쟁점주식 양도일까지 계속 5년 이상 주소를 둔 거주자에 해당하는지[국승]
Suwon District Court-2016-Gu Group-8948 (2017.05)
Whether a resident who has an address for at least five years before the date of transfer of outstanding shares
In light of the fact that most of the key issues were staying in Korea, not reporting emigration, and the health insurance fee is paid as a resident in Korea during the key issues period, and monetary transactions are made using an individual account opened in a domestic bank, it is reasonable to view that it constitutes a resident in Korea for at least five years until the date of transferring the outstanding shares
The scope of transfer income under Article 118-2 of the Income Tax Act
2017Nu6395 Revocation of Disposition of Imposing capital gains tax
Hao
○ Head of tax office
Suwon District Court Decision 2016Gudan8948 Decided July 5, 2017
January 10, 2018
February 14, 2018
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance is revoked. The transfer income tax reverted to the Plaintiff on October 1, 2014 that the Defendant rendered to the Plaintiff on October 1, 2014
The imposition of KRW 2,293,794,870 (including additional taxes) shall be revoked.
1. Quotation of judgment of the first instance;
The reasons for this Court are as follows, and thus, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.
I swear that ○ 2 pages 4 shall read as “I,” respectively.
○ 3 pages 1) “(B)” shall be read as “(B)”.
In ○○ 5 pages 5, the first phrase “the appointment of the Plaintiff’s director in 03” as “the appointment of the Plaintiff’s director on February 27, 2002, the appointment of the Plaintiff’s director on March 5, 2003, and the appointment of the auditor.”
From the 5th bottom to the bottom of the 4th parallel "7th parallel" up to the bottom of the 3th parallel, it shall be as follows:
7) The Plaintiff had worked as an executive officer of the domestic corporation during the Hong Kong migration period from July 1, 1991 to December 31, 2002, from February 27, 2002, from March 5, 2003, and from March 5, 2003 as DD’s auditor. The Plaintiff paid the health insurance fees to each of the employment provided policyholders ofCC from December 31, 2002, from December 31, 2002, from June 1, 2004 to June 1, 2004.
○ From the 6th bottom to the 2nd " August 30, 2004" as " September 1, 2004", "204" shall be added and "36 days" of the last parallel of the same 2004 shall be read as "8 days".
The "Plaintiff" column in the first letter on the 7th page is as follows.
*the omission of the Table
○ At the bottom of 8 pages, 3 " August 30, 2004" shall be read as " September 1, 2004".
The ○ 9th 13th 13th son’s 13th son’s son’s son’s son’s son.
○ 10 pages 5, “Plaintiffs” from 10 to 10.
○ From 10 pages 11 up to 11 pages 11 are as follows:
In addition to the above overall circumstances, the Plaintiff formed a living relationship while staying in Hong Kong on or around October 1992 with his family. However, around March 12, 2003, the Plaintiff resigned the representative director of AA and stayed in the United States on or around June 12, 2003, and stayed mainly in the United States. The number of Hong Kong sojourn days in 2004 is only one day, and the Plaintiff appears to have actually settled the living relationship in Hong Kong. The Plaintiff entered the Republic of Korea regardless of the United States with his family on April 9, 2004, and repeated a long-term departure from Hong Kong by September 8, 2004, while residing in the Republic of Korea from April 9, 2004 to August 31, 2004, the Plaintiff could have returned to the Republic of Korea for 148 days after his/her stay in Hong Kong and 207 days after his/her stay in the Republic of Korea.
Then, "the plaintiff seems to have actually liquidated the living relationship in Hong Kong after departure from the Republic of Korea with his family on June 2003, as well as the actual liquidation of the living relationship in the United States."
○ 11. The following shall be added to the last 11th page:
○ The Plaintiff asserts that, on April 9, 2004, his/her family entered the Republic of Korea independently with his/her family residing in Hong Kong, from July 2004 to September 8, 2004, the Plaintiff did not appear in Korea on the tax base date, and thus, on August 31, 2004, the Plaintiff cannot be deemed domestic residents from April 9, 2004. However, under Article 2(1) of the former Enforcement Decree of the Income Tax Act, the existence of his/her family living together with his/her family is merely one of the factors to determine his/her address, and it is not absolute criteria to determine his/her family living together with his/her family living in Hong Kong. Considering that the Plaintiff’s living relationship with his/her family on April 9, 2004 was liquidated at least from the time of his/her domestic residence to the United States, and that ○○ was reasonable to have been living in Korea with his/her family living in China, and that the Plaintiff was deemed to have been residing in Korea on April 29, 200.
2. Conclusion
The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.