Cho Jae-2016-Mining-4261 ( October 27, 2017)

In calculating the dividend income of beneficiary certificates, profits and losses from the investment date to the date of redemption shall not be added up.

It is confirmed that a beneficiary certificate was paid a profit distribution amount according to the settlement of accounts, and the plaintiff's re-investment of the profit distribution amount and losses, which cannot be added up.

Article 13 (1) 2 of the Enforcement Rule of the Income Tax Act

Jeonju District Court-2017-Guhap-685 ( October 26, 2017)

Park AA

O Head of tax office

. 14, 2017

October 26, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The imposition of global income tax of KRW 4,895,290 on the Plaintiff on May 9, 2016 shall be revoked.

1. Details of the disposition;

A. On February 26, 2013, the Plaintiff sold by the KoreaB Bank Co., Ltd. (hereinafter “KoreaB Bank”).

cCC Global Real Estate, Fund No. 0000-00, hereinafter referred to as "the beneficiary certificates of this case")

40,000,000 won per unit was invested and purchased 356,566.621 1,121 won per unit.

B. The instant beneficiary certificates were settled on April 24, 2013, and the trading standard price was at the time of the pertinent settlement period.

The Plaintiff 94.514 won per unit (i.e., KRW 1,216.324 won per unit) (i.e., KRW 1,216.324 won - 1,121.81 won). The KoreaB Bank withheld 5,189,910 won as income tax, etc. on the dividend income from the settlement of accounts of the instant beneficiary certificates, and paid the amount of tax.

C. On April 25, 2013, the Plaintiff: (a) the gross revenue of the settlement of accounts after Sejong; (b) KRW 28,510,855; and (c) the investment principal KRW 400,000,000.

In addition, 428,510,855 won was invested in KRW 1,00 per unit, and the number of units of outstanding beneficiary certificates of this case was changed to 428,510.855 accounts.

D. On July 31, 2013, the Plaintiff redeemed the instant beneficiary certificates at KRW 954.26 per unit, and immediately thereafter,

After the settlement of accounts, 45.74 won per unit (i.e., KRW 1,00 - KRW 1,600 - KRW 954.26) incurred a total of KRW 19,60,087 (i.e., KRW 45.74 x KRW 428,510.85 x below KRW 428,510,768 (i.e., KRW 428,510,85 - KRW 19,60,087). The Plaintiff was paid from the KoreaB bank (i.e., KRW 428,510,85 - KRW 19,60,087).

E. The Plaintiff filed a global income tax return for the year 2013, and the Plaintiff’s beneficiary certificates of this case

Amount of dividend income: (1) KRW 408,910,768 paid at the time of redemption on July 24, 2013, and the invested principal

The difference between KRW 400,00,000, KRW 8,910,768, and ② the amount of withholding tax for KRW 33,70,760,763 on April 24, 2013 at the time of settlement of accounts, calculated the total of KRW 14,10,678 (== KRW 8,910,768 + KRW 5,189,910 + KRW 5,910) and the comprehensive income tax was paid.

F. The Defendant: (a) the dividend income amount on the instant beneficiary certificates on April 24, 2013 at the time of settlement of accounts on April 24, 2013.

액 1,216.324원에서 이 사건 수익증권 가입시 1좌당 금액 1,121.81원을 공제한 후 원고의 결산시 보유좌수 356,566.621를 곱한 33,700,763원[≒ (1,216.324원 - 1,121.81원)× 356,566.621원]으로 산정하여야 한다는 전제에서, 2016. 5. 9. 원고가 투자신탁의 이익에 대한 과소신고를 하였다는 이유로 2013년 귀속 종합소득세 4,895,290원(가산세포함)의 부과처분(이하 '이 사건 처분'이라 한다)을 하였다.

G. The Plaintiff, who is dissatisfied with the instant disposition, filed an objection on July 13, 2016, and filed on November 9, 2016.

Although an appeal was filed with the Intellectual Property Tribunal, the appeal was dismissed on February 27, 2017.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 5 (including virtual number), Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

With respect to the beneficiary certificates of this case, the investment profits and losses during the period from the investment to the settlement date

33,700,763 Won, and investment profits and losses during the period from the settlement date to the redemption date are -19,60,085 won.

The Plaintiff’s annual financial income is KRW 14,100,678. However, the Defendant did not comply with the investment loss during the period from the settlement date to the settlement date, but did not deduct the loss incurred during the repurchase based only on the investment profit during the period from the investment date to the settlement date. This is against the purpose of legislation of the annual taxation system and the comprehensive taxation, the substance over form principle as provided by the Framework Act on National Taxes, and the Plaintiff’s property right is unfairly infringed. Thus, the disposition of this case should be revoked illegally

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 17(1) of the Income Tax Act is a set of items prescribed by Presidential Decree received in Korea or abroad.

Article 26-2 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24697, Aug. 27, 2013) provides that "profit from an investment scheme shall be divided into dividend income, and Article 46 (3) provides that "the amount of dividend income shall be the total amount of income in the relevant taxable period, and Article 26 (6) provides that "the calculation of the tax base shall be delegated to Presidential Decree by prescribing necessary matters concerning the dividend income under paragraph (1) and the scope of dividend income under paragraph (3)." Accordingly, Article 26-2 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24697, Aug. 27, 2013) provides that "it shall settle accounts and distribute profits at the time of settlement of accounts of an investor's collective investment scheme at the time of settlement or settlement of accounts," and subparagraph 7 of Article 46 provides that "the amount of dividend income under special agreement to be transferred to the principal shall be the date for settlement of accounts of the collective investment scheme."

2) Recognition of the content of the above relevant laws and regulations, the above facts, and the evidence revealed earlier

In full view of the following circumstances, the Defendant’s settlement of accounts of the instant beneficiary certificates

It is difficult to deem that there is any illegality in calculating the amount of dividend income of the beneficiary certificates of this case by applying the amount calculated by multiplying the number of units held by the Plaintiff at the time of settlement of accounts by 356,566.621 of the number of units held by the Plaintiff at the time of settlement of accounts after deducting the tax base price of 1,121.81 from 1,216.324.

(1) According to the above provisions of the Income Tax Act and the Enforcement Decree thereof, the 'profit from a collective investment scheme'

shall be received in accordance with the settlement of accounts and repurchase and sale of profits or termination and termination of a collective investment scheme

In the end, it is required to impose tax on a person who receives a benefit through dissolution.

The date of settlement and distribution from the time of investment to the date of settlement and distribution, not from the time of investment.

It imposes tax on each of the redemption dates or the next settlement and distribution dates, respectively. Accordingly, this company is subject to taxation.

The tax base at the time of settlement of the beneficiary certificates shall be 33,700,763 won, and the time of redemption shall be losses.

Tax base 0, and the decision is made by retroactively summing up losses after the term of settlement under the current law.

Since there is no provision that deducts from the Si's interest, this case is subject to taxation on the closing date.

The plaintiff received the distribution from the collective investment scheme.

② The Plaintiff’s settlement of accounts by adding the total profits received at the time of settlement of accounts with the principal.

On the next day, the beneficiary certificates of this case were re-investmented in KRW 1,000 per unit. In other words, the Plaintiff’s profit of this case.

After receiving a conclusive interest from securities, it shall be re-investment according to the intent of the plaintiff.

Korea is merely a single thing.

(3) The principle of fixed-term taxation shall be one year from January 1 to December 31.

to calculate and add the tax base for the pertinent taxable period, as in this case.

the dividend income shall be taxed on the basis of the total amount of income generated in the case of the dividend income.

the principle of fixed-term taxation is logical and inevitable to deduct the loss of the taxable period.

not result in the settlement of accounts. In other words, a loss occurs after the profit becomes final and conclusive based on the settlement of accounts, etc.

whether to deduct from the profit established retroactively in the case of this, is determined as a legislative policy.

This is merely a matter of taxation, however, only on net income after deducting losses under the current Income Tax Act.

financial investment instruments cannot be deemed to have been dismissed in such a manner, and the term “financial investment instruments” is a fundamental acquisition of its rights

the total amount of money paid or payable for such purpose is recovered from such right;

because there is a risk that the recovered money, etc. will exceed the total amount of money, etc.,

on the basis of the point of time that no ex post facto loss has been deducted from the profits already incurred;

It is difficult to see that it infringes on the principle of fixed-term taxation or the property right guaranteed by the Constitution.

④ As in the instant case, the Plaintiff accrued profits during the period from investment to settlement of accounts.

Unlike the case of loss for the period from the settlement date to the redemption date, the investment date to the settlement date.

Where a loss occurs during the period from the settlement date to the redemption date after the settlement date;

3. The plaintiff alleged to the effect that the plaintiff's losses may be deducted from the profits accrued, but the plaintiff's losses may not be deducted.

According to the relevant laws and regulations, losses are incurred during the period from the investment to the settlement of accounts.

If profits accrue during the period from the settlement date to the redemption date, collective investment shall be made on the settlement date.

There is no profit distributed by the Agency, while the tax base is zero, but the date of redemption is the collective investment scheme.

provisions that any non-taxable loss incurred at the time of the immediately preceding settlement of accounts can be deducted from the profits he received.

It is merely a fact that the above two cases may be deducted from losses, and it is merely a fact that the above two cases are different.

The issue of legal policy is whether it is a matter of legal policy, and it cannot be seen as illegal.

(5) Provided, That as amended on February 17, 2016, Article 26-2 (1) 2 (c) of the Enforcement Decree of the Income Tax Act is applicable.

under this chapter, collective investment is made in such a manner that the manner of taxation on collective investment schemes is consistent with net income taxation.

the profits of the Gu may be included in the scope of the profits that the collective investment scheme may reserve.

B. In addition to the amendment after the instant case, the subsequent profit has been transferred to the original capital as in the instant case.

shall be free from the occurrence of a conclusive interest.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and it is so ordered as per Disposition.

this decision is rendered.