쇠지지 지은은 3000 아은은은은은 3000 아은은은은은은은 3000 아은은은은은 3000 아은은은은 3000 이 이 3000200 이 300209Nu17676

[1.6 1.3 【1. 2. 1. 【1. 2. 2.2】

Article 47 of the Administrative Court of Seoul 200 【300 【3000 【3000 【3000 【3000 Seoul Administrative Court Decision 2007Guhap37285 decided May 29, 2009

쇠은은 이 개은은은 3000 개은은은 3000 개은은은은은 3000 이 이 3001. 18 January 18, 2002

44 44 44 44 44 45 44 444 64 44

1. Revocation of a judgment of the first instance;

2. The disposition of imposing corporate tax of KRW 1,675,521,340 (including additional tax) imposed on the Plaintiff on December 15, 2005 by the Defendant shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

쇠鹬 쇠鹬 3000 쇠鹬 3000

1. Details of the disposition;

The reasoning of this Court's decision on this part is as follows: (a) in addition to the use of "transfer income tax" in the third 18th 18th of the judgment of the court of first instance as "corporate tax"; and (b) the use of "income tax and corporate tax" in the second 20th as "transfer income tax", it is identical to the corresponding part of the judgment of the court of first instance

2. The parties' assertion

The reasoning of this Court's decision concerning this part is that the "Economic Development Cooperation Organization" in the fourth end of the first instance court's decision shall be "Economic Development and Development Organization", and the "transfer income tax" in the third bottom of the fifth to "corporate tax" shall be respectively referred to as "corporate tax", and therefore, it shall be cited as it is in the corresponding part of the reasoning of the first instance court's decision.

3. Determination

Even if the actual owner of the stock transfer income of this case can be seen as the plaintiff by applying the substance over form principle like the defendant's assertion, in light of the contents of the relevant laws and the legitimate interpretation, etc., the defendant cannot impose corporate tax on the plaintiff by applying Article 93 subparagraph 7 of the Corporate Tax Act (amended by Act No. 9267 of Dec. 26, 2008; hereinafter the same shall apply) and Article 132 (10) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18706 of Feb. 19, 2005; hereinafter the same shall apply) with respect to the stock transfer income of this case. Thus, the disposition of this case

(1) Contents of the relevant statutes (specific provisions and other relevant statutes are referred to in the attached Form)

Article 93 subparagraph 7 of the Corporate Tax Act provides that "income prescribed by the Presidential Decree as capital gains under Article 94 of the Income Tax Act (excluding income under paragraph (1) 3 of the same Article) shall be one of the domestic source income of a foreign corporation, and Article 132 (10) 2 of the Enforcement Decree of the Corporate Tax Act provides that "income under the conditions as prescribed by the Presidential Decree" shall be "income under Article 94 (1) 4 of the Income Tax Act. In this case, "stocks, etc." in the same subparagraph shall, notwithstanding Article 158 (1) of the Enforcement Decree of the same Act, be the stocks or equity shares (excluding the stocks or equity shares listed or registered on the securities market) of the corporation as of the first day of the business year to which the date of transfer belongs, in which the total amount of asset value under Article 94 (1) 1

Article 94 (1) 4 (c) of the Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008; hereinafter the same) which was enforced at the time of the transfer of stocks of the relevant corporation provides that "property prescribed by the Presidential Decree in consideration of the composition of stockholders of the corporation which issued stock certificates or investment certificates, the status of real estate holding, or the type of business, etc." shall be one of capital gains, and Article 158 (1) 1 of the Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 19890 of Feb. 28, 2007; hereinafter the same shall apply) provides that "property prescribed by the Presidential Decree" shall be "property prescribed by the Presidential Decree as one of capital gains." Article 158 (1) 1 of the Enforcement Decree of the Income Tax Act (hereinafter referred to as "property ratio requirement") provides that "property ratio of 50/100 or more of the total amount of assets of the relevant corporation shall be the requirement of 10/50/10 or more of stocks.

(2) A reasonable interpretation under Article 93 subparag. 7 of the Corporate Tax Act and Article 132(10)2 of the Enforcement Decree of the Corporate Tax Act

㈎ 법인세법 제93조 제7호 소정의 '소득세법 제94조에 의한 양도소득'

① In light of the language and text of Article 93 subparag. 7 of the Corporate Tax Act, in order to be subject to taxation under the above provision, it should be “those other than income under Article 94(1)3 of the Income Tax Act” among transfer income under Article 94 of the same Act. Meanwhile, Article 93 subparag. 10 of the Corporate Tax Act separately provides for “transfer income of stocks, etc. except for assets under Article 94(1)4 of the Income Tax Act,” so the “income under Article 94(1)3 of the Income Tax Act excluded under Article 93 subparag. 7 of the same Act” is subject to taxation under Article

(2) Article 94 of the Income Tax Act provides for the transfer income of stocks, etc. under subparagraphs 3 and 4(c) of paragraph (1) of this Article, and subparagraph 3 of this Article provides for the transfer income of stocks, etc. of general type, and subparagraph 4(c) provides for the transfer income of stocks, etc. of specific type so that the specific contents and scope can be specified as prescribed by the Presidential Decree. Accordingly, Article 158(1)1 of the Enforcement Decree of the Income Tax Act provides for the transfer income of stocks, etc. of which the requirements for asset ratio, shareholding ratio requirements, and stock transfer ratio requirements are all met as seen earlier, as mentioned above, Article 94(1)4(c) of the Income Tax Act provides for the transfer income of stocks, etc. of which the provisions of Article 94(1)3 and 4(2)

③ Comprehensively taking account of the above statutory provisions, Article 93 subparag. 7 of the Corporate Tax Act covers income under Article 94(1)3 of the Income Tax Act and income under Article 94(1)3 of the same Act among capital gains under Article 94 of the same Act. In the case of capital gains under Article 94(1)4 of the Income Tax Act, it shall be interpreted that the specific contents are specific assets, i.e., assets, asset ratio requirements, shareholding ratio requirements, and stock transfer ratio requirements are all met (Article 132(10)2 of the Enforcement Decree of the Corporate Tax Act as delegated by Article 93 subparag. 7 of the Corporate Tax Act).

㈏ 법인세법 시행령 제132조 제10항 제2호의 규정 범위 및 그 해석

① Article 93 subparag. 7 of the Corporate Tax Act provides that “income prescribed by the Presidential Decree as capital gains under Article 94 of the Income Tax Act shall be subject to taxation.” Accordingly, the Enforcement Decree of the Corporate Tax Act that provides for the scope of capital gains can only define the scope of “capital gains under Article 94 of the Income Tax Act” within the scope of “capital gains under Article 94 of the same Act, which is the same as that

② Article 132(10)2 of the Enforcement Decree of the Corporate Tax Act provides that "in the case of income under Article 94(1)4 of the Income Tax Act, notwithstanding the provisions of Article 158(1) of the Enforcement Decree of the Income Tax Act, the total asset value under Article 94(1)1 and 2 of the Income Tax Act is not less than 50/100 of the total asset value of the corporation as of the starting date of the business year to which the transfer date belongs, and as of the starting date of the business year to which the transfer date belongs, if only the asset ratio requirement among the requirements under Article 158(1)1 of the Enforcement Decree of the Income Tax Act is met, it may be interpreted as falling under the capital gains under Article 93 subparag. 7 of the Corporate Tax Act. According to the provision of Article 158(1)30 of the Enforcement Decree of the Income Tax Act, if the capital gains of the corporation falls under the asset ratio requirement

However, in a case where Article 132(10)2 of the Enforcement Decree of the Corporate Tax Act is interpreted, the scope of Article 94(1)4 of the Income Tax Act that requires all the asset ratio requirements and shareholding ratio requirements, Article 158(1)1 of the Enforcement Decree of the Income Tax Act, as well as Article 94(1)3 of the Corporate Tax Act that clearly excludes income under Article 93 subparag. 7 of the Corporate Tax Act, has resulted in the inclusion of income in taxable subject to taxation under Article 93 subparag. 7 of the Corporate Tax Act, which is a subordinate statute. Accordingly, the above Enforcement Decree of the Corporate Tax Act is null and void by exceeding the delegation scope of the parent law. Accordingly, even if it is necessary to impose taxation on capital gains on stocks, etc. even if it satisfies only a certain asset ratio requirement among domestic source income of a foreign corporation as the Defendant’s assertion, it violates the principle of no taxation without law by amending the relevant Act (amended only after the transfer of this case).

(3) Therefore, Article 132(10)2 of the Enforcement Decree of the Corporate Tax Act shall be construed to limit the scope of capital gains under Article 94(1)4(c) of the Income Tax Act and Article 158(1)1 of the Enforcement Decree of the Income Tax Act by prescribing additional requirements. On the premise of this, it is reasonable to interpret Article 158(1)1 and (3) of the Enforcement Decree of the Income Tax Act and Article 132(10)2 of the Enforcement Decree of the Corporate Tax Act to mean that capital gains from stocks meet the asset ratio requirements under Article 94(1)4(c) of the Income Tax Act and Article 158(1)1(c) of the Enforcement Decree of the Corporate Tax Act and Article 132(10)2 of the Corporate Tax Act only if the capital gains from stocks meet the asset ratio requirements under Article 94(1)4(c) of the Income Tax Act and the stock transfer ratio requirements under Article 158(1)2 of the Enforcement Decree of the Corporate Tax Act.

④ Article 93 subparag. 7 of the Corporate Tax Act does not stipulate “stocks, etc., which are not listed on the securities market as of the beginning date of the business year in which the transfer date of stocks, etc. of a domestic corporation directly, as of December 26, 2008, without using Article 94(1)4 of the Income Tax Act, among stocks, etc. of the domestic corporation, as of the beginning date of the business year in which the transfer date belongs, and which is not listed on the securities market, among total assets of the corporation, is not less than 50/100” as subject to taxation, and does not require the requirements for stock holding ratio or stock transfer ratio. Thus, when interpreting it as above Article 132(10)2 of the Enforcement Decree of the Corporate Tax Act, it should be indirectly interpreted that it goes beyond the limit of delegated legislation, or that it is invalid, or that Article 93 subparag. 7 of the previous Corporate Tax Act and Article 132(10)2 of the Enforcement Decree of the Corporate Tax Act, which differs from this system.

⑤ According to the purport of the entire pleadings, the agreement between the United States and the Republic of Korea on April 6, 2001 under the Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment is understood as real estate transfer income if the transfer income of a corporation satisfies the asset ratio requirement, ratio ratio requirement, and share transfer ratio requirement under the Income Tax Act and the Corporate Tax Act. In such a case, the Republic of Korea treats the transfer income of a corporation as real estate transfer income as Korean source income for both non-residents and foreign corporations. This is more consistent with the interpretation as above (2) above.

㈐ 소결론

Article 93 subparagraph 7 of the Corporate Tax Act and Article 132 (10) 2 of the Enforcement Decree of the Corporate Tax Act shall be interpreted to mean that Article 94 (1) 4 (c) of the Income Tax Act and Article 158 (1) 1 of the Enforcement Decree of the Income Tax Act are subject to taxation where all of the requirements prescribed in Article 132 (10) 2 of the Corporate Tax Act are met.

(3) Whether the Plaintiff satisfies the requirements of Article 93 subparag. 7 of the Corporate Tax Act

원고의 ㉿㉿㉿펀드III에 대한 출자비율이나 상위지주회사를 통해 ��타워에 투자한 비율은 2%에 불과하여, 원고는 당해 법인의 주식등의 합계액 중 주주 1인과 기타 주주가 소유하고 있는 주식등의 합계액이 차지하는 비율이 100분의 50 이상인 법인(주식소유비율 요건)에 해당하지 않을 뿐만 아니라, 주주 1인 및 기타 주주가 그 법인의 주식 등의 합계액의 100분의 50 이상을 주주 1인 및 기타 주주 외의 자에게 양도하는 경우(주식양도비율 요건)에도 해당하지 않으므로, 이 사건에서 원고에게 법인세법 제93조 제7호, 법인세법 시행령 제132조 제10항 제2호의 요건이 갖추어졌다고 볼 수 없다.

(4) Whether the instant disposition is lawful

The instant disposition, based on the premise that the Plaintiff satisfies the requirements under Article 93 subparag. 7 of the Corporate Tax Act and Article 132(10)2 of the Enforcement Decree of the Corporate Tax Act, is unlawful.

4. Conclusion

The plaintiff's claim is reasonable, and the judgment of the court of first instance has different conclusions, so it is unfair, and the plaintiff's appeal is justified, and it is so decided as per Disposition with the above appeal accepted.

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Relevant statutes

▣ 법인세법(2008. 12. 26. 법률 제9267호로 개정되기 전의 것)

Domestic source income of a foreign corporation under Article 93 (Domestic Source Income) shall be classified as follows:

7. Transfer income under the provisions of Article 94 of the Income Tax Act (excluding the income under the provisions of paragraph (1) 3 of the same Article) as prescribed by the Presidential Decree: Provided, That it shall be limited to the case where the assets which generate such income

10. Income prescribed by Presidential Decree, generated from the transfer of stocks, investment certificates (including deposit certificates issued on the basis of stocks and investment certificates; hereafter the same shall apply in this Chapter), or other securities falling under any of the following items (excluding other assets under Article 94 (1) 4 of the Income Tax Act, but including other assets where the relevant other assets are stocks or investment certificates of a stock-listed corporation or KOSDAQ-listed corporation; hereafter the same shall apply in this subparagraph):

(a) Stocks, subscription certificates, or other securities issued by a domestic corporation; and

(b) Stocks or subscription certificates (limited to those listed or registered on the securities market under the Securities and Exchange Act) issued by a foreign corporation, and other securities issued by a domestic business place of a foreign corporation; and

▣ 법인세법(2008. 12. 26. 법률 제9267호로 개정된 것)

Domestic source income of a foreign corporation under Article 93 (Domestic Source Income) shall be classified as follows:

7. Transfer income of assets and rights falling under any of the following items: Provided, That this shall be limited to cases where assets and rights that generate such income are located in Korea:

(a) Assets and rights under Article 94 (1) 1, 2 and 4 (a) and (b) of the Income Tax Act;

(b) Stocks or equity shares of a domestic corporation (hereafter in this Article, referred to as "real estate stocks, etc.") of which total sum of the asset values under Article 94 (1) 1 and 2 of the Income Tax Act is not less than 50/100 of the total assets of such corporation as of the commencement date of the business year to which the date of transfer belongs, among stocks or equity shares (including certificates of deposit and preemptive rights to new stocks issued on the basis of stocks and equity shares; hereafter in this Chapter, the same shall apply) and not listed

▣ 법인세법 시행령(1998. 12. 31. 대통령령 제15970호로 개정되기 전의 것)

Article 122 (Scope of Domestic Source Income)

(8) In the application of the provisions of Article 55 (1) 7 of the Act, where the provisions of Article 94 (5) of the Income Tax Act are applied to the cases where the country in which the real estate is located with respect to the transfer income of a corporation whose assets mainly consist of real estate, the other assets under subparagraph 5 of Article 94 of the same Act shall be the stocks (excluding those listed on the Korea Stock Exchange and those under each subparagraph of Article 157 (5) of the Enforcement Decree of the Income Tax Act) or equity shares of a corporation whose total sum of asset values under subparagraphs 1 and 2 of Article 94 of the same Act is not less than 50/10

▣ 법인세법 시행령(2005. 2. 19. 대통령령 제18706호로 개정되기 전의 것)

Article 132 (Scope of Domestic Source Income)

(10) The term "income prescribed by Presidential Decree" in the main sentence of subparagraph 7 of Article 93 of the Act means income falling under any of the following subparagraphs:

1. Income under Article 94 (1) 1 and 2 of the Income Tax Act; and

2. Income under Article 94 (1) 4 of the Income Tax Act. In this case, stocks, etc. under the same subparagraph shall be stocks or equity shares (excluding stocks or equity shares listed or registered on the securities market) of a corporation, the total sum of the asset values under Article 94 (1) 1 and 2 of the same Act of which is not less than 50/100 among the total assets of the relevant corporation as of the starting date of the business year whereto belongs

▣ 소득세법(2008. 12. 26. 법률 제9270호로 개정되기 전의 것)

Article 94 (Scope of Transfer Income)

(1) Capital gains shall be the following income generated in the relevant year:

3. Income accruing from transfer of stocks or investment shares falling under any of the following items (including preemptive rights; hereafter in this Chapter, the same shall apply):

(a) Transfer of stocks, etc. of a stock-listed corporation under the Securities and Exchange Act (hereinafter referred to as a “stock-listed corporation”) by major stockholders prescribed by the Presidential Decree in consideration of the ratio of stocks owned, total market value, etc. (hereinafter in this Chapter referred to as the “major stockholders”), and transfer of stocks, etc. not by

(b) Stocks, etc. of an Association-registered corporation under the Securities and Exchange Act (hereinafter referred to as an “Association-registered corporation”) which are transferred by major stockholders of the relevant corporation without going through transactions in an Association brokerage market under the same Act; and

(c) Stocks of corporations other than stock-listed corporations or Association-registered corporations.

4. Any income accruing from the transfer of assets falling under one of the following items (hereafter in this Chapter, referred to as "other assets"):

(c) Assets prescribed by the Presidential Decree considering the structure of stockholders of the corporation which issued stocks or investment certificates, real estate holding status, or type of business;

(2) Where a case is subject to paragraph (1) 3 and 4, subparagraph 4 shall apply.

▣ 소득세법 시행령(2007. 2. 28. 대통령령 제19890호로 개정되기 전의 것)

Article 158 (Scope of Other Assets)

(1) The term “assets as prescribed by the Presidential Decree” in Article 94 (1) 4 (c) of the Act means those falling under one of the following subparagraphs:

1. In case where one stockholder or other stockholders of the corporation falling under the following items (a) and (b) transfer 50/100 or more of the aggregate of the stocks, etc. of the relevant corporation to persons other than one stockholder and other stockholders: The relevant securities, etc.

(a) The corporation of which the total amount of value of the assets under Article 94 (1) 1 and 2 of the Act is fifty percent or more of the total amount of the assets of the corporation concerned; and

(b) The corporation concerned, in case where the total amount of the securities, etc. owned by one shareholder and other shareholders is fifty percent or more of the total amount of the securities of the corporation; and

(3) The total assets and the asset value under the provisions of paragraph (1) 1 (a) and 5 (a) of the same paragraph shall be based on the book value (in case of land, the standard market value) of the corporation. In this case,

1. Amount of intangible fixed assets under Article 24 (1) 2 (f) through (g) of the Enforcement Decree of the Corporate Tax Act;

2. The total amount of cash, financial assets (referring to the financial assets under the provisions of Article 22 of the Inheritance Tax and Gift Tax Act), and loans increased by borrowing money or increasing capital during the period of one year retroactively from the date of transfer to the date of transfer.