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(영문) 서울행정법원 2015. 10. 29. 선고 2015구합61580 판결
이익소각에 의한 의제배당 계산시 주식의 취득원가를 차감하지 않고 전액을 배당수 익으로 보아 과세[국승]
Case Number of the previous trial

Seocho 2014west 1354 ( October 11, 2015)

Title

In calculating the fictitious dividend by means of retirement, the acquisition cost of stocks shall not be deducted, and the total amount of stocks shall be deemed as gains on dividends, and taxed thereon.

Summary

It is de facto dividend that the earned surplus has been paid at source for stock retirement with the reduction of the number of stocks without reduction of capital in the process of retiring stocks in the method of stock retirement.

Related statutes

Article 17 of the Corporate Tax Act

Cases

2015 Gohap61580 Revocation of disposition, etc. to collect corporate tax

Plaintiff

AAAElectronic

Defendant

00. Head of tax office

Conclusion of Pleadings

October 8, 2015

Imposition of Judgment

October 29, 2015

Text

1. The plaintiff's claim is dismissed.

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

Reasons

1. Details of the disposition;

A. On October 13, 200* the Plaintiff is a legal entity incorporated jointly with 00 Network Limited (hereinafter referred to as a “networked legal entity”), a network equipment company located in Canada, and SS Electronic Co., Ltd. At the time of the establishment of the Plaintiff, the non-party legal entity **,159,475,978 won, and *,000,001 shares of common shares issued by the Plaintiff by investing *,159,475,978 won per share (50% per share, 153,159 won per share).

B. From December 23, 2008 to October 7, 2009, the Plaintiff retired the total of 1,764,000 common shares by means of profit retirement that does not cause a decrease in capital on three occasions. The Plaintiff paid 13,615,00,000 won to the non-party corporation in total as the price for retirement of 50% shares (hereinafter referred to as “index shares”). The details are as follows. The amount of the Plaintiff paid to the non-party corporation as the price for the retirement of the outstanding shares falls short of the acquisition value of the shares. Thus, the Plaintiff’s payment to the non-party corporation as the price for the retirement of the outstanding shares falls short of the acquisition value of the shares, and the Plaintiff did not withhold corporate tax under Article 17(1)3 of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter referred to as “former Income Tax Act”) and did not withhold corporate tax under Article 17(1) of the former Income Tax Act.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 3-1 through 4, Eul evidence 1-4, Eul evidence 1-1 through 3, Eul evidence 2-1, 2-2, Eul evidence 3, and the purport of the whole pleadings

A. The plaintiff's assertion

First, Article 17 (2) 1 of the former Income Tax Act on constructive dividend only provides that "the retirement of stocks" is "the retirement of stocks," but does not exclude "the retirement of stocks in the way of stock retirement". As such, even in the case of the retirement of stocks in the same way as this case, income should be deemed to accrue only when the cost of the retirement exceeds its acquisition value. It goes against the principle of no taxation without law to interpret that Article 17 (2) 1 of the former Income Tax Act shall apply only to the case of "the retirement of stocks by capital reduction method" and that the acquisition value of stocks shall be deducted. Second, even in the case of the retirement of stocks, the National Tax Service has interpreted several times to the effect that Article 17 (2) 1 of the former Income Tax Act shall apply to the retirement of stocks, and on such premise, the amount of deemed dividend reported by companies and individuals has been recognized. Accordingly, changing the previous position of the

B. Relevant statutes

[Attachment 2] The entry in the relevant statutes is as follows.

C. Determination

1) Interpretation under Article 17 (2) 1 of the former Income Tax Act

Deemed dividend under Article 17 (1) of the former Income Tax Act shall be returned to stockholders or investors due to the reasons prescribed in the subparagraphs of Article 17 (1) of the former Income Tax Act in the form of legal reserves, earned surplus reserves, other voluntary reserves, etc. and not distributed outside of the company's performance;

In doing so, the purpose of this case is to make the constructive dividend income tax in light of the principle of equity in taxation (see, e.g., Supreme Court Decision 2002Du4587, Nov. 28, 2003). Meanwhile, in a case where a shareholder’s “value of money and other property acquired by the shareholder due to the retirement of shares or reduction of capital” under Article 17(2)1 of the former Income Tax Act exceeds the “amount required for the acquisition of the relevant shares,” it is only the original amount invested by the shareholder, and it is not the profit created by the company. However, it reflects that the said “necessary amount” is only the original amount invested by the shareholder, and it is not the profit created by the company. However, if the Plaintiff and Nonparty 1 were not allowed to acquire the remaining shares from the income of the shareholder before and after the retirement of shares pursuant to the proviso of Article 343(1) of the former Commercial Act (amended by Act No. 10600, Apr. 14, 2011; hereinafter “former Commercial Act”).

Therefore, this part of the plaintiff's assertion is without merit.

2) The principle of trust and good faith, the principle of trust and good faith, or the principle of non-taxation and respect for non-taxation and the principle of non-taxation and legal relations are exceptional legal principles applicable only to cases where there are special circumstances deemed to have been consistent with the justice to protect taxpayers’ trust, even if they sacrifice the principle of legality. Therefore, in order to apply the principle of trust and good faith or the principle of protection of trust to the acts of the tax authority, the average taxpayer of trust given by the tax authority through the public opinion list, etc. should be able to have reasonable and reasonable expectations. Even if the tax authority expressed a certain opinion through a questioning reply, if it is based on questioning without revealing the important facts and legal issues, it cannot be deemed that there is a trust that can lead to legitimate expectations by the public opinion list. In addition, the principle of respect for non-taxation and the principle of respect for non-taxation can be applied to the interpretation of the tax law generally accepted by the taxpayers regarding non-taxation or the practice of national tax administration.

Even if a wrong interpretation or practice is done, it means that a taxpayer, who is not a specific taxpayer, has been accepted as just and without objection to the extent that it is not unreasonable for the taxpayer to trust such interpretation or practice. The mere fact that there was a public opinion on the standard for interpreting tax-related Acts does not constitute such interpretation or practice. The burden of proving the existence of such interpretation or practice lies on the taxpayer who is the claimant (see Supreme Court Decision 2011Du5940, Dec. 26, 2013). In light of the above legal doctrine, the authoritative interpretation by the National Tax Service presented by the Plaintiff in the instant complaint only includes a general explanation on the provisions of Article 17(2)1 of the former Income Tax Act, and it does not mean that it was based on facts identical to the instant case, and there was no other evidence to acknowledge that there was a public opinion of the Defendant applying the principle of trust and good faith or that there was a non-taxation practice asserted by the Plaintiff. Therefore, the Plaintiff’s assertion on this part is without merit.

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

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