Ora Co., Ltd. (Attorneys Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

The director of the tax office and one other (Law Firm A&C et al., Counsel for the plaintiff-appellant)

December 12, 2014

1. A. On August 22, 2013, the part of the disposition imposing corporate tax of KRW 273,924,529,094 against the Plaintiff in excess of KRW 87,118,746,828 of the disposition imposing corporate tax of KRW 109,917,364,969 and the part exceeding KRW 1,939,747,462 of the disposition imposing penalty tax of KRW 109,917,364,969, is revoked;

B. As to the Plaintiff by Defendant Incheon Tax Office

1) The portion exceeding KRW 823,201,00 among the disposition of imposition of value-added tax for the first term of 208 on July 5, 2013 and the portion exceeding KRW 54,816,028 among the disposition of imposition of KRW 3,346,034,04,000 among the disposition of imposition of KRW 544,816,028;

2) The imposition of value-added tax of KRW 75,00,000 and penalty tax of KRW 36,457,500 and penalty tax of KRW 36,457,500 on August 19, 2013, and the imposition of value-added tax of KRW 675,00,000 and penalty tax of KRW 292,868,390 on the first quarter of 2010 is imposed.

All cancellations.

2. The plaintiff's remaining claims against the defendant Incheon Tax Office are dismissed.

3. 1/100 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

The disposition of imposition of value-added tax amounting to KRW 4,155,604,06 and penalty tax amounting to KRW 3,346,034,04,044, imposed on the Plaintiff on July 5, 2013 by the head of the competent tax office and the head of the competent tax office of Incheon shall be revoked on July 5, 2013.

1. Details of the disposition;

A. 1) On May 1, 2001, the Plaintiff (the 10 plant was the dynamics steel chemical company, which was changed to the current trade name around April 1, 2009) was established for the purpose of manufacturing, selling, etc. various chemical products, such as subconferences around 1959, and the same chemical industry company was merged into the iron chemical industry company on December 31, 2001, and on May 1, 2008, the total 10 factories were engaged in the manufacturing, selling, etc. of salt calcium and reagents products among the 10 factories, such as the Nam-gu Incheon Metropolitan City ( Address 1 omitted), the chemical products manufacturing division and urban development division of the Incheon factory on the 152 parcel of land, including the Seoul Metropolitan City (hereinafter referred to as “instant division”), and Dalalalalalalalal Co., Ltd. (hereinafter referred to as “Co., Ltd. (hereinafter referred to as “Caldi”), without completing the division (hereinafter referred to as “Plaintiff”).

2) The Plaintiff determined that the instant division constituted qualified division meeting the requirements of Article 47(1) of the former Corporate Tax Act (amended by Act No. 9898, Dec. 31, 2009; hereinafter “Corporate Tax Act”). Upon filing a corporate tax return in 2008, the Plaintiff included KRW 748,545,318,780 in deductible expenses.

B.1) Meanwhile, the Plaintiff obtained a construction permit and a license for reclamation of public waters for the Incheon factory from June 1963 to February 1967, and buried public waters for the purpose of building a factory site, a waste stone dumping site (in the process of producing multiplesing, a waste stone landfill, which is a persistent residue), and a reservoir. In this process, the Plaintiff obtained authorization of completion from April 1968 to June 197 by reclaiming land for a factory with the purpose of building a reservoir +10 meters. In this process, the Plaintiff’s land for a factory should be buried at sea +6.5 meters, and the waste stone dumping site should be buried at sea +6.5 meters, and the construction work should be executed.

2) Around March 2004, the Plaintiff discontinued the production of a revolving the Incheon Factory. The Plaintiff failed to immediately dispose of the waste stone conference for a period of up to a few hundred years, and stored it in the Incheon Factory site, and the waste stone maty of the flood cell (land reclaimed after the opening of the stone maty) exceeded the surface level + 6.5 meters, which is the top of the public waters reclamation license (hereinafter referred to as the “closed stone maty”), and the waste maty filled in excess of the top of the license for the reclamation of public waters, and the waste mats buried in the top of the license for the reclamation of public waters (hereinafter referred to as the “ underground waste maty”). In addition, from September 191, 191, the Plaintiff filed a civil petition on the ground that the waste maty was classified into wastes under the Wastes Control Act, and the residents of the apartment in the vicinity of the Incheon Factory, thereby suffering damage from the waste maty.

3) In such circumstances, around November 2002, the Civil Committee established the “Civil Committee to seek appropriate disposal measures of the Doyang Steel Chemical Discard (hereinafter “Civic Committee”). The Plaintiff, based on the “report on the Doyang Steel Chemical End Treatment Measures” prepared by the Citizens Committee around April 2003, prepared the “Agreement on the Disposal of the Doyang steel Chemical Dismantling” with the Incheon Metropolitan City on December 31, 2003 (hereinafter “the Convention”). The main contents of the Convention are “(1) the sea water reservoir in Incheon factory ( Address 2 omitted), ( Address 3 omitted), ( Address 4 omitted), ( Address 5 omitted), ( Address 6 omitted), and (325,183 square meters, which is the total land at the time of the Incheon Metropolitan City’s temporary use of the land donated to the Incheon Metropolitan City on the surface of the land and the land donated to the Incheon Metropolitan City on the surface of the land to be used by the citizens of the Incheon Metropolitan City on the surface of the land and the land donated to the Incheon Metropolitan City on the surface.

Since then, in the event that the Plaintiff engages in the construction of the urban development project under the following sub-paragraph (d), there was a public opinion that the Plaintiff should report the exposure of the underground mix when the underground mix is exposed, and that the Plaintiff should process it. Moreover, as the Incheon Free Economic Zone Authority expressed its opposing opposition to the construction of the mix on the ground that the planned site for the construction of the mix is overlapped with the free economic zone, it was decided to create an environment-friendly lake and contribute it to Incheon Metropolitan City by creating an environment-friendly lake for the number of houses of the Incheon Dae Park located in the Nam-gu Incheon Metropolitan City on October 2008 after the division of the instant case. Accordingly, the Plaintiff conducted an environment-friendly lake creation project for the Incheon Dae Park on March 17, 2009, the Nam-gu Incheon Metropolitan City, the Citizens' Committee, and the National Committee, instead of the construction of the mix, and prepared an amendment to the mix (hereinafter referred to as the "Convention").

C. 1) The Plaintiff set up a total of KRW 84.586 billion as the recovery loss reserve from 2003 to 2005 with respect to the disposal of the closed stone conference in accordance with the instant agreement. At the time, in order to estimate the disposal cost of the closed stone conference, the Plaintiff requested Samap-kin Co., Ltd. in around 2003 to calculate the amount of the closed stone conference located in the Incheon Factory, which is located in the site, on the site of Incheon. As a result, it was presumed that the amount of the closed stone conference was calculated roughly by 5,830,000 cubic meters (including the dead stone, when applying 90% of the disposal cost).

2) On December 29, 2005, the Plaintiff received approval for installation of management-type reclamation facilities (facility size: 4,810,000 cubic meters, disposal-type volume: 3,000 cubic meters: 3,000,000 tons/years) from the Nam-gu Incheon Metropolitan City Head of Nam-gu, Incheon Metropolitan City ( Address 6 omitted) and other nine parcels of land, including the instant detention basin, from the Nam-gu, Incheon Metropolitan City, which are waste disposal facilities.

3) Since then, the Plaintiff concluded a construction contract with Hyundai Construction Co., Ltd. (hereinafter “former Construction”) on September 19, 2006 for the construction of a management-type reclamation facility and the construction cost of KRW 4,810,000,000,000 (including value-added tax) for the construction of a waste landfill facility and the construction cost of KRW 28,977,574,030 (including value-added tax) (including value-added tax) for the construction cost of the Hyundai Construction until the time of the instant division, for the purpose of transporting and transporting the waste stone buried in the Incheon Factory site after cutting away and drying it. The Plaintiff paid a total of KRW 19,721,930,70,70, KRW 208:9,25,643,260, which was deducted from the compensation reserve.

4) The Plaintiff paid KRW 9,255,643,260 as the disposal expenses of the Incheon Large Park in 2008, deducted from the recovery loss reserve, and subsequently reported and paid corporate tax for the business year 2008 by deducting the input tax amount of the value-added tax related to the disposal of the first half of the year 2008 from the output tax amount, and reported and paid the value-added tax for the first half of the year 2008. In addition, the Plaintiff implemented the Incheon Large Park Investment Project in accordance with the instant amendment agreement, and implemented the Environment-Friendly Housing Project for the second half of the year 2009, after deducting the input tax amount of the value-added tax for the second half of the year 2009, and the amount of KRW 675,000,000 from the output tax amount for the second half of the year 2009 and the amount of value-added tax for the second half of the year 2009 and the first half of the year 2010.

D. 1) On the other hand, the Mayor of Incheon Metropolitan City, upon formulating the basic urban planning on June 30, 1997, planned to develop the Nam-gu, Seo-dong, Yongsan-dong, and Maok-dong, which includes the site of Incheon factory, as residential and commercial areas, from the industrial site, and notified the plaintiff of the development plan for the Yongsan-do, the implementer of the land under the Urban Development Act on September 16, 2002, and proposed the implementation of the Urban Development Project on March 7, 2005. Accordingly, the plaintiff submitted the urban development proposal, and the basic plan for the Yongsan-do, the city development plan was established on September 17, 2006. On April 16, 2007, the plaintiff submitted the proposal for the designation of the urban development zone to the head of the Nam-gu Incheon Metropolitan City, Incheon Metropolitan City and its neighboring site, and concluded the plan for the designation of the Incheon Factory and its neighboring site with the Port Investment Company, which is the Investment Company of the Gamoon on May 15, Do.

2) The Mayor of Incheon Metropolitan City, on June 15, 2009, after the instant division, designated as an urban development zone under the Urban Development Act an urban development zone under the Nam-gu Incheon Metropolitan City Notice No. 2009-181 on June 15, 2009, the members of the Nam-gu, Incheon Metropolitan City and the members of educational-interest Dong as an implementer of DNA on December 7, 2009.

E) On August 22, 2013, the director of the tax office of Seodaemun notified the Plaintiff of the total corporate tax amount of KRW 383,75,841,894,897,7967,979,9779,9779,979, and the amount of corporate tax for the business year of 2008 (including additional tax of KRW 109,917,364,964,969, and additional tax of KRW 307,989,97,967, and the amount of corporate tax for the business year of 2008, after deducting the total amount of corporate tax of KRW 383,756,027,707, and KRW 9,643,260 from the total amount of corporate tax for the business year of 2008, under the ground that the division does not constitute qualified division.

2) The head of the Incheon District Tax Office, like the defendant Southern District Tax Office, excluded the input tax amount of value-added tax of 823,201,00 for disposal costs of 208, as well as the amount of the tax for 20 years and 30 years and less for 20 years and 40 years and less for 20 years and 30 years and less for 20 years and 30 years and less for 20 years and 40 years, respectively for 20 years and 30 years and 40 years, respectively for 20 years and 40 years, respectively for 20 years and 30 years and 5 years, respectively for 20 years and 30 years and 4 years, respectively for 20 years and 40 years, respectively for 20 years and 4 years and less for 20 years, respectively for 20 years and 30 years and less for 30 years and 4 years, respectively for 20 years and 20.3 years and 4 years, respectively for 20 years and 20.

3) On September 23, 2013, the Plaintiff dissatisfied with each of the dispositions of this case and filed an appeal with the Tax Tribunal on September 23, 2013.

F. Meanwhile, D Co., Ltd. obtained 152 parcels of land and its ground building including the Nam-gu Incheon Metropolitan City ( Address 1 omitted), etc. in the instant division, and received a notice of imposition and registration tax, etc. around April 2012 on the grounds that the instant division does not constitute qualified division, on the grounds that D Co., Ltd. was exempted from the customs duties and registration tax by filing an application for reduction and exemption pursuant to Articles 119(1)10 and 120(1)9 of the former Restriction of Special Taxation Act (amended by Act No. 9272, Dec. 26, 2008) on the grounds that the instant division constitutes qualified division. D Co., Ltd was dissatisfied with D Co., Ltd filed a request with the Tax Tribunal on April 26, 2012, but was dismissed on July 10, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 14, 18 (including each number; hereinafter the same shall apply), Eul evidence Nos. 1, 25, 30, 31, 35 through 43, and the purport of the whole pleadings

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

A. The plaintiff's assertion

1) Claim regarding the disposition of imposition of the corporate tax of this case

A) The assertion that the division of this case constitutes qualified division

(1) The Defendants asserted that the division of this case does not constitute a qualified division because it is not a 1/2 or more of the fixed assets of the business division succeeded to by the end of the business year to which the date of the registration of the division belongs. The Defendants asserted that the division of this case does not constitute a business division because they did not meet the three requirements, which is the direct use of the fixed assets of the business division succeeded to by the end of the business year to which the date of the division belongs. 1/2 or more of the fixed assets of the division was divided. In other words, the Defendants provided that the Defendants were able to run the business independently by the human resources and material facilities of the divided business division, not dependent on others, and that the term “business division” means the whole business division existing in the divided corporation and did not constitute a 95 employees of the Plaintiff, and that the Plaintiff did not comprehensively succeed to the business division related to the above 1/2 or more of the fixed assets of the Incheon Industrial Development Project division after the division of this case, and that it did not constitute an independent business division of the Plaintiff’s industrial development business division.

(2) However, with regard to the requirement of “an independent business division that can conduct a business division by division,” the above requirement is satisfied if the corporation established through division succeeds to what is separate business division at the time of division, and how the corporation operated the business after division is irrelevant to the above requirement. Unless the Corporate Tax Act stipulates the succession of human resources to a divided corporation as the requirement of qualified division, it is allowed to allow the corporation to conduct the business by entrusting the business of the divided corporation, and it is not reasonable to deny the qualified division due to the existence of transactions between the divided corporation and the corporation established through division. Therefore, it is satisfied that the Plaintiff divided the chemical product manufacturing division and urban development division of the Incheon factory’s d's d's d's d's d's d's d's d's d'' and e''''''s d's d's d's d's d's d's e's d's d's d's d's e d's d's e d's d's e.

(3) Therefore, the instant division constitutes qualified division.

B) The assertion that the cost of disposal of the assembly and assembly does not constitute capital expenditures

In order to constitute capital expenditures on land, the objective value of the land itself should be increased. As such, where a business operator operating a factory arbitrarily disposes of wastes under the Wastes Control Act does not fall under capital expenditures, and where the storage basin in the factory was buried for the purpose of creating the land, the cost of disposal shall be deemed capital expenditures on the land, or where the land was created in the course of disposing of wastes under the Wastes Control Act, the cost of disposal shall not be deemed capital expenditures. In this case, the Plaintiff and Dralalalalal have been disposed of in accordance with the Wastes Control Act whenever waste is generated, and it was left left alone in the night and collected from the flood batteries, and buried it in the instant detention reservoir. Thus, the cost of disposal of waste stone does not fall under capital expenditures as the cost of the Plaintiff’s disposal of wastes under the Wastes Control Act.

2) Claims regarding the imposition of value-added tax of this case

A) The allegation that the division of this case constitutes the transfer of business

The instant division constitutes a qualified division and constitutes a transfer of business that does not fall under the supply of goods under the Value-Added Tax Act. Even if the instant division does not fall under the qualified division, the Plaintiff comprehensively succeeded to assets and liabilities while maintaining the identity of the business, so the instant division constitutes the transfer of business that does not fall under the supply of goods under the Value-Added Tax Act.

B) The assertion that the disposal costs of the assembly and the input tax amount related to the housing, finance and construction costs of the Incheon Large Park should be deducted.

(1) As alleged earlier, the cost of disposal of the waste stone does not constitute capital expenditures on the Incheon Factory site, and thus, the relevant input tax amount should be deducted from the output tax amount.

(2) In addition, the Incheon Yongsan Park Finance Corporation was conducted at a public interest level that provides the Incheon citizens with resting facilities, and is limited to the Incheon Seo-gu Incheon Metropolitan City Park located within a distance from the Incheon factory as well as the Incheon Tae Park is not owned by the plaintiff or Dralalalalalal, but owned by Incheon Metropolitan City, and thus, the Incheon Park Park Finance Construction Costs do not constitute capital expenditures for the Incheon Park Park Site.

3) Claim on the imposition of penalty tax

In order to efficiently implement an urban development project in 2008, the Plaintiff was promoting the division of this case. During that process, the Plaintiff was consulted by accounting firm and law firm, and agreed on whether the requirements for qualified division were met several times with the competent authority, the Nam-gu Incheon Metropolitan City Office, Yeonsu-gu Office, and the Yeonsu-gu Office, Incheon Metropolitan City, and the training head exempted the division of this case from the registration tax on the ground that the division of this case is qualified division. The Plaintiff, as a matter of course, did not have to be aware that the division of this case is qualified division. The Plaintiff carried out the division of this case according to the regulations of the tax authority and the division practice since the detailed issues related to the requirements for qualified division in this case are not determined by the court. In light of the interpretation of tax law, the division of this case constitutes a case with the meaning of interpretation of tax law, the Plaintiff is deemed to have a justifiable reason for not imposing additional tax. Therefore, the disposition of imposing additional tax among each disposition of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The main contents of the division contract prepared by the Plaintiff regarding the division of this case are as follows.

1. Table 1. - The efficiency and expertise of the Incheon Metropolitan City factory by dividing it into 0. The date of division shall be 0. 2. The time limit of division shall be 0. The reasonable time limit of division into 2. The time limit of division shall be 0. 3 separate from that of the Incheon Metropolitan City 0. The time limit of division into 2. The time limit of division shall be 0. The time limit of division into 2. The time limit of division shall be 0. The time limit of division into 0. The time limit of division into 2. The time limit of division shall be 0. The time limit of division into 0. The time limit of division into 2. The time limit of division into 1. The time limit of division into 0. The time limit of division into 2. The time limit of division into 1. The time limit of division into 3 separate from the time of division into 0. The time limit of division into 5. The time limit of division into 1. The time limit of division into 2 divided companies shall not be included in the above time limit of company.

2) Pursuant to Articles 530-9(4) and 527-5 of the Commercial Act, the Plaintiff publicly announced that creditors of March 6, 2008 were subject to the instant division if they were to file an objection to the division. The Plaintiff agreed to withdraw the Plaintiff’s application on April 30, 2008, on April 25, 2008, with the National Agricultural Cooperative Federation holding KRW 110 billion of the Plaintiff’s corporate bonds (hereinafter “CF”) to convene a meeting of bondholders at the request of Nonghyup, for the purpose of convening a meeting of bondholders, the Plaintiff filed an extension of the period for filing a meeting of bondholders (Seoul Central District Court 2008BT176, Seoul Central District Court 2008). The Plaintiff was likely to cause various problems, such as the delay of the division, and the Plaintiff’s repayment of the above corporate bonds KRW 110 billion on April 30, 2008.

3) On April 25, 2008, the day before the instant division, the Plaintiff owned approximately KRW 21.7 billion with cash assets. However, on May 2008, the Plaintiff had to repay corporate bonds of KRW 110 billion to Nonghyup and purchase foreign equipment equivalent to approximately KRW 5.1 billion with corporate tax, etc., and the Plaintiff had to pay approximately KRW 15.1 billion with financial expenses and KRW 8.9 billion with cash expenses.

4) Accordingly, on April 22, 2008, the Plaintiff entered into a loan contract with the Bank of Korea, the New Bank of Korea, and the Korea Exchange Bank of Korea on April 25, 2008, and borrowed 600 billion won from the Bank as collateral of the Incheon Factory site. On April 25, 2008, the Plaintiff deposited 30 billion won out of the above loan in the above Bank as deposit, and then borrowed 300 billion won again as collateral. The main contents of the loan contract (No. 18 evidence 1) are as follows.

On April 22, 2008, the parties to this loan contract (hereinafter referred to as the "this contract") will enter into this loan contract as follows: 1. The Specialized Borrower Co., Ltd. (hereinafter referred to as the "China") will borrow funds from the lender in accordance with the terms and conditions stipulated in this contract for the purpose of securing general operating funds, and the lender will provide loans to the borrower. (1) The borrower will divide the Incheon Factory Division of the borrower into a simple physical division according to the division plan and the list on the division sheet and the list on the subject of succession as stated in the division plan. (2) After the division, the borrower will transfer the passive property and/or other rights and obligations of the beneficiary under the real estate and the real estate trust contract to a newly incorporated company, which is located in the Jung-gu Seoul Special Metropolitan City Co., Ltd. (hereinafter referred to as the "small Co., Ltd.).

On the other hand, the contents of the draft on April 2008 (No. B. 17-3) drafted by the Plaintiff around April 2008 are as follows.

In relation to the division of the attached Incheon Factory division included in the main text, the main time is to approve as follows to complete the collection of claims for loans in relation to the division of the attached Incheon Factory division, and to implement the composition of the bond group and loan procedures. - The following-1. The following-1. succession of the principal and interest obligation and other financial contract obligations to the corporation (DCRE) by procuring new loans in relation to the division of the target Incheon Factory division, thereby facilitating the implementation of the new corporation's business.

Since then, the Plaintiff secured an additional cash worth of approximately 93.1 billion won, but was holding approximately KRW 8,43.3 billion out of total loans as of May 1, 2008, as of April 30, 2008, due to the expenditure of approximately KRW 171.5 billion until April 30, 2008. Of approximately KRW 8,43.3 billion, the Plaintiff succeeded to the Plaintiff’s total amount of KRW 5,59.2 billion, excluding approximately KRW 284.1 billion that was expected to have been disbursed immediately after the division of the instant case. Meanwhile, Dralalal acquired the Plaintiff’s total amount of KRW 1,720,687,429,524, KRW 5,608,425,970, KRW 806,00,000, KRW 200,000, KRW 2839,797,987,208.

5) 95 employees were working for the chemical product manufacturing division of the Incheon Factory prior to the instant division. Of them, eight (the Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, Nonparty 6, Nonparty 7, Nonparty 8, and Nonparty 9) prepared a written consent (Evidence 40) and succeeded to DNA. In this regard, Nonparty 10, who was the chairperson of the Plaintiff’s labor from February 25, 192, prepared a written statement (Evidence 39) as follows on March 31, 2014. Meanwhile, according to the organization degree of DNA at the time of the instant division, two teams including eight persons succeeded as above other than the representative director, and the employees in charge of urban development projects are one of the employees in charge of urban development projects.

In addition to the members of the Incheon Factory including the person who made the statement at the time of the instant division, and the employees in charge of the management were to move to the company to be newly established after the instant division. This was also because the possibility of human resources restructuring was very unstable in the event that the new company was engaged in an urban development project in addition to the chemical manufacturing business. Accordingly, almost all employees opposed to the fact that the new company would run an urban development project in addition to the chemical manufacturing business, and in fact, the employees of Dalalala did not individually.

6) On May 9, 2008, after the instant division, DNA entered into a service consignment agreement with the Plaintiff as follows.

The contract term of this contract under Article 2.1 of the table contained within the main text of this contract (hereinafter referred to as the "contract term") shall be from May 1, 2008 to April 30, 2009. 2. Where DNA or the Plaintiff fails to give written notice to the other party of its intention to terminate the contract from May 1, 2008 to April 1, 2009. This contract shall be automatically renewed without separate declaration of intention of the both parties. 4.1. The scope of entrusted duties to be performed by the Plaintiff under this contract may be adjusted to the following services and incidental services (hereinafter referred to as "entrusted services"), and the scope of entrusted duties may be adjusted after consultation between the Plaintiff and C. 0. 0 billion won: The contract term shall not be reduced to KRW 10,000,000,000 to KRW 30,000,000,000,000 per month, and the annual amount of entrusted duties to be paid to the Plaintiff under this subparagraph (hereinafter referred to as "contract products"):

D. D.C. purchased raw materials from the Plaintiff, and D.C. from May 2008, the main contents of D.C. “Operation Guidelines for Manufacturing and Entrusted Services” prepared with respect to the implementation of the service consignment agreement between the Plaintiff and the Plaintiff are as follows:

Article 2 (1) (Right to Raw Materials, etc.) (1) of the Table contained in the main text of this Decree provides that the raw and secondary materials that the Plaintiff purchases in a normal manner to implement the consignment contract shall be the property of DNA with respect to the quantity of the fixed goods stored in the premises as prescribed. (2) The price of the raw and secondary materials referred to in paragraph (1) of this Article shall be settled on the basis of the actual monthly quantity. (3) Where any raw and secondary materials for which payment has not been settled are remaining after the termination of the consignment contract, DNA shall, in principle, pay the price on the basis of the Plaintiff’s purchase price and the incidental expenses within one month after the termination of the consignment contract. The products produced pursuant to the consignment contract under Article 3 (Sale of Products) (1) may be sold by DNA to the Plaintiff, and the risk burden shall be transferred to the Plaintiff at the time of receipt of the products. (2) The supply price shall be settled on the last day of each

7) According to the audit report on DNA, DNA sold KRW 21 billion out of the product sales amount of KRW 21.5 billion in the business year 2008 (97.6%) and KRW 25.6 billion out of the product sales amount of KRW 27 billion in the business year 2009 (94.8%) to the Plaintiff.

According to the Defendant’s “Details of Purchase of Raw Materials by Transaction Place” (Evidence No. 11-1) and “Sales Details by Transaction Place” (Evidence No. 11-2) submitted by the Defendants, the dependence ratio of DNA’s Plaintiff is 92.9% to 95.7% (in the case of purchase of raw materials), 93% to 96.5% (in the case of sale of goods) after the instant division.

8) On August 31, 2008, DNA entered into a development agency agreement with the Plaintiff on the following matters.

The purpose of this contract in Section 1 of the table contained in the main text is to stipulate the scope of vicarious development services provided by the Plaintiff to Ddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd.

9) According to the Plaintiff’s organizational chart (Evidence 14) submitted by the Defendants, the Plaintiff had the Incheon Development Promotion Headquarters (Business Planning Team, Development Promotion Team) in 2008 and the Incheon Development Promotion Headquarters (Development Planning Team, Development Promotion Team) in 2009.

10) On April 2008, the day before the instant partition, the Plaintiff notified the Incheon Metropolitan City Mayor, the head of Nam-gu Incheon Metropolitan City, and the Civil Committee of the establishment of DNA through the instant partition, and accordingly notified that the status of a party to the instant agreement is naturally comprehensively comprehensive succession to DNA. In addition, around April 2008, the Plaintiff notified the establishment of DNA through the instant partition even during Hyundai Construction, and accordingly, that the status of a party to the construction contract as of September 19, 2006 is naturally comprehensive succession to DNA.

11) On May 22, 2008, at a meeting held by the Civil Committee on May 22, 2008, Nonparty 1, an employee of the Plaintiff, who had worked as the secretary of the Civil Committee, deemed that the matters relating to the instant agreement, such as the treatment of closed rocks, were succeeded to DNA from the Plaintiff. Accordingly, the chairperson of the Civil Committee stated to the effect that “In the event that DNA is known to the general public (if DNA is changed to another), it is likely to cause misunderstanding as if a new case occurred due to a closed seat of DNA, it would be used together (the Plaintiff and DNA).”

On March 16, 2009, the Citizen Committee sent a notice to the Mayor of Incheon Metropolitan City and the head of Nam-gu Incheon Metropolitan City, and the Plaintiff, and did not send a notice to DNA. On March 17, 2009, the Plaintiff signed the instant amendment agreement. On March 26, 2009, the remaining head of Incheon Metropolitan City sent a public notice to the Plaintiff and DNA as follows:

1. Table 1. The Plaintiff’s Madice Conference generated in the course of production of the Plaintiff’s Madice was dealt with by the Plaintiff under the instant agreement, but now, on May 1, 2008, it is dealt with by succession from DNA divided by the Plaintiff on May 1, 2008. 2. Accordingly, according to the legal view that the Plaintiff and DNA should enter into an agreement with DNA as a separate legal entity, as a result of seeking legal advice from DNA on the closed rocks handled by DNA in accordance with the existing agreement.

Accordingly, on May 28, 2009, DNA drafted and submitted an agreement on the treatment of closed rocks with the following contents to the south-gu Incheon Metropolitan City Mayor.

The Nam-gu Incheon Metropolitan City and Dr. C. shall agree on the disposal of the waste rocks on the site of the Incheon Factory or on the adjacent land as follows:-C. The whole amount of waste rocks in the area other than roads, parks, and green areas shall be buried in the landfill before the completion of the installation works for the waste gathering of waste rocks, and the waste rocks and waste generated after completion of the reclamation works shall be disposed of by D. C. C. of the Nam-gu Incheon Metropolitan City at the request of the head of the Nam-gu Incheon Metropolitan City. If it is not so, a collateral for the disposal thereof shall be provided at the request of the head of the Nam-gu Incheon Metropolitan City.

12) D Co., Ltd. filed an application for approval to change the installation of the Incheon Urban Planning Facility Project on May 26, 2008. On January 29, 2009, D Co., Ltd. obtained approval from the Mayor of Incheon Metropolitan City from 4,810,00 cubic meters to 5,270,000 cubic meters. In addition, on May 19, 2008, the Plaintiff filed an application with the Mayor of Incheon Metropolitan City for the change of the project implementer under the Incheon Urban Planning Facility Project Plan to develop an amusement park from d Co., Ltd. to d Co., Ltd. on August 11, 2008, the Mayor of Incheon Metropolitan City announced the change of the implementation plan for the urban planning facility project to change d Co., Ltd. to d Co., Ltd., Ltd. on the implementation of the Urban Development Project on November 10, 2010 to 10 d Co., Ltd., Ltd. (hereinafter “EMD”) and 208.

13) Around January 2008, the Plaintiff submitted an advance report on the environmental review of an urban development project (the draft) in the Yongsan-gu and academic benefit zone (1BL). Accordingly, according to the development plan of Incheon Metropolitan City and the development plan of Incheon Metropolitan City, it is stated that the Plaintiff demanded specific presentation of measures to dispose of the waste stone gathering and to reclaim the waste stone gathering. Accordingly, the Plaintiff included the treatment plan of the waste stone gathering in the written review.

14) On May 208, 2008, the Plaintiff, after the instant division, notified companies that concluded a service contract regarding urban development projects, such as the Incheon Regional Environmental Technology Development Center, etc. of the status of the parties to the service contract by the instant division, that the status of the parties to the service contract ought to be automatically comprehensively succeeded to DNA. Thereafter, around May 29, 2008, the Plaintiff drafted a contract amendment agreement with the Incheon Regional Environmental Technology Development Center.

15) On the other hand, around December 27, 2007, the Plaintiff reported the commencement of the use of waste disposal facilities (claimed facilities): (115,670 cubic meters; 1,925,00 cubic meters; 1,925,00 cubic meters); and (2) around March 6, 2009 and around May 22, 2009, after the instant division, DNA reported the commencement of use (2-1: 18,000 cubic meters: 18,000 cubic meters; 2-1,2-2-2: 162,000 cubic meters; 2-2-2: 3,000 cubic meters; 3,010 cubic meters; 2-1,000 cubic meters;) Hyundai Construction installed at the instant reservoir, etc.; and (3,010,000 cubic meters; and (4) 271,761,7,000 square meters of land at each stage.

16) On October 27, 2010, the head of Nam-gu Incheon Metropolitan City determined that 129,650 square meters buried at the first stage of the instant detention basin among the instant detention basin may be used as amusement park facilities, and notified Dralalalalian. On November 10, 2010, a report on the commencement of amusement park construction was made on November 10, 201. Of the instant detention basin, 13,006.09 square meters among urban development zones are incorporated.

17) Prior to the instant division, the Plaintiff requested an appraisal of the market price of the Incheon Factory site, etc. to a new appraisal corporation future (hereinafter “appraisal”). At the Plaintiff’s request, the appraiser assessed the instant settling batteries at KRW 588,712,190,00 on the premise that the performance of the duty to dispose of the waste stone in accordance with the instant Convention is an industrial or geographical state where there is no closed stone meeting (price point: February 1, 2008), and DNA succeeded to the said amount. The Defendants submitted the “re-Adjustment of the amount of erosion batteries (Evidence No. 33)” while submitting the “re-Adjustment of the amount of erosion batteries” (Evidence No. 323,583,207,924 when the waste stone meeting is deemed to be accumulated.

The appraised value per square meter of land in the area of Incheon Factory near the basin of this case [the land in this case, part of which the land category has been maintained, and which is already reclaimed, is KRW 6,90,000 won to KRW 880,000,000,000. On the contrary, the appraised value of the land whose land category has been maintained among the instant reservoir of this case [the land in the area of this case, which is part of the area of this case, is the area of KRW 2,10,000 to KRW 2,000,000,000,000,000 won. On the other hand, the appraised value of the land in the area of which the land category has been maintained [the address 2, 3 omitted, 5 omitted, and 6 omitted] among the basin of this case is KRW 2,10,00 or KRW 2,220,000 (the

[Reasons for Recognition] Facts without dispute, Gap's statements, Gap's 3, 13, 17 through 24, 26 through 46, 59, 65, 68, Eul's statements, 1 through 31, 33, and 34, the purport of the whole pleadings

D. Determination

1) As to the argument regarding the imposition of corporate tax of this case

A) As to the assertion that the division of this case constitutes qualified division

(1) In principle, corporate tax shall be imposed on gains from the transfer of assets generated from the division of a corporation. However, Articles 47 and 46(1) of the Corporate Tax Act, Articles 82(3) and 83 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 21302, Feb. 4, 2009; hereinafter “Enforcement Decree of the Corporate Tax Act”), and Article 41-2 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Strategy and Finance, Jun. 30, 2010; hereinafter “Enforcement Rule of the Corporate Tax Act”) provide that if a divided corporation disposes of more than 5 years of its assets generated from the division of a corporation, and if it is deemed that the divided corporation disposes of the assets that belong to the relevant divided corporation’s business for the business year before the date of the registration of the division, it shall be comprehensively succeeded to the assets and liabilities of the divided corporation for the business year in which it is difficult for the divided corporation to use the funds in its name and liabilities.

On the other hand, the interpretation of the tax law is interpreted as the law, unless there are special circumstances, and it is not allowed to expand or analogically interpret without reasonable reasons.

(2) Whether a business division constitutes “an act of dividing an independent business division capable of operating a business by separation”

In light of the following circumstances, it is reasonable to view that the division of this case constitutes “an independent business division that can operate a business by separating it,” in light of the aforementioned facts and the purport of the entire arguments.”

① Article 82(3) of the Enforcement Decree of the Corporate Tax Act provides that “the division of an independent business division possible to operate a business by separating them” as the requirement for qualified division. According to the language and text of the Corporate Tax Act, if the object of division is separated into independent business division possible to operate a business, it constitutes the above requirement. Whether the corporation established through division succeeds to the business at the time of division, and whether the corporation established through division runs a business in any manner or form after the division is not related to the above requirement (such circumstances are related to “the assets and liabilities of the divided business division comprehensively succeeded to the business division,” and “the corporation established through division shall continue to operate a business succeeded to from the last day of the business year in which the registration date of the division falls.” Thus, human resources succession issues, business structure or method of DNA is determined below with respect to the business division of the Incheon Factory, but the business division of chemical products manufacturing and urban development division of the Incheon Factory was an independent business

② The Defendants asserted to the effect that the “business sector” of the above provision refers to the entire business sector existing in divided corporations. The previous business division of chemical products was operated in the Plaintiff’s other regional factories, and this is apparent in light of the fact that the factory operating the same business sector in accordance with the Korea Standard Industrial Classification indicated in the certificate of factory registration of each factory, and that there is an in-house manufacturing business of basic weapons (classification code: 2012) other than Incheon factories, military production factories, and mining balwing factories. However, the Enforcement Decree of the Corporate Tax Act only states that “an separation of business sector is possible” under Article 82(3) and does not require that such business division be the whole business sector of the same kind as in the divided corporation. Moreover, the Ministry of Strategy and Finance and the National Tax Service established regulations on the division of chemical products (e.g., division of basic weapons, which is the same business sector as “one of the leased businesses sector,” which is a separate business sector under the Korea Standard Industrial Classification established under the Korea Standard Industrial Classification established under the Korea Standard Industrial Classification established under the Korea Standard Industrial Classification Classification. Furthermore established under the premise that the Defendants were entitled to the aforementioned business sector division as one-type.

(3) Whether the assets and liabilities of the divided business division can be comprehensively succeeded to

In light of the following circumstances, it is reasonable to view that the division of this case constitutes "a case where the assets and liabilities of the divided business division comprehensively succeeded to," in light of the facts as seen earlier and the contents of Gap evidence Nos. 49 through 64, and the purport of the whole pleadings."

① 디씨알이가 이 사건 협약에 의한 의무, 폐석회 매립공사와 관련한 채무, 지하폐석회 처리 관련 채무를 승계하였는지 여부에 관하여, 다음과 같은 사정에 비추어 보면 디씨알이가 위 각 채무를 승계하였다고 할 것이다. ㉠ 분할계약서 제2의 4)는 신설회사가 분할로 인해 이전되는 재산에 관한 채무만을 부담하는 것으로 정하였는데, 이 사건 협약에 의한 의무, 폐석회 매립공사와 관련한 채무, 지하폐석회 처리 관련 채무는 디씨알이에 승계되는 인천공장 부지와 관련된 채무이다. ㉡ 원고는 이 사건 분할 전인 2008. 4.경 인천광역시장, 인천광역시 남구청장, 시민위원회에 이 사건 분할을 통해 이 사건 협약의 당사자 지위가 디씨알이에 당연 포괄승계됨을 통지하였고, 이 사건 분할 직후인 2008. 5. 22. 원고의 직원인 소외 1은 시민위원회가 개최한 회의에 참석하여 폐석회 처리 등 이 사건 협약에 관련된 사항이 디씨알이에 승계되었다고 보고하였다. ㉢ 인천광역시 남구청장이 이 사건 분할 이후인 2009. 3. 26. 디씨알이에 ‘폐석회 처리에 관한 약정서’ 작성을 요구하면서 보낸 공문에 ‘원고가 이 사건 협약에 따라 폐석회를 처리해 왔으나, 현재는 원고에서 분할된 디씨알이가 승계하여 처리하고 있다’라고 기재되어 있고, 디씨알이는 인천광역시 남구청장의 요구에 따라 2009. 5. 28.경 ‘폐석회 처리에 관한 약정서’를 작성하기도 하였다. ㉣ 원고는 이 사건 협약을 통해 상부폐석회를 이 사건 유수지에 매립하고, 이와 같이 매립한 토지를 녹지 및 유원지로 조성하여 영구적으로 개방하며, 송도신도시 제8공구와 제1공구에 의해 포위되는 반월형 수면에 보트장 시설을 건립하여 인천광역시에 기부채납하고, 추후 7,700평의 토지를 인천광역시 남구에 기부하기로 약정하였으며, 이에 따라 먼저 폐석회를 매립하기 위해 2005. 12. 29. 인천광역시 남구청장으로부터 폐기물처리시설인 관리형매립시설 설치승인을 받은 후 2006. 9. 19. 현대건설과 폐석회 매립시설 조성공사에 관하여 공사도급계약을 체결하였는데, 이 사건 분할 직전인 2008. 4.경 현대건설에 이 사건 분할에 통해 위 공사도급계약상의 당사자 지위가 디씨알이에 당연 포괄승계됨을 통지하였고, 디씨알이는 이 사건 분할 이후인 2008. 5. 26. 인천광역시 남구청장으로부터 폐기물처리시설 설치 변경승인을 받아 현대건설을 통해 매립공사를 진행하였다. ㉤ 인천광역시장은 이 사건 분할 이후인 2008. 8. 11. 이 사건 협약에 따른 유원지 조성을 위한 인천도시계획시설사업 실시계획상의 사업시행자를 원고에서 디씨알이로 변경하였고, 디씨알이는 1단계 매립이 완료됨에 따라 2010. 11. 10. 이 사건 협약에 따른 유원지 조성을 위해 착공신고를 하는 한편 에이엔씨종합건설과 유원지 조성공사에 관하여 공사도급계약을 체결하였다. ㉥ 이 사건 협약에 따른 보트장 건립은 이 사건 분할 이후 인천대공원 호수에 대한 친환경 호수조성으로 변경되었는데, 디씨알이는 자신이 인천대공원 호수재정비사업의 주체임을 전제로 2009. 8.경 원고에게 그 시행을 위임하였다. ㉦ 원고는 분할계약서 제2의 5)가 폐석회 처리에 대한 책임을 다한다는 차원에서 그에 관한 비용을 부담하겠다는 취지로, 원고와 디씨알이간 내부 비용분담에 관한 약정이라고 주장하고 있는바, 이는 디씨알이의 원고에 대한 구상채권에 관한 사항으로 디씨알이가 폐석회 처리에 관한 채무를 승계하였는지 여부와는 무관하다고 할 것이다.

② 원고가 인천공장 부지를 담보로 차입한 금원 중 일부만을 디씨알이에 승계시킨 것과 관련하여, 다음과 같은 사정에 비추어 보면 이는 ‘분할하는 사업부문의 자산이 포괄적으로 승계된 경우’에 해당한다고 할 것이다. ㉠ 현금은 법인의 계좌로 입금되는 순간 그것이 A 사업부문의 매출이건 또는 A 사업부문의 자산을 담보로 차입한 것이건 다른 현금과 혼화되므로 이를 A 사업부문만의 현금이라고 볼 수 없다. ㉡ 피고들의 주장에 의할 경우, A 사업부문과 B 사업부문을 가지고 있는 어떤 법인이 A 사업부문의 자산을 담보로 100만 원을 차입한 후 A 사업부문을 분할하면서 A 사업부문(분할신설법인)에 현금 60만 원, B 사업부문(분할법인)에 현금 40만 원을 승계시키고 분할 후 B 사업부문(분할법인)이 위 현금 40만 원으로 설비(자산)를 구입하는 때에는 적격분할에 해당하지 않게 됨에 반하여, 분할 전 차입금 중 40만 원으로 B 사업부문의 설비(자산)를 구입하고 분할시 A 사업부문에 나머지 현금 60만 원, B 사업부문에 위와 같이 구입한 설비를 승계시키는 때에는 적격분할에 해당하게 되는 불합리한 결과가 초래된다(만약 후자의 경우에도 적격분할에 해당하지 않는다고 한다면, 분할시 법인이 보유하고 있는 모든 자산에 대하여 어떠한 경위를 통해 취득한 현금으로 구입한 것인지를 구분하여야 하는, 또다른 불합리한 결과가 발생하게 된다). ㉢ 뿐만 아니라 원고는 이 사건 분할을 앞둔 2008. 4.경 농협에 대한 회사채 1,100억 원의 상환, 법인세 납부, 금융비용, 기자재 구입대금 등 영위하는 사업 전반에 걸쳐 현금성 자산의 부족이 예상되자 일반운영자금을 조달하기 위해 2008. 4. 25. 인천공장 부지를 담보로 대출을 받은 것으로 보이므로, 위 차입금이 인천공장과 관련된 사업부문에 속한다거나 인천공장 부지를 승계받은 디씨알이에 속한다고 단정할 수 없다(피고들은 대출일자와 이 사건 분할일의 시간적 근접성, 대출계약서에 이 사건 분할에 관한 내용이 기재되어 있는 점 등에 비추어 실제 차주는 디씨알이라고 주장하면서 위 차입금이 디씨알이에 속한다고 주장하나, 피고들이 주장하는 사정이나 을 제17호증의 3의 기재만으로는 실제 차주가 원고가 아닌 디씨알이라고 볼 수 없으므로, 피고들의 위 주장은 이유 없다). ㉣ 원고는 이 사건 분할일인 2008. 5. 1. 당시 보유하고 있던 차입금 약 8,443억 원 중 장차 지출이 예정된 2,841억 원을 제외한 나머지 5,592억 원을 디씨알이에 승계시키는 등 이 사건 분할을 통해 자산 총 1,720,687,429,524원, 부채 총 963,890,108,221원을 승계시켰다(다른 물적분할 사례들과 비교할 때 디씨알이의 자기자본비율이나 부채비율은 평균이거나 평균보다 양호한 수준이다). ㉤ 앞서 본 적격분할에 대한 과세특례(과세이연)의 취지에 비추어 분할하는 사업부문의 필수적인 자산 또는 분할하는 사업부문의 영업활동과 직접적인 관계가 있는 자산이 승계되었다면 분할하는 사업부문에 자산이 포괄적으로 승계되었다고 할 것이고, 분할하는 사업부문의 자산 전부가 승계되어야만 위 요건에 해당한다고 볼 것은 아니다( 법인세법 시행령 제82조 제3항 제2호 단서, 법인세법 시행규칙 제41조의2 도 공동으로 사용하던 자산, 채무자의 변경이 불가능한 채무 등 분할하기 어려운 자산과 부채 등으로서 분할되는 사업부문에 직접 사용되지 아니한 공동의 차입금 등에 대하여 포괄적 승계의 예외를 인정하고 있다). ㉥ 피고들은 원고가 인천공장 부지를 담보로 차입한 금원은 그중 일부만을 디씨알이에 승계시키면서 대출금 채무는 그 전부를 디씨알이에 승계시킴으로써 조세를 회피하였다는 취지로 주장한다. 그러나 법인세법 시행령 제83조 제1항 에 의하면 분할법인이 손금에 산입하는 금액은 분할신설법인으로부터 취득한 주식의 가액과 자산의 양도차익 중 적은 금액인바(법인세법 시행규칙 별지 제43호 서식 참조), 법인이 A 사업부문을 분할하면서 부채를 고의적으로 많이 승계시키는 경우 자산양도차익은 그대로이나 분할신설법인의 주식가치가 낮아지게 되어 오히려 분할법인이 손금에 산입할 금액이 감소할 가능성이 높아지게 된다. 또한, 자산양도차익은 자산의 공정가액(시가)에서 장부가액을 차감한 금액인바(위 서식 참조), 현금의 경우 공정가액(시가)과 장부가액이 동일하므로 분할신설법인에 승계시키는 현금이 얼마인지에 따라 자산양도차익은 달라지지 않는다. 따라서 피고들이 주장하는 사정만으로는 원고가 조세를 회피하였다고 단정하기 어렵다. ㉦ 국세청 예규는 분할하는 사업부문에 직접 사용되지 아니한 공동차입금을 분할신설법인에 승계시킨 경우에도 포괄승계의 요건에 해당한다거나(법인세과-1880, 2008. 8. 7.) 분할하는 사업부문의 자산 및 부채 이외에 분할법인의 부채를 일부 승계시킨 경우에도 포괄승계의 요건에 해당한다는(서이 26012-10148, 2003. 1. 22.) 입장이었다{뿐만 아니라 피고들이 이 사건 2014. 5. 30.자 준비서면(2)에서 적격분할의 예시로 거시한 사례를 포함하여 다수의 기업들이 분할 전 신규로 금원을 차입한 후 그중 일부만을 분할신설법인에 승계시키면서 차입금 채무는 전부 승계시킨 것으로 보인다}. ㉧ 피고들은 분할법인인 원고의 연대책임을 배제한 이 사건 분할이 통상적이지 않으므로 원고에게 조세회피목적이 있었다는 취지로 주장한다. 그러나 상법 제530조의9 제2항 에 의하면 분할시 분할신설법인과 분할법인의 연대책임을 배제할 수 있으므로 이 사건 분할에 어떠한 문제가 있다고 볼 수 없을 뿐만 아니라, 원고의 이 사건 2014. 9. 17.자 준비서면에 의하면 물적분할을 실행하면서 분할법인의 연대책임을 배제하는 실제 사례가 적지 않은 것으로 보이므로, 피고들이 주장하는 사정만으로는 원고에게 조세회피목적이 있었다고 보기 어렵다.

③ 피고들은 디씨알이가 원고의 인력을 대부분 승계하지 않았으므로 적격분할의 요건을 충족하지 못하였다고 주장하나, 다음과 같은 사정에 비추어 보면 피고가 주장하는 사정만으로는 분할하는 사업부문의 자산이 포괄적으로 디씨알이에 승계되지 않았다고 할 수 없다. ㉠ 법인세법 시행령 제82조 제3항 제2호 는 분할하는 사업부문의 자산 및 부채의 포괄적 승계를 그 요건으로 규정하고 있을 뿐 분할하는 사업부문의 인력 또는 직원의 포괄적 승계를 그 요건으로 규정하고 있지 않다(‘자산’이란 과거 사건의 결과로 기업이 통제하고 있는 미래 경제적 효익이 유입될 것으로 기대되는 자원을 의미하는 것으로, 인력 또는 직원은 ‘자산’에 해당하지 않는다. 한편, 일본은 적격분할의 요건 중 하나로 분할되는 사업에 관계되는 종업원 중 약 80% 이상이 분할신설법인의 업무에 종사할 것으로 전망될 것을 규정하고 있다). ㉡ 뿐만 아니라 이 사건 분할이 있기 전 대법원은 시내버스회사가 경영 악화로 그 소유 버스를 다른 회사에 양도하면서 버스와 함께 운전사를 양수회사가 인수하기로 합의함에 따라 해당 운전사에게 양수회사에서 근무하도록 통지한 사안에서 위와 같이 통지한 것을 ‘전적명령’으로 보면서 「전적은 근로자를 고용된 기업으로부터 다른 기업으로 적을 옮겨 다른 기업의 업무에 종사하게 하는 것으로서, 종래에 종사하던 기업과의 근로계약을 합의해지하고 이적하게 될 기업과 새로운 근로계약을 체결하는 것이거나 근로계약상의 사용자의 지위를 양도하는 것이므로, 사용자가 근로자의 동의를 얻지 아니하고 다른 회사로 전적시키는 관행이 있어서 그 관행이 근로계약의 내용을 이루고 있다는 등의 특별한 사정이 없는 한, 근로자의 동의를 얻어야 효력이 생기는 것이다」라고 판시하였고( 대법원 1996. 4. 26. 선고 95누1972 판결 ), 상법상 영업양도에 관한 사안에서 「영업양도에 의하여 양도인과 근로자 사이의 근로관계는 원칙적으로 양수인에게 포괄승계되는 것이지만 근로자가 반대의 의사를 표시함으로써 양수기업에 승계되는 대신 양도기업에 잔류하거나 양도기업과 양수기업 모두에서 퇴직할 수도 있는 것이다」라고 판시하기도 하였다( 대법원 2002. 3. 29. 선고 2000두8455 판결 ). 또한, 한국전력공사가 발전 부분을 분할하여 6개의 발전 자회사(한국중부발전 주식회사, 한국남부발전 주식회사, 한국남동발전 주식회사, 한국서부발전 주식회사, 한국동서발전 주식회사, 한국수력원자력 주식회사)를 신설한 후 자회사로의 고용승계에 동의하지 않는 일부 근로자들에 대해 자회사로의 고용승계를 명령한 사안에서, 1심 법원( 서울중앙지방법원 2004가합84103 )은 2006. 2. 9. 위 대법원 95누1972 판결 을 인용하면서 「회사분할의 경우에도 근로관계에 있어서 업무지휘권의 주체가 변경됨으로 인하여 근로자가 받을 불이익을 방지할 필요가 있으므로, 회사 분할로 인한 고용승계도 사용자가 회사 분할 시 근로자의 동의를 얻지 아니하고 다른 회사로 고용승계시키는 관행이 있어서 그 관행이 근로계약의 내용을 이루고 있다는 등의 특별한 사정이 없는 한 민법 제657조 제1항 과 구 근로기준법(2007. 4. 11. 법률 제8372호로 전부개정되기 전의 것) 제30조 제1항 에 근거하여 전적의 경우와 마찬가지로 근로자의 동의를 얻어야 효력이 발생하는 것으로 봄이 상당하다」라고 판단하였고, 항소심 법원( 서울고등법원 2006나33021 )도 2006. 9. 22. 「회사분할에 있어 분할계획서 등에 승계할 근로자의 범위를 기재한 경우는 물론 그와 같은 기재가 없는 경우에도 합병과 마찬가지로 그 분할되는 사업부문에 속한 근로관계는 원칙적으로 분할로 인하여 설립되는 회사에 승계된다고 보아야 할 것이지만, 개별근로자의 처지에서 보면 분할의 대상으로 되지 아니한 나머지 사업부문에서 계속 근무할 가능성이 남아 있음에도 근로관계의 승계 여부에 대하여 선택의 기회를 박탈당하는 것은 직업선택의 자유 내지는 강제근로금지원칙의 침해가 될 수 있으므로, 회사분할의 경우에도 민법 제657조 제1항 의 규정이 적용되어 개별근로자의 동의가 있어야만 근로관계를 승계할 수 있다고 보아야 할 것이다(분할로 인하여 설립되는 회사에서 근무할 것인지 여부는 어디까지나 개별근로자의 결정에 맡겨진 것이기에 노동조합이 근로자들로부터 개별적인 동의나 수권을 받지 않는 이상, 회사와 사이에 그 조합원들의 고용승계에 대한 포괄적인 동의를 할 수는 없다)」라고 판단하였으며, 대법원(2006다66968)이 2007. 1. 25. 심리불속행 기각판결 을 선고함에 따라 위 판결이 그대로 확정되었다. ㉢ 그런데 이 사건 분할 당시 인천공장의 화학제품제조 사업부문의 직원들이 디씨알이에 승계되는 것을 반대하였던 것으로 보이는바, 위와 같은 일련의 판결에 따라 직원들에게 디씨알이로의 승계를 강제할 수 없었던 원고로서는(특히 위 대법원 2006다66968 사건은 발전 부문을 분할하여 자회사를 설립한 사안으로 이 사건과 유사할 뿐만 아니라 이 사건 분할일로부터 불과 1년 3 ~ 4개월 전에 확정되었다) 전적동의서를 제출한 핵심인력 8명 이외의 다른 직원들까지 디씨알이에 승계시킬 수는 없었을 것으로 보인다.

(4) Whether “the case where the merged corporation used directly for the pertinent business succeeded to at least 1/2 of the value of fixed assets succeeded from the merged corporation before the end of the business year in which the merger is registered

In light of the following circumstances, it is reasonable to view that DNA used it directly for the chemical product manufacturing business division, urban development business division, etc. of the Incheon Factory, which is a business succeeded to at least 1/2 of the value of fixed assets succeeded by the Plaintiff before December 31, 2008, which is the end of the business year in which the merger is registered, in light of the aforementioned facts and the purport of the entire arguments.

① D Co., Ltd. divided the chemical product manufacturing sector of Incheon Factory from the Plaintiff, and purchased raw materials at its own expense, and manufactured chemical products in its own name with facilities and equipment. However, upon entering into a service consignment contract with the Plaintiff, only the Plaintiff used human resources and purchased raw materials from the Plaintiff, and sold to the Plaintiff the substantial part of the chemical product produced (in the case of the manufacturing industry, the intra-company contract that entrusts the manufacturing business to the subcontractor, while the manufacturing business is being produced using its production facilities, and the succession of employment relationship is not required to be recognized as qualified division).

(2) An urban development project refers to a project implemented to create a complex or city having functions such as residence, commerce, industry, distribution, information and communications, ecology, culture, health and welfare in an urban development zone. A long time takes place in the order of formulation of an urban development project plan, proposal and designation of an urban development zone, designation of an implementer of an urban development project, preparation of an implementation plan for an urban development project, authorization and announcement, implementation of an urban development project and completion of an urban development project. In addition, in this case, an urban development project in this case is conducted as the landowner, and DNA was transferred the ownership of the site of Incheon Factory, which

③ On April 16, 2007, the Plaintiff proposed the designation of an urban development zone to the head of Nam-gu Incheon Metropolitan City on May 29, 2007, and entered into an advance examination of environmental research for the designation of the Incheon Regional Environmental Technology Development Center and an urban development zone on May 29, 2007, and DNA entered into a contract amendment agreement with the above company immediately after the division of this case. Moreover, the Plaintiff submitted the "detailed performance of urban development project service costs" (Evidence A No. 46). Accordingly, it appears that DNA was promoting an urban development project through multiple service companies after the division of this case. As a result, the Mayor of Incheon Metropolitan City designated the Nam-gu Incheon Metropolitan City on June 13, 2009 as an urban development zone and designated Dalalalalalalian on December 7, 2009 as an implementer.

④ According to the “written prior environmental review of an urban development project” submitted by the Plaintiff on January 2008, it appears necessary to process the waste stone conference for the implementation of an urban development project. As such, the disposal of the waste stone conference at the same time constitutes an obligation under the instant agreement and at the same time a part of an urban development project. Since the instant division, DNA installed waste stone landfill facilities through the modern construction after the instant division, and performed the affairs of disposal of waste stone conference, such as reclaiming waste stone, etc., to the above waste landfill facilities.

⑤ Although DNA entered into a development agency business consignment agreement with the Plaintiff on March 31, 2008 with regard to an urban development project, such circumstance alone alone does not change the entity of an urban development project to the Plaintiff who performed the work entrusted by DNA. Furthermore, the Busan High Court Decision 2013Nu20325, which the Defendants are based on their allegations, divided the waste treatment business sector into a final waste treatment business sector, and the urban planning facility business (waste disposal facility), which is not an urban development project, is not an urban development project, and it is difficult to accept the instant case as it is.

(5) Ultimately, the instant division constitutes a qualified division. As such, the part regarding the instant division among the disposition imposing corporate tax in this case should be revoked in an unlawful manner.

B) As to the assertion that the cost of disposal of the council room does not constitute capital expenditure

In light of the above facts and the purport of the entire arguments, the term "capital expenditures on land" refers to the expenses incurred in increasing the real value of land (see Supreme Court Decisions 2004Du13844, Jul. 28, 2006; 2006Du5502, Apr. 11, 2008). (2) The Plaintiff agreed to temporarily open the land by building green area and amusement park facilities on the reclaimed site, which are the reservoir of this case, and the land was buried in the instant reservoir. In order to build green area and amusement park facilities in accordance with the instant agreement, the Plaintiff agreed to temporarily open the land by building the green area and amusement park facilities on the reclaimed site. In light of the fact that the removal, transportation and reclamation of the waste stone site for building site should be preceded, ③ the removal, transportation and reclamation of waste stone urban development project association, reclamation and reclamation of waste stone, which can be seen to have been considerably changed in the value of the land in the instant reservoir.

2) As to the instant assertion on the imposition of value-added tax

A) As to the assertion that the division of this case constitutes the transfer of business

However, Article 6(6)2 of the Value-Added Tax Act and Article 17(2) of the Enforcement Decree of the Value-Added Tax Act provide that the transfer of business by workplace does not regard the comprehensive succession of all rights and obligations with respect to the business as the supply of goods, and include a qualified division, i.e., a division meeting the requirements of Article 46(1)1 of the Corporate Tax Act. As seen earlier, the division of this case constitutes a qualified division and thus the transfer of business that does not constitute the supply of goods. Accordingly, the part concerning the division of this case in the disposition of imposition of value-added tax for the first term of January 2008 should be revoked illegally.

B) As to the assertion that the disposal costs of the assembly and the input tax amount related to the housing finance costs of the Incheon Large Park should be deducted

(1) Article 17(2)6 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201); Article 17(2)4 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010); and Article 60(6) of the Enforcement Decree of the Value-Added Tax Act provides that an input tax amount related to capital expenditures for the creation, etc. of land shall not be deducted from the output tax amount in cases of input tax amount related to the acquisition and alteration of the form and quality of land, the construction of a factory site and a housing site, and the cost related to the construction, etc. of a housing site and a housing site, due to the actual increase

(2) However, this part of the Plaintiff’s assertion is without merit, since the cost of disposal of waste stone increases the real value of the land, such as the creation of housing site, and constitutes capital expenditures on the Incheon Factory site.

(3) However, in light of the following circumstances, which can be seen by comprehensively considering the facts and the purport of the entire pleadings as seen earlier, i.e., ① “capital expenditure for the creation, etc. of land” means capital expenditure made by an entrepreneur, a landowner (see Supreme Court Decision 2007Du20744, Jan. 14, 2010) for the creation, etc. of the relevant land (see Supreme Court Decision 2007Du20744, Jan. 14, 2010); the Plaintiff is not the owner of the Incheon Large Park Park; ② it is difficult to deem that the Incheon Large Park Park Finance Corporation increased the value of the site of the Incheon Factory because it is located far from the site of the Incheon Park; ③ it is merely made at the public interest level pursuant to the Convention and the amended Convention for the Incheon Large Park Finance Corporation for the sake of the Plaintiff’s waste disposal, it is reasonable to deem that the Incheon Large Park Finance Construction Costs do not constitute capital expenditure for the Incheon Factory site. Therefore, the Incheon Large Park Finance Construction Costs related to be deducted.

3) As to the assertion regarding the imposition of penalty tax

A) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under the tax law is an administrative sanction imposed as prescribed by the Act in cases where a taxpayer violates a return, tax liability, etc. as prescribed by the Act without justifiable grounds, and the taxpayer’s intention or negligence is not considered. Moreover, in cases where there are circumstances to justify the taxpayer’s failure to know his/her duty, the additional tax may not be imposed. However, the land or mistake of the law does not constitute justifiable grounds (see, e.g., Supreme Court Decision 2013Du1829, May 23, 2013).

B) As seen earlier, the Plaintiff’s determination differently constitutes capital expenditures on the Incheon Factory site is merely merely a lot of land or mistake under statutes. Thus, it cannot be said that there is a justifiable ground that the Plaintiff’s return and payment of corporate tax for the business year 2008, deeming that the cost of disposal of the closed stone association does not constitute capital expenditures, and thereby deducted the input tax amount from the output tax amount, while filing and paying the return and payment of the value-added tax for the first period of January 2008. Therefore, this part of the Plaintiff’s assertion is without merit.

4) Scope of revocation

A) Determination of legality of a disposition in a lawsuit seeking revocation of a tax disposition is based on whether it exceeds a legitimate tax amount. The parties concerned may submit objective tax base and tax amount until the conclusion of pleadings at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the court. If legitimate tax amount to be imposed is calculated based on such data, only the portion exceeding the legitimate tax amount shall be revoked. If so, the whole tax disposition at the trial at the hearing at the time of the case shall not be revoked. In such a case, the court does not actively find a reasonable and reasonable calculation method and do not impose a legitimate tax amount on the court at its discretion, and thus, if a legitimate tax amount cannot be calculated, the whole tax disposition shall be revoked (see Supreme Court Decision 94Nu13527, Apr. 28, 1995). However, in this case, although the division at issue falls under the qualified division but does not fall under capital expenditure, only the part concerning the disposition of imposition at the hearing at the hearing at the trial at the hearing of this case shall be revoked the entire corporate tax amount for business year.

B) Meanwhile, when the division of this case is qualified and does not fall under the supply of goods, the value-added tax for the first period of 2008 shall be as follows: [1,368,017,028 won [[7,501,638,110 won + 3,346,04,0400 won corrected and notified + 3,346,04,044) - 6,133,621,082 won] - 54,816,028 won for the first period of 208

51,718,059,379,379 18,394,028,716,716-33,324,030,663 (Refund) tax amount of output tax amount of 5,096,562,4371,764,159,371-3,332,403,06 input tax amount of 3,636,636,636,636,68,025 tax amount of 1,459,4894,412-1,872,508,508,3284,6368,636,484,468,468,636,486,486,40,500,000,

3. Conclusion

If so, the plaintiff's claim against the director of the Nammun Tax Office is justified. The claim against the director of the Incheon Tax Office shall be accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit, and the costs of lawsuit shall be determined as per Disposition by applying Article 8 (2) of the Administrative Litigation Act, Articles 98, 101, and 102 of the Civil Procedure Act, taking into account the circumstances surrounding the revocation of the entire disposition of the corporate tax of this case.

[Attachment]

Judges Ba-hee (Presiding Judge)