The early 2012Gu4712

Whether the title trust was the purpose of tax avoidance or not is the possibility of tax avoidance.

The purpose of the tax avoidance is only the probability of the tax avoidance, and considering that there was the fact that the stock trustee paid the comprehensive income tax by distributing the income to the trustee, it is difficult to deem that there was no tax avoidance purpose or there was no tax avoidance purpose.

Article 45 (2) of the Inheritance Tax and Gift Tax Act

2013Guhap835 Revocation of Disposition of Imposition of Gift Tax

GangwonA et al. 12

Head of SS Tax Office and two others

March 26, 2014

April 25, 2014

1. Of the Plaintiff’s lawsuit, the part of the Plaintiff’s claim for revocation of the tax amount exceeding 000 won among the joint and several tax payment notice disposition of ○○○○○○○○○ on August 7, 2012 by the head of the Defendant SS Tax Office is dismissed.

2. Each claim of Plaintiffs KimB, KimCC, KimD, RedD, RedE, F, KimG, Lee H, Kim II, Kim J, HaK, YK, YL, and MaM, and all remainder claims of Plaintiff Gangnam-A are dismissed.

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

As of August 7, 2012, the notice of joint and several tax payment by the head of the defendant SSS Tax Office against the plaintiff Gangnam-A on the gift tax obligation of the ○○○○○○○○ on August 7, 2012, and the notice of imposition of each gift tax on the plaintiff KimA, KimCC, KimDD, RedE, Flag, KimG, Lee H, KimJ, Kim JJ, HaK, YK, YL, and MaM (hereinafter referred to as "Namerm plaintiffs"), the notice of imposition of each gift tax stated in the column of "final imposition tax" is revoked.

1. Details of the disposition;

(a) Establishment, transfer of shares, etc. of the NConstruction Corporation;

1) On December 19, 200, the Plaintiff Gangseo-gu, a founder of the OO medical foundation (hereinafter referred to as the “O hospital”) established NJ on December 19, 200 with capital KRW 30,000,000, for construction works ordered by the OO hospital (hereinafter referred to as the “NJ”). On December 19, 200, the Plaintiff made a title trust with the Plaintiff Kim J 15,000, Plaintiff Kim II, and ChoF, respectively, with KRW 6,000, and KRW 3,000, as shown in the attached Table 2.

2) NJ issued 10,00 new shares on September 17, 2002 (hereinafter “the first capital increase”), and Plaintiff Gangnam-A accepted 2,000 shares in the name of 5,00 shares, 2,000 shares, 2,000 shares, and 1,000 shares in the name of 1,000 shares, respectively, in the name of 5,000 shares, 2,000 shares, and 1,000 shares, owned in its own name on February 1, 2004.

3) NConstruction, on December 31, 2004, issued 10,000 new shares additionally (hereinafter referred to as “the second price”).

The "capital increase", and the plaintiff Gangnam-A accepted 1,000 shares in the name of 5,000 shares, 2,000 shares, 1,000 shares, and 1,000 shares in the name of 1,000 shares, 2,000 shares, respectively, in the name of

4) On May 8, 2005, Plaintiff Kim II transferred 10,00 shares of NN Construction, owned under his own name, to Plaintiff HaH; Plaintiff F, February 20, 2006, shares of NN Construction, owned under his own name, to Plaintiff Y; Plaintiff RedE transferred 5,000 shares of NN Construction, owned on February 20, 2006, owned under its own name, to Plaintiff SungM; Plaintiff Kim GGG, owned 5,00 shares of NN Construction, owned under its own name on August 20, 200 to Plaintiff HaH; Plaintiff 20,00 shares of NN Construction, owned under its own name on June 19, 2009, to Plaintiff Y, Kim JongK, Kim DD, and 5,00 shares, respectively.

(b) ○○ Regional Tax Office’s investigation and initial disposition, etc.

1) As a result of the occasional investigation of the corporate tax on N Construction from May 16, 2012 to July 14, 2012, the director of the regional tax office of ○○○ Regional Tax Office decided as follows, and notified the Defendants of the imposition of gift tax, corporate tax on N Construction, etc. against the Plaintiffs.

○ It is confirmed that the title trust of the NConstruction shares to the rest of the plaintiffs by means of NConstruction establishment from 2000 to 2009, 1, 2009, 1, 200 capital increase with capital increase, and 3 capital increase.

○ Plaintiff Gangnam-A confirmed that the dividends of NConstruction from 2007 to 2010 were paid in cash from the rest of the Plaintiffs, who are the nominal shareholders, and thus, the Plaintiff’s lecture is the Plaintiff.

It shall be taxed by summing up the dividend income of Bohyoung.

○ NConstruction shall include the outstanding construction amount of 00-00 won each year, including the long-term collection of part of the construction cost from an O hospital in a special relationship for at least one year. This calculation is based on wrongful calculation.

As it falls under the object of denial, the remainder after deducting the amount corresponding to the security deposit for repairing defects from the amount of construction accounts receivable which N Construction did not recover more than 60 days shall be deemed as the loan, and the recognition of such amount and 00 won shall be included in the gross income each

○ NN건설이 특수관계자 업체인 QQ루프(원고 강AA의 딸 강PP이 운영)에게 외주용역비(설계용역비)를 과다하게 지급한 것은 부당행위계산 부인대상에 해당하므로, 과다지급분 합계 ○○○○원을 각 해당 연도 익금에 가산하고, 부가가치세에 관하여는 위 금액만큼 매입세액불공제함.

2) Accordingly, the Defendants against the Plaintiffs and NConstruction on August 7, 2012, as follows:

Inn tax was imposed respectively.

○ The gift tax on the rest of the plaintiffs, such as the entry in the column of “the first notice tax amount” in attached Table 1.

notice of gift tax (hereinafter referred to as "the initial disposition") shall be given by notifying the plaintiff Gangwon-A as a joint and several taxpayer, who is the donor, of the designation of the donor.

○ acquired the dividend income from NConstruction in 2007 to 2010 against the Plaintiff Gangwon-A.

For this reason, the global income tax is additionally imposed on ○○○○○.

As to ○ NConstruction, ① A total of ○○○○○○○○○○○ (2007, KRW 2008, KRW ○○○○○○○○ in 2009, KRW 2009, KRW ○○○ in 2010, KRW ○○ in 2011, KRW ○○○ in 201), and ② A total of value-added taxes are imposed, respectively.

(c) Requests for administrative appeal, decisions on reduction in the first, second, etc.;

1) The Plaintiffs were dissatisfied with the initial disposition and tried on October 19, 2012. On December 28, 2012, the Tax Tribunal rendered a decision that “(i) the initial disposition was made on December 28, 2012 that the NG’s shares 10,000 shares of NG issued at the time of the second capital increase for new shares (Plaintiff Kim GG: 5,000 shares, Plaintiff ChoF, Kim II: 2,000 shares, Plaintiff RedE 1,000 shares, and Plaintiff RedE 1,000 shares) shall be calculated on December 30, 2004; and (ii) the remainder of the appeal is dismissed.”

2) According to the above decision, on January 14, 2013, the head of the Defendant RR Tax Office and the head of the SS Tax Office rendered a decision to correct the reduction of the gift tax in 2004 against Plaintiff Kim II, RedE, ChoF, and KimG (hereinafter “the first decision to correct the reduction”).

3) On October 19, 2012, NConstructiondo requested a judgment on the imposition of corporate tax, etc. by the director of the tax office of defendant SSS. On April 15, 2013, the Tax Tribunal decided that the disposition of corporate tax and value-added tax imposed on NN Construction on August 7, 2012 by the director of the tax office of the tax Tribunal determined the date of settlement of the average construction cost of cases similar to NN Construction and OO hospital completed by entering into a contract, and determined the starting period for applying the recognized interest and the starting period. By re-assessment as to whether each type of construction is the contract amount or is based only on direct construction cost, the tax base and tax amount should be corrected according to the results of re-assessment as to whether each type of construction work is the contract amount, and the remaining appeal is dismissed.

4) In accordance with the above decision, the ○○ regional tax office investigated similar cases on May 7, 2013 to May 13, 2013: (a) calculated the average number of days for the delayed payment of construction works ordered by an OO hospital as 66 days; (b) calculated the interest rate for the delayed collection; and (c) determined the property based on the total construction amount as the warranty bond for a construction contract concluded between NN and O hospital; and (d) determined the total amount of interest calculated as the KRW 489,265,363 at the time of the initial investigation as to NN Construction as follows; and (e) notified the head of the SS Tax Office and the head of the TT Tax Office of the decrease in the stock valuation value due to the following causes for the corporate tax refund on NN Construction; and (e) notified the Plaintiff of the reduction in the initial gift tax determination amount for HH, KimA, GK, KimD, and KimCC.

5) Accordingly, on October 30, 2013 and November 19, 2013, Plaintiff HH, KimA, GK, KimD, and KimCC, the head of the tax office and the head of the tax office having jurisdiction over the decision to correct the amount of the initial amount of the gift tax for the Plaintiff HH, KimA, GK, KimD, and KimCC (hereinafter referred to as “the second decision to correct the reduction”) as follows (hereinafter referred to as “the second decision to correct the reduction”); and

On March 31, 2014, the director of the tax office, on April 18, 2014, notified Plaintiff Gangnam-A of the second decision of reduction (hereinafter referred to as “each of the dispositions in this case”).

Facts without dispute over recognition, Gap's evidence 1 through 3, 15, Eul's evidence 1 through 23, 27, 28, 30 through 36 (including each number), the result of the examination of the plaintiff SungmM, the purport of the whole pleadings

2. Of the Plaintiff’s lawsuit, the notice of joint and several tax payment amounting to KRW 1,019,050,430 of the gift tax liability is given.

96,649,030 won or more in excess of the amount to be revoked is lawful

ex officio, Defendant SS Head of the tax office, and TT Head of the tax office on October 30, 2013 and November 2013

19. According to the second decision of correction of the reduction of the Plaintiff HH, KimA, GK, KimD, and KimCC, the amount of joint and several tax payment notice given by the Plaintiff Gangnam-A was reduced to ○○○○○○○○○○○○ by reducing the amount of the joint and several tax payment notice given by the Plaintiff Gangnam-A from ○○○○○○○○. As seen earlier, the head of the Defendant’s tax office notified the Plaintiff Gangnam-A of the second decision of correction on March 31, 2014; and on April 18, 2014, the head of the Defendant TTS tax office notified the Plaintiff Gangnam-A of the second decision of correction of the reduction. As such, if the initial decision made by the Plaintiff was corrected, the amount of the reduction in the initial disposition becomes retroactively null and void. Accordingly, it is unlawful to seek revocation of the tax amount exceeding the ○○○○○○○○○○○○ on August 7, 2012.

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

A. The plaintiffs' assertion

1) In light of the following circumstances, it is evident that Plaintiff Gangseo’s title trust of NConstruction’s shares to the rest of the Plaintiffs does not result from the purpose of tax avoidance. Nevertheless, the Defendants’ imposition of gift tax on the Plaintiffs by applying the provision on title trust donation is unlawful.

① Whether there was a tax avoidance purpose shall be individually determined at each time of title trust, and it shall be determined at the time of the point of time of title trust, and it shall not be determined as to whether there was a tax evasion thereafter.

② While the Plaintiff Gangnam-A established NN in full investment, the reason why the Plaintiff Kim JJ, Kim II, and ChoF held the title trust of shares is because the Commercial Act, which was in force at the time, stipulates that three or more promoters should be established at the time of establishment of a company.

③ If the Plaintiff, the representative director of the OO hospital, becomes the NConstruction shareholder, he/she should appoint a special agent from time to time under the Medical Service Act and the Civil Act and report the details of the transaction to the competent authority. The shares held in title trust to avoid such a circulation.

(4) In addition, a transaction with a financial institution in which an executive of a construction company owns some shares of the company

Since it is convenient in this sense, executive officers and employees have owned NConstruction's shares.

⑤ NConstruction did not pay dividends even if there were reserved profits since 2000 to 2006 and 2011, and paid dividends in 2007 to 2010. However, this amount is extremely limited to the total reservation period or the total amount of tax paid by Plaintiff Gangwon-A. As such, the reduction of tax pursuant to the said dividends is merely a minor reduction of tax arising out of title trust.

6) The Plaintiff Gangnam-A paid the wages of the staff of the O hospital in the N Construction Accounting, or the NConstruction could avoid taxes by taking measures such as ordering the NConstruction to perform construction works from other ordering places than the O hospital, but paid a considerable portion of the dividend to NConstruction Officers and Employees, etc., and only the NConstruction ordered the NConstruction to take charge of construction works ordered by the NO hospital.

7) If the shareholder name is changed frequently, it would be easy to understand that the National Tax Service is the title trust. If the Plaintiff Gangwon-A had the intent of tax avoidance, it would not change the title trustee several times.

2) In a case where a title trustee acquired new shares with capital increase for the title trust shares, it cannot be deemed that there was an additional tax avoidance purpose merely because the preemptive right is legally acknowledged as a matter of course in the shareholder’s qualification. Furthermore, both the first and second capital increase for new shares in the instant case were made for the purpose of meeting the requirements for capital stock registration of construction business under the Framework Act on the Construction Industry

3) Among each of the dispositions in this case, the imposition of gift tax on the acquisition of shares on December 19, 200 among the dispositions in this case is illegal as the exclusion period of 10 years expires, and in the event there is a obligation to pay gift tax due to the constructive gift of title trust, the exclusion period cannot be deemed to be 15 years even if the report was not filed, since it should be interpreted that there is no obligation to submit a return under the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”) except in the case where the substance is a donation. In addition, in pure title trust, it is unreasonable to expect the trustee to return gift tax, unlike the case of title trust to conceal the actual donation, unlike the case of pure title trust

4) Even if the purpose of the instant title trust was to avoid tax evasion, each disposition of the instant case is erroneous and unlawful by calculating the value of the donated property. The Defendants’ application of the wrongful calculation exclusion provision.

여 NN건설의 2007년~2011년 순자산가액에 공사미수금 채권에 대한 인정이자 및 특수관계자 업체인 QQ루프에게 지급한 금원 중 적정분 초과액을 포함하여 증여재산가액을 산정하였는데, 이는 다음과 같은 이유에서 위법하다.

A) Even if the collection of construction cost for NConstruction's O hospitals is somewhat delayed, NConstruction is a company established only for the purpose of carrying out construction works ordered by OO hospitals, and OB hospitals are each set up.

In light of the fact that the portion of the construction cost of the month has been partially repaid, the balance of the construction cost as the warranty bond has been maintained, the O Hospital has paid the price after 270 days of the average claim in the case of drug transactions, and the fact that the payment has been made after 60 days in the case of small and medium enterprises in the reality of construction works, it cannot be deemed that the delay in collecting the construction cost of NN Construction is an abnormal transaction that has no economic rationality in light of sound social norms and commercial practices. Furthermore, even if the delayed collection of construction cost is an abnormal act that has no economic rationality, it is unfair that the result of re-audit by the ○○ National Tax Service is not subject to similar cases, and thus, it is unreasonable to determine the delay in collecting all claims exceeding 66 days.

나) 특수관계자 업체인 QQ루프의 외주용역비(설계용역비) 산정 시 대한전문건설협회 실내건축공사업협의회의 실내건축 설계보수기준에 따라 부당행위계산 여부를 판단한 것은, 아무런 법률상 근거가 없고, 협회 보수기준에 의하여 실내인테리어 용역비를 책정한다는 관행이 있는 것도 아니므로 위법하다. 설령 그 기준에 의하더라도 피고들의 계산방식이 잘못되어 위법하다.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the first argument

A) The former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003) Article 41-21

The legislative intent of Paragraph (1) is to recognize an exception to the principle of substantial taxation to the purport that the act of tax avoidance using the title trust system is effectively prevented, and thus realizing the tax justice. Thus, if the title trust was recognized to have been conducted for any reason other than the tax avoidance purpose, and only a minor reduction takes place as incidental to the title trust, it cannot be readily concluded that there was a "tax avoidance purpose" in such title trust. However, it cannot be readily concluded that there was a "purpose of tax avoidance" in such title trust unless the purpose of tax avoidance is included in the title trust purpose, and it cannot be deemed that there was an intention of tax avoidance in addition to other main purpose, and it cannot be said that there was no objective and objective purpose of tax avoidance. Furthermore, the burden of proving that there was no intention of tax avoidance in this case is against the person who asserts it (see, e.g., Supreme Court Decisions 201Du181, Sept. 26, 201; 2007Du175, Sept. 8, 2011).

B) In light of the following circumstances, it is difficult to conclude that, even if there are various purposes, such as: (a) the Plaintiffs’ title trust of NConstruction’s shares by means of the establishment of NConstruction, establishment of the first, second and several capital increase for new shares, and acquisition of shares several times; and (b) it is difficult to conclude that, in addition to such purposes, the Plaintiff Gangnam-A intended to reduce the global income tax burden on NConstruction’s dividend income owned by it as well as to reduce the burden of NF’s global income tax. Accordingly, the Plaintiffs’ assertion that there was no tax avoidance purpose is without merit.

① Article 288 of the former Commercial Act (amended by Act No. 6488, Jul. 24, 2001) that was enforced at the time of the establishment of the NN Construction requires three or more promoters at the time of the establishment of the NN Construction. However, there was no limitation on the number of shares subscribed by promoters. Moreover, there is no special statutory reason that a number of shares subscribed by the NN Construction should continue to exist even after the establishment of the N Construction.

② It does not entail any legal limitation that NA’s NA’s construction cannot be ordered due to the Plaintiff’s registration as NA’s shareholder, but it is merely limited to the degree of procedural problems even if the Plaintiff’s appointment of a special representative or report to the competent authority, as claimed by the Plaintiffs.

③ All of the remaining Plaintiffs, a title trustee, were executives and employees of the OO hospital, NNConstruction, and related companies. However, a number of changes made by the title trustee seems to have been a measure to maintain the reliability of the title trust relationship upon resignation.

④ Since the NConstruction is a direct construction company of an O hospital and has been awarded orders for construction works of an O hospital, it is anticipated that considerable profits will accrue. It can be sufficiently predicted that such profits will ultimately accrue to the Plaintiff Gangwon, the actual owner of the two corporations.

⑤ In fact, NConstruction distributed the total amount of ○○○○○○○○○○○○, which was shareholders in the name of the company at the time, four times from 2007 to 2010, as follows.

④ Although the Plaintiff asserted that a significant portion of dividends was paid to NConstruction Officers, etc. as merit payment, unlike the aforementioned assertion, the Plaintiff Gangseo made a title trust of 50,000 shares of the Plaintiff to the actual owner of NConstruction, under the name of the Plaintiff HH and 7, and reported that a total of 340,000,000 won was distributed from 207 to 2010 to 340,000 won and withheld at source by each shareholder. However, the amount of dividend income tax and resident tax was excluded from each shareholder.

I have drawn up a written confirmation (No. 24) that I have received a return and confirmed that I have used it individually.

2) Judgment on the second argument

The legal fiction of title trust donation is one of the exceptions to the substance over form principle, and it is presumed that the title trust system is a donation to the extent that it is intended to effectively prevent the abuse of it as a means of tax avoidance, and thus does not change the ownership of the property under title trust. Thus, the actual owner of the property under title trust is still the title truster notwithstanding the provision on the presumption of donation. Therefore, in a case where the first title trust shares are deemed as a donation, the preemptive right to the shares under title trust is vested in the actual owner of the first trusted shares. The preemptive right to the shares under title trust is deemed to be vested in the first title trust shares, and the title truster, by exercising the above preemptive right, entrusted the shares under the name of the title trustee to the title trustee by paying the subscription price under the name of the new shares (see, e.g.

At the time of the establishment of NN Construction, the Plaintiff Kang Jong-dae, as a result of the NJ, entrusted the trust of shares to Plaintiff Kim J, Kim II, ChoF, and Hong-E. The fact that the title trust shares were acquired to the shareholders of each time through the first and second capital increase with respect to the shares held in title was as seen above. According to the above fact of recognition, the Plaintiff Kang-A had the above facts of recognition.

As in the first title trust case, it is reasonable to view that the portion of new shares issued with the purpose of tax avoidance was held in title trust with the purpose of tax avoidance, and therefore, the above plaintiffs' above assertion to the purport that there is no separate tax avoidance purpose in the

3) Judgment on the third argument

A) Whether the exclusion period is expired

Article 26-2 (1) 4 of the former Framework Act on National Taxes (amended by Act No. 6782 of Dec. 18, 2002) provides that the inheritance tax and gift tax may not be levied after the expiration of ten years from the date on which it is assessable: Provided, That in cases where a return is not filed pursuant to Articles 67 and 68 of the Inheritance Tax and Gift Tax Act (amended by Act No. 6301 of Dec. 29, 200), it shall be fifteen years from the date on which it is assessable. Article 68 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301 of Dec. 29, 200), Article 47 and Article 55 (1) of the same Act provides that the taxable value and tax base of the gift tax shall be reported to the head of a tax office having jurisdiction over the place of tax payment in accordance with the Presidential Decree, and Article 41-2 (1) of the same Act provides that the actual owner and the title holder of the property donated, notwithstanding the provisions of the National Tax Act.

According to the above relevant provisions, as well as the person who is deemed to have received a donation by agreement between the parties and the person who is deemed to have received a donation by law, it shall be deemed to have the duty to report as a taxpayer of the gift tax (see Supreme Court Decision 2002Du2826, Oct. 10, 2003). Thus, insofar as there is no evidence to acknowledge that the head of the competent tax office reported the taxable value and tax base of the gift tax within three months from December 19, 200, deeming that the Plaintiff Kim J, Kim J, Kim II, ChoF, ChoF, and Red EE, who bears such duty to report as a donation of stocks from the Plaintiff Gangwon-A, is presumed to have reported the taxable value and tax base of the gift tax, it is reasonable to deem that the exclusion period of the gift tax for each of the above Plaintiffs is 15 years. Accordingly, each of the instant dispositions against the Plaintiffs was conducted within the exclusion period

B) Whether the imposition of penalty tax is lawful

Plaintiff Gangseo-A, Kim J, KimJ, Kim II, ChoF, ChoF, and Red EE alleged that a pure title trust, not in the case of a title trust to avoid a real gift, is against the principle of substantial taxation to impose an additional tax on the trustee for additional payment. However, there is no legal basis for a reduced interpretation of the provision of the additional tax for unfaithful payment as alleged by the above Plaintiffs. Therefore, the above Plaintiffs’ assertion is without merit.

4) Judgment on the fourth argument

A) Facts of recognition

(1) The NConstruction, the president of the O Hospital, held 100% of the shares, concluded several construction contracts with the O Hospital since its establishment on December 19, 200, and there was no performance of construction works other than those ordered by the O Hospital.

(2) The NConstruction set the warranty bond rate of 3% at the time of concluding the construction contract set forth in the above Nos. 1 through 3 with the O Hospital, but submits a warranty bond for the warranty bond.

There is no fact that the deposit is made in cash.

(3) While NConstruction concluded a construction contract with an O hospital and agreed to receive the payment of the construction cost within 14 days from the date of completion of the inspection, it did not recover the construction cost from the O hospital for a long time, such as receiving the construction cost after the expiration of the payment period. The annual amount of the construction cost for NConstruction is as follows:

(4) 한편 원고 강AA의 딸인 강PP은 2005. 1.경부터 실내건축 디자인업체인 'QQ루프'를 운영하였는데, NN건설과 QQ루프는 2006. 8. 31. 및 2008. 2. 19. 다음과 같이 2회 인테리어디자인 설계 및 감리계약을 체결하였다.

(5) 위 각 인테리어 공사계약서 제2조에는 'NN건설은 계약을 체결할 때에, QQ루프에게 계약금으로 제1조의 설계보수액의 30%를 지불하고, 설계업무 진행에 따라 30%를 중간불로 지불하여야 하며, 잔액은 설계완료시 지불한다(인테리어 디자이너 협회 보수기준 3조 5항 참조)'라고 기재되어 있다.

(6) The remuneration standards for the interior architecture association are set up by the Korean Specialized Construction Association indoors Construction Business Council (hereinafter referred to as the “Association remuneration standards”). The Council is a voluntary organization in which only indoors construction companies are members of the Association.

(7) The standards for remuneration of the Association are not binding because of the lack of legal basis, but are presented as a recommendation if a private ordering entity conducts related affairs. Article 3(5) of the Institute Remuneration Standards provides for "payment method of remuneration", and the method of calculating the cost according to the Institute Remuneration Standards is as follows:

(8) According to the decision of the Tax Tribunal on April 15, 2013, the chief of the Defendant SS Tax Office conducted the second investigation, and the main contents of the investigation are as follows.

(9) According to the result of the second investigation, the head of the Defendant SS Tax Office: (a) determined the following interest rate as the property of the existing ○○○○○○○○○○○○○○○○○○○; and (b) decided to refund the total amount of the corporate tax reduced by adding the annual income to

(10) On the other hand, the net income of an O hospital in 2005 to 2011 is as follows.

The facts without any dispute, Gap's 1 through 3, 6 through 12, 14, 15, 17, 19, 21, 22 of Eul, Eul's 22, 24 through 28, 36 through 46 (including each number), the witness's testimony, the fact-finding for the president of the Korea Specialized Construction Association's indoor Construction Business Association of this Court, the result of the fact-finding for part of the plaintiff MaM's personal inquiry, the purport of the whole pleadings, and the purport of the whole pleadings.

B) Determination on delayed collection of construction costs

Since delaying the recovery of claims that a corporation should receive from a person with a special relationship without any justifiable reason is practically causing the same effect as the amount of claims recovered in full within the deadline for performing the obligation and the amount equivalent to the unpaid claims has re-paid, the amount equivalent to the unpaid claims falls under the "provisional payment, etc. paid without connection with the business under Article 28 (1) 4 (b) of the Corporate Tax Act" and the interest paid on loans corresponding thereto is not included in deductible expenses. In addition, in cases where the delayed collection of claims is deemed to have reduced the tax burden unfairly due to the lack of economic rationality in light of sound social norms and commercial practices, it is equivalent to acts under Article 52 of the Corporate Tax Act and Article 88 (1) 6 of the former Enforcement Decree of the Corporate Tax Act and acts under Article 88 (1) 9 of the former Enforcement Decree, which correspond to the wrongful calculation under Article 207Du5646, Jan. 14, 2010; and Supreme Court Decision 2005Du156586, Oct. 28, 20105>

In light of the following circumstances, it is legitimate to acknowledge the interest rate for the delayed recovery of the amounts due to the lack of economic rationality in light of sound social norms and commercial practice, and to include the construction work ordered by the NO Hospital in the calculation of the interest rate for the delayed recovery of the amounts due to the construction work, based on the average settlement date of the construction work ordered by the NO Hospital to an entity other than NO Construction. Therefore, this part of the Plaintiffs’ assertion is without merit.

① Although Nconstruction did not receive construction costs for a considerable period of time from the due date for payment, it did not take any measures to recover claims, such as requesting for performance and seizure, against the OO Hospital, and did not separately claim compensation for delay.

② From around 2005, the O Hospital did not pay the construction cost for a long period of time, even though it was sufficiently enough to pay the construction cost as the net income amounting to KRW 29-5.6 billion each year.

③ As a result of the investigation of similar cases, etc. on May 7, 2013 through May 16, 2013 by the Tax Tribunal, the Daegu Regional Tax Office verified the annual average number of settlement days (66 days) of 14 construction companies that have traded at least 10 million won a year with the O Hospital, and re-calculated the number of serial numbers for the delayed collection of construction amounts each year on the basis thereof.

④ The Plaintiffs asserted that, compared to the construction contract concluded between the O hospital and the NN construction, the aforementioned cases cannot be seen as a similar case because there was a difference in the construction cost, the scale of construction, and the construction period. However, it was impossible to investigate the cases of NN construction since the NO hospital did not have any other construction work except construction work ordered from OO hospital. Accordingly, it was inevitable to investigate the cases of construction work ordered by the NO hospital to another business entity. Thus, such research method does not seem to have been significantly erroneous.

⑤ The Plaintiffs asserted that the transaction of pharmaceutical products, which is the main transaction at the O Hospital, should be compared with that at the time of the transaction (the average payment date, approximately 270 days). However, there is no evidence that the average payment date of pharmaceutical products is about 270 days. Moreover, it is inappropriate to view the construction contract and the pharmaceutical transaction as the direct comparison because the purpose and process of the contract and the method of payment are entirely different.

6. Regarding the warranty bond to be considered at the time of calculating the recognized interest, the head of the Defendant SS Tax Office shall calculate only the direct construction cost for each type of work in the first stage of work, but shall determine the property based on the Plaintiffs’ assertion.

(7) The warranty period for an emergency medical center shall be three years, if an emergency medical center is newly built;

Since there is no agreement on the remaining construction work, it is reasonable to calculate the period of each detailed type of construction work according to Article 28 (1) of the Framework Act on the Construction Industry and Article 30 [Attachment 4] of the Enforcement Decree of the same Act. The defendant SS Director calculated and calculated the warranty period by detailed type of work in accordance with

C) Determination as to the part of the interior work cost

In applying Article 52(2) of the Corporate Tax Act, the standard for determining the applicable price (including the rate, interest rate, rent, exchange rate and other equivalent rate) that is applied or is to be applied to sound and commercial practice and a normal transaction between persons who are not specially related persons, shall be determined based on the price (including the rate, interest rate, rent, exchange rate and other equivalent rate). In applying Article 89(1) of the Enforcement Decree of the same Act, Article 52(2) of the same Act, where there is a price generally traded between many and unspecified persons who are not specially related persons or persons who are not specially related persons in the situation similar to the relevant transaction, the relevant corporation's price shall be determined based on the price, and Article 52(5) of the Enforcement Decree of the same Act, where it constitutes wrongful calculation under Article 88 of the same Act, the market price and the difference under paragraphs (1) through (4)

살피건대, 위 인정사실 및 변론 전체의 취지를 종합하여 알 수 있는 다음의 각 사정에 비추어 보면, NN건설이 특수관계자인 QQ루프 대표 강PP에게 용상병원 인테리어 설계용역대금으로 협회 보수기준보다 약 2.8배에 이르는 금원을 지급한 것은 특수관계자 아닌 자와의 정상거래에서 적용될 것으로 판단되는 가격에 비해 부당히 과다하다고 할 것이므로 부당행위계산 부인대상에 해당하고, 협회 보수기준을 초과한 설계비 지급 부분을 익금산입한 것은 적법하다. 따라서 원고들의 이 부분 주장도 이유 없다.

① NN건설이 QQ루프와 용상병원 인테리어 공사를 체결하면서 지급한 설계비 ○○○○원은 협회 보수기준 금액 ○○○○원을 훨씬 초과하는 금액이다.

② The purpose of Article 1(1) is to stipulate the standards for remuneration of the Association, even though the application of the standards is not mandatory, that “the purpose of Article 1(1) is to stipulate the standards for interior construction to be observed in the course of performing the duties at the request of another person, and the standards for remuneration to be claimed by the requester and other contracts incidental thereto,” and each of the instant interior construction contracts and the standard design contract for interior construction also appears to be a recommended standard for the Association remuneration in the relevant industry as stated in reference to the standards for the Association remuneration. Meanwhile, there is no evidence that the standard for remuneration of the Association is much lower than the normal remuneration for interior construction works.

③ NN건설이 QQ루프와 체결한 응급의료센터 인테리어 공사에 관한 약정설계비의 경우에는 협회 보수기준에 의하여 계산한 금액과 큰 차이가 없다.

④ NN건설은 QQ루프와 용상병원 인테리어 공사계약 체결 시 공사 전부에 대한 설계계약을 체결한 것이 아니라 인테리어 디자인설계 부분에 대해서만 계약을 체결한 것이므로(을 제25호증), 순건축공사예정비에서 기계설비공사금을 차감한 금액 중 순인테리어공사예정비가 차지하는 비율을 인테리어예정비율로 산정한 것에 어떠한 위법이 있다고 보기 어렵다.

⑤ QQ루프 대표 강PP은 NN건설의 사주인 원고 강AA의 딸로서 2000. 3.~2005. 2. VV대학교 미술대학에서 공업디자인으로 학사학위를 취득하고, 2008. 6.~2010. 5. 미국 'WW디자인'에서 실내건축으로 석사학위를 취득하였으므로(갑 제21호증), 이 사건 각 인테리어 공사 계약 체결 당시에는 학사학위를 취득한 직후였는바, 강PP이 특별한 자격이나 경력을 가졌다거나 통상의 인테리어와 다른 수준의 용역을 제공하지 않은 이상 정상적인 거래에서 협회 보수기준의 수배를 초과하는 설계비를 받는다는 것은 예상하기 어렵다. 한편 강PP이 특별한 자격이나 경력을 가졌다거나 통상의 인테리어와 다른 수준의 용역을 제공하였음을 인정할 아무런 증거가 없다.

4. Conclusion

Therefore, the part that seeks revocation of the tax amount exceeding the ○○○○○○○ upon the joint tax payment notice among the lawsuits by the Plaintiff Gangwon-A, is unlawful. Therefore, the remaining plaintiffs' claims and the remainder of the claims by the Plaintiff Gangwon-A are dismissed. It is so decided as per Disposition by the assent of all.