(영문) 서울고등법원 2006.3.30.선고 2004누26224 판결

The disposition of imposition of KRW 14,456,00 on May 10, 200 by the Head of Jung-gu Tax Office against the plaintiff Jung-young on May 10, 202 is revoked.

2. The part of the judgment of the court of first instance against the defendant Gangnam-gu director of the tax office shall be revoked, and the plaintiff Jeong Mon's claim corresponding to the revoked part shall be dismissed.

3. All remaining plaintiffs' appeals except the plaintiff Jeong-young are dismissed.

4. The total costs of litigation incurred between the plaintiff Jeong Mon decoration and the defendant Gangnam-gu Head of the tax office are divided into two parts, and the remainder is borne by the above plaintiff, and the total costs of litigation incurred between the plaintiff Jong-young and the defendant Jung-gu Head of the tax office shall be borne by the above defendant. The costs of appeal arising between the plaintiffs, other than the plaintiff Jong Monon and the defendant Jung-gu Head of the tax office shall be borne by the above plaintiffs. All costs of appeal arising between the defendants

Purport of claim and appeal

1. Purport of claim

Attached 1. Imposition of gift tax by the Defendants against the Plaintiffs as shown in the list of imposition disposition

The revocation of the Plaintiff Jeong-hun was made in the first instance, and the head of Gangnam-gu Tax Office made on January 3, 2002 the gift tax on January 3, 2002

Section 47,346,00 won to reduce the amount of 660,400 won by 47,346,000 won, the part in response to the correction.

The purpose of the claim was reduced or amended).

2. Purport of appeal

A. The plaintiffs: Each part of the judgment of the court of first instance against the plaintiffs shall be revoked. The defendants' attached Form 2.

Each disposition of gift tax imposed on each individual shall be revoked, such as in the list of excess disposition.

B. The director of the Gangnam Tax Office: the cancellation of the losing part of the judgment of the court of first instance against the director of the Gangnam Tax Office; and

The plaintiff's claim for a decoration corresponding to the cancellation part is dismissed.

Reasons

1. Details of each disposition of this case;

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, since it added "Nos. 14 through 19" to "No. 8 of the judgment of the court of first instance" as evidence employed, and some of the reasons of the judgment of the court of first instance are the same as that of the reasons for the judgment of the court of first instance as follows.

[Completioned Parts]

가. 제1심 판결 제4쪽 제18행부터 제20행까지의 ' ( 위 피고가 2002. 1. 3. 원고 정몽훈에 대하여 한 1998년도분 증여세 금 920, 400, 000원의 과세처분 중 위와 같이 감액 경정되고 남은 금 660, 400, 000원의 부과처분을 ' 이 사건 제1 부과처분 ' 이라 한다 ) ' 부분을 ( 3 ) 한편, 제1심에서 이 사건 제1, 2 주식에 관하여 시가 산정의 근거로 삼을 수 있는 정상적인 거래의 실례가 존재하지 아니하므로 보충적 평가방법에 따라 그 가액을 산정함이 타당하다는 이유로 1998. 1. 9. 자 거래가액을 시가로 인정하여 한 위 피고의 위 과세처분을 취소하자, 위 피고는 이 사건 제1, 2 주식을 보충적 평가방법에 따라 평가한 후 위 ○○전자 발행 주식의 평가가액을 1주당 0원으로, 위 델파이 ㅇㅇ 발행 주식의 평가가액을 1주당 금 5, 621원을 각 산정하여 증여세의 세액을 금 47, 346, 000원으로 재감액 결정하였다 ( 위 피고가 2002. 1. 3. 원고 정몽훈에 대하여 한 1998년도분 증여세 금 920, 400, 000원의 과세처분 중 위와 같이 2회에 걸쳐 감액 경정되고 남은 금 47, 346, 000원의 부과처분을 ' 이 사건 제1 부과처분 ' 이라고만 한다 ) ' 로 고쳐 쓴다 .

B. Part 14 and 21 of the 6th judgment of the court of first instance regarding the "current Status of Transactions in Attached Form 2" shall be written in Attached Form 3. The current status of transactions.

(c) No. 7 of the first instance court Decision 547, 383, 200 Won 547, 383, and 200 Won 14 shall be written by referring to 547, 383, and 200 Won.

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

A. Relevant statutes

This part is the same as the entry in the corresponding column of the reasoning of the judgment of the first instance.

B. On the first disposition of this case, the Plaintiff’s assertion on the instant disposition of this case (1)

The defendant Gangnam-gu Tax Office assessed the value of shares No. 1 and 2 of this case according to supplementary assessment methods, and calculated the valuation value of shares No. 2 of this case as 5,621 per share, respectively. However, since the valuation value of shares No. 2 of this case is based on the balance sheet before the base date of appraisal for more than 3 months before Dec. 31, 1997, it is difficult for the tax authority to reflect the change in net asset value from January 1, 1998 to March 9, 198, as well as the burden of proof on the ground that it is extremely difficult for the tax authority to prove that the assessment value of shares of the O-related company of this case is the market value of shares of this case without assessing the net asset value of the 3rd company of this case, and thus, it is unlawful for the tax authority to have the burden of proof on the ground that the assessment value of the above shares of this case is an unlawful taxation method (see Supreme Court Decision 2008Da1787, Dec. 31, 19, 1997.

(B) Considering these circumstances, when the tax authorities have proved the legality of the taxation disposition to the extent that they reasonably acceptable, the taxation disposition should be deemed legitimate once, and the burden of proof to support the assertion contrary to this should be deemed to have been returned to the taxpayer, who is the other party.

(C) Comprehensively taking into account the circumstances leading up to the taxation of this case and the progress of lawsuit 1; 1, 2, 14 through 19 each of the statements stated above; 3, the above defendant's 198 demanded the submission of financial statements, etc. for the assessment of the 2, including OO's business activities from January 1, 1998 to March 10, 198; 9, the above defendant's 196, the appraisal method of the 196th appraisal of the 9th appraisal of the 19th appraisal of the 19th appraisal of the 9th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal of the 19th appraisal.

C. Regarding the second disposition of this case, (1) Plaintiff Jeong-young's assertion on the second disposition of this case

The chief of the Defendant’s Central Tax Office calculated the value of shares No. 3 of this case as KRW 3,644 per share by the supplementary assessment method. However, the above valuation value is unlawful as it disregards the prepaid cost that existed as the company’s assets as of March 31, 1998, which is the base date for appraisal, and ② even if it is justifiable to deduct the aforementioned prepaid cost from the total amount of assets, the amount of KRW 781,048,817, which is the player’s profit accrued until the base date for appraisal, should be excluded from the liability as of the base date for appraisal. Accordingly, the assessment value per shares of shares No. 3 of this case is 5,363 won, and it is impossible to make a donation exceeding the value of KRW 5,00 per share, the transfer value of which is 5,00,000 per share.

(2) Determinations (A) 1, 2, and 12-1 through 11 (No. 12-1, No. 10, No. 11-1, No. 12) of the above evidence No. 4-12-1, and the above defendant's whole purport of the pleading is as follows: (a) based on the balance sheet, etc., which was submitted by the pertinent corporation at the time of filing a corporate tax base return, before December 31, 1997, the value of shares No. 3 as of March 31, 1998, should be calculated based on the supplementary evaluation method; (b) the amount of shares No. 1,019,034,030 won should be deducted from the assets of the pertinent corporation; and (c) it is acknowledged that the above defendant's calculation of the value of shares No. 13 as of the base date of appraisal should be based on the evidence No. 9-1, 31, 197.

In light of the records, it is also impossible to calculate the legitimate amount of tax in relation to the second disposition of this case ex officio. Thus, the second disposition of this case is to be revoked in full.

D. The reasoning for the court’s explanation on this part of the transfer of shares No. 2 and shares No. 3 in this case is the same as the reasoning for the judgment of the court of first instance, thereby citing it as it is.

E. Regarding the third disposition of this case, Plaintiff B, D, E, F, and H’s assertion

Attached 1. The Defendants indicated in the “Disposition Agency column” list of the taxation disposition list: (a) calculated the value of shares No. 4 of this case as KRW 4,523 per share by supplementary assessment methods; (b) it was based on approximately 10 months prior to September 29, 1999 or the balance sheet dated Dec. 31, 1998, which is the date of the disposal of shares No. 4 of this case; and (c) thus, the said valuation value was the valuation value at the time of the transaction of shares No. 4 of this case, and thus, the disposition of imposition No. 3 of this case, premised on

(2) The judgment (A) is based on the legal principles as to the burden of proof and degree of proof in the lawsuit seeking the revocation of the tax disposition as seen above, based on the case of this case based on the burden of proof and the degree of proof, Eul evidence 2-3, Eul evidence 4-5, Eul evidence 5-6, Eul evidence 6-4, Eul evidence 8-3, Eul evidence 13-1 through 15, and the whole purport of the pleadings, the above defendants' whole purport of the arguments is examined. The above defendants' explanation that the amount of 4 stocks of this case had not been submitted to the court for the assessment of the 4 stocks of this case from January 1, 199 to September 29, 199, the amount of 00 ○○'s business activities had not been submitted to the court for the purpose of calculating the amount of net assets of this case, including the amount of net assets reported by the pertinent corporation at the time of the evaluation of the 19th 19th 19th 199.

( 나 ) 그렇다면, 위와 같이 위 원고들이 과세요건 사실을 뒷받침해주는 과세자료에 해당하는 1999. 1. 1. 부터 1999. 9. 29. 까지 당해 법인인 델파이 ㅇㅇ의 영업활동에 대한 가결산 재무제표 등을 비롯한 그 근거가 되는 원시자료들을 제대로 제출하지 아니한 상황에서, 과세관청인 위 피고들이 당해 법인이 법인세 신고 시 스스로 세무서에 신고한 최근 자료인 1998. 12. 31. 자 대차대조표를 기초로 1999. 1. 1. 부터 1999. 9. 29 .지 사이의 확인 가능한 부동산 등의 평가차손, 법인세법 상의 유보금액, 선급비용, 부채액 등을 비롯한 순자산가액 변동 상황 등을 종합 고려한 보충적 평가방법에 의하여 이 사건 제4 주식의 1999. 9. 29. 당시 평가가액을 1주당 금 4, 523원으로 산정하였다면 , 위 피고들로서는 당해 과세처분의 적법성을 합리적으로 수긍할 수 있는 정도로 그 입증책임을 다하였다고 할 것이므로, 그에 기하여 이루어진 이 사건 제3 부과처분은 적법하다고 할 것이다 .

(C) On the other hand, the above plaintiffs asserted that, as of September 30, 199, when the non-party ○○ Accounting Corporation assessed the stocks of this case by supplementary assessment methods, the market price per share is 8,416 won. However, according to the evidence No. 16-1 through No. 7 of this case, each of the statements No. 16-1 through No. 7 after the transfer of the stocks of this case No. 4 of this case is based on the supplementary assessment methods on April 24, 200 after the transfer of the stocks of this case

30. It includes the contents that retroactively assess the net asset value of the above shares at the time. This is written and delivered by requesting ○○ Accounting Corporation for the purpose of paying gift tax on the transfer of shares No. 4 of this case. However, in the lawsuit of this case, only the evidence No. 22, which is the financial statements prepared by ○○○○, was submitted to the first instance court, and the remaining documents of appraisal of shares and the assets and liabilities stated in the evidence No. 16-1 through 7 of the above No. 16 and No. 22 of the above No. 12, and the original documents, such as related books, receipts, and slips, which can verify the appropriateness of each corresponding amount, are not submitted to this court. In light of the above, it is difficult to believe that this is without merit.

F. The court's explanation of this part of the disposition No. 4 of this case is identical to the statement in the corresponding column of the reasoning of the judgment of the court of first instance, thereby citing this part.

3. Conclusion

A. Therefore, the disposition of imposition of KRW 14,456,00, which was imposed by the Head of Jung-gu Tax Office on May 10, 2002 against the plaintiff Jung-young on the plaintiff Jung Young-young shall be revoked as it is unlawful. The judgment of the court of first instance shall be revoked as it is unfair to conclude otherwise, and the part of the judgment of the court of first instance concerning the plaintiff Jung Young-young among the judgment of the court of first instance shall be revoked.

B. On the other hand, the head of Gangnam District Tax Office changed the purport of the claim in this part of this case upon the correction of the re-reduction in the trial (the judgment of the court of first instance on the part of the above plaintiff's claim seeking revocation of the first disposition of this case was invalidated within the original limit). The plaintiff's claim seeking revocation of the first disposition of this case on the premise that the first disposition of this case was unlawful. Thus, the plaintiff's claim of the first disposition of this case is without merit. Thus, the decision of the court of first instance, which different conclusions, should be revoked from the part of the judgment of the court of first instance, against which the defendant Gangnam Nam

C. In addition, each of the plaintiffs' claims of this case except for the plaintiff Jeong-young (excluding the claims for the first disposition of this case against the plaintiff Cho Jong-hun) is dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the appeal by the above plaintiffs is dismissed as it is without merit.

It is so decided as per Disposition for the above reasons.