Early High Court Decision 2008J0634 (2008.04)

Counseling and established rules can not be applied to the principle of trust and good faith by expressing public opinions.

The answer of the National Tax Service General Counseling Center is a method of providing administrative services, which is a mere guidance for the place of consultation, and the National Tax Service's established rules are merely administrative rules that instruct the guidelines for tax interpretation and enforcement within the tax authority's internal rules, and thus the consultation and established rules of the tax authority do not constitute a public opinion list.

The contents of the decision shall be the same as attached.

1. The part of the disposition imposing capital gains tax of 384,790,170 won on the Plaintiff on November 12, 2007, which exceeds 311,612,560 won, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 4/5 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant.

The Defendant’s disposition of imposition of capital gains tax of KRW 384,790,170 to the Plaintiff on November 12, 2007 shall be revoked.

1. Details of the disposition;

A. On April 18, 2005, the Plaintiff, as the representative director of AAAccol Development Co., Ltd. (hereinafter “AAAAAcol Development”) and the shareholder of AAAAAcol Development Co., Ltd. (hereinafter “AAAAAAccent Development”) calculated AAAAAAccol 39,200 shares issued (hereinafter “instant shares”) at a price of 365,075 won per share and sold at 14,310,940,000 won per share.

B. With respect to the provisions of Article 101 of the Income Tax Act (Calculation of Transfer Income) in relation to the transfer of stocks, the Plaintiff made a preliminary return of tax base by applying Article 100-2 of the former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006) to the National Tax General Counseling Center’s oral response to the effect that when a taxpayer conducts a transaction with a related party under Article 98(1) of the Enforcement Decree of the Income Tax Act, the special provisions on exemption from the assessment of the premium amount under the Restriction of Special Taxation Act shall apply to the assessment of the transfer income in order to calculate the transfer income, and by applying Article 100-2 of the former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006), the Plaintiff assessed the transfer value of the stocks as 365,07

C. The Defendant: (a) deemed that the Plaintiff’s transfer of the instant shares to AAB 365.075 won or less per share constitutes “where shares are transferred below the market price due to transactions with a person with a special relationship” under Article 167(4) of the Enforcement Decree of the Income Tax Act; (b) deemed that the instant shares are subject to an assessment of premium; (c) pursuant to the supplementary method stipulated in Article 63 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”); and (d) held 44,568 won per share (Article 63(1)1 (c) of the former Inheritance Tax and Gift Tax Act; and (e) sold shares exceeding 386,581 won per share (amended by Presidential Decree No. 18989, Aug. 5, 2005; and (e) sold shares to the Plaintiff at the disposal rate of 150/15/10/10 of the former Inheritance Tax Act.

D. The plaintiff is dissatisfied with this and filed an appeal with the Tax Tribunal on February 4, 2008, but on February 2008.

8.4. Upon receipt of a decision of dismissal, the instant lawsuit was filed on October 31, 2008.

[Reasons for Recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 and 2 evidence (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

① According to Article 100-2 of the former Restriction of Special Taxation Act, in cases where shares are inherited or donated on or before December 31, 2006, the provision on the evaluation of the premium shall not apply to cases of transfer as well as affiliation and donation (Article 167 of the Enforcement Decree of the Income Tax Act was amended on February 9, 2006). However, in cases where the ownership of shares owned by the largest shareholder is transferred without compensation, inheritance tax, gift tax is imposed, and transfer income tax is imposed if the ownership of shares owned by the largest shareholder is transferred without compensation. However, it is inadequate to exclude the application of the provision on the evaluation of premium only with respect to inheritance tax and gift tax.

② In addition, on March 30, 2005, the Plaintiff transferred the instant shares to AAAP Roco on April 18, 2005, with the trust of the National Tax Service’s established rules, and evaluated the value per share as KRW 365,075 without a premium assessment on August 31, 2005, and reported and paid the capital gains tax. Accordingly, the instant disposition is contrary to the administrative agency’s public opinion statement, and thus is contrary to the principle of trust and good faith.

③ Since the tax authority trusted the public opinion list that the Plaintiff does not have the burden of proof assessment and assessed the market price of the shares of this case even if it is not a domestic affairs, the part of the disposition imposing the tax in this case is unlawful on the ground that there is a justifiable ground for not being able to cause the Plaintiff’

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the above (1) argument

Article 101(1) of the Income Tax Act and Article 167(4) of the Enforcement Decree of the Income Tax Act provide that the transfer value shall be calculated based on the market price if it is deemed that the tax burden has been unjustly reduced due to the transfer of land, stocks, etc. to the related parties below the market price. Article 101(4) of the Income Tax Act and Article 167(5) of the Enforcement Decree of the Income Tax Act provide that the amount assessed according to the supplementary assessment method stipulated in Article 63 of the former Inheritance Tax and Gift Tax Act shall be deemed as the market price if the market price of non-listed stocks not listed on the Stock Exchange is unclear. Article 63(1)1(c) of the former Inheritance Tax and Gift Tax Act and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provide for the general assessment method for non-listed stocks, etc. Article 63(3) of the former Enforcement Decree of the same Act shall be deemed as the price of stocks of the largest shareholder, etc. to be included in the calculation of the market price.

In light of the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted in accordance with the law, barring any special circumstance, and it shall not be permitted to expand or analogically interpret the tax laws and regulations without any reasonable reason (see, e.g., Supreme Court Decision 97Nu4173, Oct. 24, 1997). In particular, it would be consistent with the principle of fair taxation to strictly interpret the provisions that clearly consider the preferential provisions among the requirements for reduction and exemption as the requirements for the principle of no taxation without the law (see, e.g., Supreme Court Decision 97Nu20090, Mar. 27, 1998). Accordingly, the special provisions of this case under the Restriction of Special Taxation Act, which provide that the special provisions of this case, which provide that the special provisions of this case shall apply to cases where a corporation purchases stocks of the largest shareholder, etc. as in this case

Therefore, in the assessment of the market price of the shares transferred to AAAB, a person with a special relationship, the assessment of the market price of the shares is lawful that the Plaintiff added 15/100 by applying Article 63(3) of the former Inheritance Tax and Gift Tax Act to the assessment per share assessed under Article 63(1)1 (c) of the former Inheritance Tax and Gift Tax Act and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift

2) Determination as to the above argument

In general, in order to apply the principle of trust and good faith to the tax authority's acts in tax law relations, the tax authority should give the taxpayer a public opinion that is the subject of trust, and the taxpayer should not be responsible for the taxpayer's reliance on the legitimacy of the tax authority's expression of opinion; third, the taxpayer should trust the expression of opinion and act in which the taxpayer is in trust; fourth, the tax authority's disposition against the above expression of opinion should result in infringing the taxpayer's interest; on the other hand, the provisions and content of the tax law and the administrative rules themselves do not constitute the public opinion of the tax authority (see Supreme Court Decision 2001Du403, Sept. 5, 2003).

In this case, the answer of the National Tax Service and the National Tax Service General Counseling Center (current Customer Satisfaction Center) is a method of providing a simple counseling or guidance for counseling mainly based on professional knowledge and experience for wage and salary income earners or small-scale business operators, and the regulations of the National Tax Service are merely an administrative regulation that has reached the standards for tax interpretation and enforcement of tax laws within the tax authority, and it does not constitute a public opinion statement by the tax authority alone.

Therefore, the plaintiff cannot apply the principle of protecting trust to the plaintiff in this case without a public opinion expressed by an administrative agency subject to trust. Therefore, the plaintiff's above assertion is without merit.

3) Determination as to the above (3) argument

Under the tax law, additional tax is an administrative sanction imposed in accordance with the law in order to facilitate the exercise of the right to impose taxes and the realization of tax claims in cases where a taxpayer violates the duty to report and pay taxes under the law without justifiable grounds, and it is not reasonable for the taxpayer to be aware of his/her duty and to expect the party to fulfill his/her duty in a case where there are justifiable grounds for not being able to neglect his/her duty. As seen earlier, the National Tax General Counseling Center’s oral answers and the National Tax Service’s established rules on the transfer of stocks with regard to the wrongful calculation of capital gains under Article 101 of the Income Tax Act shall not apply to the transfer of stocks in the transaction with a related party under Article 98(1) of the Enforcement Decree of the Income Tax Act, and the special provisions of this case shall be applied to the taxpayer in calculating capital gains in the transaction with the related party under Article 98(1) of the Enforcement Decree of the Income Tax Act. Accordingly, it shall be deemed that the Plaintiff trusted the Plaintiff to have been subject to a duty of tax payment under the Act

Therefore, the plaintiff's above assertion pointing this out is with merit.

4) Sub-committee

Therefore, the portion of penalty tax in the instant disposition in KRW 73,177,610 should be revoked.

3. Conclusion

Therefore, the plaintiff's claim of this case is partially accepted, and it is so decided as per Disposition.