최신조세판례해설

차 례 v
차 례
제1편 조세 일반
제1절 국세기본법 ············································································································ 3
[1] 실질과세의 원칙과 조세조약의 적용
(대법원 2012. 10. 25. 선고 2010두25466 판결) ··························································3
[2] 실질과세의 원칙과 조세조약의 적용
(대법원 2012. 4. 26. 선고 2010두11948 판결) ··························································11
[3] 실질과세의 원칙과 조세조약의 적용
(대법원 2012. 4. 26. 선고 2010두15179 판결) ··························································13
[4] 실질과세원칙과 사실상 소득의 귀속자
(대법원 2012. 11. 15. 선고 2012두14668 판결) ························································15
[5] 소급입법금지원칙과 실질적 조세법률주의
(대법원 2012. 10. 25. 선고 2010두17281 판결) ························································18
[6] 양도소득 감면기간 만료일 당시의 기준시가의 확정
(대법원 2013. 1. 31. 선고 2012두8588 판결) ····························································23
[7] 근거과세원칙의 적용범위
(대법원 2013. 6. 13. 선고 2012두11577 판결) ··························································28
[8] 종합소득세부등 부과처분취소소송의 취소의 범위
(대법원 2012. 7. 26. 선고 2012두7196 판결) ····························································31
[9] 감액?경정 고지 후 감액된 부분에 대한 취소소송의 소의 이익
(수원지방법원 2010. 5. 13. 선고 2009구합7043 판결) ·············································36
[10] 처분사유의 추가?변경
(대법원 2012. 5. 24. 선고 2010두7277 판결) ····························································38
[11] 납부고지서의 송달과 과세처분 및 압류처분의 유효성
(대법원 2012. 6. 28. 선고 2012두4968 판결) ····························································43
[12] 별개의 과세단위에도 특례제척기간 규정이 적용되는지 여부
(대법원 2012. 10. 11. 선고 2012두6636 판결) ··························································48
[13] 인정상여소득에 대한 종합소득세 부과제척기간
(대법원 2012. 9. 27. 선고 2012두12167 판결) ··························································51
[14] 명의를 위장하여 소득을 얻은 경우 구 국세기본법 제26조의2 제1항 제1호 소정
의 ‘사기 기타 부정한 행위’에 해당하는지 여부
(대법원 2013. 12. 12. 선고 2013두7667 판결) ··························································58
vi 차 례
[15] 국세기본법상 연대납세의무의 적용범위
(대법원 2012. 6. 14. 선고 2012두3279 판결) ····························································63
[16] 소득금액변동통지와 종합소득세부과처분의 불복관계
(대법원 2012. 8. 30. 선고 2012두10437 판결) ··························································66
(서울고등법원 2012. 4. 13. 선고 2011누21074 판결) ···············································66
[17] 납세의무 성립일 당시 주주권을 행사할 가능성과 출자자의 제2차 납세의무
(대법원 2012. 12. 26. 선고 2011두9289 판결) ··························································72
[18] 경정청구기간 개정 법률과 기산일
(대법원 2012. 3. 29. 선고 2011두4855 판결) ····························································76
[19] 제2차 납세의무의 부종성과 제2차 납세의무자에 대한 납부고지의 독립성
(대법원 2012. 1. 27. 선고 2011두22099 판결) ··························································81
[20] 제2차 납세의무의 지정처분의 법적 성질과 제2차 납세의무의 부과제척기간
(대법원 2012. 5. 9. 선고 2010두13234 판결) ························································84
[21] 확정판결의 기판력에 의한 환급금청구권행사를 하는 경우 이를 신의칙 위반으
로 볼 수 있는지 여부
(대법원 2012. 8. 30. 선고 2012다21546 판결) ··························································91
[22] 납세의무의 단위를 달리하는 처분에 증액경정처분에 관한 법리 적용여부
(대법원 2013. 7. 11. 선고 2011두7311 판결) ····························································98
[23] 당초 신고내용의 하자에 대하여 별도의 경정청구를 할 필요 없이 항고고송에서
과다신고사유를 주장하여 다툴 수 있는지 여부
(대법원 2013. 4. 18. 선고 2010두11733 판결) ························································103
[24] 당초 과세처분과 증액경정처분의 위법사유가 공통되는 경우 증액경정처분 취소
소송의 제소기간 준수여부 판단
(대법원 2013. 2. 14. 선고 2011두25005 판결) ························································107
[25] 중복세무조사의 적법성 판단
(대법원 2012. 9. 13. 선고 2010두6137 판결) ························································111
(서울행정법원 2008. 12. 18. 선고 2007구합47169 판결) ······································111
[26] 납기 전 징수사유로서의 압류
(대법원 2012. 10. 11. 선고 2010두19713 판결) ·····················································117
제2절 국세징수법 ······································································································· 124
[1] 공매절차 진행시 공매대행사실 통지가 필요한지 여부
(대법원 2013. 6. 28. 선고 2011두18304 판결) ······················································124
차 례 vii
[2] 강제집행이 허용되는 신탁재산에 대한 조세채권
(대법원 2013. 1. 24. 선고 2010두27998 판결) ························································129
제2편 소득세
제1절 사업소득 ··········································································································· 135
[1] 비영업대금의 이익과 총수입금액의 계산의 판단 기준시기
(대법원 2012. 9. 13. 선고 2011두6718 판결) ··························································135
[2] 폐업보상금의 수입시기와 농가부업소득 해당 여부
(대법원 2013. 5. 24. 선고 2012두29172 판결) ························································140
[3] 간편장부기재와 추계조사의 요건
(대법원 2012. 9. 13. 선고 2011두9560 판결) ··························································146
[4] 당해 연도에 확정된 비용의 필요경비로의 산입시기
(대법원 2012. 5. 24. 선고 2011두33020 판결) ······················································150
[5] 필요경비 공제의 기초사실관계에 관한 입증책임
(서울고등법원 2012. 8. 17. 선고 2011누27621 판결) ···········································154
[6] 인적용역의 공급시기
(서울행정법원 2011. 5. 20. 선고 2010구합43631 판결) ·······································158
[7] 부동산 임대사업자의 임대사업용 부동산 자금차입금에 대한 지급이자의 필요경비
산입의 범위
(대법원 2013. 8. 22. 선고 2011두17769 판결) ························································161
제2절 근로소득 ··········································································································· 165
[1] 연말정산에 의한 소득세 납부와 과세표준확정신고
(대법원 2013. 7. 11. 선고 2013두5555) ···································································165
제3절 이자소득 ··········································································································· 169
[1] 비영업대금의 이자소득 수입시기
(대법원 2012. 6. 28. 선고 2010두9433 판결) ··························································169
제4절 기타소득 ··········································································································· 174
[1] 인적용역의 제공과 사례금
(대법원 2012. 2. 23. 선고 2011두26961 판결 및 서울고등법원 2011. 10. 6. 선고
2011누5799 판결) ···········································································································174
[2] 사례금의 판단기준1
viii 차 례
(대법원 2012. 5. 24. 선고 2012두4333 판결 및 서울고등법원 2012. 1. 12. 선고
2011누10449 판결 ··········································································································177
[3] 사례금의 판단기준2
(대법원 2012. 11. 15. 선고 2012두15883 판결) ·····················································179
[4] 학교법인의 임원변경약정에 의하여 지급받은 보상금이 사례금에 해당하는지 여부
(대법원 2013. 9. 13. 선고 2010두27288 판결) ························································181
제5절 양도소득 ··········································································································· 186
[1] 해외이주와 1세대 1주택 양도소득세 비과세요건
(대법원 2012. 7. 5. 선고 2012두3972 판결) ····························································186
[2] 비사업용 토지에 대한 양도소득세 중과제도
(부산고등법원 2010. 7. 14. 선고 2010누1873 판결) ···············································190
[3] 양도차익 산정시의 동일기준 적용원칙
(대법원 2012. 9. 27. 선고 2012두5770 판결) ··························································194
[4] 자경농지와 비사업용 토지 판단
(대법원 2012. 10. 25. 선고 2012두7899 판결) ······················································198
[5] 자경농지와 조세특례제한법상 감면규정 적용
(대법원 2012. 10. 11. 선고 2012두13290 판결) ····················································201
(대법원 2012. 12. 27. 선고 2012두19700 판결) ····················································201
[6] 임야 양도로 인한 소득 중 임목의 양도로 인한 소득의 사업소득 해당여부 판단기준
(대법원 2013. 9. 13. 선고 2011두6493 판결) ··························································206
[7] 재산분할로 이전받은 부동산의 양도시 취득가액 산정의 기준시점
(대법원 2012. 9. 13. 선고 2012두10901 판결) ······················································211
[8] LP의 소득세법상 납세의무자 해당성
(대법원 2012. 1. 27. 선고 2010두5950 판결) ··························································214
[9] 부동산 매수인이 대금을 청산하지 아니한 상태에서 제3자에 양도하는 경우 미등
기 양도자산에 관한 중과세율 적용의 대상이 되는지 여부
(대법원 2013. 10. 11. 선고 2013두10519 판결) ·····················································222
[10] 구 소득세법 시행령상 ‘불가피한 사유로 비사업용 토지로 보지 아니하는 법령
에 따라 사용이 금지 또는 제한된 토지’의 판단기준
(대법원 2013. 10. 31. 선고 2011두14425 판결) ·····················································228
[11] 주식을 증권예탁결제원에 인도하여 해외 예탁기관에 예탁하고, 그 주식을 원주
로 하여 주식예탁증서를 발행하여 인도하는 경우 그 양도 대상을 주식으로 보
아야 하는지 여부
(대법원 2013. 6. 28. 선고 2011두18557 판결) ························································233
차 례 ix
[12] 피상속인이 생전에 종신보험계약의 보험수익자로 지정하였던 상속인이 피상속
인의 사망으로 지급받게 된 보험금이 국세기본법상 ‘상속으로 인한 재산’에
포함되는지 여부
(대법원 2013. 5. 23. 선고 2013두1041 판결) ··························································241
[13] 양도소득세 등의 과세대상인 부동산매매업 해당여부
(대법원 2013. 2. 28. 선고 2010두29192 판결) ························································245
[14] 양도소득세 산정시 비사업용 토지의 범위에서 제외되는 농지
(대법원 2013. 2. 28. 선고 2011두20529 판결) ························································254
[15] 토지 취득 후 기존 도시계획 변경으로 사용 제한시 부득이한 사유가 있어 비사
업용 토지로 보지 아니하는 토지 해당여부의 판정기준
(대법원 2013. 2. 14. 선고 2011두28950 판결) ························································260
[16] 중소기업의 흡수합병과 중소기업 유예규정에 따른 조세감면 특례 적용여부
(대법원 2013. 2. 14. 선고 2012두17520 판결) ························································265
[17] 폐업시 잔존재화에 부가가치세를 부담하는 경우 실질적으로 취득에 든 실지거
래가액으로 보아 양도가액에서 필요경비로 공제할 것인지 여부
(대법원 2012. 12. 26. 선고 2012두12723 판결) ·····················································270
[18] 양도소득세 세율 산정의 기준이 되는 자산 보유기간 산정시 분양권의 취득시기
를 주택의 취득시기와 동일하게 볼 수 있는지 여부
(대법원 2012. 12. 13. 선고 2010두12033 판결) ·····················································274
[19] 공유물분할 소송절차 중 조정절차에서의 협의에 의하여 분할합의를 한 경우 그
로 인하여 즉시 새로운 법률관계가 창설되어 양도소득세 과세대상 판단에 고려
되어야 하는지 여부
(대법원 2013. 11. 21. 선고 2011두1917 판결) ························································279
[20] 공익사업을 위한 토지 등의 취득 및 보상에 관한 법률에 의한 수용의 대가로
보상채권을 수입한 경우 자산의 양도가액을 산정하는 방법 및 적용법규
(대법원 2013. 7. 25. 선고 2010두18536 판결) ························································283
[21] 주식발행초과금의 자본전입에 따라 발행된 무상주가 구 조세특례제한법 제14조
제1항 제4호에서 정한 양도소득세 과세특례의 적용대상 여부
(대법원 2013. 7. 25. 선고 2011두22358 판결) ························································289
[22] 양도차익 계산시 양도가액에서 필요경비로 공제되는 소송비용?화해비용의 범위
(대법원 2013. 12. 26. 선고 2012두16619 판결) ·····················································298
x 차 례
제3편 법인세
[1] 휴면예금의 익금 산입시기
(대법원 2012. 8. 23. 선고 2010두12996 판결) ····················································305
[2] 횡령금의 익금 산입시기
(대법원 2012. 6. 29. 선고 2012두4715 판결) ······················································310
[3] 부당행위계산유형과 특수관계자에 대한 신주 배정
(대법원 2012. 3. 29. 선고 2011두29779 판결) ····················································313
[4] 계열사와의 도급계약과 부당행위계산부인
(대법원 2012. 6. 29. 선고 2012두4715 판결) ······················································320
[5] 종교단체의 고유목적사업준비금의 손금산입 가능여부
(대법원 2012. 5. 24. 선고 2010두17984, 2012두17991(병합) 판결) ···············324
[6] 매입채무의 손금산입시기
(대법원 2013. 4. 11. 선고 2010두17847 판결) ····················································336
[7] 대손충당금 적립방식 선택과 대손충당금 한도액 산정
(대법원 2012. 8. 17. 선고 2009두14965 판결) ····················································340
[8] 횡령금의 소득처분
(대법원 2012. 5. 9. 선고 2009두2887 판결) ························································349
[9] 인정상여처분의 대상이 되는 법인의 대표자의 해석
(대법원 2012. 11. 29. 선고 2011두6417 판결) ························································354
[10] 사외유출 여부의 입증책임
(대법원 2012. 11. 29. 선고 2011두4053 판결) ····················································359
[11] 법인세법 기본통칙의 법적 효력
(대법원 2012. 6. 28. 선고 2011두30205 판결) ····················································361
[12] 가공매입세금계산서상의 매입금액의 사외유출 해당여부
(대법원 2012. 7. 26. 선고 2010두382 판결) ························································365
[13] 주식 양도소득의 실질적 귀속자의 판단에 따른 원천징수분 법인세 납세고지
(대법원 2013. 7. 11. 선고 2011두4411 판결) ······················································369
[14] 법인세 부과처분과 독립한 주민세 부과처분 취소소송의 제기 가능성
(대법원 2012. 10. 11. 선고 2010두26858 판결) ····················································376
(서울행정법원 2009. 11. 12. 선고 2007구합17021 판결) ······································376
[15] 배당소득공제의 재원 및 국제조세조정에 관한 법률상 정상이자율 산출의 기준
(대법원 2012. 11. 29. 선고 2010두7796 판결) ····················································378
[16] 비영리법인의 자산양도소득에 대한 과세특례
차 례 xi
(대법원 2012. 1. 26. 선고 2010두3763 판결) ······················································391
[17] 법인설립 전 지출원인이 발생한 비용의 손비 인정여부 및 소득금액변동통지서
에서의 소득의 귀속자나 귀속자별 소득금액 특정의 필요성
(대법원 2013. 9. 26. 선고 2011두12917 판결) ····················································397
[18] 특정 사업연도에 고의로 과다계상한 수익 또는 과소계상한 손비가 이후 후발적
경정청구사유에 해당하는지 여부 및 업무와 관련 없이 지급한 가지급금 판단
기준
(대법원 2013. 7. 11. 선고 2011두16971 판결) ····················································403
[19] 부당행위계산 부인의 적용기준 및 여러 자산을 포괄적으로 양수한 것으로 인정
되는 경우 고가양수 여부 판단방법
(대법원 2013. 9. 27. 선고 2013두10335 판결) ····················································411
[20] 조세특례제한법상 준비금으로 설정되었다가 환입된 금액이 구 상증세법상 1주
당 순손익가치 산정시 반영되어야 하는지 여부
(대법원 2013. 11. 14. 선고 2011두22280 판결) ··················································416
[21] 조세특례제한법상 세액공제되는 직무발명보상금인지 여부의 판단기준
(대법원 2013. 6. 27. 선고 2013두2655 판결) ······················································425
[22] 비영리내국법인의 고정자산처분에 대한 수입의 비과세여부 판단시 ‘고유목적
사업에 제공되지 못한 정당한 이유’를 고려하여야 하는지 여부
(대법원 2013. 5. 23. 선고 2013두1829 판결) ······················································431
[23] 주식소각의 목적 없이 취득한 자기주식인지의 판단
(대법원 2013. 5. 9. 선고 2012두27091 판결) ······················································436
[24] 법인이 지출증빙서류를 수취?보관할 의무를 부담하는 경우의 판단기준
(대법원 2013. 2. 14. 선고 2010두3732 판결) ······················································442
[25] 거주자의 국외 특수관계자와의 거래에 대하여 정상가격을 산출하는 과정에서
특수관계 없는 자간의 국내거래를 비교대상으로 삼을 수 있는지 여부
(대법원 2012. 12. 26. 선고 2011두6127 판결) ····················································450
[26] 비영리법인이 고유목적사업에 사용하기 위하여 수익사업에 속하는 차입금을 특
수관계자에게 무상으로 대여한 경우 과세 대상에 해당하는지 등의 판단
(대법원 2013. 11. 28. 선고 2013두12645 판결) ··················································456
[27] 부당한 방법으로 한 과세표준의 과소신고 여부 판단의 기준
(대법원 2013. 11. 28. 선고 2013두12362 판결) ··················································466
[28] 외국법인 간의 합병에 따라 피합병법인이 보유하던 내국법인 발행주식이 합병
법인에 이전되는 경우 법인세 등 과세대상이 되는 주식의 양도인지 여부
(대법원 2013. 11. 28. 선고 2010두7208 판결) ····················································471
[29] 출자전환시 주식 발행가액이 시가보다 높은 경우 그 발행가액과 시가의 차액을
xii 차 례
채무면제이익으로 볼 수 있을 것인지 여부
(대법원 2012. 11. 22. 선고 2010두17564 판결) ··················································477
[30] 매매대금을 사후에 감액한 경우, 감액 부분에 관하여 법인세를 부과할 수 있는
지 여부
(대법원 2013. 12. 26. 선고 2011두1245 판결) ····················································482
[31] 합병에 의한 청산소득금액 계산시 합병법인이 취득한 포합주식의 취득가액 산
정의 기준
(대법원 2013. 12. 26. 선고 2011두20369 판결) ··················································485
제4편 부가가치세
[1] 게임머니의 재화해당여부 및 게임머니 거래로 인한 소득을 사업소득으로 볼 수
있는지 여부
(대법원 2012. 4. 13. 선고 2011두30281 판결) ························································491
[2] 재화의 공급에 있어서의 실물거래와 중복세무조사금지 원칙
(대법원 2012. 11. 15. 선고 2010두8263 판결) ························································495
[3] 부가가치세 면제 대상이 되는 학술연구용역의 범위
(대법원 2012. 12. 13. 선고 2011두3913 판결) ························································500
[4] 임대용역에 대한 면세포기 허용 여부
(대법원 2012. 5. 10. 선고 2010두1682 판결) ··························································505
[5] 국립공원의 주차장 운영에 대한 부가가치세 면제
(대법원 2012. 10. 25. 선고 2010두3527 판결) ························································510
[6] 구 조세특례제한법상 부가가치세가 면제되는 철도시설의 범위
(대법원 2012. 3. 15. 선고 2011두27025 판결) ························································516
[7] 공통매입세액의 안분계산과 토지관련 매입가액이 면세사업에 관련한 매입가액인
지 여부
(대법원 2012. 3. 15. 선고 2010두4810 판결) ··························································522
[8] 사실과 다른 세금계산서의 판단
(대법원 2012. 1. 27. 선고 2011두24835 판결) ························································528
[9] 과세가격에 부가할 수 있는 사후귀속이익의 판단기준- 당해 물품의 사용에 따른
수입금액 중 판매자에게 직접 또는 간접적으로 귀속되는 금액
(대법원 2012. 11. 20. 선고 2010두14565 판결) ·····················································532
[10] 채무자회생법 제179조 제9호의 ‘납부기한’의 의미
(대법원 2012. 3. 22. 선고 2010두27523 판결) ························································537
차 례 xiii
[11] 사업자가 시설 건축 하여 국가에 무상귀속시키기로 약정 후 해당 건물을 건축
하여 폐업 전 기부채납절차가 완료된 경우 공급의제규정 적용여부
(대법원 2013. 10. 24. 선고 2011두3623 판결) ························································544
[12] 장례식장에서의 조문객을 대상으로 한 음식물 공급이 부가가치세 면세대상에
해당하는지 여부
(대법원 2012. 6. 28. 선고 2013두932 판결) ····························································549
[13] 일반택시 운송사업자의 부가가치세 납부세액 경감액의 사용 및 지급여부 판단
(대법원 2013. 6. 13. 선고 2010두18369 판결) ························································553
[14] 부가가치세 면세대상인 주택의 임대에 해당하는지 여부의 판단 기준
(대법원 2013. 6. 13. 선고 2013두1225 판결) ··························································557
[15] 의료법상 자격 없는 사업자가 안마시술소를 개설하여 의료법이 규정하는 안마
사를 고용하여 안마용역을 제공하는 경우 부가가치세 면제대상인지 여부
(대법원 2013. 5. 9. 선고 2011두5834 판결) ····························································567
[16] 부가가치세 과세표준에서 제외되는 에누리액
(대법원 2013. 4. 11. 선고 2011두8178 판결) ··························································572
[17] 전자세금계산서를 발급하였으나 그 발급명세를 국세청장에게 전송하지 아니한
경우 세금계산서합계표 미제출가산세 부과처분의 적법성
(대법원 2013. 3. 28. 선고 2012두26074 판결) ························································577
제5편 상속세 및 증여세
[1] 상속세 과세가액과 증여재산 및 증여세액공제
(대법원 2012. 5. 9. 선고 2012두720 판결) ······························································585
[2] 상속세 과세가액에 가산되는 금전무상대부에 따른 이익증여재산여부 판단
(대법원 2012. 7. 26. 선고 2011두10959 판결) ························································590
[3] 명의신탁과 증여의제
(대법원 2012. 1. 26. 선고 2011두14579 판결) ························································594
[4] 명의신탁으로 인한 증여의제와 민법상 채권자취소권과의 관계
(대법원 2012. 8. 23. 선고 2012두8151 판결) ··························································599
[5] 상증세법 제34조의 보험금의 증여와 실질과세원칙
(대법원 2012. 6. 14. 선고 2010두14459 판결) ························································603
[6] 고가양도의 경우 시가와의 차액 부분의 증여세 과세문제
(대법원 2012. 6. 14. 선고 2012두3200 판결) ··························································607
[7] 비상장주식의 1주당 순손익가치 산정기준 적용의 문제 Ⅰ
xiv 차 례
(대법원 2012. 6. 14. 선고 2011두32300 판결) ························································613
[8] 비상장주식의 1주당 순손익가치 산정기준 적용의 문제 Ⅱ
(대법원 2012. 12. 13. 선고 2011두5872 판결) ························································618
[9] 비상장주식의 저가양도에 따른 이익증여와 특수관계에 있는 자 외의 자간의 양도
의 경우 ‘거래관행상 정당한 사유’ 판단
(대법원 2012. 11. 29. 선고 2011두11181 판결) ·····················································623
[10] 감자에 따른 이익의 증여의 과세요건 성립시기
(대법원 2012. 9. 27. 선고 2012두11430 판결) ························································628
[11] 구 상증세법 제41조의3의 해석- 최대주주의 의미
(대법원 2012. 5. 10. 선고 2010두11559 판결) ························································637
[12] ‘사용인’의 판단기준에 관하여
(대법원 2012. 10. 11. 선고 2011두6899 판결) ························································644
[13] 비상장주식의 시가 평가- 특수관계자 사이의 양도
(대법원 2012. 12. 13. 선고 2012두7820 판결) ························································648
[14] 비교대상거래가액의 시가판단기준
(대법원 2012. 4. 26. 선고 2011두30038 판결) ························································654
[15] 상속 또는 증여받은 자산 양도시의 양도차익 산정
(대법원 2012. 9. 27. 선고 2012두5770 판결) ··························································659
[16] 영농자녀에 농지 증여시 증여세 면제요건
(대법원 2012. 5. 24. 선고 2011두30274 판결) ························································664
[17] 저가양수에서의 거래상대방인 특수관계에 있는 자의 범위
(대법원 2013. 9. 12. 선고 2011두11990 판결) ························································668
[18] 다자간 합병의 경우 대주주 합병차익의 계산방법
(대법원 2013. 10. 31. 선고 2011두18427 판결) ·····················································674
[19] 비상장주식 평가시 1주당 최근 3년간의 순손익액의 가중평균액 산정방법
(대법원 2013. 11. 14. 선고 2011두31253 판결) ·····················································681
[20] 합병당사법인의 합병 직전 주식가액 산정시 ‘1주당 최근 3년간의 순손익액의
가중평균액’을 기초로 1주당 순손익가치를 산정할 수 있는지 여부
(대법원 2013. 12. 26. 선고 2011두2736 판결) ······················································689
[21] 공익법인 등이 출연받은 재산에 대한 과세가액 불산입에 있어서 ‘부득이한 사
유’가 소멸한 이후 출연받은 재산을 직접 공익목적사업 등에 사용할 수 없는
것으로 확정된 때
(대법원 2013. 6. 27. 선고 2011두12580 판결) ························································696
[22] 상증세법상 ‘저당권이 설정된 재산의 평가의 특례’규정이 증여일 당일에 근
저당권이 설정된 경우에도 적용되는지 여부
차 례 xv
(대법원 2013. 6. 13. 선고 2013두1850 판결) ··························································701
[23] 상속세 물납을 청구할 수 있는 납부세액의 한도
(대법원 2013. 4. 11. 선고 2010두19942 판결) ························································706
[24] 친권자와 그 자 사이의 이해상반행위에 해당하는지 여부와 증여세 과세대상 판단
(대법원 2013. 1. 24. 선고 2010두27189 판결) ························································711
제6편 지방세
[1] 지방세법상 간주취득세의 ‘과점주주’의 해석문제
(대법원 2012. 1. 19. 선고 2008두8499 판결) ··························································717
[2] 과점주주의 범위와 간주취득세의 과세대상
(대법원 2013. 7. 25. 선고 2012두12495 판결) ························································724
[3] 실질과세원칙과 지방세법상 간주취득세를 부담하는 과점주주
(대법원 2012. 2. 9. 선고 2008두13293 판결) ··························································730
[4] 지방세법상 과점주주가 되는 시기의 판단기준
(대법원 2013. 3. 14. 선고 2011두24842 판결) ························································737
[5] 조합원이 조합에 청산금을 지급하고 취득하는 주택이 유상거래를 원인으로 취득
하는 주택에 해당하는지 여부
(대법원 2013. 9. 12. 선고 2011두1146 판결) ··························································743
[6] 토지수용으로 인한 대체취득으로 보아 비과세 대상에 해당하는 자의 범위
(대법원 2012. 3. 15. 선고 2011두14524 판결) ························································749
[7] 취득세 등 납세의무 있는 승계취득
(대법원 2012. 3. 29. 선고 2011두22198 판결) ························································753
[8] 조례에 의하여 취득세 등이 감면되는 구 지역신용보증재단법상의 기본재산관리업
무 및 그에 부수되는 업무
(대법원 2012. 9. 27. 선고 2012두11775 판결) ························································759
[9] 복수의 감면규정 중 어느 하나의 규정에 의하여 감면이 이루어진 후 다른 감면규
정에 종속하는 추징규정에 근거하여 추징처분이 가능한지 여부
(대법원 2012. 1. 27. 선고 2010두26414 판결) ························································766
[10] 취득세 과세표준이 되는 취득가격에 포함되는 설치비용
(대법원 2013. 7. 11. 선고 2012두1600 판결) ··························································771
[11] 사인증여의 경우 등록세와 취득세 부과처분시 상속의 경우와 같이 보아야 하는
지 여부 및 개별공시지가 결정의 적법여부 판단기준
(대법원 2013. 10. 11. 선고 2013두6138 판결) ························································776
xvi 차 례
[12] 기숙사를 취득하는 경우 주택거래에 대한 취득세 감면규정이 적용되는지 여부
(대법원 2013. 10. 17. 선고 2013두10403 판결) ·····················································782
[13] 소유권이전등기의 원인이 착오로 인하여 취소되어 소유권이전등기가 말소등기
된 경우 취득세 과세처분의 효력
(대법원 2013. 6. 28. 선고 2013두2778 판결) ··························································787
[14] 감면된 취득세 등의 추징
(대법원 2013. 6. 13. 선고 2011두18441 판결) ························································792
[15] 토지수용으로 인한 대체취득에 대한 비과세 대상에서 제외되는 부재부동산 소
유자 해당여부 판단기준일
(대법원 2013. 4. 11. 선고 2012두27596 판결) ························································797
[16] 용도구분에 의한 비과세에 해당하는 부동산의 취득
(대법원 2013. 3. 28. 선고 2012두26678 판결) ························································802
[17] 신탁해지를 원인으로 소유권이전등기를 마친 경우 취득세의 개상이 되는 새로
운 부동산의 취득에 해당하는지 여부
(대법원 2013. 3. 14. 선고 2010두28151 판결) ························································807
[18] 주택조합이 비조합원용 토지를 취득하는 시기의 판단
(대법원 2013. 1. 10. 선고 2011두532 판결) ····························································812
[19] 사회단체 등이 고유업무에 직접 사용하기 위하여 취득한 부동산에 관하여 구
지방세법 제288조 제2항 단서가 정한 ‘정당한 사유’의 판단
(대법원 2012. 12. 13. 선고 2011두1948 판결) ························································818
[20] 취득세의 과세표준인 ‘사실상의 취득가격’ 판단의 기준
(대법원 2013. 10. 24. 선고 2013두11680 판결) ·····················································822
[21] 기업부설연구소 사용 목적으로 취득한 토지에 관한 매매계약의 해제시 취득세
면제대상에서 제외되는지 여부의 판단
(대법원 2013. 11. 28. 선고 2011두27551 판결) ·····················································827
[22] 오피스텔의 취득이 취득세 세액경감의 대상이 되는 주택의 취득에 해당하는지
여부
(대법원 2013. 11. 28. 선고 2013두13945 판결) ·····················································832
[23] 사업포괄양도양수계약에 따라 취득하는 사업용 재산에 등록세와 취득세를 면제
하기 위한 요건
(대법원 2012. 12. 13. 선고 2012두17865 판결) ·····················································836
[24] 토지거래 허가구역 내 토지에 관한 매매계약에 있어서의 취득시기 및 취득세
신고?납부의무 발생시기의 판단
(대법원 2012. 11. 29. 선고 2012두16695 판결) ·····················································840
[25] 흡수합병으로 인한 지점의 설치와 등록세 중과규정 적용 여부
차 례 xvii
(대법원 2013. 7. 11. 선고 2011두12726 판결) ························································847
[26] 체육시설법상의 구분등록이 되었는지 여부와 중과세율 적용
(대법원 2013. 9. 26. 선고 2013두8295 판결) ··························································853
[27] 비과세감면 대상이 되는 신용협동조합의 업무
(대법원 2013. 5. 9. 선고 2010두23668 판결) ··························································861
[28] 학교법인의 주사무소의 이전과 등록세 중과세 여부
(대법원 2013. 5. 9. 선고 2012두28940 판결) ··························································866
[29] 고속도로 휴게소 임대사업이 수익사업에 해당하는지 여부
(대법원 2013. 4. 26. 선고 2011두6394 판결) ··························································869
[30] 처분 제한의 목적이 된 부동산 가액을 과세표준으로 하여 등록세 등을 산정할
수 있는지 여부
(대법원 2013. 2. 28. 선고 2011두9683 판결) ··························································876
[31] 취득세?등록세가 면제되는 공장용 부동산의 중소기업자에게의 임대
(대법원 2013. 2. 28. 선고 2012두23426 판결) ························································880
[32] 등록세 중과세 여부를 결정하는 토지의 용도에 대한 판단기준 시점
(대법원 2013. 2. 15. 선고 2012두6407 판결) ··························································886
[33] 구 지방세법 시행령 제142조 제3호의 해석상 ‘감면규정’의 인정여부
(대법원 2012. 10. 25. 선고 2012두13634 판결) ·····················································891
[34] 체육시설법상 구분등록대상으로 명시되지 아니한 시설물에 대한 재산세 중과여부
(대법원 2013. 9. 26. 선고 2011두25142 판결) ························································897
[35] 분리과세대상이 되는 회원제골프장에 해당하는지 여부의 판단
(대법원 2013. 2. 15. 선고 2012두11904 판결) ························································904
[36] 재산세와 종합부동산세 등이 부과되는 ‘토지를 유료로 사용하는 경우’의 판단
(대법원 2012. 12. 13. 선고 2010두9105 판결) ························································909
[37] 구 도시계획법에 따라 규율되는 시가지조성사업에 제공하는 주택건설용 토지가
구 지방세법 시행령상의 재산세 분리과세대상 토지에 해당하는지 여부
(대법원 2013. 7. 26. 선고 2011두19963 판결) ························································912
[38] 합병 후 존속법인의 등록세 중과세율에 의한 등록세 추가 납부의무 판단
(대법원 2013. 12. 26. 선고 2011두5940 판결) ························································921
xviii 차 례
제7편 조세특례제한 및 기타
제1절 조세특례제한법 ································································································ 927
[1] 특정매입거래의 경상적 영업활동 인정여부
(대법원 2012. 7. 26. 선고 2012두7844 판결) ··························································927
[2] 물적분할시 포괄승계의 예외가 인정되는 자산?부채의 범위
(대법원 2012. 4. 12. 선고 2011두30502 판결) ························································931
[3] 본사의 수도권 이외 지역 이전으로 인한 법인세 감면대상에서 제외되는 ‘복권발
행업’ 영위여부 판단기준
(대법원 2013. 1. 16. 선고 2011두12856 판결) ························································937
[4] 투자세액공제대상인 ‘연소폐열 등을 이용한 에너지 발생설비’의 해석
(대법원 2013. 12. 26. 선고 2011두28684 판결) ·····················································946
제2절 기타 ·················································································································· 952
[1] 조세감면혜택의 대상인 업종에 해당하는지 여부의 판단 기준
(대법원 2013. 9. 26. 선고 2013두11086 판결) ························································952
[2] 조세채권의 충당에 민법상의 법정변제충당의 법리 적용여부
(대법원 2013. 7. 12. 선고 2011두20321 판결) ························································960
[3] 수입물품 구매자가 국내 판매처에 지급한 판매장려금의 국내판매가격(매출액)에
서 공제여부
(대법원 2013. 2. 28. 선고 2010두16988 판결) ························································965
[4] 은행이 신용카드업무를 겸영하는 경우 그로 인한 수익이 교육세 과세대상인지 여부
(대법원 2012. 11. 29. 선고 2010두8591 판결) ························································972
[5] 건축물이 아닌 부속토지만을 소유하는 경우에도 주택분 종합부동산세 납세의무자
가 되는지 여부
(대법원 2013. 2. 28. 선고 2011두27896 판결) ························································976