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(영문) 주식 등 변동상황명세서를 근거로 과점주주에 해당한다고 보아 취득세를 부과한 처분의 당부

조세심판원 조세심판 | 2012-03-27 | 조심2011지0540 | 지방

[Case Number]

Cho High Court Decision 201No0540 ( October 27, 2012)

[Items]

acquisition

[Types of Decision]

Dismissal

[Summary of Decision]

The tax authority must prove the ownership of shares by the list of shareholders or the statement of the status of stock transfer, etc., and in the case of claiming title trust, the nominal owner who asserts that he is not a shareholder must prove the facts (Supreme Court Decision 2003Du1615, July 9, 2004). It is legitimate to impose acquisition tax on the applicant as deemed an oligopolistic shareholder based on the statement of changes in stocks, etc. submitted by the corporation to the head of the tax office

[Related Acts]

Article 105 of the Local Tax Act

【Reference Decision】

early 2009No0792

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. As of December 31, 2005, the claimant as of December 31, 2005 held 8,900 shares issued by OOO (hereinafter referred to as “OO”) among 30,00 shares, OO of the claimant’s accommodation owned 6,00 shares (total 14,90 shares, 49.67% shares) respectively, and OO owned 3,00 shares of this case from OO (hereinafter referred to as “OO”), OO acquired 6,00 shares from OO to 3,00 shares of this case (hereinafter referred to as “OO”), OO acquired 6,00 shares from OO to 11,90 shares issued by O,90 shares (hereinafter referred to as “this case”), OO owned 1200 shares issued by 120,000 shares issued by the corporation and 300 shares issued by O30% shares issued by the corporation, respectively.

B. The disposition authority confirmed that the claimant has failed to file a report on acquisition tax, etc. due to an oligopolistic shareholder even though the oligopolistic shareholder had been the claimant, and notified the OO of the book value of the objects subject to acquisition tax owned by this corporation as of the date when the liability to pay the oligopolistic shareholder was established ( October 31, 2006) multiplied by 39.67% (11,90%) held by the claimant and calculated by applying the tax rate under Article 112(1) of the Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter the same shall apply) to the OO, special rural development tax, and OOO (including additional tax) calculated by applying the tax rate under Article 112(1) of the Local Tax Act.

C. The claimant appealed and filed an appeal on June 8, 201.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

(1) The representative director of the instant legal entity and held the shares of the instant legal entity in the name of the claimant under a title trust upon the request of the OO, a deliberative father of the claimant. It is not the beneficial shareholder of the instant legal entity, but the OO is an oligopolistic shareholder who actually owns all the shares issued by the instant legal entity since the date of the establishment of the instant legal entity and the claimant acquired the shares held by the OOO on October 11, 2006 because it is merely the fact that the OO, a de facto beneficial shareholder, returns the shares held in title to OO in the name of the OOO because the OO, a de facto beneficial shareholder, does not fall under the oligopolistic shareholder under Article 105(6) of the Local Tax Act, but the OO does not fall under the oligopolistic shareholder of the instant legal entity, and thus, it is unreasonable to impose acquisition tax, etc. on the applicant

(2) Even if an applicant is liable for acquisition tax, the date the applicant’s liability for acquisition tax is established shall be October 11, 2006 on the date when the applicant acquired stocks at issue from OOO. Thus, acquisition tax should be imposed only on the value directors, OO, OO,OO, andOOO that were computed by multiplying the applicant’s equity ratio by the acquisition ratio of the applicant’s ownership at the time of the establishment of the oligopolistic shareholder’s liability for acquisition tax. However, it is unreasonable for the disposal authority to impose acquisition tax on the applicant by deeming the date of acquisition of the applicant’s stocks as the date of acquisition as October 31, 2006, by OO, OO,OO, andOOO as the tax base of the OO multiplied by the applicant’s equity ratio.

(b) Opinions of disposition agencies;

(1) Even if the claimant is in a title trust relationship with the OO, since the ownership is transferred to and reverted to the trustee in the external relationship even if the claimant acquires the shares through a title trust, the claimant and OOO as the owner of the shares at issue are registered in the register of shareholders of the corporation at issue, and the claimant and OOO are oligopolistic shareholders of the corporation at issue, and the liability to pay acquisition tax has been established. Therefore, the claimant's assertion that the acquisition tax liability of oligopolistic shareholders

(2) The date on which the claimant acquired shares is confirmed on October 31, 2006, while the date on which the 3,000 shares of the corporation was actually acquired by the OOO on October 11, 2006, and the contract for the transfer and acquisition of shares submitted by the OO was made out on October 11, 2006, and it is difficult to view that the date on which the OO acquired shares of the corporation as the date on which the OO acquired shares of the corporation as the date on which the OO acquired shares of the corporation was made as the date on which the OO was made as the date on which the OO acquired shares of the corporation was made as the date on which the OO was made. Thus, it is legitimate for the OO to impose acquisition tax on the Claimant as the tax base for the object subject to acquisition tax as

3. Hearing and determination

(a) Points in dispute;

(1) Whether the claimant can assert that he/she is a beneficial shareholder under the name of the beneficial shareholder of the instant corporation

(2) The disposition agency deemed that the claimant acquired the stocks in dispute on October 31, 2006 and imposed the acquisition tax on oligopolistic shareholders in accordance with the details stated in the statement on the status of changes in stocks, etc. of the corporation, but whether the date of actual acquisition of the stocks in question can be recognized as the claimant's assertion that it is October 11, 2006.

B. Relevant statutes

(1) Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010)

Where the property of a corporation (excluding a corporation whose stocks are listed on the securities market pursuant to Article 2 (1) of the Korea Securities and Futures Exchange Act) is insufficient to be appropriated for the impositions of a local government to be paid by such corporation, with the property of the corporation referred to in Article 22, the secondary tax liability for payment of such local government shall be the secondary tax liability for such shortage: Provided, That in the case of oligopolistic stockholders pursuant to the provisions of subparagraph 2, any of the following persons shall be limited to the amount calculated by multiplying the amount calculated by dividing the shortage by the total number of stocks issued by such corporation (excluding non-voting stocks; hereafter the same shall apply in this Article) or the total amount of investment of such corporation by the number of stocks owned by such oligopolistic stockholders (in the case of oligopolistic stockholders referred to in subparagraph 2 (a) and (b), the number of stocks or investments by such oligopolistic stockholders exercising de facto rights):

2. A person falling under any of the following items from among oligopolistic shareholders (referring to the persons in whose case the total amount of stocks held or investments made by a stockholder or a partner with limited liability and relatives prescribed by Presidential Decree and other persons having special relations with him exceeds 50/100 of the total number of stocks issued or total investments made by the relevant corporation; hereinafter the same

(6) When a person becomes an oligopolistic stockholder by acquiring stocks or shares of a corporation, the oligopolistic stockholder shall be deemed to have acquired real estate, vehicles, etc. of the corporation concerned: Provided, That this shall not apply where a person becomes an oligopolistic stockholder by acquiring stocks or shares issued at the time of incorporation.

Article 111 (Tax Base) (1) The tax base for acquisition tax shall be the value at the time of acquisition: Provided, That in cases of acquisition in annual installments, it shall be the annual installments.

(4) The tax base amount for the real estate, vehicle, mechanical equipment, standing timber, aircraft, vessel, mining right, fishing right, golf membership right, riding club membership right, condominium membership right or membership right to use athletic facilities of the juristic person concerned which is deemed to have been acquired by an oligopolistic stockholder under Article 105 (6) shall be the amount calculated by multiplying the total value of the real estate, vehicle, mechanical equipment, aircraft, standing trees, ships, mining right, fishing right, golf membership right, riding club membership right, condominium membership right, or membership right to use athletic facilities complex by the number of stocks or investments acquired by the oligopolistic stockholder. In this case, the oligopolistic stockholder shall report the tax base amount and other necessary matters as prescribed by the Municipal Ordinance: Provided, That if there is no indication of the reported or reported value or the reported value falls short of the tax base amount, the amount calculated by the method of calculating the former sentence on the basis of the total value

(2) Enforcement Decree of the Local Tax Act (wholly amended by Presidential Decree No. 22395, Sept. 20, 2010)

Article 6 (Scope of Sponsor relatives and other specially related persons) (1) The term “relatives or other specially related persons prescribed by the Presidential Decree” in Article 22 (2) of the Act means those who fall under any of the following subparagraphs: Provided, That in case where a stockholder or partner with limited liability is a woman, he shall be subject to the relationship with her husband except in the cases of subparagraphs 9

1. Any paternal blood relationship within the six degrees and the wife of any paternal blood relationship within the four degrees;

Article 78 (Acquisition, etc. of Bana Stockholders) (1) Where a stockholder or partner with limited liability who is not an oligopolistic stockholder of a corporation becomes an oligopolistic stockholder for the first time by acquiring the stocks or shares of another stockholder or partner with limited liability, or where a person becomes an oligopolistic stockholder for the first time due to capital increase, etc., acquisition tax shall be imposed pursuant to Article 105 (6) of the Act, deeming that all the stocks or shares of the corporation owned by the

(3) Corporate Tax Act

Article 118 (Preparation and Keeping of List of Stockholders, etc.) Any domestic corporation (excluding any non-profit domestic corporation) shall prepare and keep a register of stockholders or members stating the matters prescribed by Presidential Decree, such as the names, addresses and resident registration numbers (in cases of any stockholder or employee of a corporation, the name of the corporation, the location of the head office and the business registration number) of stockholders or employees (referring to members of a limited company;

Article 119 (Submission of Detailed Statement on Change of Stocks, etc.) (1) Any corporation (excluding partnership corporations prescribed by the Presidential Decree) that has changed stocks, etc. during the business year shall submit a detailed statement on change of stocks, etc. to the chief of the district tax office having jurisdiction over the place of tax payment within

(4) Enforcement Decree of Corporate Tax Act

Article 160 "Making and keeping of a list of stockholders, etc. with the matters prescribed by Presidential Decree" in Article 118 of the Act means a list of stockholders or a list of members with the matters referred to in the provisions of Article 352 of the Commercial Act or a list of members referred to in the provisions of Article 566 of the same Act, which has the personal matters stated in accordance with the classification of

1. Name, address and resident registration number (in cases of a Korean national residing abroad, passport number or registration number under the Registration of Korean Nationals Residing Abroad Act);

(5) Inheritance Tax and Gift Tax Act;

Article 45-2 (Presumption of Donation of Property under Title Trust) (1) In case where the actual owner and the nominal owner are different from the property (excluding land and buildings; hereafter the same shall apply in this Article), the value of the property shall be deemed to have been donated to the actual owner by the nominal owner on the date when the actual owner are registered, etc. as the nominal owner (where the property requires a change of ownership, referring to the date following the last day of the year following the year in which the date of acquisition of ownership falls), notwithstanding Article 14 of the Framework Act on National Taxes: Provided, That the same

1. Where any property is registered in another person's name without the purpose of tax avoidance, or transfer is not made in the name of the actual owner who acquired the ownership;

(6) Trust Act

Article 3.(1)(A) With respect to property rights to be registered or recorded, the trust may oppose against a third party by making a registration or enrollment.

(2) With respect to securities, a trust may indicate the fact that they are trust property in securities, and oppose against a third party with regard to stock certificates and debentures, by stating the fact that they are trust property in the register of shareholders or the bond register.

Article 337 (Requisite for Setting up against Transfer of Registered Shares) (1) The transfer of registered shares cannot be effective against the company unless the name and address of the acquisitor is entered in the register of shareholders.

C. Facts and determination

(1) We examine the facts.

According to the review materials submitted by the claimant and the disposition agency, the following facts are revealed.

A) The changes in the shares of this legal entity are as follows:

(2) A summary of the status of any change in shares of the corporation.

B) As of the date of the instant petition for adjudication, the claimant is registered as a director of this legal entity, and the OO and the claimant, the representative director of this legal entity, are the related parties stipulated in the local tax law as well as the nature of the petition.

Until now, the claimant and the OO, who owned 49.67% of the shares of the corporation of this case, have acquired the shares from OO on October 31, 2006 and acquired 6,000 shares of this corporation from OO and owned 79.67% of the shares of this corporation.

C) By December 5, 2005, this corporation acquired 24,001 square meters and 10 m24,001 m2 from OO to OO, and 35,508 m2 from OO to OO on October 24, 2006, respectively, and filed a report on acquisition with the disposition authority, and completed the registration of ownership transfer.

The book value of the construction site as of October 31, 2006 is about OO, including OOOOOOOO and 12 parcels, and the book value as of October 11, 2006 is about OO.

D) The claimant asserted that he/she acquired the shares at issue from OO on October 11, 2006, and submitted a contract for the transfer and acquisition of the shares at issue, a certificate of personal seal impression of OO, and a copy of resident registration prepared on the same day between the claimant and OO as follows.

Contracts for Transfer and Acquisition of Stocks

Trade Name:OO

Stock face value: goldOOO

Transfer value per share: OOOOO

Number of transferred shares: 3,000 shares

on October 11, 2006, the shares are transferred to the OO.

o October 11, 2006

Transferr OO

OOO by transferee

The claimant and the OOO did not notarized the contract for the transfer and acquisition of the above shares, and the OO did not submit evidentiary documents on October 11, 2006 that it transferred the shares to the OO and paid the securities transaction tax to the OO. In addition, the OO alleged that the 1,500 shares of the corporation were transferred to the OO on the same day, and the OO submitted the thickness of the contract for the transfer and acquisition, but it appears that the signed letters were the same.

E) Upon examining the facts issued on July 5, 201 by the KO head of the KOO, the OO that transferred 6,000 shares of this corporation to OO on October 11, 2006 is confirmed to have filed a tax base return on securities transaction tax with OO on November 10, 2006.

F) On December 18, 2009, OOO was sentenced to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), the violation of the Act on the Registration of Real Estate under Actual Titleholder's Name, the violation of the Commercial Act, the forgery of private documents, or the exercise of a falsified investigation document, and sentenced to one and half years of imprisonment and six months of fine OO and three years of suspended execution.

In light of the summary of the above judgment, the OO embezzled out of the PF loan funds borrowed in connection with the new apartment construction business of the corporation, and most of them were consumed in casino, etc., but there was no criminal history punished by the sentence prior to the instant case. There is room to deem that the OO was committing the instant embezzlement-related crime as one-person company of the OO, as the OO did not clearly distinguish the company's funds and personal funds, and that the damage was recovered to the victimized company.

(2) We examine the issues (1)

A) Article 105(6) of the Local Tax Act provides that when a person becomes an oligopolistic stockholder by acquiring a corporation’s stocks or shares, such oligopolistic stockholder shall be deemed to have acquired the real estate, vehicle, etc. of the relevant corporation. Article 78(1) of the Enforcement Decree of the same Act provides that where a stockholder who is not an oligopolistic stockholder becomes the first oligopolistic stockholder by acquiring the stocks of another stockholder, he/she shall be deemed to have acquired all the stocks or shares of the corporation owned by the relevant oligopolistic stockholder as of the date when he/she first becomes an oligopolistic stockholder, and the acquisition tax

B) The facts of stock ownership in the above provision can be proved by data such as a list of shareholders, a statement of stock transfer or a list of corporate register, etc. However, in the case where the tax authority appears to be a single shareholder in light of the statement of stock change, etc., if there are circumstances such that the actual shareholder was stolen or registered in a name other than the actual owner, the actual shareholder should not be deemed to be a shareholder, but it should be proved by the nominal owner who asserts that he is not a shareholder.

C) The claimant asserts that this case’s shares are nominal to the claimant by the OO, and the claimant does not constitute a beneficial shareholder of this case, but the claimant asserts that this case’s shares are in title.

It is difficult to accept the claimant's assertion that the corporation's shares owned by the claimant are not proved by objective evidence, and even if theOO held a title trust by the claimant, the actual owner cannot be known unless it is publicly announced. Therefore, whether the corporation constitutes an oligopolistic shareholder under the local tax law should be determined by the change of ownership by transfer of ownership in the register of shareholders. Therefore, it is difficult to accept the claimant's argument that the corporation is not a beneficial shareholder of the corporation.

(3) We examine the issues (2).

A) Article 111(1) of the Local Tax Act provides that the tax base for acquisition tax shall be the value at the time of acquisition, and Article 111(4) of the same Act provides that the tax base for real estate, etc. of a corporation deemed to have been acquired by an oligopolistic stockholder shall be the tax base amount multiplied by the total value of stocks or investment of the corporation divided by the total number of stocks or investment of the corporation and multiplied by the number of stocks or investment acquired by the oligopolistic stockholder, but in the absence of any indication of the reported or reported value, the market

B) The claimant asserts that acquisition tax should be imposed on the property subject to acquisition tax of the corporation as of October 11, 2006, since the date when the claimant acquired the stocks at issue and became an oligopolistic stockholder of the corporation at issue.

C) According to the statement on the state of fluctuation in the stocks, etc. of the instant corporation, the date when the claimant acquired the stocks in question is written on October 31, 2006, and in light of the facts recorded in the register of stockholders on the same day, it is reasonable to view the claimant as the oligopolistic shareholder of the instant corporation on October 31, 2006. Thus, the disposal authority held that it was not erroneous to notify the claimant of the acquisition tax on the acquisition tax on the ground that the OO calculated by multiplying the OO of the total assets subject to acquisition tax of the instant corporation by 39.67% of the shares held by the claimant as the tax base on October 31, 2006.

4. Conclusion

This case's petition is without merit, so it is decided as ordered by Article 123(4) of the Framework Act on Local Taxes and Article 81 and Article 65(1)2 of the Framework Act on National Taxes.