지방세부과(예정)처분취소
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. Article 105(6) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010; hereinafter the same) provides that “If a person becomes an oligopolistic shareholder by acquiring stocks of a corporation, the oligopolistic shareholder shall be deemed to have acquired the real estate, etc. of the relevant corporation,” with respect to the deemed acquisition tax of an oligopolistic shareholder.
Here, oligopolistic shareholder refers to a person whose total number of stocks owned by one shareholder and a person prescribed by Presidential Decree from among his/her related parties exceeds 50/100 of the total number of stocks issued by the relevant corporation and whose rights are substantially exercised, as provided for in Article 22 (2) of the former Local Tax Act.
An oligopolistic shareholder is in a position to dispose of or manage the assets of the relevant corporation in fact and is not substantially different from the ownership of the assets directly.
However, since it can be double taxation to impose acquisition tax on an oligopolistic stockholder who already paid acquisition tax by the relevant corporation, it is possible to impose deemed acquisition tax for the same object of taxation on the oligopolistic stockholder, it should not be imposed on all oligopolistic stockholders, and it should be interpreted narrowly by imposing the deemed acquisition tax only to the oligopolistic stockholder who can actually control the operation of the corporation through voting rights, etc.
Therefore, even if a shareholder registry entered shares equivalent to oligopolistic shareholders in the shareholder registry, if it is impossible to exercise rights to such shares and substantially control the operation of the corporation, it shall not be deemed that the taxpayer is obliged to pay the deemed acquisition tax.
2. According to the reasoning of the lower judgment and the evidence admitted by the lower court, the following facts are revealed.
Co., Ltd.