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[] 최신 조세판례의 현황과 쟁점 3 판 | 양장

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도서명	최신 조세판례의 현황과 쟁점 3 판 \| 양장
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Ⅰ. 국세기본법1
(1) 조세법의 기본원리(조세법률주의와 조세공평주의)··················································· 2
➲ 조세법의 기본원리··································································································· 2
※ 조세법령 위임입법의 한계························································································ 6
※ 법률 조항에 대한 위헌 결정의 효력········································································· 10
※ 시행령 조항 무효 선언의 효력················································································ 13
※ 조세법률주의에 반하는 사법상 계약의 무효·······························································15
※ 법령보충적 행정규칙의 대외적 구속력······································································ 19
※ 헌법합치적 해석, 하위규범의 상위규범 합치적 해석····················································20
※ 합법성 원칙의 예외로서 과세 감면사유인 ‘정당한 사유’의 인정 여부····························· 25
(2) 조세법의 해석 방법····························································································· 27
➲ 문리해석･엄격해석과 목적론적 해석········································································ 27
※ 조세법령의 일반적 해석방법 ; 문리해석･엄격해석의 원칙과 예외적 합목적적 해석···········29
※ 과거･현재･미래의 시제, 시점, 기간 등 시간적 요소의 해석·········································· 32
※ “또는”, “및”과 “와, 과”의 해석················································································· 35
※ “이전”･“이후”와 “전”･“후”, “이상”･“이하”와 “과반수”, “초과”, “미만”, “미달”의 해석··········· 37
※ ‘음수(-)’와 ‘0’의 동일시 여부···················································································39
※ “등(等)”, “그 밖에(기타) ~한 경우”, “~에 준하는”의 의미와 해석···································41
※ “~한다.”와 “~할 수 있다.”의 의미············································································ 43
➲ 개별 조세법령 용어 개념의 탐색 방법····································································· 44
※ 조세법령상 정의규정의 개관··················································································· 53
※ 조세 법령용어 개념의 구체적인 탐색 방법································································ 61
※ ‘결정’과 ‘경정’의 의미···························································································· 72
※ 법령 용어의 문언을 사실상 삭제한 해석의 예 ; ‘직접’과 ‘최초로’의 해석························75
➲ ʻʻ□□법에 따른 ○○ʼʼ의 의미···················································································80
※ 조세법령용어 정의 규정의 해석··············································································· 81
※ ‘한국표준산업분류’에 의한 사업의 구분･범위, 업종의 분류···········································96
※ 조세법령상 ‘중소기업’의 정의··················································································98
➲ 차용･고유 개념·····································································································102
※ 조세법령상 ‘합병’, ‘분할’ 등 회사법상 용어의 해석··················································· 108
➲ 사법상 무효･취소･해제의 조세법률관계에의 영향··················································· 110
※ 사법상 무효･취소･해제의 조세 법률관계에의 영향···················································· 112
※ 사해행위 취소의 조세법률관계에의 영향··································································126
※ 사법상 소급효의 조세 법률관계에의 영향································································ 128
※ ‘부동산’ ‘명의신탁’과 조세 법률관계·······································································
➲ 특수관계인··········································································································· 134
※ “특수관계인”에 관한 정의규정 개관········································································ 134
※ ‘특수관계인’에 관한 판례······················································································ 143
(3) 조세법의 기본원칙····························································································· 147
➲ 실질과세의 원칙··································································································· 147
※ 귀속 명의와 실질이 다르다는 점에 관한 증명책임과 증명의 필요에 관한 판례·············· 155
※ 다단계･우회 거래에 대한 실질과세·········································································160
※ 당사자가 선택한 법률관계를 존중하여 실질과세 원칙의 적용을 부정한 사례················· 166
※ 국제거래에서의 실질과세 원칙 적용에 관한 구체적 사례············································170
➲ 신의성실의 원칙··································································································· 171
➲ 소급 과세 금지·····································································································177
※ 부칙의 구조········································································································180
※ 일반적 적용례 규정과 납세의무 성립시기································································ 180
※ 부칙의 ‘적용례’ 규정 해석에 관한 구체적 사례·························································182
※ 부칙의 개별적 ‘경과조치’, ‘특례’ 규정 해석에 관한 구체적 사례··································192
※ ‘적용’, ‘준용’, ‘유추적용’, ‘~예에 의한다(따른다).’의 의미··········································· 194
※ 부칙의 일반적 경과조치 규정과 납세자의 신뢰보호··················································· 200
※ 법령의 제정･개정과 종전 부칙 경과규정의 효력······················································· 204
※ 확인적 규정과 창설적 규정··················································································· 206
※ 예시적 열거 규정과 한정적 열거 규정···································································· 213
➲ 근거과세의 원칙과 예외적 추계과세······································································ 220
➲ 기업회계존중의 원칙·····························································································223
(4) 불복청구·············································································································225
➲ 필요적 전치, 제소기간·························································································· 225
※ 재조사 결정에 따른 후속처분에 대한 불복방법과 제소기간·········································229
※ 민사소송법에 기초한 청구변경과 제소기간 준수 여부················································ 233
➲ 불이익변경금지원칙······························································································ 234
➲ 심판 결정의 기속력······························································································ 237
※ 불복청구에 대한 결정의 효력················································································ 239
※ 불복절차에서의 과세처분 취소에 따른 재처분금지에 관한 법리···································240
(5) 조세소송 일반···································································································· 244
➲ 소의 이익, 당사자적격, 처분성(직권판단사항)···························································244
※ 조세소송과 불복청구의 소송(청구) 요건·································································· 246
➲ 증명책임･증명의 필요··························································································· 254
※ 조세소송에서의 주장･증명책임과 그 분배································································ 263
※ 법령 해석에서 ‘본문과 단서’, ‘전단과 후단’의 의미와 구분········································· 276
※ 손금･필요경비의 증명책임과 증명의 필요에 관한 판례의 입장···································· 278
※ 증명책임과 증명의 필요······················································································· 286
※ 법률상 추정과 사실상 추정··················································································· 287
※ 의제(간주) 규정·································································································· 290
➲ 과세자료의 증명력································································································ 296
➲ 적법한 상고이유··································································································· 300
➲ 조세소송판결의 효력·····························································································302
※ 과세처분 취소 확정판결의 기속력·········································································· 303
※ 과세처분 취소 확정판결의 기판력·········································································· 304
※ 과세처분 취소 확정판결의 형성력·········································································· 305
(6) 납세의무의 성립과 확정···················································································· 306
➲ 납세의무의 성립과 확정························································································ 306
※ 납세의무의 성립··································································································307
※ 납세의무의 확정··································································································316
➲ 확정신고, 예정신고, 수정신고, 기한후신고····························································· 318
※ 예정신고와 확정신고···························································································· 320
※ 기한 후 신고와 수정신고······················································································ 322
※ 신고･납부･신청･청구 등에 관한 기한의 특례····························································323
➲ 부과처분, 경정처분, 징수처분, 추징처분································································ 325
➲ 처분사유의 추가･변경··························································································· 337
※ 처분사유의 추가･변경·························································································· 337
➲ 신고･처분의 당연 무효························································································· 342
※ 신고나 부과처분이 ‘당연무효’인 구체적 사례····························································346
※ 취소소송과 무효확인소송과의 관계·········································································350
(7) 납세고지·············································································································351
➲ 납세고지서··········································································································· 351
➲ 송달･공시송달······································································································ 359
※ 세법에서 규정하는 서류의 송달············································································· 359
(8) 납부의무의 소멸·································································································371
➲ 납 부················································································································· 371
➲ 통상적 부과제척기간·····························································································375
※ 부과제척기간의 의의 및 그 도과의 효력··································································375
※ 무신고의 경우 7년의 부과제척기간·········································································378
※ 부과제척기간 7년 적용의 요건인 ‘무신고’ 해당 여부에 관한 구체적 사례····················· 381
※ 부과 제척기간의 기산일······················································································· 383
※ 해외 명목회사(paper company)를 이용한 주식 보유 ‘명의 위장’과
‘사기 기타 부정한 행위’에 관한 판례····································································· 395
※ 사실과 다른 세금계산서를 교부받아 매입세액 공제･환급을 받은 경우
‘사기 기타 부정한 행위’ 해당 여부에 관한 판례·······················································406
※ 조세포탈죄 사건에서 ‘장부 미작성･미기재’의 ‘사기 기타 부정한 행위’ 긍정례················408
※ 조세포탈죄 사건에서 차명 예금계좌에 의한 은닉행위의 ‘부정행위’
해당 여부에 관한 판례·························································································410
※ 미등기 전매(중간생략등기) 행위에 대하여 장기 부과제척기간 적용을 긍정한 판례········· 411
※ 가산세의 부과제척기간························································································· 411
➲ 특례부과제척기간································································································· 415
➲ 징수권의 소멸시효································································································ 422
※ 제척기간과 소멸시효기간의 비교············································································422
※ 징수권 소멸시효 기산일에 관한 구 시행령 규정의 무효 여부······································431
(9) 조세의 우선 변제······························································································· 433
(10) 납세의무자······································································································· 441
➲ 법인으로 보는 단체······························································································ 441
➲ 납세의무의 승계··································································································· 443
➲ 연대 납세 의무·····································································································449
➲ 과점주주 등의 제2차 납세의무·············································································· 455
※ 제2차 납세의무 규정의 개관················································································· 455
※ 제2차 납세의무와 주된 납세의무의 관계································································· 456
※ ‘과점주주’의 개념 및 요건과 증명·········································································· 462
※ 사업양수인의 제2차 납세의무················································································ 469
➲ 물적 납세 의무·····································································································471
(11) 경정청구···········································································································473
➲ 통상적경정청구·····································································································473
※ 경정청구가 부적법하여 각하되는 예······································································· 475
※ 원천징수의무자 및 원천징수대상자의 경정청구·························································483
※ 경정청구거부처분 취소소송에서의 주장･증명책임······················································486
➲ 후발적경정청구·····································································································488
※ 국세기본법 제45조의2 제2항 ‘제1호’의 후발적 경정청구사유······································489
※ 국세기본법 제45조의2 제2항 ‘제2호’, ‘제4호’에 의한 후발적 경정청구를 부정한 예······· 495
※ 국세기본법 시행령 제25조의2 ‘제2호’에 의한 후발적 경정청구 관련 판례···················· 495
※ 국세기본법 시행령 제25조의2 ‘제4호’의 ‘유사한 사유’에 의한 후발적 경정청구 사례······501
➲ 개별세법상 경정청구·····························································································506
(12) 가 산 세···········································································································507
※ 국세기본법 가산세 규정의 개정 경과와 개정이유······················································507
※ 지방세기본법 가산세 규정의 개정 경과와 개정이유··················································· 510
※ 가산세의 의의와 성질·························································································· 511
※ ‘납부불성실가산세’와 ‘가산금’의 ‘납부지연가산세’로의 통합········································ 512
※ 가산세 납세의무의 성립과 확정············································································· 513
※ 가산세 과세 요건에 관한 증명책임의 분배·······························································514
➲ 본세와 가산세의 관계··························································································· 515
➲ 국세기본법상 일반 가산세·····················································································518
※ ‘무신고 가산세’ 부과에 대한 긍정례와 부정례·························································· 527
※ ‘산출세액’에서 ‘추가로 납부하여야 할 세액’으로의 가산세 계산 기준의 변경················· 530
➲ 국세기본법상 부정 가산세·····················································································533
※ 명의신탁증여의제 증여세에 대한 부정무신고가산세 인정 여부에 관한 하급심 판결········ 540
※ ‘부동산 양도소득세’ 부정신고 가산세 인정 여부에 관한 구체적 사례··························· 542
※ 기타 부정신고 가산세 인정 여부에 관한 구체적 사례················································ 544
➲ 가산세의 면제······································································································ 545
※ 기한연장 사유를 원인으로 한 가산세 면제·······························································545
※ 가산세를 면할 ‘정당한 사유’의 존재를 부정한 사례···················································547
※ 가산세를 면할 ‘정당한 사유’의 존재를 긍정한 사례···················································550
➲ 개별법상 가산세··································································································· 555
(13) 국세환급금과 환급가산금·················································································561
➲ 환급･충당･환수·····································································································561
➲ 환급가산금··········································································································· 571
※ 환급가산금 기산일 규정······················································································· 571
※ 경정청구에 따른 환급의 경우의 환급가산금 기산일··················································· 573
※ 환급금과 환급가산금 채권의 소멸시효···································································· 578
(14) 납세자 보호····································································································· 579
➲ 중복세무조사 금지································································································ 579
※ 재조사가 금지되는 ‘세무조사’에 해당하지 않는다고 한 사례······································· 591
➲ 과세전적부심사청구······························································································ 607
※ 과세전적부심사 예외사유······················································································ 613
Ⅱ. 법인세법617
(1) 납세의무자········································································································· 6
➲ 내국법인과 외국법인·····························································································618
➲ 비영리내국법인·····································································································618
(2) 익 금················································································································ 620
➲ 익금 산입·············································································································620
➲ 익금 불산입········································································································· 626
(3) 손 금················································································································ 634
➲ 손금의 요건, 사회질서위반 지출비용····································································· 634
➲ 손금산입·············································································································· 641
➲ 손금불산입··········································································································· 665
(4) 손익의 귀속사업연도··························································································681
➲ 권리의무확정주의································································································· 681
(5) 부당행위계산부인······························································································· 697
※ 부당행위계산부인 유형 제1호(고가 매입･현물출자) 관련 판례·····································702
※ 부당행위계산부인 유형 제2호(무수익 자산 매입) 관련 판례········································705
※ 부당행위계산부인 유형 제3호(저가양도) 관련 판례··················································· 707
※ 부당행위계산부인 유형 제6호(무상･저율 대부･제공) 관련 판례··································· 710
※ 부당행위계산부인 유형 제7호(고율 차용) 관련 판례·················································· 714
※ 부당행위계산부인 유형 제7호의2(파생상품 이익 분여) 관련 판례································ 717
※ 부당행위계산부인 유형 제8호, 제8호의2(자본거래) 관련 판례·····································726
※ 부당행위계산부인 유형 제9호(개괄적인 행위) 적용 여부에 관한 판례···························729
※ 시가··················································································································730
(6) 과세표준과 세액의 계산···················································································· 738
➲ 이월 결손금 공제································································································· 738
➲ 외국납부세액 공제································································································ 740
➲ 조세특례제한법상 특례························································································· 740
(7) 신고･납부･원천징수··························································································· 752
➲ 중간예납·············································································································· 752
➲ 원천징수·············································································································· 753
(8) 세액의 결정･경정······························································································· 760
➲ 소득처분·············································································································· 760
※ ‘사외유출’에 대한 증명책임의 공방 구조································································· 768
➲ 소득금액변동통지································································································· 773
➲ 결손금 소급 공제································································································· 781
(9) 합병, 분할 등 기업구조재편거래에 대한 과세·················································· 784
(10) 비영리법인에 대한 과세·················································································· 793
Ⅲ. 국제조세법801
(1) 외국법인과 국내사업장･고정사업장··································································· 802
➲ 외국법인·············································································································· 802
➲ 고정사업장··········································································································· 807
(2) 거주자와 비거주자····························································································· 818
※ 이중거주자의 거주자 판정에 관한 구체적 사례·························································822
(3) 조세조약·············································································································824
➲ 조세조약의 적용 대상··························································································· 824
➲ 실질과세의 원칙··································································································· 833
※ 국제거래에서의 실질과세 원칙 적용에 관한 구체적 사례············································833
➲ 무차별의 원칙······································································································ 840
(4) 이전가격세제······································································································ 842
➲ 이전가격세제와 부당행위계산부인과의 관계··························································· 842
➲ 정상가격 산출방법과 증명·····················································································846
(5) 국내원천소득······································································································ 859
➲ 국내원천소득········································································································859
(6) 국내자본의 해외투자··························································································911
➲ 특정외국법인 유보소득의 배당간주········································································ 911
➲ 외국납부세액공제································································································· 918
※ 한･중 조세조약과 외국납부세액 공제 관련 판례······················································· 922
(7) 기 타················································································································ 926
➲ 국외 증여 특례·····································································································926
Ⅳ. 소득세법929
(1) 납세의무자········································································································· 930
(2) 손익의 귀속사업연도··························································································930
➲ 권리의무확정주의································································································· 930
(3) 종합소득·············································································································933
➲ 근로소득··············································································································
➲ 이자소득·············································································································· 938
➲ 배당소득·············································································································· 941
➲ 의제배당·············································································································· 948
➲ 사업소득·············································································································· 952
➲ 기타소득·············································································································· 957
※ ‘사례금’에 해당한다고 본 구체적 사례···································································· 960
※ 소득세법상 기타소득인 ‘위약금, 배상금’의 의미························································966
※ 소득세법 제21조(기타소득) 제1항 제10호 다목 소정의 ‘부당이득 반환 시
지급받는 이자’의 의미························································································· 969
(4) 양도소득·············································································································972
➲ 양도 개념·············································································································972
➲ 양도의 무효･취소･해제························································································· 977
➲ 양도･취득 시기·····································································································983
➲ 양도자산·············································································································· 990
➲ 양도가액·············································································································· 995
➲ 필요경비(취득가액 등)···························································································· 997
➲ 세율(감경･중과)····································································································1010
※ 비사업용 토지 중과····························································································1010
※ 미등기양도자산 중과·························································································· 1022
※ 1세대 3주택 중과······························································································1025
※ 중소기업 주식 양도····························································································1030
➲ 양도소득에 대한 조세특례··················································································· 1032
➲ 장기 보유 공제···································································································1040
➲ 1세대 1주택·······································································································1045
※ 공동소유주택의 주택 수 계산·············································································· 1051
(5) 세액의 계산······································································································1053
➲ 필요경비의 산정································································································· 1053
➲ 소득금액 공제···································································································· 1057
➲ 부당행위계산 부인······························································································ 1059
Ⅴ. 부가가치세법1071
(1) 납세의무자········································································································1072
➲ 사업자등록········································································································· 1072
(2) 과세거래··········································································································· 1073
➲ 재화･용역···········································································································1073
➲ 부수적인 재화･용역···························································································· 10
➲ 재화･용역의 공급································································································1080
➲ 공급시기············································································································ 1090
(3) 영세율과 면세·································································································· 1094
※ ‘국외’가 아닌 ‘국내’ 공급 용역으로 인정한 판례····················································· 1095
(4) 과세표준··········································································································· 1111
➲ 에누리액············································································································ 1111
※ ‘에누리액’에 해당하지 않는다고 ‘부정’한 사례························································ 1123
➲ 임대용역············································································································ 1124
➲ 위 약 금············································································································ 1128
➲ 봉 사 료············································································································ 1130
(5) 세금계산서········································································································1131
➲ 사실과 다른 세금계산서······················································································ 1131
※ 사업장 과세의 원칙····························································································1136
※ ‘공급자’가 사실과 다른 세금계산서에 관한 판례····················································· 1145
※ 매입세액 불공제 사유 관련 증명책임의 소재와 공방 구조········································ 1148
(6) 세액의 계산······································································································1151
➲ 매입세액 불공제································································································· 1151
➲ 공통매입세액의 안분···························································································1160
※ 사업자가 과세사업과 면세사업을 겸영하는 경우 과세사업과 면세사업에 관련된
매입세액의 계산································································································1172
➲ 대손세액 공제···································································································· 1174
(7) 신고 납부 및 부과 환급···················································································1176
➲ 대리납부제도······································································································ 1176
Ⅵ. 상속세 및 증여세법1179
(1) 상 속 세··········································································································· 1180
➲ 상속세의 연대납세의무························································································1180
➲ 상속세 과세대상･공제························································································· 1185
(2) 증 여 세··········································································································· 1196
➲ 증여세 납세의무자······························································································ 1196
➲ 증여세 과세대상································································································· 1198
➲ 고가양도･저가양수에 따른 이익의 증여································································1205
➲ 증자에 따른 이익의 증여·····················································································12
➲ 전환사채 등의 주식전환 등에 따른 이익 증여······················································ 1227
➲ 특정 법인과의 거래 이익 증여·············································································1238
➲ 주식 상장 또는 합병 상장 등에 따른 이익의 증여················································ 1247
➲ 금전 무상대여 이익에 따른 증여········································································· 1259
➲ 법인의 조직 변경 등에 따른 이익의 증여·····························································1263
➲ 재산 취득 후 재산가치 증가에 따른 이익의 증여··················································1268
➲ 일정한 친족 간의 재산양도의 증여추정································································1276
※ 배우자 또는 직계존비속에게 양도한 재산의 증여 추정·············································1279
➲ 명의신탁 증여의제······························································································ 1282
※ 위헌 여부(×)···································································································· 1282
※ 명의신탁 증여의제 대상 재산 등 일반론································································1282
※ 명의개서 해태 증여의제······················································································1285
※ 명의신탁 설정의 합의·························································································1291
※ 조세회피 목적···································································································1295
※ 명의신탁 증여의제 규정의 반복 적용 여부·····························································1302
※ 주주명부 미작성 시 주식등변동상황명세서 등에 따른 증여의제일······························ 1307
※ 명의신탁자의 증여세 연대납세의무······································································· 1310
※ 명의신탁 증여의제 관련 ‘가산세’, ‘부과제척기간’ 등에 관한 판례······························ 1315
➲ 일감몰아주기 증여 의제······················································································ 1318
➲ 증여세 과세가액 계산························································································· 1322
※ 재차증여 합산 과세····························································································1322
※ 공익법인 출연재산 과세가액 불산입······································································1325
※ 과세특례·········································································································· 1350
(3) 재산의 평가······································································································1351
➲ 시 가················································································································1351
➲ 비상장주식의 시가······························································································ 1360
➲ 보충적 평가방법································································································· 1365
※ 비상장주식의 보충적 평가방법·············································································1365
※ 상속세 및 증여세법 시행규칙 제17조의3 제1항 각 호가 정한 ‘순손익가치에 의한
평가 배제 사유’에 관한 판례···············································································1372
※ 국외 비상장법인 주식에 대한 상증세법상 보충적 평가방법의 적용 여부에 관한 판례····1379
※ ‘최대주주 할증평가’ 관련 판례·············································································1390
Ⅶ. 기타 국세1391
(1) 개별소비세법···································································································· 1392
(2) 증권거래세법···································································································· 1393
(3) 교육세법··········································································································· 13
(4) 종합부동산세법·································································································1404
Ⅷ. 국세징수1407
(1) 체납처분··········································································································· 1408
➲ 채권의 압류········································································································1408
➲ 교부 청구···········································································································1416
➲ 공 매················································································································1422
(2) 사해행위취소···································································································· 1427
(3) 국가배상책임···································································································· 1427
Ⅸ. 조세범 처벌1429
※ 사기나 그 밖의 부정한 행위················································································1430
※ 조세범 처벌법 제9조의 성실신고 방해 행위··························································· 1431
※ 조세범 처벌법 제10조 제1항, 제2항·····································································1431
※ 조세범 처벌법 제10조 제3항···············································································1433
※ 조세범칙조사 절차····························································································· 1436
✜판례색인·············································································································

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