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(영문) 서울고등법원 2011. 01. 14. 선고 2009누27710 판결
공동사업자로부터 자신의 지분비율 양도소득금액을 지급받지 못한 경우 양도소득의 귀속[국패]
Case Number of the immediately preceding lawsuit

Seoul Administrative Court 2007Gudan15462 ( August 12, 2009)

Case Number of the previous trial

National High Court Decision 2007west1455 (Law No. 21, 2007.09)

Title

Where a joint businessman has not received capital gains from his/her equity ratio, the transfer income shall accrue.

Summary

Even if a joint businessman has not received capital gains from his/her share from the joint businessman, there is only a claim for profit distribution under the agreement against the other joint businessman, and the amount of capital gains shall be attributed to himself/herself

The decision

The contents of the decision shall be the same as attached.

Text

1. Of the judgments of the first instance court, the part against the plaintiff falling under the order of revocation shall be revoked.

The Defendant’s disposition of imposition of capital gains tax of KRW 810,806,580 against the Plaintiff on January 1, 2007, exceeding KRW 102,604,50, among the disposition of imposition of capital gains tax of KRW 810,806,580, shall be revoked.

2. The remainder of the plaintiff's appeal (the principal capital gains tax and the penalty tax not revoked in paragraph 1 above) is dismissed.

3. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of capital gains tax of KRW 1,884,722,580 (income tax of KRW 1,073,916,00 and penalty tax of KRW 810,806,580) for the plaintiff on January 1, 2007.

Reasons

1. Details of the disposition;

A. As a result of the investigation into the non-party general construction company (the trade name before the change is referred to as the "non-party general construction company"; hereinafter referred to as the "non-party general construction company"), the director of the Central Regional Tax Office confirmed that the non-party company filed a tax return on the non-party general construction company 15-1 0,043.9 m2, 15-2 1,498 m2, 15-3 1,95 m2, 15-3 1,995 m2 (hereinafter referred to as the "each land of this case"; hereinafter the individual land is specified as the lot number) and confirmed that the transfer price was not reported on the non-party general construction company 1,530,000 won (the transfer price of 1.58,400,000 won, the acquisition price of 1050,5400,000 won, which was actually imposed on the non-party company 2,2005.

B. Korea-AA was indicted and tried for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) by Suwon District Court 2005 and 304. On September 25, 2006, when the judgment was in the first instance court, "Korea-A and the Plaintiff, RedB (hereinafter collectively referred to as "Plaintiff, etc.") agreed to purchase each of the instant lands in the name of the non-party company to distribute the profits of the joint business in proportion to the ratio of shares of the joint business by entering into a joint agreement between Korea-A and the Plaintiff, RedB (hereinafter referred to as "Plaintiff, etc.") and then paid the down payment, but it transferred the right to acquire each of the instant lands to △△ Industrial Development Co.,, Ltd. (hereinafter referred to as "△△△ Industrial Development"), the facts charged were modified to the effect that "the transfer income tax of 728,244,000 won was evaded according to their shares in the transfer margin, and the said court sentenced the imprisonment of a fine of KRW 2800,00,06.

C. Around May 2006, the director of the Central Regional Tax Office of China investigated the actual transfer value of each of the lands of this case as KRW 18 billion (7.464 billion in transfer difference) as a result of the tax investigation conducted against the transferee of each of the lands of this case, △△△ Industrial Development, which is the transferee of each of the lands of this case, and revoked the corporate tax for the above 2002 business year portion imposed on the company of the first non-party. On the other hand, he notified the defendant of taxation data, such as a written decision on capital gains tax for KRW 2.985.6 million in the transfer difference of each of the lands of this case.

D. On January 1, 2007, based on the above taxation data, the Defendant rendered the instant disposition that determined and notified the Plaintiff of KRW 1,884,72,580 as the total amount of KRW 1,073,916,00 for the principal income tax for the transfer of each of the instant land and the additional tax for it (107,391,60 for negligent tax returns, KRW 703,414,980 for negligent tax returns), and KRW 1,884,72,580 for negligent tax returns.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 11-1, Gap evidence 23-6, 7, Eul evidence 1, 2 and 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The actual acquisitor and transferor of each of the lands of this case are the non-party company and both transfer margin belongs to the non-party company. The Plaintiff merely borrowed KRW 620 million to the non-party company at the time of acquiring each of the lands of this case and returned KRW 800 million including interest income. Thus, in relation to the transfer of each of the lands of this case, the transfer of each of the lands of this case is against the principle of substantial taxation, apart from imposing corporate tax on the non-party company and the comprehensive income tax on the Plaintiff, and the disposition of this case imposing transfer income on the Plaintiff is against the principle of substantial taxation. However, even though it is not so, the actual acquisitor and transferor of each of the lands of this case is against the principle of substantial taxation. It is not against the disposition of this case where the Plaintiff et al. considers the plaintiff et al

(2) Even if a joint business agreement was concluded between the Plaintiff, Han-A and HongB, the joint business agreement was unlawful on April 30, 2002, following the transfer of each of the instant lands, since the Plaintiff, on April 30, 202, decided to receive an allocation of KRW 1 billion equivalent to the Plaintiff’s share out of the proceeds excluding taxes, etc., from Han-A, and thus, the portion of the instant disposition, which exceeds the difference of the transfer amount of KRW 3.8 million (1 billion - 6.2 million) actually acquired by the Plaintiff in relation to the transfer of each of the instant lands, is unlawful.

(3) As long as the joint project agreement entered into by the Plaintiff, etc. was rescinded on April 30, 202, the Plaintiff cannot be deemed to have the right to receive a distribution of profit pursuant to the joint project agreement with the other joint business operators, so the instant disposition based on the premise that the Plaintiff has a right to claim a distribution of profit is unlawful. Moreover, even if the said joint project agreement was not rescinded, the Plaintiff withdrawn from the joint project agreement on April 30, 202, and thereafter, the Plaintiff was found to have acquired an additional transfer difference, but the Plaintiff did not receive a distribution of profit, and the instant disposition based on the premise that the transfer difference additionally acquired belongs to the Plaintiff is unlawful as it violates the principle of substantial taxation.

(4) Even if the joint project agreement concluded by the Plaintiff et al. cannot be deemed to have been rescinded, the act of Han to resell the land of this case 15-1 is null and void without the consent of a majority of the union members, and thus, it cannot be deemed that the Plaintiff et al. acquired the transfer margin from the sale. The instant disposition based on the premise that the sale is valid is unlawful

(5) The △ Industrial Development sold the instant 15-1 land to the ParkCC. Since it was requested by ParkCC to sell all each of the instant land, and paid a penalty of KRW 1 billion to ParkCC, the penalty of KRW 1 billion should be deducted as necessary expenses in calculating the instant transfer income tax.

(6) At the time when the Plaintiff received a cash custody certificate from Han on April 30, 202, the Plaintiff promised that Han be responsible for the non-party company for all matters, such as taxes, etc. related to the transfer of each of the instant lands. Accordingly, the Plaintiff knew that the non-party company reported and paid the transfer income tax on the part of KRW 3,80,000,000 of the Plaintiff’s transfer margin. Moreover, the part exceeding the transfer margin is an income based on the Plaintiff’s independent efforts, as it was not known that the Plaintiff did not have been negligent in reporting the transfer income tax of this case, and thus, it was unlawful to impose penalty tax on the basis of the tax amount calculated by deeming the transfer margin as the transfer margin as the transfer margin as the transfer margin.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

(1) The actual operation of the non-party company (the trade name at the time of the acquisition and transfer of each of the lands in this case was 'Y Industrial Development', and the representative director was 'E') was notified of the selection of the purchaser status of each of the lands in this case from △ Electronic Co., Ltd., and on December 11, 2001, the plaintiff and RedB decided to purchase each of the lands in this case and build and sell new apartment/offices on the land in this case, and they are responsible for the conclusion of the sales contract for each of the lands in this case and the payment guarantee for the construction work. The plaintiff bears 50 million won of the down payment for the land in this case. The HongB will provide additional expenses of KRW 100 million and assume the responsibility for the authorization and permission affairs, such as building permission, and concluded a joint business by establishing a new corporation's share ratio under the name of the new corporation and implementing the joint business in accordance with the new corporation's share ratio.

(2) According to the above joint project agreement, the Plaintiff transferred the total amount of KRW 6.2 million to Han on December 11, 2001, which is on the date of the agreement (the agreement was not specified, but was disbursed as expenses for the joint project). The Plaintiff et al. did not establish a new corporation until the time, and the Plaintiff et al. concluded a sales contract to purchase each of the instant land from △△ Electronic, etc. on December 11, 2001, including the down payment amount of KRW 5.4 billion, which is on the date of the agreement, in the name of the non-party company, and paid the down payment. The Plaintiff et al. established the development of △△ on December 26, 2001, after entering into the said sales contract. The Plaintiff et al., established the development of △△ on December 26, 201, which was the joint representative in charge of the development of △△△△, etc., in accordance with the agreement on joint project development. The Plaintiff et al. completed the type of real estate development project.

(3) After that, the Plaintiff et al. concluded that it was impossible to obtain a building permit for a building with at least 10 floors on each of the instant land due to impossibility to obtain a building permit for each of the instant land, and concluded that there was no feasibility of the construction and sale of a main apartment complex/office building, and concluded a business agreement with the Plaintiff et al. to resell each of the instant land and distribute profits after deducting profits from the gains accrued

(4) As a result, Han made efforts to sell each of the instant lands, the sales contract was concluded between 15-2 and 4.1 billion won for the instant land on January 28, 2002, 5.584 billion won for the instant land on February 6, 2002, and 15-3 billion won for the instant land on June 18, 2002, and 8.334 billion won for the instant land on June 18, 2002 to △△△ Industrial Development (However, since the purchaser of each of the instant lands became the non-party, the seller under the sales contract was the non-party company, the purchaser was the non-party company, the 15-2 land of 15-3, the above 15-15-1 and the 15-15-1D, and the above △△△△△△ Industrial Development Co., Ltd., prepared a sales contract under the name of △△△△△ Industrial Development Co., Ltd. on each of the instant land under its name.

(5) On April 30, 2002, the plaintiff et al. prepared a cash custody certificate with the content that "E (E) 9.5 million won (the share ratio of 3.5 billion won (the share ratio of 4.0 billion won), plaintiff 1 billion won (the share ratio of 4.0 billion won), and HongB 5.5 million won (the share ratio of 22.2 billion won)" were distributed to the plaintiff et al. on the basis of the resale of each of the lands of this case (the cash custody certificate was stated as "the amount of 6.2 billion won," but the cash custody certificate was written as if all of the lands of this case were sold. The plaintiff et al. stated that "The representative director of the Red Industry was responsible for the amount of 8.0 billion won," and the plaintiff et al. stated that "The amount of the cash custody certificate of 15-1 of this case was paid to the plaintiff et al. by al., 200."

(6) As seen earlier, after having been convicted of violation (tax) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes at the Suwon District Court, it appealed by Seoul High Court 2006No2609. However, on May 13, 2009, the above court was convicted of having been convicted of evading capital gains tax of 1,020,175,200 won by omitting a report in return, even though there were KRW 2,833,820,000 of the transfer value of each of the lands of this case among the transfer value of each of the lands of this case at KRW 7.46,40,000 among the transfer value of each of the lands of this case at the above court on May 13, 2009. However, the above appeal became final and conclusive on July 203, 209.

(7) On June 19, 2006, the Plaintiff appeared as a witness and testified in the criminal trial against Han as a witness, and became aware of the fact that the benefit accrued from the resale of each land of this case exceeds 2.5 billion won, and on July 5, 2006, the Plaintiff filed a complaint against HongB on the charge of embezzlement with the belief that the benefit accrued from the resale of each land of this case to HongB was paid to the RedB. However, on November 15, 2006, the Plaintiff was issued a non-prosecution disposition without suspicion against HongB on the charge of embezzlement.

(8) After that, the Plaintiff filed a complaint with HongB on the suspicion that HongB received 1.7 billion won equivalent to the Plaintiff’s share out of the gains of each of the instant lands from HanB, and embezzled them, and that HongB denied this, the Plaintiff filed a complaint with the HongB on the charge of embezzlement of an amount equivalent to 2.8 billion won equivalent to the Plaintiff’s share out of the gains of each of the instant lands. Accordingly, on July 16, 2009, the Suyang branch office of the Suwon District Prosecutors’ Office: (a) on the grounds that there is insufficient evidence to prove that HongB embezzled embezzled the Plaintiff’s share of profits; (b) on the grounds that HongB’s embezzlement of the transfer difference equivalent to the Plaintiff’s share, 2,243,064,00 won was recognized separately from the case of HongB’s embezzlement (the crime of embezzlement of 1,178,685,200 won equivalent to the Plaintiff’s share).

(9) In the case of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) in violation of the Specific Economic Crimes Act (Embezzlement) in Suwon District Court Decision 2009Gohap43, which was prosecuted as above, the same court recognized the crime of embezzlement of the resale marginal profit (transfer margin) to be distributed to the Plaintiff by Han on November 19, 2010 and 826,080,000 won (transfer margin) to be distributed to HongB, which was to be distributed to the Plaintiff by Han on November 19, 2010, and sentenced Han to the punishment of imprisonment for three years (the above judgment was appealed by the defendant and the prosecutor, and the appellate court is proceeding).

(10) From the date of transfer of each of the instant lands, the Plaintiff filed a complaint with Korea for about five years from May 4, 2007 on the grounds that the transfer margin upon the transfer of each of the instant lands was embezzled, and there is no fact that the Plaintiff demanded Korea to distribute the transfer margin above the amount set forth in the said cash custody certificate to Korea.

[Ground of recognition] Each entry in Gap evidence Nos. 3 through 8, 10 through 14, 16 through 20, 26, 29, and Eul evidence Nos. 4 (including each number), part of the testimony of Han-A witness of the first instance court, the court of first instance, △△ Electronic Co., Ltd. of the court of first instance, and the purport of the whole pleadings, as a result of the fact-finding, each inquiry into B

D. Determination

(1) According to the facts of recognition as to the assertion that the person to whom gains from transfer belongs is the non-party company or the development of △△△△, the plaintiff et al. entered into a sales contract in the name of the non-party company, not the new corporation under the above joint project agreement, and the non-party company, the actual purchaser and the transferor of each land of this case, were the plaintiff et al., and the plaintiff et al. are the parties to whom gains from the purchase or transfer of each land of this case. Further, there is no evidence to recognize that the development of △△△△△ was involved in the purchase or transfer of each land of this case. Rather, each land of this case can only be recognized that the plaintiff et al. purchased each land in the name of △△ Industrial Development and transferred it in the name of △△△ Industrial Development, and therefore, it cannot be deemed that gains from the transfer of each land of this case belongs to the development of △△△. Therefore, the plaintiff's assertion that the above disposition of this case is unlawful.

(2) As to the assertion that the joint project agreement was rescinded

The fact that the plaintiff et al. prepared a cash custody certificate as seen above in the above facts, and the plaintiff did not demand distribution of the transfer margin to Korea for about five years after the preparation of the cash custody certificate, alone, is insufficient to recognize that the plaintiff et al. rescinded the above joint agreement at the time of the preparation of the cash custody certificate, and there is no other evidence to support the plaintiff's assertion that the above joint agreement was rescinded. In addition, the above circumstance alone does not deem that the plaintiff left the above joint agreement. The plaintiff's assertion is without merit.

(3) If a person who sells partnership property and received the purchase price from a third party without having a right to claim distribution of profits from a joint business without having a right to claim distribution of profits, concluded a sales contract with the third party to sell partnership property and received the purchase price from the purchaser, the sales contract and the receipt of the purchase price shall be deemed to have been attributed to all union members in proportion to the ratio of profit and loss distribution. Accordingly, the transfer income accrued from the transfer of the purchase price shall be deemed to have been attributed to all union members in proportion to the ratio of profit and loss distribution. Accordingly, whether the purchase price has been actually distributed to union members in proportion to the ratio of profit and loss distribution, or whether the purchase price has been used for the union members is merely a matter that must be resolved among the union members, and it shall not be deemed to have any direct effect on the occurrence of capital gains (Supreme Court Decision 89Nu7306 delivered on September 28, 190). In this case, it shall not be deemed that the agreement was cancelled, as seen above, and it shall also be deemed that the Plaintiff’s share of capital gains accrued from the sale price to all union members and its share.

Furthermore, the Income Tax Act adopts the so-called principle of confirmation of the right to taxable income, deeming that the income has been realized when the right that is the cause of the income has not yet been actually realized if it is confirmed that the right that is the cause of the income has become final and conclusive. However, even if a claim that is the cause of the income has occurred, if it is objectively apparent that the claim subject to the income subject to taxation becomes impossible to recover due to the debtor's bankruptcy, etc. and that there is no possibility of realizing the income at all in the future, the income tax that is the subject of the economic benefit loses the premise. Therefore, such income cannot be levied as taxable income. In such a case, it must be clearly stated that the taxpayer has no income that is subject to taxation by asserting and proving such circumstance (see Supreme Court Decision 2009Du11874, Jan. 14, 2010). In this case, as seen in the above facts of recognition, even if it is recognized that the amount of fine and additional collection have become final and conclusive, it cannot be objectively recognized that the Plaintiff was distributed from the Plaintiff at the time of this case.

Therefore, the plaintiff's above assertion on a different premise is without merit.

(4) As to the allegation that the resale of the instant land 15-1 is invalid

As seen above in the facts of recognition, insofar as the Plaintiff, etc. agreed to resell each of the instant land and divide the benefits therefrom according to the share ratio, it cannot be said that the purchase and sale was made without the consent of the Plaintiff and the RedB, on the ground that the Korea Development Bank, which purchased each of the instant land, performed the specific sale act. Therefore, the Plaintiff’s above assertion is without merit.

(5) As to the assertion that a penalty of KRW 1 billion should be deducted as necessary expenses

The penalty paid to cancel a separate sales contract prior to the act of transfer, which is subject to capital gains, is not directly related to the above transfer act, and it is not not necessary expenses under Article 97 of the former Income Tax Act, and thus, it is not in the nature that such transfer act would be deducted from the gross income (transfer value) or be treated as necessary expenses (see Supreme Court Decision 2005215380, Sept. 20, 2007). In this case, even if the Plaintiff, etc. sold the instant 15-1 land to the ParkCC and paid the penalty of KRW 1 billion as penalty in the course of cancelling the sale, according to the above legal principle, such penalty cannot be deemed as being treated as necessary expenses. Accordingly, the first Plaintiff’s above assertion on a different premise is without merit.

(6) As to the assertion that there is a justifiable ground that could not be attributable to the failure to report and pay the transfer income tax of this case

In order to facilitate the exercise of the right to impose taxes and the realization of tax claims, penalty taxes are imposed on taxpayers who violate various duties, such as reporting and tax payment, as prescribed by individual tax-related Acts and subordinate statutes without justifiable grounds, and the taxpayer’s intentional or negligent negligence is not considered: Provided, That in cases where there is a justifiable reason that it is unreasonable for taxpayers to believe that they did not know of their duties, and there is a circumstance that it is unreasonable for them to expect the parties to fulfill their duties or that it is unreasonable for them to expect to fulfill their duties, etc., penalty taxes may not be imposed (see, e.g., Supreme Court Decision 93Nu6744, Jun. 8, 1993).

In this case, the penalty tax on the part of KRW 3,80,000 as to the transfer margin of KRW 3,00,000, which the Plaintiff was aware of the occurrence of the transfer margin of April 30, 2002 at the time of the preparation of the cash storage certificate, shall be imposed as a penalty tax as a penalty due to the failure to report, pay and pay the transfer margin of KRW 3,80,00,00, insofar as the Plaintiff knew of the occurrence of the transfer margin of the transfer margin of KRW 3,00,00, and the Plaintiff did not report, pay and pay the penalty tax, unless the Plaintiff or the non-party company was fully responsible for and paid the taxes due to the transfer of each land of this case (i.e., Korea-A or the non-party company).

However, in light of the following circumstances, additional tax on the difference in transfer exceeding KRW 380,000,00 not stated in the above cash storage certificate, which is acknowledged by the overall purport of pleadings, the Plaintiff was aware that the transfer margin of all of the land of this case was KRW 2.5 billion at the time of the preparation of the above cash storage certificate, and that the amount distributed according to its equity ratio was KRW 1.8 billion (the Plaintiff’s investment amount was KRW 6.2 million at the time of acquisition of each of the land of this case, and the date of preparation of the cash storage certificate was less than 5,00,000,000 won, and the Plaintiff did not know that the above transfer margin was less than KRW 70,000,000,000,000,000 were more than KRW 50,000,000,000,0000,000,000 won. The Plaintiff was no more than KRW 70,000,00.

Therefore, among the capital gains tax on the disposition of this case, the part exceeding KRW 102,604,500 (see attached Table of calculation of additional tax), which falls under the 102,604,500 (see attached Table of calculation of additional tax), from June 1, 2003 to December 31, 2006, the following day following the period for filing a final return of tax base of the capital gains tax of this case for the transfer gains of KRW 380,000 from the transfer of each land of this case, among the capital gains tax on the transfer of this case,

3. Conclusion

Therefore, since the plaintiff's claim on the portion exceeding KRW 102,604,50 of the capital gains tax of this case is well-grounded, it shall be accepted, and the remaining claims of the plaintiff (the principal tax of capital gains tax of this case and the additional tax of KRW 102,604,50) shall be dismissed. Since the judgment of the court of first instance is partially different from this conclusion, it is unfair to accept the plaintiff's appeal in part, and the above judgment of the court of first instance on the additional tax of capital gains tax of this case as well as the above-mentioned decision of the court of first instance is revoked, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

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