1. As to the interpretation and application of the deemed acquisition tax provision

Article 105 (6) of the former Local Tax Act (amended by Act No. 7843 of Dec. 31, 2005; hereinafter the same) provides that "When an oligopolistic stockholder becomes an oligopolistic stockholder by acquiring the stocks or shares of a corporation, the oligopolistic stockholder shall be deemed to have acquired the real estate, etc. of the corporation concerned." Article 22 subparagraph 2 of the same Act provides that "Where an oligopolistic stockholder is a corporation, the total amount of stocks or investments of the stockholders or one partner with limited liability and other related persons prescribed by the Presidential Decree is 51/100 or more of the total number of stocks issued or total investments of the corporation concerned, the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005; hereinafter the same shall apply) provides that "a stockholder or partner with limited liability is one of "one stockholder or a relative or a related person with limited liability" in Article 6 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19250/10/1 of the corporation concerned.

According to the above provisions, an oligopolistic shareholder who is liable to pay deemed acquisition tax under Article 105 (6) of the former Local Tax Act refers to an oligopolistic shareholder under Article 22 (2) of the same Act, and thus, he/she shall meet the formal requirements (see, e.g., Supreme Court Decision 2006Du19501, Oct. 23, 2008).

The lower court rejected the Defendant’s assertion that the Plaintiff was a person who was in title trust with the instant subsidiaries and constitutes an actual owner of the instant shares, on the grounds that there is no evidence to acknowledge such title trust. The lower court determined that the Plaintiff could not be deemed an oligopolistic shareholder of the instant subsidiaries, on the ground that the Plaintiff did not hold all the shares of the instant subsidiaries, but did not reach 51/100 of the shares of the instant subsidiaries, although the Plaintiff was in a special relationship with the instant subsidiaries, which are shareholders of XX, but the shares of the instant subsidiaries do not reach 51/100.

Examining the reasoning of the judgment below in light of the above legal principles, the fact-finding and judgment of the court below are justifiable in that the plaintiff does not fall under the oligopolistic shareholder under Article 105 (6) of the former Local Tax Act, and there is no error in the misapprehension of legal principles as to oligopolistic shareholder, which is the taxation requirement of deemed acquisition tax, or incomplete deliberation as to the title trust of stocks

2. As to the application of the provision on deemed acquisition tax under the substance over form principle

A. Based on the evidence of employment, the lower court determined that ① the company established by the Government of Singapore with 100% investment again by the company established by the Government of Singapore with 100% investment again, ③ the subsidiaries of this case were 100% investment of △△△△△△ (hereinafter referred to as the “△△△△△”) and 100% investment of 10% of △△△△△ (hereinafter referred to as “the subsidiaries of this case”), ② the subsidiaries of this case did not have an economic effect on December 28, 2004 on the acquisition of 50.01% and 499% of the total number of issued and outstanding shares of this case, which were non-listed corporations, as well as on the acquisition of shares of this case by the subsidiaries of this case, and that the subsidiaries of this case did not have an economic effect on the acquisition of shares of this case by the subsidiaries of this case, as well as on the acquisition of shares of the Plaintiff’s subsidiaries of this case.

B. However, we cannot accept the judgment of the court below for the following reasons.

Article 14(1) of the former Framework Act on National Taxes (amended by Act No. 8830, Dec. 31, 2007; hereinafter the same) provides that “where the ownership of income, profit, property, act or transaction subject to taxation is merely nominal and there is another person to whom such income, profit, or transaction belongs, the person to whom such income, profit, or transaction belongs shall be liable for tax payment.” Paragraph (2) of the same Article provides that “The provisions on the calculation of tax base in tax-related Acts shall apply according to the substance, regardless of the name or form of income, profit, property, act or transaction.” The principle of substantial taxation declared is a practical principle for realizing the principle of equality as stipulated in the Constitution, which differs from the substance of the tax-related relationship, and thus, is to be determined differently from the substance of the tax-related relationship, by imposing tax on the person to whom such income, profit, or transaction belongs, regardless of its form or appearance, and thus, to ensure stability and effectiveness of taxation without the law.

In the instant case, according to the facts acknowledged by the court below, the Plaintiff did not hold the instant shares at all when considering the legal form of acquiring and holding the instant shares. On the other hand, the instant shares acquired by the instant subsidiaries are about 50.01% and about 49.99% of the total number of issued and outstanding shares in XX, and do not fall under the requirements for oligopolistic shareholders applicable to the case where the share holding ratio is more than 51%, and thus, the Plaintiff and the instant subsidiaries suffered losses from the application of the so-called deemed acquisition tax under Article 105(6) of the former Local Tax Act. However, according to the reasoning of the court below and the record, the instant subsidiaries are deemed to have no business performance other than the acquisition and disposal of the instant shares, and are deemed to have been established for the acquisition of the instant shares, and are deemed to have been established for the purpose of independent decision-making or business purpose due to the Plaintiff’s lack of the requirements for acquisition tax and disposal of the instant shares under Article 105(6) of the former Local Tax Act.

Examining the above circumstances in light of the aforementioned provisions and legal principles, there is reasonable ground to view that the Plaintiff is liable to pay acquisition tax pursuant to Article 105(6) of the former Local Tax Act regarding the acquisition of the instant shares as the actual owner of the instant shares, since the Plaintiff substantially controls and manages the instant shares through full control over the instant subsidiaries.

Therefore, the court below should have deliberated on the purpose of the establishment of the subsidiaries of this case, the Plaintiff’s control relationship and degree of control, the process and purpose of acquiring the shares of this case in detail, and should have determined whether the Plaintiff is liable to pay acquisition tax under Article 105(6) of the former Local Tax Act with respect to the acquisition of the shares of this case. Nevertheless, without examining and determining the above, the court below concluded that the Plaintiff was not liable to pay acquisition tax with respect to the acquisition of the shares of this case. Thus, the court below erred by misapprehending the legal principles as to the principle of substantial taxation, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.