Whether the relevant statutes infringe on people's property rights;

As long as the Enforcement Decree clause clearly specifies the scope of other shareholders included in the scope of a major shareholder, it cannot be said that the provision is invalid because it deviates from the inherent limit of the scope of the major shareholder stipulated in the legal provision of this case.

Article 94 of Income Tax

2015Guhap5233 Revocation of a decision of approval when reporting capital gains tax

*****

*The Director of the Tax Office

August 21, 2015

September 11, 2015

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

The Defendant revoked the Plaintiff’s right* on April 25, 2014, the transfer income tax of 0,000,000,000 (including additional tax of 00,000,000,000), the transfer income tax of 2010,000,000 (including additional tax of 0,000,000,000), the transfer income tax of 200,000,000 (including additional tax of 00,000,000,000) for 2011, the transfer income tax of 200,000,000,000,000 (including additional tax of 0,000,000,0000,0000) for 200,0000,0000,0000 (including additional tax of 00,000,0000,000) for 205,2000.

1. Details of the disposition;

A. The plaintiffs are married with the plaintiff*** is holding the shares of **Electronic Co., Ltd. (hereinafter referred to as 'Electronic Co., Ltd.'), **** 10, 10, ** 7, 109 common shares of electronic Co., Ltd.** * 7, *** in 2010 ** 3, 3,***, 7, *** in 2011 * in 201 * * 10, 100 common shares of electronic Co., Ltd.*** in 3, 3*** in 201 * in 201 * 5, 5, * in general shares of electronic Co., Ltd.* in 201 * in 2010 ** in 2010 * in * in 203 common shares of electronic Co., Ltd.* in * in 2012 * in ** in * in 3* in common shares of electronic Co.** in * in * in * in *.

B. In accordance with the land register of the Board of Audit and Inspection, the Defendant: (a) around June 2013, and (b) the Enforcement Decree of the Income Tax Act

Pursuant to Article 4 (4) 2, if both the shares of the plaintiffs who are married couple and the shares of the plaintiffs* the rights of the plaintiffs* the rights of the plaintiffs, the plaintiffs are "large shareholders" as provided in the above provision, and the transfer income tax is reported and paid.

C. Accordingly, on July 15, 2013, Plaintiff* has reported and paid KRW 0,00,000 (including additional tax of KRW 000,000,000) for the transfer income tax of KRW 0,000,000 (including additional tax of KRW 000,000,000) for the year 209, capital gains tax of KRW 1,000,000 (including additional tax of KRW 00,000,000), capital gains tax of KRW 200,000 for the year 2011 (including additional tax of KRW 00,000,000) for the transfer income tax of KRW 3,00,000 for the year 200,000 for the transfer income tax of KRW 00,000 (including additional tax of KRW 00,000,000) for the transfer income tax of KRW 10,200,000 for the Plaintiff* including the transfer income tax of KRW 200000.

라. 피고는 2014. 4. 25.경 원고 권**에게 ��양도소득세 "고지세액 없음" 알림��이라는 제목의 각 문서로, '특별한 사정이 없는 한, 원고 권**이 2009년, 2010년, 2011년,2012년에 각 양도한 **전자의 주식양도로 인한 양도소득세 고지세액이 없다'는 내용의 신고시인결정 통지를 각 귀속연도별로 하였다. 또한 그 무렵 피고는 원고 유**에게 같은 제목의 각 문서로, '특별한 사정이 없는 한, 원고 유**가 2010년, 2012년에 각 양도한 **전자의 주식양도로 인한 양도소득세 고지세액이 없다'는 내용의 신고시인결정 통지를 각 귀속연도별로 하였다(이하 위 각 신고시인결정 통지를 통틀어 '이 사건 각 처분'이라 한다).

E. On the other hand, the rights and interests of plaintiffs***, the rights and interests of plaintiffs are owned as of the end of each business year from 2008 to 2011 ** if the total market value of electronic stocks is combined with the total market value of the above business year 10 billion won or more as of the end of each business year.

F. On May 21, 2014, the Plaintiffs filed an appeal with the Tax Tribunal on each of the instant dispositions, but all of the appeals were dismissed on November 24, 2014.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1 through 4, Gap evidence 2-1 through 6, Gap evidence 3-1 through 3, Gap evidence 4-1, 2, Gap evidence 5, Eul evidence 1 through 5, and the purport of the whole pleadings

A. The plaintiffs' assertion

1) The assertion that it is unlawful on the basis of an unconstitutional statute

The instant disposition was made based on Article 157 (4) 2 of the former Income Tax Act (amended by Presidential Decree No. 25580, Dec. 30, 2010); on the following grounds, the above provision is in violation of the Presidential Decree, and thus, each of the instant dispositions is unlawful as it is based on the law that is unconstitutional.

A) Violation of the no taxation without law and deviation from the limitation of delegation

Although Article 94 (1) 3 of the Income Tax Act, which is the authorized provision of the above Presidential Decree, delegates the concept of a major shareholder to the Presidential Decree, and takes into account the ratio of the stocks owned and the total market value, the above Presidential Decree introduced the concept of a major shareholder in accordance with the above Act and Article 20 of the Enforcement Decree of the Framework Act on National Taxes so that the definition of a "other stockholder" can be determined by adding the stocks of a person who can be viewed as a special relationship. In this regard, the scope of a person in special relationship under Article 20 of the Enforcement Decree of the Framework Act on National Taxes is too wide, and the above Presidential Decree is excessively wide, the process and purpose of holding stocks by one shareholder and other shareholders, and the detailed relationship between one shareholder and other shareholders is 4). On the other hand, with respect to whether each of the above dispositions of this case constitutes an administrative disposition subject to appeal litigation, the above Presidential Decree does not include Supreme Court Decision 2013Du633 Decided 27, 2014 and Article 20 of the Enforcement Decree of the Framework Act.

B) Violation of the principle of excessive prohibition

The above Presidential Decree limits the property rights of the people because of the fact that a shareholder and a related party are obliged to pay additional tax liability. (1) Since the shares owned by one shareholder and a related party are not asked to whom they actually belong, the way to avoid the application of the Presidential Decree is obstructed by clarifying that there is no purpose of tax avoidance. (2) In order to ascertain whether a shareholder of a listed company is liable to pay tax, it is necessary to directly grasp whether a shareholder of the listed company owns shares of the wide range of persons. In light of the fact that a shareholder of the listed company does not have a right or method to access information about the shares held by the shareholder and a related party, the above Presidential Decree provisions violate the principle of excessive prohibition.

C) Violation of Article 13(3) of the Constitution of the Republic of Korea on the prohibition of dynamics

The above Presidential Decree Article 13 (3) of the Constitution prohibits a person who has a special relationship from acquiring shares is converted to taxation that was subject to non-taxation of capital gains tax on the sole basis that the person has acquired shares.

D) the deviation from legislative discretion;

Article 101 (1) of the Income Tax Act provides that where an act or calculation of a resident having capital gains is deemed to have reduced tax burden unreasonably due to a transaction with a related party of the resident, income in the relevant taxable period may be calculated regardless of the resident's act or calculation. On the other hand, the above provision provides that a related party is deemed to be a major shareholder by adding up stocks owned by one shareholder and a related party without asking the purpose of acquiring stocks and by adding up stocks owned by a related party. Therefore, the above provision of the Presidential Decree clearly deviates from legislative discretion.

E) Violation of the principle of equality and Article 36(1) of the Constitution

Article 36(1) of the Constitution provides that one shareholder shall be deemed as a major shareholder, based on the market price of the unfairly added shares, without asking whether a couple or a family member is living together, and that one shareholder shall be deemed as a major shareholder, based on the market price of the shares owned by one shareholder. The above Presidential Decree provides that an excessive tax burden shall be increased for one shareholder. The above Presidential Decree provides that a person with a special interest and a person without a special interest shall be discriminated against without reasonable grounds, and thus, Article 36(1) of the Constitution is violated.

2) Claim that there exists a justifiable reason not to impose additional tax

① In light of the fact that: (a) the Plaintiffs and their lineal blood relatives are living together or not living together; (b) the Plaintiffs were unable to grasp the current status of holding shares of each other by sharing information with the management & & development departments for the last 20 years; (c) in the case of non-living collateral blood relatives, it is common for them to form a separate family unit after the withdrawal and run an economic life; (d) there is no reason to treat them as lineal blood relatives or their spouse; and (c) there was no institutional device to grasp the current status of holding shares of the management & development through a financial institution or a stock issuer; and (e) there was no justifiable reason for the Plaintiffs to fail to perform their tax liability; and therefore, (e) the part on additional tax of each of the instant dispositions is unlawful.

B. Relevant statutes

C. Determination

1) Determination as to whether a disposition is based on an unconstitutional law

A) While the relevant statutes that dispute unconstitutionality in the preparatory documents dated August 18, 2015 stipulate that each of the dispositions of this case is stipulated to be Article 157 (4) 2 of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 25580, Dec. 30, 2010), each of the dispositions of this case is unlawful since all of the dispositions of this case is unconstitutional under the Enforcement Decree of the Income Tax Act. On the other hand, examining the relevant laws and regulations applicable to each of the dispositions of this case, the following provisions are deemed to be the legal provisions of this case, and each of the above provisions of the Enforcement Decree of this case is deemed to be the legal provisions of this case, and it is examined whether the Enforcement Decree of this case is in violation of the Constitution.

B) Details and legislative intent of each of the instant legal provisions and the Enforcement Decree provisions

The legal provision of this case provides that income accrued from "transfer of stocks, etc. of a stock-listed corporation prescribed by Presidential Decree in consideration of the ratio of stocks owned by its large stockholders and total market value, etc." under the Financial Investment Services and Capital Markets Act shall be subject to transfer income tax. The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301, Feb. 4, 2009; Presidential Decree No. 2358, Feb. 2, 2012; Presidential Decree No. 23588, Feb. 1, 2012) provides that "one stockholder who owns stocks of a corporation as of the end of the business year immediately preceding the business year to which the transfer date of stocks, etc. belongs" (hereinafter referred to as "one stockholder") and his/her relative under Article 20 of the Enforcement Decree of the Framework Act on National Taxes and other specially related persons (hereinafter referred to as "other stockholders") shall not be subject to transfer of stocks, etc. under the former Enforcement Decree No. 2151, Dec. 15, 2015>

C) Whether the violation or delegation of the principle of no taxation without law is exceeded

Although the legal provision of this case does not directly stipulate the scope of a major shareholder and delegates it to the Enforcement Decree of this case, it is necessary to flexibly cope with the change in the scale of the economy through such delegation and determine the scope of a major shareholder. In light of the legislative purport of the legal provision of this case, if ordinary person is in light of the legislative purport of the provision of this case, it can be predicted that the provision of this case includes the scope of a major shareholder, other than one shareholder, within the scope of a major shareholder. In addition, the provision of this case is legitimate within the scope of delegation in order to achieve the legislative purpose of the legal provision of this case, and as long as the Enforcement Decree of this case clearly specifies the scope of other shareholders included in the scope of a major shareholder, it cannot be said that the provision of this case goes beyond the inherent limit of the scope of a major shareholder (see, e.g., Supreme Court Decision 2012Du20694, Jun. 26, 2014).

D) Whether the principle of excessive prohibition is violated

The purpose of the Enforcement Decree of the instant case is to promote a taxation equity with respect to the transfer of real estate and other assets, as well as to prevent changes in the form of listed stocks, etc., and the legitimacy of its purpose is recognized. In addition, the Enforcement Decree of the instant case is divided into: (a) shareholders subject to taxation on the basis of the total market value of stocks held by a specified stock holding ratio or the total market value of stocks held, including other shareholders in a specific relationship with the relevant taxpayer; (b) one of the appropriate methods in order to achieve the legislative purpose; and (c) thus, the instant Enforcement Decree of the instant case satisfies the minimum of infringement and the balance of legal interests and interests, as it establishes a taxation provision on capital gains from the transfer of stocks of a large shareholder in accordance with the ordinary taxation standard on capital income. Accordingly, the instant Enforcement Decree provision does not violate the principle of excessive prohibition (see, e.g., Supreme Court Decision 2

E) Whether Article 13(3) of the Constitution of the Republic of Korea has been violated on the prohibition of dynamics

Article 13 (3) of the Constitution provides that "All citizens shall not be treated disadvantageously due to acts of relatives, not their own acts." This provision applies only to cases where "in spite of the fact that there is no substantial relation between the act of relatives and the principal, the mere reason that the relative itself is the only relative." In other cases, it can be sufficiently determined whether there is reasonable ground to protect the disadvantage at issue and give disadvantage to the principal in relation with the relative or within the necessary extent to achieve the legislative purpose (see Constitutional Court Order 2005HunMa19, Dec. 12, 2005).However, in order to achieve the legislative purpose mentioned earlier, the provision of the Enforcement Decree of this case provides that not only one shareholder who transfers stocks, etc. but also the relative or a person who has a special relation with him should be identified as a whole and taxed the stocks, etc., and the provisions of the Enforcement Decree of this case cannot be deemed to violate Article 13 (3) of the Constitution (see Supreme Court Decision 2006Du4306, Apr. 2, 2016). 2006).

F) Whether the legislative discretion has been significantly exceeded in light of Article 101(1) of the Income Tax Act

The legislative intent of Article 101(1) of the Income Tax Act is to realize fair taxation by embodying the substance over form principle as a system to prevent tax avoidance and to realize the fair burden of burden. Thus, the essence of the said Article is that the transaction to be denied is applied when it is deemed that the tax burden has been unjustly reduced on the income. However, the purpose of Article 101(1) of the Enforcement Decree of the Income Tax Act also lies in the purpose of promoting equity in taxation in cases where other assets, such as real estate, are transferred by determining where to impose tax on the income accruing from the transfer of listed stocks, and thus, it cannot be said that the purpose or result of tax avoidance is unnecessary. Accordingly, the purport of Article 101(1) of the Enforcement Decree of the Income Tax Act does not necessarily require that the stockholder and other shareholders who are one person under the Enforcement Decree

G) Whether a person with a special interest or a person with no special interest is discriminated against without reasonable grounds

There has been a long-term discussion on whether to impose capital gains tax on the transfer of listed stocks. However, the legal provision of this case also decided that capital gains tax should be imposed on the case where listed stocks are traded in order to prevent variable donation using listed stocks and to ensure the equity in taxation with the case where other assets are transferred. Thus, even if listed stocks are included in taxable objects, it is deemed that the legislative intent of a person who owns more than a certain size of stocks is reflected in order to alleviate the shock of the capital market rather than for all stocks at once and to protect the interests of small investors to a certain degree when the capital market is developed in a sound manner (see Constitutional Court Decision 2004Hun-Ba32, 2005Hun-Ba63, 102, 104, 105, 105, 2006). Therefore, even if there is no reasonable and reasonable difference between the person who has a special relationship with the same shareholder as the person liable to pay tax in this case and the person who has no special relationship with the same company.

As long as the enforcement decree provision of this case sets the scope of a major shareholder in consideration of various factors, such discrimination cannot be deemed arbitrary or unfair. Ultimately, the enforcement decree provision of this case cannot be deemed as contrary to the principle of equality (see Supreme Court Decision 2006Du4394, Nov. 10, 2006). It cannot be said that the enforcement decree provision of this case violates Article 36(1) of the Constitution concerning marriage and family life.

2) Determination as to whether the part of additional tax is illegal

Under the tax law, additional tax is imposed upon the taxpayer's failure to perform his/her duty (see, e.g., Supreme Court Decision 200Du1622, Apr. 28, 201) unless there are justifiable grounds that it is unreasonable for the taxpayer to be aware of his/her duty, or that it is unreasonable for the taxpayer to expect the performance of his/her duty, as administrative sanctions imposed as prescribed by the individual tax law, in order to facilitate the exercise of the right to impose tax and the realization of tax claims (see, e.g., Supreme Court Decision 200Du1620, Apr. 28, 201). (1) If the plaintiffs' * 17, * *1000 E&M *000, Jan. 1, 200, * 200 * * 0000 E&M * 100000, E&M * 100000, E&M *.

3. Conclusion

All of the plaintiffs' claims are without merit, and they are dismissed. It is so decided as per Disposition.