(영문) 서울고등법원 2017. 08. 18. 선고 2016누65895 판결

(Japanese Corruption) The fixed rate method can be applied to the clean room, and the retirement allowance right is mature and finalized, and therefore included and subject to withholding in the inheritance tax. Although the imposition of title trust gift tax is lawful, but the reported tax credit should be recognized, and the fact that the donor reported differently is not enough to deem that the illegal act was committed, the application of unfair and minor penalty tax is illegal.

Related statutes

Article 23 (Non-Inclusion of Depreciation Costs in Loss)

Article 64 of the Inheritance Tax and Gift Tax Act

Cases

2016Nu65895 Revocation of Corporate Tax Imposition Disposition, etc.

Plaintiff, Appellant

○○ and 6 others

Defendant, appellant and appellant

○ Head of Tax Office and 4

Judgment of the first instance court

Seoul Administrative Court Decision 2015Guhap80635 decided August 26, 2016

Conclusion of Pleadings

May 12, 2017

Imposition of Judgment

August 18, 2017

Text

1. A. Of the judgment of the court of first instance, the part against the Plaintiff ○○ Co., Ltd. by the director of the tax office of Yeongdeungpo-gu, which falls under the part ordering cancellation, shall be revoked, and the claim of the Plaintiff ○○, Inc., which

On June 1, 2015, the head of Yeongdeungpo-gu Tax Office revoked the collection disposition of KRW 187,120,090 for retirement income tax belonging to the year 2012 against the Plaintiff corporation ○○ on June 1, 2015.

B. The remaining appeals by the defendant Young-gu Tax Office are dismissed.

2. (a) The part of the judgment of the court of first instance against the defendant head of Yongsan Tax Office of the plaintiff Shin-○, who falls under the part of the order to revoke below shall be revoked.

On June 1, 2015, the head of Yongsan Tax Office revoked the part exceeding KRW 495,915,367 of the disposition imposing gift tax on Plaintiff New ○○ in 2006, which was imposed on Plaintiff New ○ in excess of KRW 728,297,127.

B. The remaining appeal by the Plaintiff New○○ is dismissed.

3. Of the judgment of the court of first instance, the part on the Plaintiff’s New○○, New○, New○, New○, New○○, New○○, Forwarding○, and Defendant’s Dongjak Tax Office is modified as follows:

A. On June 1, 2015, the part exceeding KRW 2,007, 398,484 among the disposition of imposition of KRW 2,007, 398,484 among the disposition of imposition of KRW 2,734,082,231 on the part of the Plaintiff’s New○○, New○○, New○○, New○, New○, New○, ○○, and Song○○, respectively, was revoked.

B. Each of the remaining claims against the Defendant by the Plaintiff New○○, New○○, New○○, New○○, New○○, New○○, and Song○○, are dismissed.

4. All appeals by the Plaintiff Samsung○’s director of the tax office of distribution, appeals by the Plaintiff Samsung○’s director of the tax office of distribution, appeals by the Plaintiff’s director of the tax office of distribution, appeals by the Plaintiff’s director of the tax office of distribution, and appeals by the Plaintiff’s director of the tax office of Samsung

5. A. Of the total cost of litigation between the Plaintiff ○○ and the Defendant Young Military Tax Office, 2/3 of the total cost of litigation between the Plaintiff ○○ and the Defendant Young Military Tax Office is the Plaintiff ○○, and the remainder is the Defendant Young

B. 7/10 of the total litigation cost between the Plaintiff New ○○ and the Head of Yongsan Tax Office is the Plaintiff New ○○○, and the remainder is the Defendant Yongsan Tax Office:

C. 8/10 of the total litigation cost between the Plaintiff New○○○, New○○, New○○, New○○, New○○, and Song○○ and Defendant Dongjak Tax Office’s 8/10 of the total litigation cost between the said Plaintiffs and the Defendant’s Dongjak Tax Office’s 8/10

D. The costs of appeal between the Plaintiff ○○ and the director of the distribution office are individually assessed.

E. The costs of appeal between the Plaintiff New○○ and the Defendant Samsung Head of the tax office are individually assessed.

Each share shall be borne.

Purport of claim and appeal

1. Purport of claim

The imposition disposition of KRW 728,297,127 on June 1, 2015, by the head of the tax office of Yeongdeungpo-gu to ○○○○○○○○ on June 1, 2015, the imposition disposition of KRW 15,243,685 on the Plaintiff Company, and the remaining amount of corporate tax after the reduction or correction of “reasonable tax” was revoked, and both the imposition disposition of KRW 187,120,090 on retirement income for the year 2012, and the imposition disposition of KRW 187,120,00 on the new inheritance tax for the year 2006, imposed on the Plaintiff ○○○○○○○○○○ on June 1, 2015, the imposition disposition of KRW 15,243,685 on the Plaintiff Company, and the imposition disposition of KRW 201,361,25,2615,285,2015 on the new gift tax for the Plaintiff ○○○○ on June 1, 2015.

2. Purport of appeal

【Plaintiff’s New○○, New○, New○, New○, New○, New○, New○, and Forwarding ○○】

The part against the above plaintiffs in the judgment of the court of first instance shall be revoked. The imposition of KRW 728,297,127 of the gift tax on June 1, 2015 against the Plaintiff ○○○ on the part of the said judgment. The imposition of KRW 13,868,850 among the imposition of KRW 15,243,685 of the gift tax on June 1, 2015 against the Plaintiff ○○○○ on the part of the said judgment; the imposition of KRW 13,868,850 among the imposition of KRW 15,243,68,850 of the gift tax on June 1, 2015 against the Plaintiff ○○○; the imposition of KRW 13,868,850 of the gift tax on the part of the said judgment against the said Plaintiffs; the imposition of KRW 15,243,850 of the imposition of the gift tax on the Plaintiff ○○, New○○, ○○, new ○, 2012734,2827

[Other Defendants except the Defendant’s Head of Yongsan Tax Office]

Among the judgment of the first instance court, the part against the above Defendants shall be revoked, and all of the plaintiffs' claims against the above Defendants corresponding to the revoked part shall be dismissed.

Reasons

1. Quotation of the reasons for the judgment of the first instance;

The reasoning of this judgment is as follows, except for a partial change or addition of the reasons for the judgment of the first instance, and therefore, it is identical to the reasons for the judgment of the first instance. Therefore, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence

○ The parts from 4th to 5th 1st eth eth eth eth eth eth eth.

1. The details of the disposition;

1) On June 1, 2015, the head of the Defendant Youngpo Tax Office denied the disposition regarding the Plaintiff Company (hereinafter referred to as the “Plaintiff Company”) on the following grounds: (a) on four clean rooms (Clean Room, D/L 4 clean studs, string 8 strings, strings6, 7 strings, film 6 strings, film 6 strings, hereinafter referred to as the “string 30 years”); (b) on the basis of the classification of the building account, the Plaintiff Company collected the Plaintiff Company’s retirement income from 2010, 2011, 2010, 201,000 won, and 30 years, including the amount of retirement income from 2010, 2011, 2013, 2013, 2010, 20181, 2010, 2016, 2016.

2) On August 27, 2015, the Plaintiff Company filed a petition for an adjudication with the Tax Tribunal on the grounds of partial objection, and upon the decision of the Tax Tribunal, on March 9, 2016, the head of the tax office having jurisdiction over the Defendant Yeongdeungpo District Tax Office notified the Plaintiff Company of corporate tax correction and notification as stated in the column of “the details of the disposition regarding the Plaintiff Company and the remaining tax amount after the reduction or correction of “the amount of the justifiable tax” (hereinafter referred to as “the disposition of imposition of corporate tax of the instant case after the correction of reduction”).

[Ground of Recognition] Unsatisfy, Gap evidence 8, Eul evidence 1 and 2, Gap evidence 1 and 2, "the purport of the whole pleadings"

The following shall be added between the five pages 1 and 2:

"B. Relevant Acts and subordinate statutes"

. "As shown in the Annex."

○ 5 side 2 parallels in paragraph 2(b)(c).

○ 7 pages 5,00,00 shall not include the following:

Article 26 (1) of the Enforcement Decree of the Corporate Tax Act stipulates that the same method of depreciation shall apply to the same type of tangible fixed assets under the principle of continuity, except for the case where approval for change is obtained. However, the method of depreciation under Article 26 (1) of the Enforcement Decree of the Corporate Tax Act provides that the corporation shall report the same method of depreciation by the type of depreciable assets under each subparagraph of the above provision, and it is reasonable to deem that the new method of depreciation can be applied to the newly acquired method of the fixed method of the fixed method even if the fixed method of depreciation is applied to the existing large-scale room. In addition, even if the different method of depreciation is applied to the same type of large-scale room, it is the reason that the Plaintiff filed a report on the different method of depreciation by selecting the different method of depreciation from the existing large-scale room, and on this ground, it cannot be seen that the small-scale room of this case naturally conforms to the fixed method of installment, such as the existing large-scale room. Therefore, the above argument by the Defendant cannot be accepted).

The parts from 7 pages 8 to 10 pages 11 shall be modified as follows:

D. Whether the instant collection disposition is lawful

1) Relevant legal principles

Directors of a stock company have the right to claim remuneration (see, e.g., Supreme Court Decision 2014Da236311, Jul. 23, 2015). The remuneration of directors under Article 388 of the Commercial Act includes all remuneration to be paid as compensation for the performance of duties, regardless of their titles, such as monthly salary and bonus, and retirement allowances or retirement consolation benefits are all remuneration to be paid in return for the performance of duties while in office (see, e.g., Supreme Court Decision 2012Da98720, May 29, 2014). If retirement consolation benefits have been determined by the articles of incorporation or by a resolution of the general meeting of shareholders pursuant to Article 388 of the Commercial Act, the resolution of the general meeting of shareholders cannot affect the right to claim remuneration of a retired director regardless of the validity of the resolution itself (see, e.g., Supreme Court Decision 2017Da273174, Nov. 27, 2017).

On the other hand, in order to ensure that income which is subject to income tax has been realized, it is not necessary until the income has been realized, and the right to generate income is considerably mature, final and conclusive, and the right to generate income is mature, final and conclusive, and in detail, it shall be determined by comprehensively taking into account the specific nature of each individual right, the content of the right, and the legal and practical terms and conditions. A patent attorney shall send a tea list stating expenses and remuneration to a foreign client and receive a promise to pay all or part of the amount from a foreign client or receive a transfer from the foreign client, it shall be deemed that it is considerably mature and finalized to the extent that the right to generate income is realized (see, e.g., Supreme Court Decision 94Nu4608, Aug. 12, 1994).

(ii) the facts of recognition

In full view of the contents of Gap evidence Nos. 1 through 4, 25, 33, Eul evidence Nos. 9 and 10, the following facts may be acknowledged.

① The articles of incorporation of the Plaintiff did not provide for the calculation of retirement allowances for executive officers except for Article 26 as follows. On December 27, 2011, Article 36 was newly established as to the calculation of retirement allowances for executive officers.

Article 26 (Resolution and Quorum of General Meeting of Shareholders)

(2) Except as otherwise provided in Acts and the articles of incorporation, the following cases shall require the concurrent vote of a majority of the shares present and of at least 1/4 of the total number of issued

2. Determination of salaries, bonuses, remuneration and retirement allowances of directors and auditors;

Article 36 (Calculation of Retirement Allowance of Officers)

(1) The calculation of retirement allowances for executive officers shall be [average wages ¡¿ the number of service years by relevant class ¡¿ payment coefficient].

(2) The payment coefficient shall be as follows:

Positions and Positions

Criteria for Payment

Payment Coefficient

President;

each year of service in the class concerned; one year;

3.0 Months

Vice President;

each year of service in the class concerned; one year;

2.5month;

Senior Director, Executive Director, Director

each year of service in the class concerned; one year;

2.0th month

② On July 26, 2012, the new ○○○ (hereinafter “the deceased”) who was the representative director of the Plaintiff Company died. On July 26, 2012, the Plaintiff Company paid retirement allowances of KRW 941,818,580 to the Deceased, and collected and paid KRW 41,203,650 as retirement allowances. On December 20, 2012, the Plaintiff Company paid the said retirement allowances to the deceased’s heir with the approval of the New ○○ and New ○, the president, the Plaintiff Company.

Plaintiff New ○○, New ○, New ○, New ○, New ○, New ○, New ○○, and Song ○○○ (hereinafter referred to as “Plaintiff New ○○”) are all the inheritors of the deceased. Since June 2012, Plaintiff New ○○, Plaintiff New ○○, and Plaintiff New ○○ owns 52% of the shares of the Plaintiff Company, Plaintiff New ○○, and 21.5% of the shares of the Plaintiff Company.

2012/08/23 Deceased Retirement Allowance: Three times the articles of incorporation

1) Preparation of articles of incorporation excluding three multiple clauses: inconsistency with court reports.

(ii) A proposal to reduce the service period: an interim settlement to the extent that it is possible to inquire into the National Tax Service;

③ On August 23, 2012, the document prepared by the ○○○○○○○ in the Plaintiff Company’s Financial Team contains the following contents. On September 13, 2012, the file “retirement allowance” in the “retirement allowance” which exists on the ○○○ computer, includes the content that is calculated in a different amount by applying various methods, such as non-applicable coefficient of payment, application of payment coefficient, interim settlement, interim settlement, and application of interim settlement and payment coefficient, etc. of the deceased’s retirement allowance.

④ In calculating the Plaintiff Company’s corporate tax base in 2012, the head of the Defendant Young Military Tax Office included the instant retirement benefits in the calculation of the Plaintiff Company’s corporate tax base and at the same time included the Plaintiff Company’

⑤ On December 2, 2015, the Plaintiff Company paid 2,604,125,820 won (in cases where calculated according to the articles of incorporation, KRW 1,302,063,429), 93,938,870 (in cases where calculated according to the articles of incorporation, KRW 74,277,250) to ○○○ and ○○○○○○ who retired from office, as retirement allowance, larger than the amount calculated in accordance with Article 36 of the articles of incorporation of the Plaintiff Company.

3) Determination

In light of the facts acknowledged earlier and the following circumstances acknowledged by the Plaintiff’s articles of incorporation, the right of inheritors, such as the Plaintiff New○○, etc., as to the deceased’s retirement allowance calculated pursuant to Article 36 of the Plaintiff’s articles of incorporation, shall be deemed to have been mature and confirmed to the extent that the heir’s realization of a part of the retirement allowance was considerably high around December 20, 2012. Nevertheless, the Plaintiff Company unilaterally calculated only the amount less than the retirement allowance calculated pursuant to Article 36 of the articles of incorporation as the deceased’s retirement allowance and paid it to the Plaintiff New○, etc. (hereinafter “instant collection disposition”). As such, the collection disposition of the instant retirement income tax on KRW 1,82,631,920 (hereinafter “the instant retirement allowance”) is legitimate.

① Unless otherwise stipulated in the articles of incorporation, Article 26(2) of the articles of incorporation provides for the determination of retirement allowances for executive officers at a general meeting of shareholders, and Article 36 regarding the calculation of retirement allowances for executive officers is newly established upon amending the articles of incorporation on December 27, 2011. As such, Article 36 of the articles of incorporation provides for the calculation of retirement allowances for executive officers. In addition, Article 36 of the articles of incorporation provides for the payment coefficient according to the position of executive officers, such as president, vice president, managing director, managing director, and director, for three months, two months, five months, and two months, respectively. The general provisions that uniformly apply to all executive officers.

Therefore, Article 36 of the articles of incorporation of the Plaintiff Company provides for the amount of remuneration under Article 388 of the Commercial Act with respect to the retirement allowance of executives. Therefore, the Plaintiff Company need not undergo a separate resolution of the general meeting of shareholders as stipulated in Article 26 of the articles of incorporation in order to determine

② According to the work and computer files of the Plaintiff’s employees, the Plaintiff Company following the death of the deceased is recognized as having attempted to prepare a false articles of association or make interim accounts in order to reduce the amount of the deceased’s retirement allowance due to the inheritance tax. In light of these circumstances, the Plaintiff Company appears to have been aware that the Plaintiff Company had the obligation to pay retirement allowances calculated under Article 36 of the articles of association to its heir, including the Plaintiff, etc. (i.e., the Plaintiff Company did not pay retirement allowances more than the amount calculated pursuant to the articles of association to the Plaintiff’s ○○ and the ○○○○○). Therefore, it is difficult to view that the Plaintiff Company’s right to retirement allowances became final and conclusive solely based on the articles of association. However, as seen above, as long as the amount of retirement allowances was determined in the articles of association. As long as the inheritors received part of the retirement allowances, the Plaintiff Company’s entitlement to retirement allowances is considerably higher than the retirement allowances calculated pursuant to the articles of association. Therefore, the Plaintiff’s heir’s entitlement to retirement allowances under Article 36 cannot be deemed reasonable).

③ Since the most essential part of the provision on the payment of retirement allowances is to specify the amount of retirement allowances, it is reasonable to view that, even if the time or method of payment of retirement allowances is not specified in the articles of incorporation, the right to claim the payment of retirement allowances has been considerably mature. If it is deemed that the right to claim the payment of retirement allowances takes place only when the payment of retirement allowances is determined through a resolution of the general meeting of shareholders, the provision on the payment of retirement allowances to officers in the articles of incorporation would be virtually unreasonable, and as a result, Article 388 of the Commercial Act would be unreasonable. Furthermore, as the deceased’s heir, the majority shareholder and the president of the company, the Plaintiff’s new ○○, and the new ○○○, who were working as the president, did not have the right to claim the payment of retirement allowances before December 20, 2012, the determination of the amount of the deceased’s retirement allowances was not made on the ground that the right to claim the payment of retirement allowances was not determined by the former 3rd shareholder’s right to claim the payment of retirement allowances.

④ There is no evidence suggesting that the deceased renounced his right to retirement pay of this case before his birth. If, as alleged by the plaintiffs, the new ○○○ and the new ○○○ approved to receive only the remaining retirement pay except for the retirement pay of this case, all of the remaining inheritors may be deemed to waive their right to claim retirement pay of this case. In this case, the retirement income tax shall be withheld for the waived amount, and the same amount shall be included in the deductible expenses within the limit of the retirement allowance for officers in accordance with the income amount for each business year, and the same shall be included in the gross income. Therefore, there is no error in the disposition of imposing inheritance tax by adding the retirement pay of this case to the deductible expenses by the director of the defendant Young-gu Tax Office at the same time as the retirement allowance of this case is included in the calculation of deductible expenses

The parts from 10 pages 13 to 11 pages 2 shall be modified as follows:

1. The details of the disposition;

1) On January 31, 2006, 2006, ○○○○ donated 600 shares issued by the Plaintiff Company, and 2,100 shares issued by the Plaintiff Company (hereinafter “instant shares”) from ○○○○○○○○○○, and on April 30, 2006, 241,396,270 shares issued by the Plaintiff Company, and 819,490,680 shares, totaling KRW 1,060,86,950 shares issued by the Plaintiff Company, and paid the Plaintiff Company’s gift tax on April 30, 2006.

2) On June 1, 2015, the head of Yongsan Tax Office determined and notified the gift tax amount of KRW 762,028,970 on the ground that the deceased was not Lee○○○ and the deceased, but on the ground that the donor of the shares was the deceased, on June 1, 2015 (the head of Yongsan Tax Office did not grant a tax credit on the gift of the shares).

3) On August 27, 2015, Plaintiff New ○○ filed a request for a trial with the Tax Tribunal on the grounds that he/she erroneously assessed the value of the instant shares. In accordance with the purport of the decision of the Tax Tribunal, the head of the tax office rendered a decision to partially reduce the gift tax on February 17, 2016 to KRW 728,297,127.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 5, 6, 9, Eul evidence Nos. 3 and 28, the purport of the whole pleadings

○ 11. The following shall be added between the two parallels and three parallels:

"B. Relevant Acts and subordinate statutes"

. "As shown in the Annex."

○ 11.3 parallels in paragraph (b)(c) of "...."

○ 14 Parts 1 to 15 pages 14 below the table shall be modified as follows:

2) Scope of the reported tax credit

A) According to Article 69(2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “former Inheritance Tax and Gift Tax Act”), where a gift tax base is reported within a given period, an amount equivalent to 10/100 may be deducted from the gift tax amount calculated. Since it is practically impossible for the tax authority to investigate both of the individual donation acts and impose gift tax, it is practically impossible for the taxpayer to receive benefits, such as tax credit, if the taxpayer performs his/her duty to cooperate with the tax authority.

Meanwhile, according to Article 68 of the former Inheritance Tax and Gift Tax Act and Article 65(2)1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20720, Feb. 29, 2008), a person liable for the payment of gift tax must attach documents evidencing the type, quantity, appraised value, etc. of donated property necessary for calculating the tax base of gift tax to the report when he/she files the tax base of gift tax and a transcript of the donee’s removed copy and a family register copy of the donor’s family register (see current statutes, a donee’s removed copy

"Tax base reported" by a taxpayer who becomes the basis for tax credit for inheritance refers to the amount calculated by subtracting the amount of excess reported due to differences in the valuation of inherited property and errors in the application of various deductions, and it does not mean the legitimate value of inherited property reported, such as the provisions of "tax base of inherited property reported" under Article 20-2 (1) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) (see, e.g., Supreme Court Decision 99Du4860, Oct. 30, 200). In addition, in calculating the tax base of donated property within five years after a taxpayer filed a return within the statutory due date of return, the amount of excess reported shall not be again deducted from the tax base of donated property reported (see, e.g., Supreme Court Decisions 200Du3625, Aug. 24, 2006); in light of the legislative purport of Article 69-25 of the former Inheritance Tax and Gift Tax Act, the tax base for inheritance Tax to be calculated by deducting the tax base of donated.

B) However, as seen earlier, while Plaintiff New ○○ filed a gift tax return on the instant shares held in title trust by the deceased and paying gift tax after deducting the reported tax amount, the donor entered the donor into ○○○ and ○○○, not the deceased. As to this, the head of the Defendant Yongsan Tax Office did not recognize the reported tax amount and imposed an additional gift tax on the deceased. However, in light of the following circumstances, as long as Plaintiff New ○ filed a return on the “tax base” on the “property” received within the statutory due date of return, it is reasonable to recognize the tax credit for the return and calculate the legitimate tax amount.

① Since inheritance tax and gift tax are national taxes in the form of tax payment, a report filed by a person liable to pay inheritance tax and gift tax is merely a reference material for the investigation and determination by the tax authority. However, in order to reduce the tax administrative burden by inducing the report, the Act grants tax credits if the report is made by the due date, and requires the tax authority to impose additional tax on negligent tax if the report is not performed properly. Unlike income tax or corporate tax, the report is limited to performing the duty to cooperate by the tax authority that provides reference materials and information, which serves as the basis for the investigation, determination, and imposition of gift tax, and the tax base and tax amount of gift tax. In other words, the cooperation required in the gift tax is limited to the report itself, and the details of the report are not required to be fully consistent with objective facts as alleged by the Defendant. The tax authority is responsible for imposing and collecting reasonable tax by investigating whether there is any omission or error in the reported tax base, tax amount,

② In a case where a person liable to pay gift tax reports a different return on the taxable value and tax base of the gift tax on the gift tax, it is difficult for the tax authority to grasp a legitimate tax base and the amount of gift tax on the gift tax on the grounds that the same person’s second donated property (see Article 47(2) of the former Inheritance Tax and Gift Tax Act) and the deduction for donated property (see Article 53(1) of the former Inheritance Tax and Gift Tax Act), etc. However, in a case where a person liable to pay gift tax has faithfully reported matters other than a donor, such as the type, quantity, and appraised value of donated property, the tax authority may determine a reasonable amount of gift tax by means of tax investigation, etc., and impose and collect it. Therefore, the effect of the gift tax on the gift tax on the gift of this case can not be readily denied on the sole basis that the Plaintiff ○○○, who reported the taxable value and tax base of the gift tax on the gift of this case by stating that the Plaintiff ○○ (the actual donor was a donor, not the deceased)

③ Even if the tax authority recognized the title truster as the donor at the time when the initial gift tax was imposed, it does not change the basic fact of taxation within the scope of the same taxable cause (see, e.g., Supreme Court Decisions 93Nu14059, Dec. 21, 1993; 2009Du1617, Jan. 27, 201). Thus, even if the title truster reported the taxable value and tax base of the gift tax to the donor and paid the gift tax, it is difficult to view that the said report and payment exceeds the identity of the taxable fact of the gift tax, “the gift to the donee,” which is the actual donor, even if the title truster reported and paid the gift tax to the donor.

④ Article 69 of the former Inheritance Tax and Gift Tax Act and its Enforcement Decree do not stipulate that a tax return should be regarded as a non-reported return in cases where there is any disagreement on the part of the donor. The interpretation that a return should not be made in order to recognize the deduction of the returned tax amount goes against the principle of strict interpretation because it reduced or interpreted the scope of the application of the returned tax amount by adding the requirements not required under the language and text of Article 69(2) of the former Inheritance Tax and Gift Tax Act. In fact, even though the total amount of the additional tax returns was revoked, in the instant case, if the taxpayer submitted documents on personal information of another person who is not the donor at the time of filing the return on the gift tax base, the return cannot be recognized as having been made because it is a false and correct return. However, in full view of the purport of the system of the reported tax credit, the legal provisions, and the legal principles of precedents, etc. as seen earlier, it is difficult to accept the Defendant’s above assertion.

3) Sub-determination

Therefore, it is necessary to fully recognize the tax credit on the Plaintiff’s return of gift tax by Plaintiff New ○○○. However, additional tax credit on the remainder other than KRW 311,894 recognized by the Defendant should be recognized from the aggregate of the tax credit on the initial return of gift tax at the time of filing the gift tax (=311,894 won + KRW 91,054,520 + KRW 26,821,808). Ultimately, the principal tax on the gift tax has been excessively imposed on the amount equivalent to KRW 117,876,328 (= KRW 91,054,520 + KRW 26,821,808). Accordingly, in calculating the legitimate tax, the additional tax should be revoked.

Therefore, on June 1, 2015, the portion exceeding KRW 495,915,367 of the imposition of gift tax belonging to the year 2006 on the Plaintiff New ○○○ shall be revoked.

The parts from the 5th to the 16th 3rd eth eth eth 15th eth eth eth eth

1. The details of the disposition;

1) On March 27, 2012, Plaintiff New○○ and New○○ donated 300 shares issued by each Plaintiff Company from the Deceased, and on June 30, 2012, reported and paid KRW 103,871,790 of the gift tax on the shares.

2) On June 1, 2015, the director of the tax office and the director of the Samsung District Tax Office decided and notified each gift tax of KRW 23,844,610 on the grounds of the depreciation cost in the clean room of this case, inclusion in deductible expenses, inclusion in the gross income of inventory assets, exclusion in the calculation of welfare expenses, denial of the tax credit for research and human resources development expenses, etc.

3) The director of the tax office of distribution of the defendant reduced the gift tax by reflecting the decision of the Tax Tribunal on the imposition of corporate tax against the Plaintiff Company under Article 1-A of the aforementioned Act. The director of the tax office corrected and notified the Plaintiff New ○○, the director of the tax office, and the director of the tax office, the director of the tax office, the director of the tax office,

[Reasons for Recognition] Uncontentious Facts, Gap evidence 7, 10 evidence, Eul evidence 4, the purport of the whole pleadings

○ From 16 pages 13 up to the last place, the parts shall be modified as follows:

1. The details of the disposition;

1) On January 1, 2015, the head of Dongjak Tax Office determined and notified the amount of KRW 2,745,795,120 to the heir, including Plaintiff New○○, who was donated on January 31, 2006, and KRW 300,000, respectively, as to the portion of the instant shares donated on March 27, 2012.

2) According to the decision of the Tax Tribunal that erroneously calculated the value of the instant shares donated on January 31, 2006 by the Plaintiff New ○○○, the head of the Dongjak Tax Office issued a notice of reduction of inheritance tax on February 15, 2016. The head of the tax office issued a notice of reduction of inheritance tax on March 10, 2016, reflecting the decision of the Tax Tribunal regarding the disposition imposing corporate tax on the Plaintiff Company, and finally corrected or notified the amount of reduction on March 10, 2016, and finally corrected or notified the amount of inheritance tax to KRW 2,734,

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 11 through 13, 29, Eul evidence Nos. 5 and 15, the purport of the whole pleadings

○ 17. On the first page, the following shall be added:

"B. Relevant Acts and subordinate statutes"

. "As shown in the Annex."

○ 17 pages 17, Paragraph b., "B." is advanced to Section c.

The parts from 17 pages 2 to 13 pages 18 shall be modified as follows:

1) The portion included in the inherited property

As seen earlier, the Plaintiff New ○○ may be deemed to have received the instant shares from the Deceased, and since the right to the instant retirement benefits is considerably mature and finalized, the instant shares and the instant retirement benefits are included in inherited property. On the other hand, with respect to each of the 300 shares donated by the Plaintiff New ○○○ and New ○○○○, as well as each of the 300 shares donated by the Plaintiff New ○○○ and New ○○, it cannot be deemed that there was an under-assessment part regarding depreciation costs. Therefore, the imposition of inheritance tax in 2012 against the Plaintiffs on a different premise is partially unlawful (On the other hand,

2) Additional tax portion

A) According to Article 47-3(2)1 of the former Framework Act on National Taxes (amended by Act No. 11873, Jun. 7, 2013), an amount equivalent to 40/100 of the amount calculated by multiplying the ratio of under-reported tax base by the calculated tax amount in the case of under-reporting all or part of the tax base by unlawful act is an additional tax for unlawful under-reporting. As such, the imposition of penalty tax is intended to induce a taxpayer to faithfully report the tax base because it is impossible or considerably difficult to impose and collect taxes, in cases where the whole or part of the facts constituting the basis for calculating the tax base of national tax or the amount of tax are concealed or pretended (see Supreme Court Decision 2015Du12433, Feb. 18, 2016). The term “unlawful act” in this context refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute a mere omission of a tax return without attaching any circumstance showing active concealment (see Supreme Court Decision 2015Du12433, Feb.

B) In full view of the following circumstances revealed by the evidence and the purport of the entire pleadings as seen earlier, it is unlawful to apply 40/10 of the unfair under-reported penalty taxes by deeming the Plaintiffs’ failure to report the instant retirement pay and the instant shares as inherited property as an unlawful act.

① The Plaintiff New ○○ had already paid gift tax around 2006 upon the appearance of the Plaintiff’s title holder, the title holder of the instant shares, and the appearance of the donation of the instant shares from ○○○○. As the deceased died thereafter, the heir, such as the Plaintiff New ○○, etc. did not simply file a return on the instant shares as inherited property, but did not engage in an active act to conceal the instant shares from inherited property. The Defendant Yongsan Tax Office did not impose an additional tax on the gift tax attributed to the Plaintiff New ○○○ in 2006, pursuant to Article 47-2(2) of the Framework Act on National Taxes (Evidence 3)

② As seen earlier, the circumstances acknowledged that the Plaintiff Company intended to reduce and pay the deceased’s retirement allowance, and the Plaintiff New○○ and New○○, the president of the Plaintiff Company, did not receive the instant retirement allowance by granting internal approval to pay only a part of the deceased’s retirement allowance calculated in accordance with Article 36 of the Plaintiff Company’s articles of incorporation. However, the Plaintiff Company’s payment of only part of the retirement allowance was made by Plaintiff New○○ and New○○, a part of the deceased’s inheritors, and does not seem to have any circumstance to deem that other inheritors knew of the payment. Moreover, the inheritors reported the remainder of the retirement allowance actually paid as inherited property, and there is no evidence to prove that the Plaintiff New○ and New○ only approved the remainder of the retirement allowance except the instant retirement allowance, and that there was no active act to make it impossible to impose and collect inheritance tax.

③ In full view of the foregoing circumstances, it is difficult to deem that the above Plaintiffs committed active misconduct, such as making it difficult to detect the fact that inheritance tax liability exists or making a false fact difficult, solely on the ground that the instant retirement allowance, which was not actually received by the heir, including Plaintiff New○○, did not report the instant retirement allowance as inherited property, and did not report the instant stocks as inherited property depending on the appearance of title trust.

(iii)the calculation of a legitimate tax amount;

Attached Form 2,07,398,484 (including additional tax on negligent return 249,046,462, additional tax on negligent return 353,24,967,291,429 won). Thus, if the retirement allowance of this case and the amount of due tax calculated by Plaintiff New ○○○ by applying the general underreporting additional tax on the portion of the shares of this case donated on January 31, 2006, 2012 for each of the heirs, including Plaintiff New ○○, etc., is 2,007,398,484 won (including additional tax on negligent return 249,046,462, additional tax on negligent return 353,24,967,291,429 won). Accordingly, the portion exceeding the above justifiable tax amount of 2,734,082,231 won against each inheritor, including Plaintiff New ○, etc., is revoked in entirety.

5. Conclusion

Therefore, the plaintiffs' claims of this case shall be accepted within the scope of the above recognition, and all of the remaining claims shall be dismissed on the ground of the reasons. Among the judgment of the court of first instance, the part of the plaintiff corporation ○○ and the defendant Young Military Tax Office, the part of the plaintiff Shin Young District Tax Office and the successor of the plaintiff Shin Young District Tax Office, the part of the plaintiff Shin Young District Tax Office and the part of the defendant Shin Young District Tax Office, and the part of the plaintiff Shin Young District Tax Office's successor to the plaintiff Shin Young District Tax Office as to the plaintiff corporation ○○, and all of the remaining appeals by the plaintiff Shin Young District Tax Office as to the plaintiff corporation ○, the successor of the plaintiff Shin Young District Tax Office, the new ○○○○, and the head of the plaintiff Shin Young District Tax Office, respectively, shall be accepted in part, and the decision of first instance shall be revoked or altered as per Disposition. The appeal by the plaintiff Shin Young District Tax Office as to the defendant Samsung District Tax Office's distribution, the appeal against the above plaintiffs to the plaintiff corporation ○ and the remaining appeal against the plaintiff ○○ New Tax Office.