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Title
The instant shares were held in title trust by means of incorporation, capital increase with consideration, and stock acquisition.
Summary
The shares of this case were held in title by the method of incorporation, capital increase increase, and stock acquisition, and delayed collection of construction price for persons with special relationship and excessive payment of design service fees for persons with special relationship shall be subject to the avoidance of wrongful calculation.
Related statutes
Legal fiction of donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act
Article 52 of the Corporate Tax Act: Denial of Wrongful Calculation
Text
1. Of the Plaintiff’s lawsuit, the part of the claim for cancellation of the tax amount exceeding KRW 996,649,030 among the joint and several tax payment notice disposition of KRW 1,019,050,430, which was August 7, 2012 by the head of the Defendant ○○○ Tax Office, among the lawsuits by the Plaintiff ○○○○○,
2. Each of the claims filed by the Plaintiff Kim○-○, Kim○-○, Kim○-○, Red○, Cho○-○, Kim○-○, Lee○-○, Kim○-○, Kim○-○, Kim○, Kim○-○, Gam○, and Sung-○, and the remainder of the claims filed by the Plaintiff Kang○-○, all of which are dismissed.
3. The costs of lawsuit are assessed against the plaintiffs.
Defendant
○○ Head of the tax office’s KRW 1,019,050,430,000 on August 7, 2012, the gift tax of which was made by the director of the tax office against Plaintiff Gangwon-do.
Joint and Several Tax Liability Notice Disposition by the Defendants and Kim○○, Kim○, Kim○, Kim○, Red○, Cho Jong-○, Kim
○○○, ○○, Kim○, Kim○, Kim○, Ma○, Ma○, Ma○○, and Matern○○ (hereinafter referred to as “Nameral Plaintiffs”).
The "final imposition tax amount" in attached Table 1 for which the gift tax is imposed shall be revoked in all.
Reasons
1. Details of the disposition;
(a) Establishment of ○○ Construction Co., Ltd. and transfer of stocks;
1) On December 19, 200, the Plaintiff Gangseo-gu, a founder of the medical corporation ○○ Medical Foundation (hereinafter referred to as the “○○ Hospital”) established ○○ Construction Co., Ltd. (hereinafter referred to as “○○ Construction”) with capital of KRW 300 million and issued shares 30,000 for construction ordered by the ○○ Hospital. On December 19, 200, the Plaintiff signed a title trust with the Plaintiff Kim○○, as shown in the attached Table 2, with KRW 15,000, KRW 6,000, and KRW 3,000 for each of the 6,000, and KRW 3,000 for the Plaintiff Hong○○, as indicated in the attached Table 2.
2) On September 17, 2002, the ○○ Construction issued 10,00 new shares (hereinafter referred to as “first shares increase”) and the Plaintiff Gangnam ○○ acquired 1,00 shares in the name of Plaintiff Kim○○, 5,000 shares, 2,000 shares in the name of Plaintiff Kim○, 3,000 shares, and 1,000 shares in the name of Plaintiff Hong○, and 2,000 shares in the name of Plaintiff Red ○○. After that, on February 1, 2004, the ○○ Construction transferred 20,000 shares in the ○○ Construction owned in its own name to Plaintiff Kim○○○ on December 31, 2004 (hereinafter referred to as “second shares increase with new shares”). Plaintiff Kang○○ issued 10,00 shares additionally in the name of Plaintiff Kim○, 500 shares in the name of Plaintiff Kim○, 500, 100 shares, respectively.
4) On May 8, 2005, Plaintiff Kim ○○ transferred 10,00 shares of ○○ Construction, which are owned under his own name, to Plaintiff Lee ○○○○○, Plaintiff Cho ○○ on February 20, 2006, shares of 10,00 shares of ○○ Construction, which are owned under his own name, to Plaintiff Red ○○, Plaintiff Red ○○ on February 20, 2006, shares of 5,00 shares of ○○ Construction, which are owned under his own name, to Plaintiff Sung○○○, on August 20, 2008, 5,00 shares of ○○ Construction, which are owned under his own name, to Plaintiff Lee ○○○○○, and 20,00 shares of ○○ Construction, which are owned under his own name on June 19, 209, respectively, to Plaintiff Kim ○○○, and 50 shares, respectively.
(b) ○○ Regional Tax Office’s investigation and initial disposition, etc.
1) As a result of occasional investigations of corporate tax on ○ Construction from May 16, 2012 to July 14, 2012, the director of ○○ Regional Tax Office decided as follows, and notified the Defendants of imposition of gift tax and corporate tax on ○○ Construction.
It is confirmed that the title trust of the ○○ Construction shares to the rest of the plaintiffs by means of the establishment of ○○ Construction from 2000 to 2009, the first, second and second capital increase with new shares, and the acquisition of shares is a purpose of tax avoidance.
○○○○○ is confirmed to have used the dividends in 2007 to 2010 from 2007 to 2010 of the ○○ Construction in a private way by returning the dividends in cash from the rest of the Plaintiffs, who are the nominal shareholders, and thus, it should be imposed by adding them
○○ Construction has appropriated the outstanding construction amount of KRW 18-5.7 billion each year, including the long-term collection of part of the construction cost from ○○ Hospital in a specially related party for more than one year. This constitutes an object of denial of wrongful calculation and calculation, and thus, it is deemed that the remainder of the outstanding construction amount which was not recovered in excess of 60 days deducted from the part equivalent to the deposit for repair of defects is a loan, and as a loan, the amount of KRW 592,761,881 is recognized as a loan, and
○○ Construction’s excessive payment of cost for outsourcing services (design services) to ○○○○○○○, an enterprise with a special relationship, constitutes an act and calculation subject to the denial of unfair act and calculation. As such, an excessive payment of cost for services (design services) should be added to gross income for each corresponding year, and an input tax deduction should be made in proportion to the above amount in relation to value-added tax.
2) Accordingly, on August 7, 2012, the Defendants imposed gift tax on the Plaintiffs and ○○ Construction, respectively, as follows.
In addition, the gift tax is notified to the rest of the plaintiffs, as stated in the table of attached Table 1, and the gift tax is notified to the plaintiff Gangwon-do, who is the donor, as a joint and several taxpayer (hereinafter referred to as "the initial disposition").
○ It additionally imposes KRW 83,637,450 on global income tax on the ground that ○○○ obtained dividend income from 2007 to 2010 from ○○ Construction.
With respect to ○○ Construction, a total of KRW 143,603,610 (37,583,330, 2007, KRW 63,515,690, KRW 23,342,220, KRW 8,007,580, KRW 11,154,790, KRW 27,212,50, and KRW 24,047,960, and KRW 3,164,540, respectively, in 2008) of corporate tax, shall be 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, 100 shares of ○○ Construction issued at the time of secondary capital increase with 10,00 shares (Plaintiff Kim○○: 5,000 shares, Plaintiff Cho Jong○, 2,000 shares, and 2,00 shares, respectively, and Plaintiff Red○○ 1,000 shares). In calculating the value of donated property on 10,00 shares of ○ Construction issued at the time of secondary capital increase with 10,00 shares, the tax base and tax amount were corrected on December 30, 204.
2) According to the above decision, the head of the ○○○○ Tax Office and the head of the ○○ Tax Office on January 14, 2013, with respect to the gift tax on the Plaintiff Kim○, Hong○, Cho○, Cho○, and Kim○, 204 gift tax on January 14, 201, jurisdiction over the following decision on
Name of shareholders
Number of Stocks
(2) A disposition after an adjudication ( January 14, 2013) reduction (i.e., reduction (ii) ○○○○○○○○○○○ after an adjudication.
2,003, 535, 620 1,372,440 2,163,180 ○
○ ○
2,009,919,130 2,744,890 7,174,240 ○○
○ Kim
1,000
75,310,200 54,497,380 20,812,820 ○○
○ Kim
5,009,919,130 2,744,890 7,174,240(hereinafter referred to as "the first decision for correction of reduction").
3) On October 19, 2012, ○ Construction also requested a judgment on the imposition of corporate tax, etc. by the head of the tax office of Defendant ○○○○ Tax Office. On April 15, 2013, the Tax Tribunal rendered a decision on the imposition of corporate tax and value-added tax by Defendant ○○ Tax Office on August 7, 2012 that the assessment of corporate tax and value-added tax by Defendant ○○ Tax Office rendered on August 7, 2012 set the period for calculating the recognized interest and the initial period for calculating the calculation of the construction cost, which is similar to the completed construction by entering into a contract between ○○ Construction and ○○ Hospital, by re-auditing whether each type of construction is the contract amount or is based only on direct construction cost, and then re-audits whether the construction is the contract amount or is based
4) According to the above decision, the ○○ regional tax office investigated similar cases on May 7, 2013 through May 13, 2013. After calculating the average number of days for the delayed payment of construction work ordered by the ○○ Hospital as 66 days, and recalculated the interest rate for the delayed collection. The warranty bond for a construction contract concluded between the ○○ Hospital and the ○○ Hospital is determined on the basis of the total construction cost, and was determined on the basis of the total construction cost. The amount of the warranty bond for a construction contract concluded between the ○○○ Hospital was determined as KRW 592,761,81, and was determined as KRW 489,265,363 in total at the time of the first investigation. After the property was determined as KRW 489,265,363 in total, Defendant ○○ Tax Office and the ○○○○ Tax Office’s corporate tax refund rate was changed, and the stock valuation value was notified as follows.
Reversion Year
Original Revision
(First Investigation)
Results of reinvestigation
(2) The secondary investigation
○ Amount of tax imposed on ○ Construction
Corporate Tax
2007
37,583,30 -1,722,890 35,860,440 208
63,515,690-16,585,450 46,930,240 209
23,342,220 -1,81,620 21,530,600 2010
8,007,580 -921,610 7,085,970 2011
11,154,790-495,500 Totals 10,659,290
143,603,610 -21,537,070 122,066,540 value-added tax
December 2, 2008 24,047,960
-
24,047,960 3,164,540
-
3,164,540 Total
27,212,500
-
27,212,500
5) Accordingly, on October 30, 2013 and November 19, 2013, the head of the ○○○ Tax Office and the head of the ○○ Tax Office notified the Plaintiff Gangnam○○○○ of the second decision to correct the amount of the initial amount of the gift tax for the Plaintiff Lee○○, Kim○, G○, Kim○, Kim○, and Kim○, as follows (hereinafter referred to as “the second decision to correct the amount of reduction”); on March 31, 2014; on April 18, 2014, the head of the ○○ Tax Office notified the Plaintiff Kang○○ of the second decision to correct the amount of reduction (hereinafter referred to as “the Plaintiffs”), and on November 19, 2013, the head of the ○○ Tax Office notified the Plaintiffs of the second decision to correct the amount of reduction.
Name of shareholders
Stocks
number of
After Correction
The assessment value per share;
Reversion
(1) Initial disposition
(2) The amount of reduction (○○○○ on November 19, 2013, 30 October 30, 2013) after an adjudication is rendered.
(1) (1-2)
○
○ ○
5,0094,774
208
190,167,360 189,420,040 747,320 ○○
○ Kim
5,0084,683
209
133,315,630 127,902,110 5,413,520 ○○
○ ○
5,0084,683
209
133,315,630 127,902,110 5,413,520 ○○
○ Kim
5,0084,683
209
133,315,630 127,902,110 5,413,520 ○○
○ Kim
5,0084,683
209
133,315,630 127,902,110 5,413,520 "each of the dispositions in this case"
Facts without dispute over recognition, Gap's evidence Nos. 1 through 3, 15, Eul's evidence Nos. 1 through 23, 27, 28, 30 through 36 (including each number), the result of the personal examination of the plaintiff Sung ○○ and the purport of the whole pleadings
2. On October 30, 2013 and November 19, 2013, the part of the claim for revocation of the tax amount exceeding KRW 996,649,030, among the joint tax payment notice dispositions of KRW 1,019,050,430, among the lawsuits filed by the Plaintiff Gangnam ○○○○○, ex officio, was lawful. The part of the claim for revocation of the tax amount exceeding KRW 996,649,030, which is related to the joint tax payment notice of KRW 1,019,050,430, which is the first tax payment notice of KRW 1,019,050, and KRW 96,649,030, is reduced from the first tax payment notice of KRW 1,000, the first tax payment notice of the Plaintiff ○○○○, the head of the tax office, and the head of the tax office ○○○, who notified the Plaintiff ○○○ of the reduction of the tax amount.
Therefore, the part of the Plaintiff’s lawsuit, which sought revocation of the tax amount exceeding KRW 996,649,030, out of the disposition of gift tax amounting to KRW 1,019,050,430, which was imposed on Plaintiff Gangwon-do on August 7, 2012 by the head of ○○ Tax Office, is unlawful.
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 the Plaintiff Gangwon-do’s title trust of the shares of ○○ Construction to the rest of the Plaintiffs does not result from the purpose of tax avoidance. Nevertheless, it is unlawful for the Defendants to impose gift tax on the Plaintiffs by applying the provision on title trust donation.
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 The reason why the Plaintiff Gangwon-do established the construction of ○○○○ by investing the entire amount of the shares to the Plaintiff Kim○, Kim○, Kim○, and Cho Jong-○ was because the Commercial Act, which was in force at the time, stipulates that there should be three or more promoters at the time of the establishment of a company.
③ If the Plaintiff, the representative director of the ○○ Hospital, becomes the shareholder of the ○○ Construction, he/she should appoint a special representative 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 in order to avoid such a circulation.
④ In addition, since an executive officer of a construction company is convenient in the transaction with a financial institution to own part of the company’s shares, it is said that executive officers and employees own ○○ Construction
⑤ ○○ Construction did not pay dividends even if there were reserved profits since 2000 to 2006 and 2011, and paid dividends in 2007 to 2010. However, it was extremely limited to the total reservation period or the total amount of tax paid by Plaintiff ○○○ by the Plaintiff ○○. Therefore, the tax depreciation following the said dividends is merely a minor reduction of tax arising out of title trust.
【○○○○” paid the wages of the employees of the ○○ Hospital in the accounts of ○○ Construction, or ordered ○○ Construction to refrain from taxes by taking measures such as ordering the construction from other ordering places than the ○○ Hospital. However, a considerable portion of the dividend was paid to ○ Construction’s officers and employees as a bonus for merit, and only the construction ordered by the ○○ Hospital was in charge of the construction.
7) If the shareholder name is changed frequently, it would be easy to understand that the National Tax Service is the title trust. However, if the Plaintiff Gangwon ○○ had the purpose 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 this case’s title trust was to avoid tax evasion, each disposition of this case was erroneous and unlawful. The Defendants calculated the value of donated property, including the recognized interest on the bonds receivable and the amount paid to ○○○○○○, a related party, on the net asset value of 2007-201 from 2007 to 2011, by applying the provision under the denial of wrongful calculation of wrongful calculation, including the adequate excess amount, for the following reasons.
A) Even if the recovery of the construction cost for the ○○○ Hospital was somewhat delayed, in light of the fact that the ○○ Hospital was established only for the purpose of performing the construction work, the ○○ Hospital paid part of the construction cost each month, the balance of the construction cost as the warranty bond, the ○ Hospital was exempted from maintaining the balance of the construction cost as the warranty bond, the payment was made 270 days after the average claim occurred in the case of drug transaction, and the payment was made after 60 days in the case of a small and medium enterprise in light of the reality of the construction work, it cannot be deemed an abnormal transaction without economic rationality in light of sound social norms and commercial practices. Moreover, even if the recovery of the construction cost is an abnormal act without economic rationality, it is unfair that the result of re-audit by the ○○○○ Hospital was not subject to similar cases, and thus, it is unfair to have delayed all claims recovered for more than 66 days.
B) Determination of wrongful calculation according to the criteria for interior design fees of the Korean Specialized Construction Association indoor Construction Business Council when calculating the cost of outsourcing services (design services) by ○○○○○○○, a related party company, is unlawful, since there is no legal basis, and there is no practice to set indoor interior interior interior interior interior interior interior interior services according to the standards for remuneration of the Association. Even according to such criteria, the Defendants’ calculation method was erroneous and illegal.
(b) Related statutes;
It is as shown in the attached Table related statutes.
C. Determination
1) Determination on the first argument
A) The legislative intent of Article 41-21 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003) is to effectively prevent the act of tax avoidance using the title trust system, and thereby Article 45-2 of the same purport is newly established by Act No. 7010, Dec. 30, 2003. Inasmuch as an exception to the substance over form principle is recognized with the purport of realizing three justice, if the title trust was recognized as having been made for reasons other than the purpose of tax avoidance and only a minor reduction incidental to the title trust, it cannot be readily concluded that there was "the purpose of tax avoidance" in such title trust, but it cannot be said that there was no objective and objective purpose of tax avoidance, such as tax avoidance, unless the purpose of tax avoidance is included in the title trust, and thus, it cannot be said that there was no objective and objective purpose of tax avoidance, which is the title truster, at the time of tax avoidance (see, e.g., Supreme Court Decision 2000Du17197.
B) In light of the following circumstances, it is difficult to conclude that, even if there are various purposes, such as the Plaintiffs’ act of title trust of the shares of ○○ Construction by means of the establishment of ○○ Construction, establishment of ○○ Construction, secondary capital increase by offering new shares, and acquisition of shares several times, it is difficult to conclude that it is an obvious purpose irrelevant to tax avoidance, and it is reasonable to deem that the Plaintiff Gangnam○ was intended to reduce the global income tax burden on the dividend income of ○○ Construction Stocks owned by ○○○○○○○○○ as well as such purpose. 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) which was in force at the time of the establishment of ○○ Construction (amended by Act No. 6488, Jul. 24, 2001) provides that three or more promoters should be required at the time of the establishment of ○○ Construction. However, there was no limitation on the number of shares acquired by promoters. Moreover, there is no special statutory reason that the number of shares acquired by promoters should continue to exist even after the establishment of ○○ Construction (hereinafter “○○ Construction”). ② The Plaintiff’s Gangwon-do is registered as a shareholder of ○○ Construction (hereinafter “○○ Construction”) and is not a legal restriction that does not permit the construction of ○○ Hospital, and even if there
③ All of the remaining Plaintiffs, a title trustee, were executives and employees of ○○ Hospital, ○○ Construction, and related companies. However, a number of changes made by the title trustee appears to have been a measure to maintain the reliability of the title trust relationship upon resignation.
④ Since ○○ Construction is a direct construction company of ○○ Hospital, it is expected that the construction works of ○○ Hospital have been given exclusive consideration, it is expected that considerable profits will accrue. It can be sufficiently predicted that such profits will ultimately be reverted to ○○○○, which is the actual owner of two corporations.
⑤ In fact, from 2007 to 2010, ○ Construction distributed a total of KRW 340 million to some of the Plaintiffs, who were shareholders in the name of ○○ Construction, on four occasions as follows. The date of dividend payment.
Total dividend amount
Withholding Tax Amount
Actual dividends
Income tax
Resident Tax
Total
340,00,000 47,600,000 47,760,000 287,640,000 287,640,000 on December 26, 2007; 11,200,120,120,67,680,000 on November 21, 2008; 80,000,000 11,200,000 11,200,1201,120,67,680,000,000 on June 80, 200; 15,00,000,111,200,12001, 607,68,608,6008,604,0000,68,0000;
④ Although Plaintiff Gangnam-gu claimed that a significant portion of dividends was paid to ○○ Construction’s officers and employees, etc. as a monetary reward, unlike the allegations above, Plaintiff Kang Jong-gu, on June 2012, said, around the first half of 2012, the principal trusted 50,000 shares of the principal under the name of ○○○ and 7 others, and reported that the principal paid KRW 340,000,000 to 207 to 2007 to 2010 to 200,000 to 340,000 won, and that each shareholder was withheld at source. However, it was written a written confirmation (Evidence No. 24) that “The principal confirmed that excluding dividend income tax and resident tax was returned in cash from
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 the title trust system is presumed to be a donation to the extent that it is intended to effectively prevent the abuse of the title trust system as a means of tax avoidance, and does not change the ownership of the property under title trust. Therefore, in a case where the first title trust shares are deemed to be a donation, the actual owner of the property under title trust is still a title truster notwithstanding the provision on the presumption of donation. Therefore, the preemptive right to the shares under title trust is deemed to be vested in the actual owner of the first title trust shares, and the title truster, by exercising the above preemptive right and paying the subscription price under the name of the title trustee, shall be deemed to have been in title trust to the title trustee (see, e.g., Supreme Court Decision 2004Du11220, Sept. 22, 2006). In addition, according to the reasoning that the first assertion that the Plaintiff’s first right to new shares was not subject to tax avoidance as seen earlier, the Plaintiffs’ first right to acquire the shares through title trust has no reason to view.
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 for 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) provides that a person liable to pay the gift tax pursuant to Article 4 of the same Act shall report the taxable value and tax base of the gift tax pursuant to Articles 47 and 55 (1) to the superintendent of the tax office having jurisdiction over the place of tax payment, and Article 41-2 (1) of the same Act provides that the actual owner shall be deemed the value of the property donated.
According to the above relevant provisions, as well as the person who is deemed to have received a donation by agreement between the parties as well as the person who is deemed to have received a donation under the statutes, the duty to report as a taxpayer of 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, 2000, deeming that the Plaintiff Kim○, Kim○, Kim○, Cho○, Cho○, and Hong○, who bears such duty to report as a donation of stocks from the Plaintiff Kang○, were deemed to have reported the taxable value and tax base of the gift tax, it is reasonable to deem that the exclusion period of imposition of each gift tax is 15 years. Accordingly, since each of the instant dispositions against the Plaintiffs was conducted within the exclusion period of 15 years, the above Plaintiffs
B) Whether the imposition of penalty tax is lawful
shall not be effective.
① Although ○○ Construction failed to receive the construction cost for a considerable period from the due date for payment, it did not take any measures to recover claims, such as requesting for performance and seizure, against ○○ Hospital, and did not separately claim compensation for delay.
② From around 2005, ○ Hospital had not paid the construction cost for a long period of time, even though it was sufficiently enough to pay the construction cost due to the occurrence of net income in the amount of KRW 29-5.6 billion each year.
③ As a result of examining similar cases, etc. on May 7, 2013 through May 5, 16, 2013 in accordance with the Review Order by the Tax Tribunal, the head of ○○ regional tax office verified the average number of days of annual settlement (66 days) of 14 construction companies that have traded at least 10 million won a year with ○○ Hospital, and re-calculated the number of annual amounts of annual amounts of outstanding construction works based thereon.
④ The Plaintiffs asserted that, compared to the construction contract concluded between ○○ Hospital and ○○ Construction, it cannot be viewed as a similar case because there was a difference in the construction cost, construction scale, construction period, etc. However, ○○ Construction was impossible to investigate the case of ○○ Construction since there was no other construction work except construction work ordered from ○○ Hospital. Accordingly, it was inevitable to investigate the case of the construction work ordered by ○○ 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 drugs, which is the main transaction at ○○ Hospital, should be compared to the case of the transaction of drugs (the average payment date, approximately 270 days). However, there is no evidence that the average payment date for the transaction of drugs was about 270 days. Moreover, it is inappropriate to view the construction contract and the transaction of drugs as a direct comparison due to a change in the purpose and implementation process of the contract, payment
6. Regarding the warranty bond to be considered at the time of calculating the recognized interest, the head of Defendant ○○ Tax Office calculated only the direct construction cost by type of work in the first place, but determined the property based on the Plaintiffs’ assertion as a result of the second investigation.
7) Although the term of warranty liability is three years for a new construction project of an emergency medical center, it is reasonable to calculate the respective detailed period of warranty 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, as there is no agreement on the remaining construction project. Defendant ○○ Tax Office calculated and calculated the defect warranty period by detailed type of each type
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 a third party who is not a specially related person and an unspecified number of persons who are not specially related persons in the situation similar to the relevant transaction, the said price shall be determined based on the said price, and Article 52(5) of the Enforcement Decree of the same Act, in the case of wrongful calculation under Article 88 of the same Act, the market price and the difference under the provisions of paragraphs (1)
In light of the following circumstances, ○○○○○○○○○○○○, a person with a special relationship, paid an amount exceeding approximately KRW 2.8 times the standards for the Association’s remuneration with the design service cost for the interior of ○○○○○○○ Hospital, compared to the price determined as applicable in normal trade with a person without a special relationship, it constitutes an object of rejection of unfair calculation, and it is legitimate to include the portion of the design cost paid in excess of the standards for the Association’s remuneration in the calculation of earnings. Therefore, the Plaintiffs’ assertion on this part is without merit.
① The design cost of KRW 247,670,00 paid by ○○○○○ and ○○○ Hospital when entering into the design work is the amount exceeding the amount exceeding KRW 88,832,725 of the association remuneration standard. ② Even if the Association remuneration standard is not mandatory, the standard under Article 1(1) of the Act states that “the purpose of this standard is to stipulate the standards for interior construction to be complied with when performing the work at the request of another person, and other standards for contracts to be concluded in addition thereto,” and each interior construction contract and indoor construction standard design is also the recommended standard for the use in the relevant industry as the reference of the association remuneration standard. Meanwhile, there is no evidence that the association remuneration standard is much lower than the remuneration for interior construction works.
③ In the case of an agreed design cost for an emergency medical center’s interior work concluded with ○○○○○○, there is no larger difference between the amount calculated according to the standard for remuneration for the association.
④ ○○ Construction concluded a contract with ○○○○○○○ and ○○ Hospital for the design of interior design rather than a design contract for the entire construction work at the time of concluding the interior design contract (Evidence 25). Therefore, it is difficult to deem that there is any error of law in calculating the ratio of net interior work to the expected ratio of net interior work among the amount obtained by subtracting the cost of installation work from the estimated cost of net construction work.
⑤ As ○○○○○○○○○○○○○○○○○○○○○’s father’s mother, the principal shareholder of ○○○○ Construction, obtained a bachelor’s degree as an industrial design from March 200 to February 2, 2005, and obtained a master’s degree from ○○○○○ University’s Art University’s University as an indoor construction (Evidence 21). From June 2008 to May 201, the Plaintiff acquired a bachelor’s degree from ○○○○○○○○○○○○○’s design from ○○○ University’s Round Islands’s Dudybll design (Evidence 21). As at the time of concluding each of the instant interior construction contracts, it is difficult to expect that ○○○○○ was paid a design fee exceeding the number of standard for remuneration of the association in normal transactions, insofar as he had a special qualification or career, or provided services at a level different from the ordinary interior. Meanwhile, there is no evidence to acknowledge that ○○○ has provided any other services.
4. Conclusion
Therefore, the part of the Plaintiff’s lawsuit, which seeks revocation of the tax amount exceeding KRW 996,649,030, among the joint tax payment notice disposition of KRW 1,019,050,430, among the lawsuit of the Plaintiff Gangwon-do, is unlawful, and thus, it is dismissed. The remainder of the Plaintiffs’ claims and the remainder of Plaintiff Gangnam ○○ is dismissed as it is so decided as per Disposition.
Plaintiff
Gangnam ○○, Kim○, Kim○, Kim○, Cho○, Cho ○○, and Hong○○, have a title to avoid a real donation.
In the case of pure title trust, not in the case of trust, payment is made beyond the obligation to report to the title trustee.
It is alleged that imposing penalty tax is contrary to the principle of substantial taxation, but it is not paid.
The legal basis for the substantial additional tax shall be limited and interpreted as otherwise alleged by the above plaintiffs.
Therefore, the above plaintiffs' assertion is without merit.
4) Judgment on the fourth argument
A) Facts of recognition
(1) ○○ Construction in which the Plaintiff, the president of the ○ Hospital, held 100% of the shares.
A. Since its establishment on December 19, 2000, the following several construction contract accounts between ○○ Hospital and each other:
In addition to the construction ordered by ○ Hospital, there is no record of performing other construction works.
Details of construction (the changed matters shall be changed after the change)
Details of warranty liability;
Evidence
No.
Name of Corporation
First
Date of contract
Contract Price
Period
The deposit rate;
Warranty Liability
Time Limit
1
○○ Hospital Area
Emergency Medical Centers
New Construction Corporation
5, 2003
23,308,500,000
2003.2.10.〜
April 30, 2005
3%
After completion
3 years;
A6
2
○○ Hospital
Extension Corporation
April 18, 2005
32,000,000,000
2005.4.18〜
May 30, 2007
3%
Non-Agreement
A7
3
○○○ Hospital
The Improvement and Repair Corporation
July 1, 2007
8,830,000,000
2007.7.1〜
.208.9.30
3%
Non-Agreement
A8
4
○○ apartment
Remodelling Corporation
November 1, 2009
60,000,000
Above November 1, 2009
Mar. 30, 2010
-
Non-Agreement
A9
5
○○ Hospital
Specialized Care Center
Extension Corporation
December 1, 2010
60,000,000
2010.12.1〜
March 30, 2011
-
Non-Agreement
A10
6
Gu ○ Hospital
Repair Corporation
January 5, 2011
505,100,000
Above January 1, 2011
May 30, 2011
-
Non-Agreement
A11
(unit: Won)
(2) When ○○ Construction entered into a contract for construction works set forth in the table 1 to 3 above with ○ Hospital.
The rate of warranty bond shall be 3%, but the warranty bond shall be submitted or
There is no fact that the deposit is made in cash.
(3) When ○○ Construction executes a construction contract with ○○ Hospital, ○○ Construction claims progress payment.
(14) If the contract was agreed to receive the construction cost within 14 days from the date of completion of the inspection,
Corporation from ○ Hospital, such as receiving the construction cost after the extended period has elapsed from the due date;
The annual accounts receivable of ○○ Construction have not been recovered for a long time. The present status of the accounts receivable of the construction are as follows:
Year
The monthly amount of electrical interest;
The price of the donation;
Amount of reduction in the amount of reduction in the amount;
Amount of the monthly interest rate;
206
2,743
14,278
11,280
5,741
2007
5,741
8,846
12,496
2,091
208
2,091
8,897
8,607
2,381
209
2,381
1,398
1,186
2,593
2010
2,593
1,567
1,825
2,335
2011
2,335
768
1,225
1,878
(unit: million won)
(4) Meanwhile, the river, which is the father's assistant, is an indoor design firm from January 2005 to around 2005.
“○○○○○○” was operated on August 31, 2006 and February 19, 2008.
Name of Corporation
Date of contract
Contract area (Land size)
Contract Price (cost)
○○ Regional Emergency Medical Center Extension Corporation
Design of interior design
(hereinafter referred to as "Emergency Medical Center Human Rights Corporation")
August 31, 2006
287,134.48
361,900,000
The construction for the renovation and repair of the ○○ Hospital;
Design and Supervision
(hereinafter referred to as '○ Hospital Human Rights Corporation')
February 19, 2008
20,991.83
247,670,000
The following two design design and supervision agreements were concluded.
(5) Article 2 of the above contract for the construction of interior works is "○" upon the conclusion of the contract.
30% of the design remuneration under Article 1 shall be paid to the ○○○○ by down payment, and the design business shall be in progress.
shall pay 30% in interim payments, and the balance shall be paid at the time of completion of the design.
Dr. The term "Article 3 (5) of the Cr. Association's remuneration standards" is written.
(6) The criteria for remuneration of the Indian Association are the consultation on interior construction work business of the Korean Specialized Construction Association.
In order to say that the standards for remuneration for interior buildings (hereinafter referred to as the "standards for remuneration for the Association") are prepared by the Board, the cooperation
The Council is a voluntary organization in which companies only performing indoor construction are members of the Council.
(7) The Institute's remuneration standards are not binding on the grounds of no legal basis, but are non-governmental ordering entities.
In case of conducting related affairs, it is presented as a recommendation, and Article 3(5) of the Institute Remuneration Standard
The method of payment of the amount is defined as the method of payment of the amount, and the method of calculation of the design cost is defined as the
Classification
Amount (won)
Classification
Amount (won)
O Contract Amount
(5) A project expected for interior works ( ① x No.4)
(Deduction) Profits
(6) Remuneration rates for standards for associations.
(1) Estimated expenses among hospital corporations.
(7) The amount of remuneration for the association standard (n).
Deduction) Common construction expenses
(8) 30% added to supervision services.
(2) The scheduled net construction cost.
(9) Standards for remuneration to the Rotterdam Association:
(Deduction) Machines and Equipment Corporation
(10) Contract price;
(3) Estimated expenses for the net interior works.
⑪ 부당행위계산부인금액(⑩-⑨)
(4) The ratio of interior works (III ¡À ②)
다음과 같다(①~⑨항, 원고들이 특히 문제 삼고 있는 항목은 ②항이다).
(8) Pursuant to the decision of the Tax Tribunal on April 15, 2013, Defendant ○○ Head of the Tax Tribunal’s second section
(1) Re-investigation pursuant to the Decision of April 15, 2013 rendered by the Tax Tribunal (Evidence B No. 28)
○ Review of the Average Settlement Date of Construction Costs
- Cases where ○○ Construction does not have any business partner other than ○ Hospital and a related corporation, which are similar to ○○ Hospital;
none of them can be found.
- Of the construction works ordered by ○○ Hospital other than ○ Construction, the number of payment dates for construction works by non-special-related companies (not less than 14 companies) which have executed construction works not less than 10 million won a year is calculated by weighted average average settlement date as follows:
- Recognizing delayed recovery of the amounts due for construction works, applying the average number of settlement days for the annual construction costs as above;
The interest shall be re-calculated.
○ Review of Standards for Calculation of Warranty Bonds
- Article 72(1) of the Enforcement Rule of the Act on Contracts to Which the State is a Party provides that the rate of security deposit for repairing defects shall be determined for the contract amount under Article 72(1) of the Enforcement Rule of the Act on Contracts to Which the State is a Party, and the amount of security deposit for repairing defects under Article 4(2) shall be between 2/100 and 10/100 (general construction works: 3/100) of the contract amount under the conditions as prescribed by the Ordinance of the Ministry of Finance and Economy. Thus, it is reasonable to calculate
The results of the survey are as follows.
Business year
2007
208
209
2010
2011
Average
Average Number of Settlement Days
53 days
91 days
89 days
32 days
58 Days
66 days
(9) According to the second findings of the investigation, the director of the tax office of ○○ shall set the following recognized interest rates:
From 592,761,881 to 489,265,363 won, a corporation shall be appropriated as property, and a corporation shall be included in the annual income; and
Tax year
Recognized interest (won)
Outgoing processing costs (cost)
The primary investigation
2 The second investigation
2007
128,382,267
122,264,800
208
8,545,858
25,120,665
158,837,275
209
136,352,923
19,197,290
2010
130,466,754
120,271,381
24,957,000
2011
109,014,079
102,411,227
Total System
592,761,881
489,265,363
183,794,275
The amount of reduction 21,537,080 won was decided to be refunded.
(10) Meanwhile, the net income of ○ Hospital from 2005 to 2011 is as follows.
Business year
Revenue amount
Amount of income;
Tax amount payable
Income rate;
net income
205
65,207
3,175
433
4.87%
2,982
206
72,331
4,227
622
5.84%
4,071
2007
85,447
5,408
703
6.33% by mass
4,692
208
93,398
5,297
863
5.67%
4,414
209
102,583
5,177
922
5.05%
5,564
2010
11,424
4,648
725
4.17%
5,666
2011
18,525
2,825
433
2.38%
4,124
(unit: million won)
Facts having no dispute over recognition, Gap's 1 through 3, 6 through 12, 14, 15, 17, 19, 21, 22;
2, 24 through 28, 36 through 46 (including each number), the witness Lee ○-○
Some testimonys, inquiries to the Chairperson of the Indoor Construction Business Association of this Court
As a result, the result of the part of the personal identification of the plaintiff Sung ○○, the purport of the whole argument
B) Determination on delayed collection of construction costs
A corporation shall delay the recovery of claims that should be paid by its specially related persons without justifiable grounds.
the amount equivalent to the claim has been recovered in full by the due date for the performance of the obligation; and
In that it has the same effect as paid, the amount equivalent to the unpaid claim is equivalent to Article 28 of the Corporate Tax Act.
Section 1(4)(b) of the Act constitutes “provisional payments, etc. paid without connection with the business”
interest paid on a loan equivalent thereto shall not be included in the calculation of losses, and such loans shall also be included in such expenses.
Tax due to the lack of economic rationality in the light of sound social norms or commercial practices;
Article 52 of the Corporate Tax Act; Article 52 of the former Corporate Tax Act;
Unfair conduct under Article 88 (1) 9 of the Enforcement Decree as an act corresponding to subparagraph 6 of the same paragraph;
A person who is recognized as such by the above accounting book shall be included in the gross income (Supreme Court Decision 201Da1548, Jan. 14, 2010).
Supreme Court Decision 2007Du5646, Supreme Court Decision 2008Du15541 Decided October 28, 2010, Supreme Court Decision 2008Du15541, October 26, 2006
See Supreme Court Decision 2005Du1558, supra.
The following circumstances may be known in full view of the facts of the recognition of the case and the purport of the entire pleadings:
In light of the above, the head of ○○ Hospital where ○ Construction was a person with a special relationship to recover the construction cost.
The delay in the period is a lack of economic rationality in the light of sound social norms or commercial practices.
○ hospital is subject to rejection of wrongful calculation because the tax burden has been unjustly reduced.
The delay in the amount due for the construction on the basis of the average settlement date of the construction works ordered by an enterprise other than this ○ Construction
The inclusion of the person who recognized the withdrawal interest in the calculation of the withdrawal interest is legitimate. Therefore, the plaintiffs' allegation in this part is justified