a legal entity, determined that the contract of this case is null and void, but the second instance court

The Seoul High Court, which caused the law, issued on January 10, 2014, 2012Nu2881, title of stock retirement by the instant company

Since the acquisition of the shares in this case, the contract in this case is governed by Article 341 subparagraph 1 of the former Commercial Act.

Under the judgment that the above disposition of imposing corporate tax is valid, the judgment was sentenced to revoke all the above disposition of imposing corporate tax.

③ Although the chief of Seoin District Tax Office appealed, the Supreme Court made an appeal on May 29, 2014 as the Supreme Court Order No. 2645 Decided May 29, 2014

Each of them was done.

Therefore, the above corporate tax assessment office that considers the plaintiffs to be incompatible with each disposition of this case

Sector was revoked by the court's ruling, and thus, the plaintiffs are subject to different premise.

Part of the argument is without merit.

(2) Determination on the assertion regarding receipt time

(A) The plaintiffs' assertion

The receipt time of total receipts shall be the rights and obligations prescribed in Article 39 (1) of the Income Tax Act.

shall be determined by due diligence. The time of receipt shall be specified for each type of income or transaction.

the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24823, Nov. 5, 2013; hereinafter the same shall apply)

(c)Articles 45 through 50 are not completed regulations, and therefore, comply with them without exception;

does not mean that they are.

Based on this premise, the plaintiffs are entitled to shares of this case under the contract of this case on December 21, 2000.

the corporation of this case after the transfer of the corporation and the payment has been made finally, and thereafter, the State

Therefore, the plaintiffs' income from constructive dividend has already been made on December 21, 2000.

It should be viewed that the right has become final and conclusive when the possibility of realization is objectively recognized.

Although Article 46 subparagraph 4 of the former Enforcement Decree of the Income Tax Act is deemed to be a constructive dividend, the retirement of shares and reduction of capital;

this case, even if the date of decision of transfer into capital is provided for by the time of receipt of that case.

prior to the procedure of stock retirement, the same shall apply to the case where the stock purchase price claim has already been created.

shall not be deemed to exist.

Therefore, 2010, which belongs to the date on which the capital reduction is decided, rather than 200 years for the above constructive dividend income.

Each of the dispositions of this case based on the premise that it belongs to the Do is illegal.

(B) Determination

Article 39 (1) of the Income Tax Act shall apply to the total revenue and necessary expenses of the resident for each taxable period.

The year to which the total amount of income and necessary expenses are determined shall be the taxable period in which the expenses are determined.

As to the time of reversion of profit and loss, the so-called principle of confirmation of rights and obligations is defined.

The right confirmation principle, which is the principle to determine the time of attribution of income under the Income Tax Act, is realized in taxation income.

income for the year concerned and calculated income for the year concerned, by deeming that such income has been derived when such

on the assumption that the income substantially uncertain will be realized in the future;

Although it is a principle that allows taxation, the concept of "a final determination" in such a right settlement principle.

income shall not be determined as a general principle without exception to the time of attribution of the income, and in detail

The management and control of income in relation to the case, the objective of income generated, and the securing of taxpayer's money.

Until now, maturity and confirmation shall be made to the extent that the possibility of income is considerably high by taking into account such factors together.

Determination of the time of attribution ought to be made on the basis of whether the relevant property was attributed (Supreme Court Decision 91Nu55 delivered on June 22, 1993).

8180 see Supreme Court Decision 8180

However, the contract of this case, i.e., the sale of the shares, not a mere transfer of shares.

As seen earlier, it takes place as part of the capital reduction procedure by means of stock retirement.

In other words, the constructive dividend income that the plaintiffs acquired due to such capital reduction is a general state.

Unlike formal capital gains, "the date on which the reduction of capital is decided" under Article 46 subparagraph 4 of the former Enforcement Decree of the Income Tax Act.

It is reasonable to deem that the possibility of sale and purchase of shares has been finally determined, and after payment of the purchase and sale of shares

income from constructive dividend already made on the date of payment of stock purchase price, after the decision to reduce the capital was made;

It can not be said that the possibility has been confirmed.

For this reason, the plaintiffs have uniformly decided on the capital reduction date of the company's constructive dividend income.

When it comes to be the final time, according to the taxpayer's in collusion with the company, the taxable year

The income is likely to be determined by the taxpayer and the taxpayer can easily confirm the "date of decision on the reduction of the company's capital".

If there is no other problem, such as the time to make a final return on global income and the payment thereof.

Section 342 of the Commercial Code, however, asserts that the company will retire its shares in order to retire its shares.

When acquiring shares, the acquisition of shares shall without delay take the procedures for the effect of the shares; and

Article 635 of the Act provides re-regulation of fines for negligence in violation of this Act. A company is re-regulation of the same Act.

Where a person takes the procedure for invalidation of his/her shares without delay after acquiring his/her shares in a normal manner as prescribed by Ordinance;

There is no room for the problems asserted by the plaintiffs. Rather, when the share purchase price is paid.

B. If deemed to be the date of determination of the fictitious dividend income, the class more than that of capital gains tax, as in this case

Where the rate of income tax is high, after the taxpayer files a report on the purchase price of shares as capital gains, the corporation

A taxpayer shall make a decision on the reduction of capital after the exclusion period for the aggregate income tax expires.

is likely to evade taxes.

Therefore, this part of the plaintiffs' assertion is without merit on different premises.

C. Determination of the plaintiffs' assertion on the additional tax on global income tax

(1) The plaintiffs' assertion

(A) procedural defects

The Defendants impose penalty tax on the Plaintiffs on the instant global income tax.

Since the type or the basis for calculation was not specified, there is procedural defect in the imposition of additional tax.

(b) substantial defects;

Justifiable grounds for failure to pay the instant comprehensive income tax to the Plaintiffs

No additional tax may be imposed on the person in existence.

(2) Determination

(A) When the principal tax and the additional tax are imposed upon one notice of tax payment, the amount of tax are to be paid.

The principal tax and the additional tax amount and the calculation basis should be stated in the paper separately; and

In addition, if several kinds of additional taxes are imposed together, tax for each type of additional tax

A taxpayer shall be subject to each tax payment notice by classifying the amount and the calculation basis thereof.

As a matter of principle, it is natural to clarify the content of the disposition, so it is called an imposition of penalty tax.

the sum of additional taxes without expressly stating the type of such tax and the basis for calculation thereof;

(1) The Supreme Court Decision 2010Du12347 Decided October 18, 2012 (Supreme Court Decision 2010Du2347 Decided October 18, 2012)

See en banc Decision, etc.)

(B) However, in full view of Gap evidence Nos. 1-1 and 2-2 and the purport of the entire pleadings, the respondent shall be subject to the examination.

the notice of tax payment of each of the instant global income tax against the Plaintiffs is written as penalty tax only.

(2) The type of penalty tax and the basis for its calculation are not specified.

A notice of tax payment of each additional tax shall contain any defect, such as omitting matters required by related statutes.

section 7 of this title and section 8-1 and 2 of this title are not sufficient to supplement or set up the defect.

Other data that can not be deemed to have been found to have been lost, and other data that prove that the above defect was supplemented or cured.

shall not be effective.

(C) Therefore, as to the existence of a substantive defect in the part of the instant disposition

Furthermore, it is unlawful without the need for further determination.

3. Conclusion

Then, on January 11, 2013, the director of the final tax office belongs to the Plaintiff A in 2010.

Additional tax amounting to KRW 562,782,820 (including additional tax) and KRW 102,396,980 in the disposition of imposition of global income tax

AA, BB

AA 9,612 Shares, BB 27,297 Shares) 44,909 Shares (hereinafter referred to as "the shares of this case")

(c)transfer of shares to acquire a total of KRW 2.10,00 per share and KRW 9.430,0890 per share;

The acquisition contract of this case (hereinafter referred to as "the contract of this case") is entered into, and on December 21, 200, the price of this case (hereinafter referred to as "the price of this case").

Head of the tax office, Gangnam Tax Office;

Sejong Tax Office on January 11, 2013, the global income for the ownership of Plaintiff A in 2010.

Taxing KRW 562,782,820 (including additional tax), additional taxing KRW 102,396,980 and Defendant Gangnam-gu

the chief of a tax office on global income tax for the year 2010 belonging to Plaintiff BB from January 2013, 2013;

Of the imposition of 290 won (including additional taxes), the part concerning 294,633,015 won of additional taxes shall be revoked.

2. All remaining appeals by the plaintiffs are dismissed.

3. Of the total litigation costs, 80% is borne by the Plaintiffs, and 20% is borne by the Defendants, respectively.

The Head of Gangnam-gu Tax Office’s global income tax for the year 2010 on Plaintiff BB around January 2013

Part 294,633,015 won of penalty tax (including penalty tax) in the disposition of imposition of tax 1,605,556,290

Since each remaining part is legitimate, the plaintiffs' claims are justified within the scope of the above recognition.

the court of first instance shall accept the remainder of the claim and shall dismiss it on the ground of its reason. The judgment of the court of first instance shall conclude this.

Since the appeal is partially accepted by the plaintiffs, the decision of the court of first instance is unfair.

D. The plaintiffs' remaining appeals are dismissed due to the lack of reasons.

D. It is so decided as per Disposition.

May 29, 2015

June 19, 2015

1. Of the judgment of the first instance court, the part against the plaintiffs regarding the order to revoke below shall be revoked.

The judgment of the first instance shall be revoked. The director of the final tax office against the plaintiff A on January 11, 2013

The total of KRW 460,385,840 and penalty tax of KRW 102,396,980 and the total of KRW 562,782,820 for global income tax of KRW 2010.

The disposition of the class, the disposition of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class.

A total of KRW 1,605,56,290 in total of KRW 1,310,923,275, additional tax 294,63,015

Each disposition shall be revoked in full.

1. Details of the disposition;

A. The company of this case (hereinafter referred to as the "company of this case") was changed from the HH cooperation corporation (hereinafter referred to as the "DH cooperation corporation") to which the company of this case was owned by the company of this case (hereinafter referred to as the "company of this case") as a manufacturer of Aluminium wheelchairs, etc., which is part of the automobile, through a resolution of the board of directors on December 6, 2000, and died after the resolution of the board of directors. The shares issued by the company of this case (CSJ 8,000 shares) by the company of this case (