2017년 조세법 중요 판례

This article aims to review the contents and meanings of some important tax decisions which were decided in the Supreme Court in 2017. Some important tax decisions are as follows: First, Supreme Court 2015du3270 decided on January 25, 2017 and Supreme Court 2015du46963 decided on February 15, 2017 ruled that for applying Article 14, Paragraph 3 of the National Tax Basic Act, it shall not be subject to taxation only with respect to the result after various stages of transaction, but we need to regard the tax burden, whether there are other rational reasons such as business necessity, time interval between multi-stage actions, loss due to such transaction type, and possibility of risk. It is an important ruling that specifically specifies the requirements and limitations of the application of the principle of substance over form taxation on circumvention. Second, Supreme Court 2014du8360 decided on March 16, 2017 ruled that a local confirmation based on the National Tax Service order is a ‘tax investigation’ in which re-examination is prohibited if taxpayers should answer tax officer’s question and endure inspection, thus affects taxpayer's freedom of business. It is a reasonable judgment emphasizing procedural legality of tax investigation Third, Supreme Court 2016du35083 decided on September 7, 2017 declared that capital gain free of taxation for one household-one house is accepted even when continuing marital life after declaring a divorce. I do not agree with the conclusion of the ruling because it is contrary to the purpose of the clause of capital gain free of taxation for one household-one house and the inherent view of the tax law. Fourth, Supreme Court 2017du51310 decided on October 26, 2017 declared that the collusion rewards that were paid for the construction contracts between the companies could not be included in the loss because they were expenses incurred in violation of the social order. It can be evaluated as a ruling that strictly limits the deduction of penalties for costs incurred in violation of the social order following Supreme Court 2012du7608 decided on January 15, 2015. Fifth, Supreme Court 2012du22485 decided on May 18, 2017 declared that taxpayers at the time of management and disposition of trust assets are trustees, not trusters. This decision respects the nature and logic of the VAT law. Sixth, Supreme Court 2016du55926 decided on March 30, 2017 ruled that a gift tax cannot be imposed even if a taxpayer acquires gains through enlisting based on new stocks not acquired or paid by the largest shareholder. This judgment places emphasis on the legal stability of the taxpayer and the trust of the legal system while restraining the extension of the unlimited comprehensive taxation system of gift tax. Seventh, Supreme Court 2011du21447 decided on April 20, 2017 concluded that as the criteria of the limit of share endowment, first, the “maximum shareholder” means that a taxpayer becomes maximum shareholder including an endower and non-profit corporation after the endowment, second, the endower should exercise substantial influence such as writing the articles of incorporation and appointing directors.