(영문) 대법원 2018.12.13.선고 2018두36004 판결

The part of the judgment of the court below against the defendant is reversed, and the judgment of the court of first instance on this part is revoked, and this part of the lawsuit is dismissed

Of the lower judgment, the part of the additional tax on the gift tax donated on December 2, 2010 is reversed, and that part of the case is remanded to the Busan High Court.

The plaintiff's remaining appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. Lone Star Co., Ltd., Lone Starex Co., Ltd., Steco, Ltd. (hereinafter referred to as “stock company” omitted) is an unlisted corporation that belongs to an enterprise group under the Monopoly Regulation and Fair Trade Act (hereinafter referred to as “enterprise group of this case”). Nonparty 1 owns 52.59% of Lone Star’s representative director and 31.52% of the equity interest of Lone Starex, and owned 52% of the equity interest of Lone Star, around 2010, and actually controls the enterprise group of this case. The Plaintiff is Nonparty 2’s spouse.

B. On December 2, 2010, the Plaintiff acquired 5,975 shares issued by Lone Starex from Nonparty 1 (hereinafter “instant shares”) in the form of sale and purchase, and September 2, 2011.

Non-party 2 acquired 2,00 shares issued in Smaco T&C (the total number of shares issued is 40%, hereinafter referred to as "the second shares") in the form of sale.

C. During the process of transferring the shares No. 1 of this case, Nonparty 1 had the Plaintiff establish a new passbook in its name, and deposited the acquisition price in cash on the date on which the passbook is opened, but thereafter, transferred the acquisition price to his own passbook. According to its external appearance, Nonparty 1 prepared a share transfer agreement and submitted a copy of the share transfer income tax and securities transaction tax return along with the copy.

D. On October 6, 2015, the Defendant rendered each of the instant dispositions to the Plaintiff on December 2, 2015, under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (Amended by Act No. 11130, Dec. 31, 201; hereinafter the same shall apply) by deeming that “The transfer of shares Nos. 1 and 2 constitutes a title trust for the purpose of tax avoidance,” and accordingly, notified the Plaintiff of the gift tax of KRW 870,69,560 (including the penalty tax of KRW 183,928,080,000,000,000 (including the penalty tax of KRW 159,138,50,000,000,000,000,000,000 won, which was donated on September 2, 2011.

E. Meanwhile, on the other hand, on September 2, 2011, the Defendant revoked ex officio KRW 18,037,568 in excess of the tax amount calculated by applying the ordinary non-declaration rate of penalty tax (20%) to the additional tax on the gift tax on the donation on September 2, 2011 among the instant disposition on March 12, 2018.

2. Judgment on the Plaintiff’s grounds of appeal

A. As to the grounds of appeal Nos. 1 and 2, the lower court, on the grounds indicated in its reasoning, determined that the gift tax investigation following the transfer of shares No. 1 did not constitute an illegal reinvestigation conducted in violation of Article 81-4(2) of the Framework Act on National Taxes, and that there was no illegality in determining that the Plaintiff was selected as the subject of the tax investigation in relation to the transfer of shares No. 1 and 2 in this case, and that the Plaintiff

Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on tax investigation permissible under the Framework Act on National Taxes or omitting judgment, contrary to what is alleged in the grounds of appeal.

B. As to the ground of appeal No. 3, Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act, where the actual owner and the nominal owner are different with respect to property that requires a registration, etc. for the transfer or exercise of rights, the main sentence of Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act provides that "where the actual owner and the nominal owner are deemed to have been donated the value of the property on the date when the registration, etc. is made to the nominal owner, the nominal owner shall be deemed to have been donated, notwithstanding Article 14 of the Framework Act on National Taxes," and the main sentence of Article 45-2 (2) provides that "where the property is registered,

For the reasons indicated in its holding, the lower court determined that there was insufficient proof as to the fact that the title trust of the shares Nos. 1 and 2 of this case had a clear purpose of tax avoidance, which is irrelevant to the tax avoidance, or that there was no tax avoidance at the time of the title trust or in the future.

Examining the record in light of the aforementioned provisions and relevant legal principles, the lower court did not exhaust all necessary deliberations in finding facts, contrary to what is alleged in the grounds of appeal, and did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the purpose of tax evasion of deemed gift under title trust.

C. Article 47-2(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same) provides that an amount equivalent to 40/100 of the amount calculated by multiplying the calculated tax by the ratio of the amount equivalent to the unreported tax base to the tax base, in cases where a taxpayer has a tax base without filing a return by unjust means, shall be added to the tax amount to be paid or deducted from the refundable tax amount.

In addition, Article 47-2 (2) of the former Framework Act on National Taxes defines the meaning of "unfair method," which is the requirement for an unfair non-reported additional tax, as "the method prescribed by Presidential Decree, as it violates the duty to report the tax base or the amount of national tax, on the basis of the concealment or pretending all or part of the fact that serves as the basis for calculating the tax base or the amount of national tax." 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) stipulates "any other fraudulent act to evade or deduct national tax" as one of the "unfair method".

The legislative purport of the above provisions lies in imposing heavy sanctions on taxpayers who violate the duty to report tax base or tax amount in an unlawful manner, in cases where it is difficult for the tax authorities to discover the tax base or tax amount, or there is an unlawful act such as creating false facts, etc.

In addition, Article 27 (2) 6 of the former Enforcement Decree of the Framework Act on National Taxes refers to a deceptive scheme or other unlawful act that makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute simply failing to file a return under tax law or filing a false return without attaching the circumstances showing the intention of active concealment. In addition, even if a taxpayer gets income by forging his/her name, barring special circumstances, such as preparing a false contract and making a false payment for the tax evasion, false tax return to the tax authority, false registration and registration, and preparation and keeping of a false account book, etc., barring special circumstances, such as where the name-oriented act takes place from the purpose of tax evasion, and even if the name-oriented act is added to such active act as: (a) false tax return to the tax authority; (b) false tax return to the tax authority; and (c) false registration and registration; and (d) false preparation and keeping of a false account book (see Supreme Court Decision 2015Du41588, Apr. 13, 2017).

2) Examining the facts and records as seen earlier in light of such legal principles as seen earlier, it is difficult to view that the Plaintiff committed an active act arising from the purpose of tax evasion in relation to the title trust of the instant shares No. 1 in the instant disposition, and thus, it is unlawful to impose the imposition of the imposition of the tax on unjust tax without filing a title trust related to the title trust of the instant shares No. 1 in the instant disposition. (A) Nonparty 1 made a report on capital gains tax, etc. to the tax authority based on the stock acquisition agreement and account transaction details, etc. based on the appearance of the instant shares No. 1 in the title trust to the Plaintiff, which is the same as that of the purchase and sale of the shares

B) The title trust of the instant shares No. 1 was made for the purpose of tax avoidance, such as interfering with the confirmation of tax liability against Nonparty 1, the actual owner, by Nonparty 1, the actual owner of the said shares, through the method by which Nonparty 1, the actual owner of the said shares, as the Plaintiff, brought about a confusion in the objective attribution of the property, thereby hindering Nonparty 1, the actual owner from confirming the tax liability. As seen earlier, the said title trust becomes deemed donation of title trust pursuant to Article

C) On the other hand, despite the actual ownership relationship, the Plaintiff formed the appearance of the instant No. 1 shares under its name by forming the external appearance of the Plaintiff, thereby imposing various liability for tax payment, etc. via external stock-holding, which would increase one’s own tax burden. Therefore, there is a clear difference between the case where Nonparty 1, a title truster, gains income by disguised ownership.

D) In a case where a title trust accompanied by incidental acts, etc. is acknowledged, the Plaintiff, who lent his/her name, is deemed to have donated property from the actual owner without any substance of the donation, and is deemed to bear gift tax as a title trustee. Therefore, it is difficult to deem that the Plaintiff, who is in charge of gift tax as a result of the title trust, committed an active act such as a title trust, which is a taxation requirement, accompanied by incidental acts, etc. for the purpose of evading it, and otherwise, seems to have been excessively

3) Nevertheless, solely based on its stated reasoning, the lower court determined that the imposition of unfair non-reported additional taxes on the title trust of shares 1 among the instant dispositions was lawful. In so determining, the lower court erred by misapprehending the legal doctrine on unfair non-reported additional taxes under Article 47-2(2)1 of the former Framework Act on National Taxes, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal pointing this out

3. If an administrative disposition against the Defendant’s grounds of appeal is revoked, the disposition is null and void, and no longer exists, and a lawsuit seeking revocation against a nonexistent administrative disposition is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 2012Du18202, Dec. 13, 2012, etc.).

As seen earlier, the Defendant revoked ex officio the disposition against the Defendant regarding the part of the instant disposition that was rejected by the lower court in accordance with the purport of the lower judgment after filing the instant appeal. As such, the part against the Defendant in the instant lawsuit is seeking revocation of the disposition that was not extinguished, and thus, became unlawful as there was no benefit of lawsuit.

4. Conclusion

Therefore, the part of the judgment of the court below against the defendant is reversed, and since it is sufficient for the Supreme Court to directly render a judgment, the judgment of the court of first instance as to this part shall be revoked, and this part of the lawsuit shall be dismissed. The part of the judgment of the court below as to the penalty tax on the donation on December 2, 2010 shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the remaining appeal by the plaintiff shall be dismissed. It is so decided as per Disposition by the assent