Plaintiff church (Law Firm Barun, Attorneys Regular Money)

Head of the Do Tax Office

August 23, 2005

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On December 2, 2003, the defendant designated the plaintiff as the second taxpayer and revoked the disposition imposing corporate tax of KRW 1,214,606,320 on the non-party 1 corporation in 196.

1. Details of the disposition;

The following facts do not conflict between the parties, or can be acknowledged in full view of the whole purport of the pleadings in the descriptions of Gap evidence 1 through Gap evidence 9-1, 2, 15-1, 2, 19, 19, 1 through 3-1, 2, 9-1, 9-2, 9-1, and 2:

A. On October 2, 1996, the non-party 1 corporation (hereinafter "non-party 1 corporation") transferred the name to the plaintiff church (former omitted; hereinafter "the plaintiff church") on October 2, 1996, the name was changed, and then closed on August 31, 1996, the Dobong-gu Seoul Metropolitan Government Non-party 1 corporation (hereinafter "non-party 1 corporation") transferred the same 706-2 square meters, 128.4 square meters, 706-4 square meters, 706-5 square meters, 1,400 square meters, 706-8 square meters, 306.1 square meters, and 759.52 square meters of the above ground building (hereinafter "the real estate of this case") to the previous 3,800,000,000 won, and the previous 3,000 square meters on August 31, 196.

On January 16, 1997, before the due date for return and payment of corporate tax for the year 1996, the Defendant imposed corporate tax for the non-party company 709,776,806 and special surtax 513,760,000 on the non-party company prior to the due date for return and payment of corporate tax for the year 196.

B. However, around December 200, the defendant filed a complaint with Nonparty 2, who was notified by the investigative agency of the suspicion of tax evasion of the plaintiff church, and on March 2, 2001, on the ground that the tenant company transferred the real estate in this case to the plaintiff church, a person with a special relationship, the amount of less than the market price (the defendant considered the total amount of KRW 4,785,575,130, which is the difference between the transfer price and the market price of the above transfer price, based on the wrongful calculation of the amount of KRW 985,575,130, which is the difference between the transfer price and the transfer price, and then the non-party company imposed the corporate tax and special surtax KRW 75,780,30 ( corporate tax 458,97,322 won + special surtax 316,782,983 won + KRW 75,780,305, 105 won) and imposed the corporate tax on the non-party company pursuant to the above imposition on the plaintiff 319.

Accordingly, the Plaintiff church filed a lawsuit against the Defendant seeking revocation of the above disposition of imposition, and appealed on August 23, 2002, after receiving a judgment against the Defendant on August 23, 2002, but the Defendant revoked the above disposition of imposition against the Nonparty Company and the Plaintiff church on the ground of the defect in the service of the notice of payment on December 1, 2003, which was pending in the appellate trial, and the Plaintiff church withdrawn the above lawsuit on December 8

C. On December 2, 2003, the day following the revocation of each of the above dispositions, the Defendant imposed the corporate tax and special surtax totaling KRW 1,214,606,320 on the non-party company (the corporate tax of KRW 715,98,940 + the special surtax totaling KRW 498,617,380 + the special surtax totaling KRW 498,617,380, and the reason why the amount of the first disposition was increased by the additional tax included in the above tax amount; hereinafter “the tax amount in arrears”). On the same day, the Plaintiff church designated the non-party company’s secondary taxpayer of the corporate tax for the year 1996 and imposed and notified the above amount in arrears on the non-party company.

D. On February 16, 2004, the Plaintiff church appealed and requested an examination to the Commissioner of the National Tax Service, but on July 30 of the same year, upon dismissal of the above request, the Plaintiff church filed the lawsuit in this case.

2. The plaintiff church's assertion and relevant Acts and subordinate statutes

A. The plaintiff church's assertion

The plaintiff church asserts that the disposition of this case should be revoked because it is unlawful in the following point.

(1) Although the Plaintiff church owned 35,643 shares of the non-party company at the time of acquiring the real estate of this case, it did not have a special relationship with the non-party company since it sold the shares of the non-party company from December 31, 1994 and did not own the shares of the non-party company at the time of acquiring the real estate of this case.

The purchase price is determined based on the transaction price of neighboring land at the time of the purchase of the instant real estate by the Plaintiff church. Thus, the above purchase price cannot be deemed to be lower than the market price of the instant real estate. Among the instant real estate, the above ground buildings, among the instant real estate, are scheduled to be removed because they were old and thus, cannot be included

In addition, in order to issue a notice of payment to the second taxpayer, the Defendant imposed a tax on the first taxpayer and completed the procedure to determine his specific tax liability. The Defendant, without any tax disposition on the second taxpayer, designated the Plaintiff church as the second taxpayer and imposed the instant tax disposition on the non-party company. Even if the tax disposition is imposed on the non-party company at present, it is unlawful for the non-party company to pay the tax after five years have elapsed from the exclusion period of imposition. Thus, the instant tax disposition based on the premise that the non-party company is liable for tax payment is unlawful. Even if the exclusion period of imposition was applied seven years due to the non-party company’s failure to file the corporate tax base return within the statutory exemption period, and the imposition is legitimate, five years have already elapsed

x) Furthermore, the Defendant’s revocation of the first disposition and the instant disposition, which included the maximum amount of the tax imposed in the instant case’s imposition, as well as the unpaid additional tax, is contrary to the good faith principle.

(b) Related statutes;

Attached Table 1 is as stated in the relevant Acts and subordinate statutes.

3. Whether the instant disposition is lawful

(a) Whether the person is a specially related person;

(i)Recognitions

The following facts may be acknowledged in light of the whole purport of the pleadings in the statements as Gap evidence 10-1 through 30, Gap evidence 11, 16, Gap evidence 17-1, 2, 4, and 18-4 through 7, and each part of Gap evidence 17-3, 5 through 9, 12, and 18-1, 2, 8 through 19, 21 through 27, are not believed in light of the following facts acknowledged:

㈎ 원고 교회는 1992년부터 이 사건 부동산 중 토지 위에 새로운 교회건물을 신축하기 위하여 이 사건 부동산을 취득하고자 하였으나, 당시 시가가 상당히 고액이어서 이를 직접 매수하는 방법은 포기하고 그 대신 우회적인 방법으로 당시 이 사건 부동산을 소유하고 있던 소외 회사의 주식을 인수한 후 소외 회사로부터 이 사건 부동산을 헌납받는 형식을 취하기로 하고, 그 주식을 모두 인수하였다.

㈏ 그런데 소외 회사가 1996. 9. 30. 폐업하고 부도난 상태로 자산이 전혀 없는데다가 당시 약 1,550,000,000원 상당의 법인세를 부담하고 있어, 원고 교회가 과점주주인 상태에서 이 사건 부동산을 소외 회사로부터 매수할 경우 소외 회사가 부담하고 있던 법인세와 이 사건 부동산의 양도로 인한 법인소득세를 제2차 납세의무자로서 부담하게 되는 사정을 알고, 이를 회피하기 위하여 이 사건 부동산을 취득하기 전인 1994. 12. 31.경부터 1995. 10. 12.경까지 사이에 원고 교회가 소유하고 있던 소외 회사의 주식을 소외 4 등 30인의 원고 교회 교인들에게 위장분산시켜 형식상 과점주주의 지위에서 벗어난 후 앞서 본 바와 같이 1996. 10. 2. 이 사건 부동산을 취득하였다.

㈐ 한편, 원고 교회 목사이던 소외 2는 위와 같은 주식 위장분산의 방법으로 소외 회사와 원고 교회의 법인세 및 특별부가세를 포탈하여 특정범죄 가중처벌 등에 관한 법률위반(조세) 혐의 등으로 기소되어(공소사실에는 위 혐의 외에 제3자뇌물교부, 위증, 사기, 사문서위조 등의 혐의가 포함되어 있다) 1심에서 조세포탈의 점 등에 관하여 유죄판결을 받았으나, 항소심인 서울고등법원(2002노2570 등 사건) 으로부터 2005. 7. 15. 주식의 위장분산 여부에 대한 판단없이 제2차 납세의무의 성립 및 확정에 관한 법리에 따라 납부기한 내에 세액을 모두 납부한 이상 죄가 되지 않는다는 이유 등으로 일부 무죄판결을 받았고, 이에 대한 검사의 상고로 현재 대법원 2005도5567호 로 상고심 계속중이다.

Shed Judgment

According to the above facts, the plaintiff church merely did not hold the shares of the non-party company in the name of its members, and it can be known that most of the shares of the non-party company were owned by the non-party company at the time of acquiring the real estate of this case from the non-party company. Thus, the plaintiff church's argument that the non-party company did not have a special relationship with the non-party company is without merit.

(b) Whether it is improper to calculate the market price;

According to the evidence mentioned above and Gap evidence Nos. 12 and Gap evidence Nos. 12 and 14, the aggregate of the officially assessed individual land prices of the real estate in this case is KRW 4,682,026,00, the aggregate of the assessed individual land prices of the real estate in this case is KRW 103,549,130, the aggregate of the assessed individual land prices of the real estate in this case is KRW 4,785,575,130, and the plaintiff church requested the Korea Appraisal Board to conduct the market price appraisal of the real estate in this case except for the remaining real estate excluding KRW 706-2, 128.4m2 and 128.4m2 as of the above request date, and the plaintiff church did not recognize the fact that the assessed price was KRW 5,376,056,400, and the plaintiff church did not purchase the real estate in this case from KRW 300,700,300,400,7000.

The phrase "market price" under Article 46 (2) 4 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998) means, in principle, an objective exchange price formed through a general and normal transaction, and in cases where there is no such an example, or where it can be deemed that the relevant transaction properly reflects the objective exchange price at the time of the transaction in a general and normal manner, even if there is no such an example, the price shall be deemed to be the market price. However, in cases where the market price is unclear, the appraisal corporation under the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 86 of May 24, 199; hereinafter referred to as the "Public Notice Act") shall not be deemed to be the market price of the above real estate, and in cases where there is no appraisal value, it shall not be deemed to have been a difference between the appraisal price of the above real estate at the time of the purchase of the above real estate at the market price.

(c) Whether the exclusion period is expired;

(1) Whether the exclusion period for the non-party company is expired

Article 26-2(1)2 and 3 of the Framework Act on National Taxes provides that the exclusion period of general national tax imposed shall be five years, while the exclusion period shall be seven years if a taxpayer fails to file a tax base return within the statutory due date of return. On December 2, 2003, the date on which the Defendant imposed the corporate tax for the year 1996 and the special imposition tax on the non-party company is imposed on the non-party company. (Article 26-2(4) of the Framework Act on National Taxes, Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes, Article 26(1) and (3) of the former Corporate Tax Act (Article 26-3(4) of the Enforcement Decree of the Framework Act on National Taxes, Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes, Article 26(3) of the former Corporate Tax Act) has passed five years after the lapse of seven years. Accordingly, this issue is whether the non-party company lawfully

Therefore, according to the statements in Gap evidence 2, Gap evidence 15-2, and non-party 3's testimony, the defendant did not calculate the additional tax at the time of imposing corporate tax, etc. on the non-party company on March 2, 2001, and the plaintiff church filed a petition for a trial on the disposition of imposition on March 15, 2001, the National Tax Tribunal stated that "the non-party company transferred the real estate of this case to the plaintiff church to the plaintiff church and reported the fact to the disposition office by the corporate tax return," and the non-party 3, the representative of the non-party company, without knowledge of the fact that the defendant was occasionally imposed on January 1, 1997, prepared the tax base report on the corporate tax and special surtax for 196 and submitted it to the defendant on March 15, 2001."

However, comprehensively taking account of the following facts: Gap evidence 2, Eul evidence 1, Eul evidence 9-1 and Eul evidence 9-1 and 2, the defendant completed an investigation of the non-party company's tax evasion charges, including corporate tax from 1991 to 1995 on September 30, 196, and conducted an additional investigation again before the transfer of the real estate was revealed; the non-party company's tax base and revised the tax amount for the non-party company's 709,76,806 (tax base 2,577,774,788), and the non-party company's tax base and adjusted the non-party company's tax amount for the first time on 1996, before the expiration of the tax base and revised the non-party company's tax base and revised the non-party company's tax amount for the non-party company's 20,760,000 won (the non-party company's tax base and adjusted the tax amount for the non-party company's 2 and special surtax.

Comprehensively taking account of the circumstances where Nonparty 3, who was the representative director of the non-party company, testified that the non-party 3 submitted the tax base return under the circumstance of the non-party 3 being aware of the fact of occasional assessment on or around January 1997, it is consistent with the empirical rule to view that the non-party 3 had already closed the non-party company and closed the business, did not report the non-party company's corporate tax and special surtax for the pertinent taxable year, even though the contents of the non-party company's tax base return for corporate tax and special surtax for which the non-party 3 did not know of the fact that the non-party 3 knew of the fact that the non-party 3 did not know of the fact that the non-party 3 was under the non-party company's own duty to report the tax base at the time of taxation. Meanwhile, since the non-party 3 did not know of the fact that the non-party company did not report the tax base at the time of the non-party company's taxation and the non-party 3 did not report for the non-party 197 years 19.

D. Whether the exclusion period for the plaintiff church has expired

The second tax liability is a system that allows a third party in a special relationship with the original person liable for tax payment to pay supplementary tax within the scope of the amount that is not collectible from the original person liable for tax payment in order to secure tax collection. Even if the second tax liability formally belongs to a third party, if it is deemed that the property actually belongs to the original person liable for tax payment, and thus it does not lose fairness, thereby avoiding the title of formal rights, thereby hindering judicial order, thereby allowing the title holder to pay supplementary tax, thereby promoting the rationalization of collection procedures (see Supreme Court Decision 82Nu192, Dec. 14, 1982, etc.). The second tax liability notice is merely a disposition to notify the occurrence of such obligation, and thus, the period of exclusion is not applicable to the second tax liability, and even if the second tax liability is applied to the second tax liability, the second tax liability is not specifically determined by the Supreme Court’s decision that the second tax liability becomes final and conclusive by the Supreme Court’s decision that the second tax liability becomes final and conclusive by the 95th decision.

Therefore, the plaintiff church's assertion to the effect that the exclusion period of the second tax liability imposed on the plaintiff church commences along with the date on which it can be imposed on the non-party company, and that in the case of the plaintiff church that did not have the obligation to report at the time of the disposition of this case,

D. Whether the duty is imposed in violation of the good faith principle

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, when a taxpayer violates various obligations, such as a tax return and tax payment, as prescribed by the individual tax law, the taxpayer's intentional negligence is not considered as administrative sanctions imposed as prescribed by the individual tax law. The taxpayer filed a lawsuit seeking revocation of the relevant disposition, or as in this case, the defendant cancelled the prior disposition on the ground of violation of the procedure during the lawsuit seeking revocation of the plaintiff's disposition, and thus, it cannot be deemed that the taxpayer cannot expect the fulfillment of the obligation to pay the plaintiff church's payment obligation or that the taxpayer fails to fulfill his obligation to pay the tax, on the ground that the part of the disposition imposing penalty in this case cannot be deemed to violate the good faith principle on the sole ground that it

E. Sub-decision

Therefore, the disposition of this case where the plaintiff church is deemed as a specially related person of the non-party company and the portion exceeding the officially assessed individual land price out of the transfer price of the real estate of this case is calculated by wrongful calculation and thus the plaintiff church is responsible for the secondary tax payment of the amount equivalent to the delinquent tax amount of the non-party

4. Conclusion

Therefore, the plaintiff church's claim of this case seeking revocation is dismissed on the premise that the disposition of this case is illegal, and it is so decided as per Disposition.

Judges Lee Tae-tae (Presiding Judge)