증권거래세를 시가 보다 낮은 가액으로 양도한 경우 시가를 과세표준으로 함[국승]
early 2009 Mine3676 ( December 30, 2009)
Where securities transaction tax is transferred at a price below the market price, the market price shall be the tax base.
Securities transaction tax is the tax base of securities transaction tax, if the transferee of the transferor who performs securities transaction regardless of resident, non-resident, corporation, or foreign corporation, and in this case, the rud amount transferred at a price below the market price.
The contents of the decision shall be the same as attached.
○○ Europe
Head of the Military Tax Office
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Defendant’s imposition of securities transaction tax and additional tax 125,827,560 won against the Plaintiff on July 2, 2009 shall be revoked.
1. Details of the disposition;
A. The Plaintiff and ○○○ International (hereinafter referred to as “Nonindicted Company”) are both established by French law and do not have a domestic business place in France, and are foreign profit-making corporations with no domestic business place in the position of a mutual relation.
B. On October 15, 2007, the Plaintiff acquired shares 8,649,087 shares (hereinafter “the shares in this case”) issued by the non-party company 5,86,856,490 won (EDR 4,521,000) from the non-party company in Korea. On November 9, 2007, the Plaintiff reported and paid securities transaction tax 29,334,282 won (tax base: transaction price: 5,866,856,490 won, and 0.5%) to the Defendant.
C. On July 2, 2009, the Defendant notified the Plaintiff of the securities transaction tax of 125,827,560 won (the amount calculated by adding additional tax of 20,971,260 won to 134,190,584 won calculated by applying the tax rate of 0.5% to the tax base of 26,838,116,961 won (the market price of the instant shares) and subtracting the amount of voluntary payment tax of 29,34,282 won) (hereinafter “instant disposition”).
D. On September 1, 2009, the Plaintiff filed an appeal with the Tax Tribunal on September 1, 2009, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on December 30, 2009, and the above decision was served on the Plaintiff on January 5, 2010.
[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 6, the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The proviso of Article 7 (1) 2 (a) of the former Securities Transaction Tax Act (amended by Act No. 8838, Jan. 9, 2008; hereinafter the same) is only applicable to non-residents, including residents, domestic corporations, and non-profit foreign corporations, and cannot be applied to foreign profit-making corporations under the principle of no taxation without law. However, the disposition of this case where a foreign profit-making corporation calculates securities transaction tax by applying the above provision to the plaintiff, who is a foreign profit-making corporation, on the basis of the market price
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
(1) On the other hand, Article 101 of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008) and Article 52 of the Corporate Tax Act provide that where a foreign corporation, which does not have a domestic business place, is not a securities company through a non-profit corporation and transfers stocks, the transfer value of stocks shall be the tax base in principle: Provided, That where the stock certificates, etc. are deemed to have been transferred at a price lower than the market price under Article 101 of the Income Tax Act, Article 52 of the Corporate Tax Act, or Article 35 of the Inheritance Tax and Gift Tax Act, Article 101 of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008) and Article 52 of the Corporate Tax Act provide that where tax burden has been reduced unfairly due to transactions with a resident or a related party of a domestic corporation, the transfer value of stocks, etc. may be calculated without calculating the income amount of the non-profit witness regardless of calculating the transaction.
(2) On the other hand, Article 7 (1) 2 (a) of the former Securities Transaction Tax Act is amended by Act No. 838, Jan. 9, 2008; Article 7 (1) 2 (a) of the former Securities Transaction Tax Act is newly added; Article 7 (1) 2 (a) of the former Securities Transaction Tax Act is newly added. In light of the above circumstances, Article 7 (1) 2 (a) of the former Securities Transaction Tax Act is merely the transfer price of stocks to a foreign corporation or a non-resident at a price lower than the market price; Article 7 (1) 2 (b) of the former Securities Transaction Tax Act is not the transfer price of stocks; Article 7 (1) 2 (a) of the former Securities Transaction Tax Act is not the transfer price of stocks to a foreign corporation or a non-resident; Article 7 (1) 2 (a) of the Income Tax Act is not the transfer price of stocks at the market price lower than the market price.
(3) Therefore, inasmuch as the Plaintiff acquired the instant shares from the non-party company in the position of mutual relation (5,86,856,490 won) at a lower price than the market price (26,838,116,961 won), the instant disposition that calculated the tax base by applying the proviso of Article 7(1)2 (a) of the former Securities Transaction Tax Act is lawful.
3.In conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.