(영문) 대법원 2021.7.8. 선고 2017두69977 판결

The part of the judgment of the court below against the plaintiff 1 and the part against the plaintiff 2, 3, 4, 5, 6, and 7 pertaining to the imposition of additional tax shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

All remaining appeals by Plaintiffs 4, 5, 6, and 7 are dismissed.

Reasons

The grounds of appeal are examined.

1. Case summary

A. While Plaintiff 1 divided the instant building into five floors located in Seocho-gu Seoul Metropolitan Government (hereinafter “instant building”) and leased KRW 5.92 billion in total and KRW 7,7190,000 in total monthly rent for each floor, Plaintiff 1 was established on August 28, 2008 by acquiring shares 10,000 in the name of Plaintiff 2 and Plaintiff 3, and on September 1, 2008, leased the entire instant building to KRW 5.92 million in total and KRW 5,90 million in rent, KRW 50 million in monthly rent.

B. On September 1, 2008, Jin-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa

C. On May 3, 2012, Plaintiff 1 changed the name in the form of partial transfer to Plaintiff 4, 5, 6, and 7 of the 10,000 U.S. Development shares, Plaintiff 2, on May 3, 2012.

D. Under the premise that the market price of the lease service on the instant building from around 2008 to December 2012 is equivalent to the rent for the sub-lease that was paid by the successful development (However, the premise that the market price of the lease service on the 40,500,000 won was previously paid by the Plaintiff 1). The premise that Plaintiff 1 provided the lease service on the instant building at a price lower than the market price of the successful development to which the special relationship was made by the Plaintiff 1, was that Plaintiff 1 provided the lease service on the instant building. The difference was calculated by adding up the supply price and income of Plaintiff 1, the respective value-added tax from February 2, 2008 to February 2, 2012 and the income tax from February 2008 to 2012.

E. On August 28, 2008, the head of the Seongdong-dong Tax Office, the head of the Gangnam District Tax Office, the head of the distribution office, and the head of the Yongsan-si Tax Office: (a) deemed that the Jinch Development shares were successively trusted on August 28, 2008 to Plaintiffs 2, 3; (b) on May 3, 2012, Plaintiffs 4, 5, 6, and 7; (c) on the basis of Articles 60(3) and 63(1)1(c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11845, May 28, 2013; hereinafter “former Inheritance Tax Act”); (c) calculated the weighted average value of the Plaintiff’s shares and the net asset value assessed by Plaintiffs 36(1) and 54(1)6(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 25195, Feb. 21, 2014; hereinafter “former Enforcement Decree”).

2. As to the imposition of principal gift tax on Plaintiffs 4, 5, 6, and 7 (Ground of appeal No. 1)

A. With respect to the imposition of principal gift tax based on the constructive gift of title trust, Plaintiffs 4, 5, 6, and 7: (a) from September 1, 2008, Jin-unununak Development engaged in accommodation business on the 4 and 5th floor of the instant building from around September 1, 2008; (b) discontinued accommodation business on around October 2009; and (c) sublease business on the entire building of this case from around that time; (d) this constitutes a case where the principal type of business was changed from the date before the base date of appraisal to the base date of appraisal under Article 17-3(1)3 of the former Enforcement Rule of the Inheritance Tax and Gift Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 412, Mar. 14, 2014; hereinafter “former Enforcement Rule of the Inheritance Tax and Gift Tax Act”). Therefore, the instant Plaintiffs’ net value of profits and losses per share, which served as the basis of calculating the amount of gift tax of the Plaintiffs, cannot be assessed.

B. On the grounds indicated in its reasoning, the lower court rejected the aforementioned assertion on the ground that the main type of business, even before the closure of the accommodation business, did not change due to the closure of the accommodation business, and determined that each of the above Plaintiffs was lawful. Examining the record in light of the relevant provisions and legal principles, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, did not err by misapprehending the legal doctrine on Article 17-3(1)3 of the Enforcement Rule of the former Inheritance and Gift Tax Act.

3. As to the imposition of each value-added tax and global income tax on Plaintiff 1 (Ground of appeal No. 2)

A. According to Article 41(1) of the Income Tax Act, Article 98(2)2 of the Enforcement Decree of the Income Tax Act, Article 13(1)4 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013); Articles 50(1) and 52(1) of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013), where a business operator who is a resident leases real estate for an unreasonably low price to a related party, the market price of real estate rental services, which is the tax base of the Value-Added Tax Act, shall be determined by the method of appraisal and assessment under the Public Notice of Values and Appraisal of Real Estate Act, and where there is no such price or the market price is unclear, the market price of real estate rental services, which is the tax base of the Value-Added Tax Act, should be determined by law, such as the appraised price under the Public Notice of Values and Appraisal Act.

B. According to the records, Plaintiff 1 entered into a lease agreement on the instant building with the development of the Jinun Shipbuilding and the construction of the instant building; unlike the previous one, Plaintiff 1 was in charge of the repair and maintenance of the instant building; the lessee bears taxes and public charges on the instant building; and agreed to compensate for the disputes with the tenants and to assume all the responsibility therefrom. As such, Plaintiff 1 appears to have taken into account various expenses and responsibilities, etc. that the Jinun Shipbuilding would bear the development of the Jinun Shipbuilding instead of Plaintiff 1. Therefore, it cannot be readily concluded that the amount equivalent to the sub-lease is the market price of the instant building that Plaintiff 1 provided for the development of the Jinununun Shipbuilding, solely on the ground that Plaintiff 1 received the same amount as the pre-paid rent as the pre-paid rent, without considering such expenses and responsibilities.

C. Nevertheless, solely on the grounds indicated in its reasoning, the lower court deemed that the market price of the instant building that Plaintiff 1 provided for the development of the JAS was equivalent to the rent for which the development of the JAS was conducted, and determined that the imposition of each value-added tax and global income tax on Plaintiff 1 was lawful. In so determining, the lower court erred by misapprehending the legal doctrine on the rejection of unfair calculation based on a real estate low-price rental, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal on this point

4. As to the imposition of mountain tax by each unfair report on gift tax on Plaintiffs 2, 3, 4, 5, 6, and 7 (ground of appeal No. 3)

A. Article 47-2(2) of the former Framework Act on National Taxes (amended by Act No. 11873, Jun. 7, 2013) provides that an amount equivalent to 40/100 of the calculated tax shall be the penalty tax in a case where a taxpayer fails to file a tax base return under the tax-related Acts by the statutory due date of return due to “unlawful act” (Article 47-2(2) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter “former Framework Act on National Taxes”).

“Fraud or other unlawful act” or “unlawful act” under Article 47-2(2) of the former Framework Act on National Taxes 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 mere failure to file a report under tax law or filing a false report without attaching circumstances showing the intention of concealment (see, e.g., Supreme Court Decision 2015Du44158, Apr. 13, 2017). In addition, in cases of deemed donation of trust property under the name of title, reporting to the tax authority based on a written contract or account transaction details, etc. formed with the appearance that the title truster had purchased and sold stocks to the title trustee while under the title trust, constitutes an incidental act following the normal title trust (see, e.g., Supreme Court Decision 2018Du36004, Dec. 13, 2018). Therefore, in such a case, it cannot be deemed that a title trustee’s act of gift tax or an unlawful act is significantly difficult to impose a gift tax.

B. As revealed by the reasoning of the lower judgment and the record, it is difficult to view that: (a) the appearance of the Plaintiff 2, 3, 4, 4, 5, 6, and 7, in title trust, formed “the Plaintiff 2, 3, and 6, and 7 pay their own funds; (b) the appearance of the Plaintiff 4, 5, 6, and 7 can be deemed as an incidental act following the ordinary title trust; (c) it is difficult to view that the Plaintiff 2, 3, 4, 5, 6, and 7, based on the title trust as a result of the title trust, committed an active act such as the title trust, which is accompanied by incidental act, for the purpose of evading this; (c) it is difficult to view that the above Plaintiffs 2, 3, 4, 5, 6, and 7 did not make it impossible or remarkably difficult to impose and collect gift tax with respect to the above title trust; and (c) in light of the legal principles as seen earlier, the portion of the Plaintiff 2, 36, and 7, and 7.

C. Nevertheless, solely on the grounds stated in its reasoning, the lower court determined that the part of the penalty tax for failure to report was lawful in the imposition of gift tax against Plaintiffs 2, 3, 4, 5, 6, and 7, on the ground that the aforementioned monetary transaction at the time of title trust constituted an illegal act under Article 47-2(2) of the former Framework Act on National Taxes. In so determining, the lower court erred by misapprehending the legal doctrine on “Fraud or other unlawful act” or “unlawful act” under Article 47-2(2) of the former Framework Act on National Taxes, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

5. Conclusion

Therefore, the part of the judgment of the court below against Plaintiff 1 and the part against Plaintiff 2, 3, 4, 5, 6, and 7 pertaining to the imposition of additional tax shall be reversed, and this part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. All remaining appeals by Plaintiffs 4, 5, 6, and 7 shall be dismissed (Plaintiff 2 and Plaintiff 3 filed an appeal against the above additional tax among the imposition of gift tax). It is so decided as per Disposition by the assent of all participating Justices on the bench.