Early High Court Decision 2009Du0264 ( December 21, 2010)

In the new construction and sale of apartment houses, in case of constructing apartment houses by giving a package contract to the contractor, the amount of income shall be appropriated according to the rate of work progress of the contractor.

In the new construction and sale of apartments, etc., where the construction contract period is at least one year, and where an apartment is constructed by giving a package contract to the contractor for the construction, the initial disposition in which the amount of income is calculated according to the progress rate of the construction project is legitimate.

Article 40 of the Corporate Tax Act and Article 69 of the Enforcement Decree thereof

2011Guhap3310 Revocation of Disposition of Imposing corporate tax

1. AA2. EB 3. ThisCC

Head of Central Tax Office

December 5, 2013

January 16, 2014

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

"The part that exceeds the amount indicated in the legitimate tax amount column in the imposition disposition of each corporate tax and income tax (cost portion) recorded in the separate sheet No. 1 (hereinafter "the Plaintiff Company") against the Plaintiff AA (hereinafter "the Plaintiff Company") shall be revoked. The part that exceeds the amount indicated in the separate sheet No. 2 in the imposition disposition of each income tax (cost portion) recorded in the separate sheet No. 2, 201 against the Plaintiff Company on March 1, 201 is invalid. The Defendant revoked both the imposition disposition of each tax listed in the separate sheet No. 3 and the imposition disposition of each tax listed in the separate sheet No. 4 against the PlaintiffCC as to August 27, 2009 against the Plaintiff Plaintiff AB on August 27, 2009."

1. Details of the disposition;

A. The Plaintiff Company is a domestic corporation established on May 2, 2002 for the purpose of real estate sale and purchase business, housing construction business, etc. The Plaintiff Company is a representative director of the Plaintiff Company and a shareholder who owns 23,400 shares (39%) out of 60,00 shares issued by the Plaintiff Company from May 17, 2003 to November 2008. The PlaintiffCC is a shareholder who owns 15,200 shares (25.33%) of the Plaintiff Company for the same period as the Plaintiff Company’s auditor.

B. On December 7, 2005, the Plaintiff Company obtained approval of DD apartment construction and sales on the land of 1,335 households and 1767-32, and 128 parcels on the ground of OO, OO, 2005, and completed the apartment of this case on March 27, 2008, EE Industry Development Co., Ltd. (hereinafter “EE Industry Development”) as the contractor. (c) The Plaintiff Company calculated the construction cost based on the tax invoice, etc. received from EE Industry Development, which the Plaintiff Company, the contractor of the instant business, as the contractor of the instant project, by including the construction cost paid to EE industry development in total in total in total in accordance with the sales rate calculated by the method of the work progress of the instant project, and paid each corporate tax for 2006 and 207.

D. From April 24, 2008 to July 18, 2008, the director of the Central Regional Tax Office has conducted a tax investigation with respect to the Plaintiff Company and notified the Defendant of taxation data. The Defendant, according to the above taxation data, once the Plaintiff Company concluded a blanket contract for the instant apartment construction project to EE industry development, calculated the progress rate based on the "construction cost claimed by EE industry development" and calculated the profit and loss of the Plaintiff Company for the reason that it did not recognize each corporate tax for 2006 and 207 years from the new construction of the instant apartment project reported by the Plaintiff Company, and calculated the aggregate of the construction cost of the Plaintiff Company's income tax for the purpose of calculating the aggregate of the construction cost incurred by the Plaintiff Company to the EE industry development as the income tax for the business year of 200,000,000 or less as the income tax for each of the following reasons:

E. Meanwhile, the Defendant, on December 26, 2008, issued 20G income tax notice to the Plaintiff Company’s 10 and 20G income tax base for each of the 20-year tax base and the 20-year income tax base for each of the above 10-year tax base and the 20-year income tax base for each of the 10-year tax base and the 20-year income tax base for each of the 10-year tax base and the 20-year income tax base for each of the 10-year tax base and the 20-year tax base for each of the 20-year tax base and the 10-year tax base and the 20-year tax base for each of the 20-year tax base and the 10-year tax base and the 20-year tax base and the 20-year tax base and the 20-year tax base for each of the 20-year tax appeals claim for each of the 200-OB.

(h) On January 12, 201 through February 10, 2011, the Director of the Central Tax Tribunal conducted a partial re-inspection on the Plaintiff Company. ① The portion determined as interest income tax in the previous imposition of income tax is the same as the initial investigation, ② The real estate brokerage expenses paid to ProfessorH classified as business income subject to withholding from the initial investigation is determined as not the business income subject to withholding. It appears that the above re-inspection was conducted on the Plaintiff 2000, 2000, 2000, 3000,0000,00000,0000,0000,0000,000,0000,000,000,0000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000.

(j) On the other hand, on October 25, 2012, the Defendant: (a) excluded the above amount from the tax base on the grounds that the Plaintiff Company paid to Kim NN on December 22, 2005 immediately recovered the above amount; and (b) corrected the amount of other income tax for the year 2005 from the previous imposition of income tax, and notified it to the effect that the income tax for the year 2005 should be deducted.

(k) In accordance with the purport of the Supreme Court en banc Decision 2010Du12347 Decided October 18, 2012, the Defendant revoked the disposition of imposition of the additional corporate tax for the business year 2007, among the previous disposition of imposition of corporate tax on November 29, 2012, and again imposed the additional corporate tax for the business year 2007, following the prior notice procedure.

" 타. 한편 원고 회사는 이 사건 사업을 진행하던 중 자금이 부족하자 2004. 2. 6. 김PP로부터 OOOO원을 지급받았고, 약정 투자배당금을 지급하기 어렵게 되자 2007. 3.경 김PP에게 약정 투자배당금에 대하여 OO시 OO구 OO동 288-29 소재 OOO아파트 상가동 제1층 5, 7, 8호(이하이 사건 상가'라 한다)의 소유권을 이전하였는데, 피고는 원고 회사가 김PP에게 발행한 세금계산서 및 계산서 6매 합계액 OOOO원에서 위 원금 OOOO원을 공제한 나머지 OOOO원을 김PP의 이자소득으로 판단하여 이를 과세표준에 산입하였다가, 원고가 이 사건 소송에서 이 사건 상가의 매매가액은 분양 당시인 2003. 9. 9. 분양대금 합계 OOOO원이므로 위 원금 OOOO원을 공제한 나머지 OOOO원을 이자소득으로 보아야 한다고 주장하자, 이 법원의 감정인 박QQ에 대한 감정촉탁결과(이하법원감정'이라 하고, 그 감정인을법원감정인'이라 한다) 에 따라 산정된 이 사건 상가의 소유권이전일인 2007. 3. 14. 당시의 위 상가의 시가 합계 OOOO원에서 위 원금 OOOO원을 공제한 나머지 OOOO원을 김PP에 대한 이자소득으로 재산정하고, 2013. 10. 14. 원고 회사에 대한 2007년 귀속 이자소득세를 OOOO원으로 감액경정한 후 이를 고지하였다(위와 같은 감액경정 및 증액 경정 등으로 인하여 원고 회사에 대한 종전 법인세 및 소득세 부과처분은 최종적으로 별지 1, 2 목록 각 부과내역 란 기재와 같이 변경되었는바, 이하 위와 같이 최종적으로 감액 및 증액경정된 종전 법인세 부과처분을이 사건 법인세 부과처분

The previous imposition of the income tax is subject to the imposition of the income tax in this case), "(m)", "The previous imposition of the income tax in this case is subject to the reduction of some amount of tax in the previous imposition of the corporate tax and income tax as above, and the defendant notified the details of changes in the amount of taxes in arrears on November 5, 2013 and on the 8th of the same month (the previous second imposition of the income tax in this case against the plaintiff JungB, etc. is changed as shown in the separate sheet 3, 4; hereinafter the same shall apply)", "The previous second imposition of the income tax in this case is finally changed as shown in the separate sheet 3, 4; hereinafter the same shall apply)", "The grounds for recognition", "No dispute exists, evidence Nos. 1 through 7 (including the separate number; hereinafter the same shall apply), and Nos. 1 through 9, 22, 28, and 29, each entry in the evidence of this court, the result of appraisal on the appraiser of this court

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

(1) As to the disposition of imposition of corporate tax of this case

(1) Article 69(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22577, Dec. 30, 2010; hereinafter the same) applies only to pre-sale sales of services, and does not apply to pre-sale sales of goods or products, including real estate. Thus, the time when profits or losses accrue from the apartment sale business shall be the date when the proceeds accrue from the transfer of assets (where the transfer of ownership is registered before the settlement of the proceeds, the date of transfer) or the date when the proceeds are settled pursuant to Article 68(1)3 of the Enforcement Decree of the Corporate Tax Act (where the transfer of ownership is registered before the settlement of the proceeds, the date of transfer) or the date of delivery of apartment (property) that are sold or transferred by analogy to the Corporation. (2) Since Article 69 of the former Enforcement Decree of the Corporate Tax Act applies to the Plaintiff Company's work progress, which is the contractor's work progress and work progress rate, regardless of the initial rate of the Plaintiff Company's work progress and development of the E-related work progress.

(C) As long as the Plaintiff Company cannot accurately calculate the rate of work progress of the EE industry development, it is impossible to expect the Plaintiff Company to determine the period of profit and loss of the instant project based on the rate of work progress of the EE industry development. Thus, even if it is justifiable to allocate profit and loss of the instant project in accordance with the rate of work progress of the contractor, there is a justifiable reason for failure to pay tax to the Plaintiff Company. Recognizing profit and loss of the instant project based on the rate of work progress of the Plaintiff Company, rather than the rate of work progress of the EE industry development, the perception of profit and loss of the instant project was derived from conflict of opinion due to the interpretation of the tax law on the issue of the determination of the period of work progress of the Plaintiff Company’s technical and difficult profit and loss. Therefore, the Defendant is not

(2) As to the imposition of income tax of this case

(A) On November 1, 2008, the Defendant issued a correction notice to the Plaintiff Company on 2003 as other income tax (cost portion), and to the other income tax (cost portion) for 2004 as other income tax (cost portion), but each of the above increased portion of income tax was unlawful in violation of Article 7(2) of the former Framework Act on National Taxes (amended by Act No. 910, Nov. 1, 201; hereinafter the same shall apply) and Article 7(2) of the former Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010; hereinafter the same shall apply) to the effect that the Tax Tribunal would re-examine objective facts and correct tax base and tax amount.

"(B) The amount additionally paid by the Plaintiff Company to ten (10) persons, including Kim R, SS, TraU, MaU, MaU, DaV, KimW, Y, EY, ZZ, ZZ, etc. (hereinafter "GimR, etc.") in the course of purchasing the land for the instant project is paid according to their demand for the increase of the purchase price and their tax and public charges. Since the substance is the purchase price regardless of the terms of payment, it does not fall under the income subject to withholding under Article 127 (1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009; hereinafter the same shall apply) because the principal amount is not the sales price of the instant project, the Defendant deemed the other income to be the sales price of the Plaintiff 205 to 207, and thus, it is unlawful in the imposition of interest income from the Plaintiff 200 to 200,000,0000 won.

(3) As to the second disposition of this case

① As long as both the imposition of taxes on the Plaintiff Company is unlawful, all of the second imposition of taxes on the Plaintiff Company is unlawful. ② Even if the imposition of taxes on the Plaintiff Company is lawful, the PlaintiffCC does not actually exercise the right to shares held or participate in the management of the Plaintiff Company. Therefore, the part on the PlaintiffCC among the second imposition of taxes on the Plaintiff Company is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the disposition of imposition of corporate tax of this case

(A) Whether Article 68 of the former Enforcement Decree of the Corporate Tax Act is applied

However, according to the above facts, the business of this case is constructed and sold by the plaintiff company, which is an apartment seller, for a long period of time (one year or more) after receiving prior subscription from the buyer, and it constitutes a pre-sale sales under Article 69 (1) of the former Enforcement Decree of the Corporate Tax Act. Since there is no reason to deem that the pre-sale sales under the above provision is limited to the service, the plaintiff company's assertion that Article 68 of the former Enforcement Decree of the Corporate Tax Act should apply to the business of this case, not to the business

(B) Whether it is unlawful to calculate the tax base and tax amount for the event by applying the rate of work progress of the project

1) Article 69(2) of the former Enforcement Decree of the Corporate Tax Act and Article 34 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 547, Mar. 30, 2007; hereinafter the same) provide that where the period from the start date of construction to the delivery date is not less than one year, the profits and expenses calculated by dividing the accumulated total amount of construction expenses incurred by the end of the pertinent business year by the total construction cost and dividing them into the total construction cost and the total construction cost incurred by the end of the pertinent business year shall be included in the calculation of earnings and losses for the pertinent business year, and the total estimated construction cost shall be the reasonably estimated construction cost, reflecting the changing situation by the end of

Meanwhile, Article 3 subparag. 3 of the Rules on Accounting of Construction Business provides that the total amount of construction cost incurred as of the balance sheet and the expected construction cost shall be the expected construction cost, and Article 24 of the former Housing Act (amended by Act No. 7757 of Dec. 23, 2005; hereinafter the same shall apply) and Article 27 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19356 of Feb. 24, 2006; hereinafter the same shall apply) provides that the supervisor shall review and confirm whether the contractor has constructed the construction work in conformity with the design documents, the construction plan, scheduled construction schedule, and market drawings, etc. shall be reported to the contractor as the project owner.

" 2) 위와 같은 관계법령의 규정 내용 및 을 제8, 9, 22호증의 각 기재에 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정 즉, ① 법인세법 시행령이 1998. 12. 31. 전문개정되기 전에는 장기도급계약에 관하여 건설 또는 제조에 관하여 계약기간이 1년 이상인 장기도급계약을 체결한 경우, 그 목적물의 건설 또는 제조의 착수일이 속하는 사업연도부터 그 목적물의 인도일이 속하는 사업연도까지의 각 사업연도의 손익은 재정경제부령이 정하는 바에 의하여 그 목적물의 건설 또는 제조를 완료한 정도를 기준으로 하여 계산한 수익과 비용을 당해 사업연도의 익금과 손금에 각 각 산입한다. 다만, 그 목적물의 건설 또는 제조를 완료한 정도를 계산할 수 없다고 인정되는 경우로서 재정경제부령이 정하는 경우에는 그 목적물의 인도일이 속하는 사업 연도의 익금과 손금에 각각 산입한다 고만 규정되어 있었으나{구 법인세법 시행령 (1998. 12. 31. 대통령령 제15970호로 전문개정되기 전의 것) 제36조 제1항 제7호}, 시행령이 전문개정 되어 구 법인세법 시행령 제69조로 건설과 제조 외에 예약매출을 포함한 기타용역을 1년 이상의 기간으로 제공하는 경우에도 건설이나 제조의 경우와 마찬 가지로 목적물의 건설 또는 제조를 완료한 정도, 즉 작업진행률에 따라 손금과 익금의 귀속사업연도를 정하도록 규정하게 된 점, ② 아파트 분양사업자가 장기간에 걸쳐 아파트를 건설하여 분양하는 것은 기업회계 상 예약매출에 해당되는데, 위 시행령 제69조가 제정되기 전에도 예약매출에 대하여는 법인세법상 그 귀속시기를 명확히 규정한 바 없다 할 것이어서 기업회계기준의 공사진행기준에 의하여 손익을 분배하고 그 귀속을 정할 수도 있다 할 것이고, 또한 그렇게 한다 하여 법인세법상의 손익확정주의에 반한다고 할 수 없으며, 한편 위 기업회계기준상의 공사진행기준(공사진행률)이라 함은 당해 각 사업연도 투입원가가 전체예정원가(토지대금과 아파트건설도급금액의 합계액)에서 차지하는 비율을 가리키는 것이다{대법원 1992. 10. 23. 선고 92누2936, 2943(병합) 판결 참조} 라고 해석된 점, ③ 건설업회계처리준칙 제4조 제1항, 제5조 제1항은 도급공사 및 예약매출의 수익인식은 진행기준을 적용하되, 공사진행률은 공사예정원가에 대한 실제공사비의 발생비율로 하도록 규정하고 있고, 구 법인세법 시행령 제69조 제2항 및 구 법인세법 시행규칙 제34조 제1항은작업진행률'을 목적물의 건설 등을 완료한 정도로 보고, 당해 사업연도 말까지 발생한 총공사비 누적액을 총 공사예정비로 나누어 작업진행률을 산정하도록 규정하고 있는데, 시행사라 하여 위 각 규정과 다르게 도급약정에 따라 시공사에 대한 지급의무가 확정된 금액만을 포함하여작업진행률'을 산정할 수 있다고 해석할 수는 없는 점, ④ 피고가 총공사비 누적액을 계산할 때 작업 진행률에 따라 계산한 시공사 총공사비뿐만 아니라 시행사인 원고 회사가 별도로 지출 한 총공사비도 포함하였으므로, 시행사의 작업진행률과 시공사의 작업진행률이 일치하지 않는다는 점만으로 이 사건 법인세 부과처분이 위법하다고 볼 수 없는 점, ⑤ 원고 회사는 공사 원가에 대한 정보가 시공사의 영업비밀에 해당하여 시행사로서는 이를 사전에 파악하는 것이 사실상 불가능하다고 주장하나, 작업진행률을 계산할 때 필요한총공사예정비'는 도급금액에 기초하여 산정가능하고,당해 사업연도 말까지 발생한 총 공사비누적액'은, 원고 회사가 감리자를 통해 시공사의 작업진행률을 보고받거나 공사 도급 약정을 체결할 때 세무신고에 필요한 범위 내에서 작업진행률을 통지하도록 하는 조항을 둘 수 있다는 점에서 합리적으로 산정하는 것이 가능할 뿐만 아니라, 원고 회사가 작성한2007년도 법인세 처리방안 검토' 문건(을 제9호증)에 의하면 원고 회사는 2007년 귀속 법인세와 관련하여 시공사인 EE산업개발이 계산한 이 사건 아파트의 작업진행률을 이미 알고 있었던 것으로 보이는 점, ⑥ 구 주택법 제24조 및 같은 법 시행령 제27조에 의하면, 감리자는 시공자가 설계도서에 맞게 시공하였는지 여부, 시공 계획 ・ 예정공정표 및 시공도면 등의 검토 ・ 확인 등을 사업주체인 시행사에 보고하여야 하므로, 시행사는 시공사의 작업진행률 등을 알 수 있는 위치에 있는 점, ⑦ 원고 회사의 주장과 같이 EE산업개발의 도급공사비 누적액 중 도급약정에 따라 당해 사업연도에 지급의무가 확정된 금액만총공사비누적액'에 반영한다면, 당사자 간 약정에 따라, 건설 등의 계약기간이 1년 이상인 경우 목적물의 건설을 완료한 정도에 따라 수익과 비용을 산입하도록 한 법인세법의 취지를 왜곡할 수도 있다는 점 등을 종합적으로 고려하면, 이 사건에서 EE산업개발의 작업진행률을 기준으로 시공사공사비를 계산하고 여기에 시행사인 원고 회사가 별도로 지출한 공사비를 합하여총공사비누적액'을 산정하고, 여기에 총공사예정비를 나누어 작업진행률을 산정한 다음 이를 기초로 계산한 수익과 비용을 기준으로 법인세를 부과하는 것은 적법하다.", 따라서 원고 회사의 이 부분 주장은 이유 없다.

(C) Determination on the assertion related to penalty tax

1) Under the tax law, where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, an additional tax is an administrative sanction imposed as prescribed by the tax law, and the taxpayer’s intent or negligence is not considered, and where there is a justifiable reason not to be caused by the taxpayer’s failure to perform his/her obligations, such as where it is unreasonable to expect the taxpayer to fulfill his/her obligations, etc. (see, e.g., Supreme Court Decision 2004Du930, Nov. 25, 2005).

2) In light of the above legal principles, since it is possible for the Plaintiff Company to reasonably understand the method of calculating the working progress rate as seen above in the relevant laws and regulations, it is difficult to deem that there is a justifiable reason not to be attributable to the Plaintiff Company, the taxpayer, for the Plaintiff Company, to neglect its duty to return the corporate tax base and to neglect its payment of corporate tax, and it is difficult to reverse the Plaintiff Company’s assertion on the witness knives testimony and the fact-finding results of this court’s EE industry development. Thus, this part of the Plaintiff Company’s assertion is without merit.

(2) As to the imposition of income tax of this case

(A) Whether each increase in the imposition of income tax for the year 2003 and 2004 is unlawful

1) Article 79(2) of the Framework Act on National Taxes provides that, in making a decision on a request for a trial that is dissatisfied with a taxation disposition, a request for a judgment shall not be made disadvantageous to the claimant. Such prohibition of disadvantageous change shall not apply to cases where the disposition of the judgment is more unfavorable to the claimant than the subject of the taxation disposition, and where the tax authority decides to correct the tax base or tax amount with omissions or errors based on the details revealed in the grounds of the decision of the judgment (see Supreme Court Decision 2005Du10675, Nov. 16, 2007).

2) On the other hand, as a result of a reinvestigation according to the review decision by the Tax Tribunal, the Defendant imposed income tax for the year 2003 and 2004 on the grounds that there were omissions or errors in the calculation of the tax base and the amount of tax, and thus, Article 79(2) of the Framework Act on National Taxes does not apply to the Defendant’s respective dispositions. Accordingly, the Plaintiff’s above assertion is without merit.

(B) Determination as to the assertion that the substance of the money paid to Kim RR, etc. is the purchase price

1) Facts of recognition

(1) On January 14, 2004, Kim KR-1: (a) sold O-dong 1767-49 land owned by it to the Plaintiff Company; (b) O-2 was agreed to receive the remainder on May 10, 204; and (c) O-2 was paid the remainder on the same day on August 16, 2004 on the ground that the Plaintiff Company did not perform its obligation to pay the remainder under the above sales contract; (d) O-2 was paid for the remainder on August 26, 2005; and (e) O-2 was paid for the remainder on August 26, 2005, O-1; and (e) O-2 was paid for the remainder on the same date on the grounds that the O-O-O was not paid for the remainder on the same date on the grounds that the O-O-O was paid for the remainder on the 15th day after the date of the sales contract.

C) On January 21, 2005, Ansan sold the land owned by it to the Plaintiff Company on the OO-dong 1767-37, 1767-38, and the O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O on the date of the contract;

"O.O. 2, 203, 200, 2000, 2000, 2000,0000,0000,000,000,000,0000,000,0000,0000,0000,0000,000,0000,0000,0000,000,000,0000,000,0000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00).

G) On December 5, 2003, Sixxxxxxx, three parcels of land, such as OO-dong 1767-36 land owned by the Plaintiff Company, was sold to OO-O(O-dong 1767-36), but the down payment is agreed to be paid within one month after the business approval of the instant case, and the said down payment is paid to the Plaintiff Company on February 6, 2004. However, Sixxxxxxxxxxxxxxxxxxxxxx, on the ground that the Plaintiff Company failed to perform the obligation to pay the remainder under the said contract, the said contract was terminated on August 16, 2004, and the down payment was reached to the Plaintiff Company around that time. After that, the late payment was concluded between the Plaintiff Company and O-O as the total purchase payment amount, but the remainder payment was modified by O200,0000,0000,000 O20,000.

"O. 1 to 20, 207. 8, 207. 1 to 20, 200, 177-25, 1767-103, and 17. 2 to 20, 1 to 30,000, 1 to 200, 1 to 30,000, 1 to 40,000,000, 1 to 5,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00,00).

2) Determination

A) As a taxpayer may choose one of the several legal relations while achieving the same economic purpose in conducting economic activities, the tax authority shall respect the legal relationship chosen by the taxpayer, barring any special circumstance to deem that it constitutes a disguised act (see, e.g., Supreme Court Decision 2007Du26629, Apr. 9, 2009).

B) In light of the above legal principles, the health team and the facts of the above recognition are as follows. Thus, the imposition of other income tax for the year 2005 through 2007 by the defendant, which considered the above amount as other income, is legitimate. The plaintiff company's assertion that each of the above amounts constitutes the purchase price for land, etc. is without merit.

① It is reasonable to regard the portion of the OO as the interest in arrears due to the nonperformance of the obligation to pay the remainder under the previous sales contract, among the total amount of the transfer tax paid to Kim R on September 15, 2005.

② Under the previous sales contract, it is reasonable to regard the amount as the penalty or compensation received due to a breach or termination of a contract under Article 21 (1) 10 of the former Income Tax Act, respectively, as the penalty or compensation paid to SS by an OOOO won, OOOOO won paid to TS in the middle of a new contract, KimW (the down payment paid under the previous sales contract - the changed contract deposit - the OOOOO won agreed to substitute the changed contract deposit) and OOOO directors paid to TS in the middle of a new contract.

③ It is reasonable to view that the term “OOOOOO(s) paid under the previous sales contract as a down payment” is a penalty or compensation received due to breach or termination of a contract under Article 21(1)10 of the former Income Tax Act, and the term “OOO(s)”(s) out of the OOOO(s) paid on December 15, 2005 under the former sales contract as a penalty or compensation for breach of a contract under Article 21(1)10 of the former Income Tax Act as a penalty or penalty for breach of a contract under the former sales contract.

④ It is reasonable to view the OOOO that was paid to highV around November 9, 2006 as the agreed amount following the withdrawal of the lawsuit.

(5) It is reasonable to regard the portion of the OOO as the agreed amount following the withdrawal of goodwill compensation, accusation, etc. among those paid to YO.

(6) It is reasonable to regard the portion of the OOE paid to the Z as the agreed compensation.

(7) It is reasonable to regard the amount of the OOOO paid to the head of Si/Gun/autonomous Gu as the agreed amount, such as farming compensation, property tax, capital gains tax, etc., that the Plaintiff company bears.

(C) Determination as to the assertion of interest income tax related to the FF and KimP

1) Facts of recognition

"A) The Plaintiff Company made an investment in the Plaintiff Company on February 6, 2004, when the funds are insufficient while carrying out the instant project, and FF and KimP made an investment in the Plaintiff Company, and the Plaintiff Company made an agreement that the sum of the investment dividends to the Plaintiff Company shall be repaid OOO (including OOO00) on May 31, 2004, OOO00, 31 December 31, 2004, and June 30, 2005 (the agreement appears to be 31.0, but it appears to be 31.0), and at the time of the agreement, the Plaintiff Company made an agreement that each OO0 won shall be paid to the Plaintiff Company in return for payment of the investment dividends on the date of the agreement (hereinafter referred to as the “Agreement”). At the time of the agreement, the Plaintiff Company made an agreement that the Kim FO and the 2O-2800,000,000 won will not be delivered to the Plaintiff and the 182O-208,00.

C) However, in the event that the Plaintiff Company could not pay the investment dividends under the instant agreement to the FF and KimP, it agreed that it would pay OOE to the FF and fulfilled its obligations under the instant agreement. Accordingly, the Plaintiff Company paid OOE to the FF from August 10, 2004 to July 6, 2006.

"On the other hand, KimP filed a lawsuit against the plaintiff company for the registration of ownership transfer with respect to 1/2 shares of each of the above 1/2 shares in the commercial buildings listed in paragraph (b) of this case. On January 16, 2007, the appellate court rendered a decision that the plaintiff company returned OOOO Won paid for investment dividends from KimP to KimP, and at the same time decided that "the plaintiff company will implement the registration of ownership transfer due to payment in kind on September 28, 2005 for 1/2 shares of the above commercial buildings" (Seoul High Court Decision 2006Na4170) (Seoul High Court Decision 206Na4170). (e) The above decision became final and conclusive at that time, OOOO was paid in accordance with the above decision, and 1/2 of the above 6 commercial buildings were completed on March 14, 2007, but the remaining shares of the plaintiff company should be owned by the plaintiff company and 1/2 of the commercial buildings in this case.

F) As of March 2007, the date on which the Plaintiff completed the registration of the transfer of the commercial building ownership in this case by SPP, the total market value of the above commercial building, calculated by the court appraisal, shall be deemed as interest income, and the Plaintiff imposed income tax (original portion) for the year 2004 through 2007 on the Plaintiff Company.

[Ground of recognition] A without dispute; Gap evidence Nos. 29, 30; Eul evidence Nos. 6, 26, 27, and 28; the court's commission of appraisal to the appraiser of this court; the purport of the whole pleadings

2) Whether the substance of the instant commercial building transferred by the Plaintiff Company to the OOO and KimP that was paid to the HuF is a dividend income

On the other hand, the following circumstances, which can be seen by comprehensively taking into account the aforementioned facts and the purport of the entire arguments, are as follows. According to the agreement of this case, HF and KimP make an investment in the Plaintiff company of the total amount of OOO won, and the Plaintiff company made an agreement on December 31, 2004 and June 30, 2005 to pay the total amount of OOOOO won (including the total amount of investment amount) as of December 31, 2004 and June 30, 2005. Under the agreement of this case, HFF and KimPP make an investment in the Plaintiff company gain profit of OOO won by making an investment in OOO won, and there is no reason to view that the Plaintiff company's interest income and the portion of this case's dividend income are reasonable in light of the agreement that the Plaintiff company's interest income and the portion of this case's interest income can not be suffered as an investor in the event of failure of this case.

3) Interest income from the relocation of the commercial building in this case

A) Article 24 (2) of the former Income Tax Act provides that a resident shall calculate the amount of his/her income at the time of the transaction when he/she imports goods other than money, and Article 51 (5) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter the same) provides that the value of the goods shall be determined at the normal price when he/she takes over the goods from a person other than the manufacturer, producer, or dealer. The value or normal price at the time of the transaction stipulated in each of the above provisions includes, in principle, objective exchange price formed through normal transaction, i.e., market price, but if it is difficult to calculate the market price, the value assessed at an objective and reasonable method. Thus, it cannot be deemed that the reliable appraisal institution’s appraisal price also can be deemed the market price, and its value differs from that calculated by retroactive appraisal (see, e.g., Supreme Court Decision 96Nu17110, Sept.

B) In full view of the aforementioned facts and the purport of the entire arguments as seen earlier, the court's appraisal was deemed to have been properly made in accordance with the relevant regulations, and thus, it can be deemed the market price of the commercial building of this case until the time when the registration of ownership transfer was made, and as alleged by the Plaintiff company, the market price is not calculated based on the sale price of the commercial building of this case. As such, the above appraised value is not calculated based on the sales price of the commercial building of this case. Thus, the Defendant's imposition of interest income tax (the cost portion) for the year 2006 by considering the remainder after KimP deducted the leased principal of the commercial building leased to the Plaintiff company by KimP as the interest income of the Plaintiff company is legitimate.

(3) As to the second disposition of this case

(A) As seen earlier, insofar as both the imposition of the corporate tax and the income tax of the Plaintiff Company are legitimate, the Plaintiff’s assertion that the secondary imposition disposition of the instant case, based on the premise that the said imposition is unlawful, is unlawful, is without merit.

(B) Next, we examine the Plaintiff’s argument.

Article 39 (1) 2 (a) and (b) of the former Framework Act on National Taxes provides that a person who is obligated to pay taxes for shortage when the property of a corporation is imposed on or is insufficient to cover the national taxes paid by such corporation is a person who actually controls the management of the corporation as of the date when the liability to pay national taxes is established (including a person in a de facto marital relationship) and his/her spouse (including a person in a de facto marital relationship) and lineal ascendants and descendants sharing livelihood with such person. Under Article 39 (1) 2 (a) and (b) of the former Framework Act on National Taxes provides that stockholders or one partner with limited liability and other persons who are related to such person and are in a special relationship with such person and whose total amount of stocks held or investments exceeds 50/100 of the total number of stocks issued or total investments of the corporation concerned, and Article 20 subparagraph 5 of the Enforcement Decree of the same Act provides that the spouse (including a person in a de facto marital relationship) shall be a relative or a related person

However, in full view of the aforementioned facts and the purport of the entire argument as seen earlier, the Plaintiff Company’s national tax liability is established on November 1, 2008, which is the date of the establishment of the Plaintiff Company’s national tax liability. As of November 1, 2008, the Plaintiff Company’s total number of outstanding shares of the Plaintiff Company was 39%, the Plaintiff Company’s 25.33%, and the Plaintiff Company’s HaB, which is the Plaintiff Company’s wife, was operating the Plaintiff Company from December 2, 2005 to December. 2, 2005. Accordingly, according to the above facts, it is reasonable to view that the Plaintiff Company’s HaB, etc., as of the date of establishment of the Plaintiff Company’s national tax liability, constitutes an oligopolistic shareholder under Article 39(2) of the former Framework Act on National Taxes, and the Plaintiff Company’s HaB, who actually controlled the Plaintiff Company’s management, falls under Article 39(1)2(a) of the same Act.

Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.