Cho-2014-China-3410 ( November 25, 2014)

Whether it constitutes 40% of the penalty tax on unfair report on title trust donation;

It is difficult to view that the Plaintiff without filing a tax base return in an unjust manner, such as making up for, and promoting, the title trust of this case, and thus, it cannot be applied to unfair non-declaration penalty

Donation of title trust under Article 45-2 of the Inheritance Tax and Gift Tax Act

The revocation of revocation of the imposition of gift tax by the District Court 2015Guhap7420

IsaA

OO Head of the tax office

March 29, 2016

May 10, 2016

.

1. The Defendant’s imposition of gift tax of KRW 181,922,480 on November 7, 2013, exceeding KRW 151,740,559, which was imposed by the Plaintiff on November 7, 2013, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 50% is borne by the Plaintiff, and 50% is borne by the Defendant, respectively.

Cheong-gu Office

The Defendant’s disposition of imposition of gift tax of KRW 181,922,480 on November 7, 2013, in excess of KRW 124,630,630, which was imposed by the Plaintiff on November 7, 2013, shall be revoked.

1. Details of the disposition;

A. On March 18, 2005, the largestB held a title trust with UND on 8,00 shares issued by CCC Co., Ltd. (hereinafter “instant shares”) but again held a title trust with the Plaintiff on 27 December 2010.

B. On November 30, 2012, the statutory due date of return, the Plaintiff reported and paid KRW 59,889,430,00, which was calculated on the basis of the gift tax amount of KRW 266,520,00 (assessment as KRW 33,315 per share) that received the instant shares from UND on November 30, 201.

C. After that, on November 7, 2013, the Defendant issued the instant disposition, which determined and notified KRW 181,922,480 as gift tax for the year 2010, after adding the amount of tax already paid to KRW 150,90,60 calculated by taking the value of donated property as KRW 703,032,00 (assessment as KRW 87,879 per share) at the time of December 27, 2010, and after deducting the amount of tax already paid, KRW 60,363,840 as gift tax for the year 2010.

D. On June 16, 2014, the Plaintiff filed a petition for trial with the Tax Tribunal on an objection against the Defendant, but the petition was dismissed on November 25, 2014.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) In assessing the value of the instant shares, the Defendant did not add the estimated amount of retirement allowances for officers to the liabilities, and the value of the instant shares was excessively assessed.

2) The Plaintiff filed a return after the deadline on November 30, 2012 and filed a return resulting from the under-reported return is merely a difference in the appraised value, etc., and thus, imposing an additional tax on non-declaration is unreasonable. Even if an additional tax on non-declaration should be imposed, it is unlawful to impose an additional tax on non-declaration (40%) without imposing an additional tax on non-declaration (20%).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the estimated amount of retirement allowances for officers should be added to the liability

Article 17-2 subparagraph 3 (c) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act shall apply to the valuation of unlisted stocks.

In calculating the net asset value of the pertinent corporation, "the estimated amount payable as retirement benefits when all officers or employees employed as of the base date of appraisal retire from office" shall be added to the liability. Considering such language and text, the structure of related laws and regulations, in order to add the estimated amount of retirement benefits for officers employed in the pertinent corporation to the liability, the obligation to pay the retirement benefits should be specifically created by the articles of incorporation or the resolution of the general meeting of shareholders, which is in force as of the base date of appraisal, even if the relevant retirement benefits are not appropriated or subscribed to retirement pension.

Meanwhile, Article 388 of the Commercial Act provides, “The remuneration of a director shall be determined by a resolution of the general meeting of shareholders, if the articles of incorporation does not provide for the amount of remuneration.” The remuneration of a director refers to the remuneration paid as compensation for the performance of duties, regardless of the name of a monthly salary, bonus, etc., and the retirement allowance or retirement allowance is also a kind of remuneration paid as compensation for the performance of duties during his/her service. Since the above provision is a mandatory provision, if there is no evidence to acknowledge that there was a resolution of the general meeting of shareholders on the amount, time, method of payment, etc. of the director’s remuneration or retirement allowance in the event that the articles of incorporation determines the amount of remuneration or retirement allowance by the resolution of the general meeting of shareholders, the director may not claim remuneration or retirement allowance (see, e

갑 제3호증, 을 제2호증의 각 기재 및 변론 전체의 취지에 의하면, 원고 명의로 명의신탁이 이루어진 2010. 12. 27. 당시 주식회사 컴페로의 정관 제50조는 1. 이사의 보수는 주주총회의 결의로 이를 정한다. 단, 직원의 업무를 겸하여 수행하는 이사에 있어서 직원의 업무에 대한 보수는 여타 직원의 경우에 준한다. 2. 이사의 퇴직금의 지급은주주총회의 결의를 거친 임원퇴직금지급규정에 의한다. 3. 전항의 퇴직금은 최소 근로기준법에서 규정되어 있는 금액 이상으로 한다.��라고 규정하였으나, 위 주식회사는 별도로 주주총회 결의를 거친 임원퇴직금지급규정을 두고 있지 않던 사실, 그 후 주식회사 컴페로가 2012. 3.경 비로소 주주총회 결의를 거친 임원퇴직금지급규정을 마련하면서 그 부칙 제1조에서 그 규정의 시행일을 2005. 1. 1.로 소급하여 규정한 사실을 인정할 수 있다. 이와 같이 주식회사 컴페로가 순자산가액 평가기준일인 2010. 12. 27.까지정관 또는 주주총회의 결의를 통해 이사의 퇴직금에 관하여 그 금액・지급시기・지급방방법 등을 정하지 아니한 이상, 이사에 대한 퇴직급여 지급의무가 구체적으로 발생하였다고 볼 수 없으므로, 그 퇴직급여 추계액을 부채에 가산할 수는 없다.따라서 원고의 이 부분 주장은 이유 없다.

2) Whether the imposition of an unfair non-declaration penalty tax is legitimate

A) The Plaintiff asserts that the imposition of the penalty tax on non-declaration is unreasonable, so the tax authority may not impose the relevant penalty tax if there is a justifiable reason for the taxpayer to fail to perform his/her duty (Article 48(1) of the Framework Act on National Taxes). However, the circumstances of the Plaintiff’s duty to report the gift tax in this case alone are not enough to deem that there is a justifiable reason for the Plaintiff to not perform his/her duty to report the gift tax in this case, and there is no other evidence to recognize it (the Plaintiff’s assertion based on the statute applicable to the non-declaration penalty tax is without merit, since the penalty tax imposed by the Defendant is a "additional

Therefore, the plaintiff's assertion on this part is without merit.

B) However, based on the legislative purport and purpose of the additional tax on improper non-declaration under Article 47-2(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201; hereinafter the same), the following circumstances revealed through the facts recognized as above, i.e., (i) to conceal and conceal facts that form the basis of tax base, etc. in an unfair manner and to impose sanctions on the act of non-declaration of specific taxes liable to report; (ii) in the case of constructive gift, the facts constituting the basis of tax base, etc. are deemed as the gift tax based on the title trust; (iii) it is difficult to view that the subject of concealment and provisional tax is limited to the title trust itself, and it is difficult to extend the basic facts of the tax avoided by the title trust in this case; and (iv) it is difficult to determine the extent of 7% of the previous tax without any justifiable return due to the title trust donation under Article 47-2 of the Framework Act on National Taxes without any specific basis of the title Trust Act.

Therefore, applying the rate of general non-declaration penalty tax to the portion of the non-declaration penalty tax on the instant disposition.

The portion exceeding the tax amount calculated is illegal, and since 151,740,559 won [150,909,600 won + the additional tax on general non-declaration 30,181,920 won (150,909,600 won x 20%) + 30,538,469 won - already paid tax amount 59,89,430 won] of the disposition of this case, the portion exceeding the above 151,740,559 won among the disposition of this case shall be revoked illegally.

3. Conclusion

Thus, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.