Damp Asset-backed Co., Ltd. (Attorneys Jeong Byung-chul et al., Counsel for the plaintiff-appellant)

The Head of Yeongdeungpo-gu Tax Office and one other (Law Firm Doll, Attorneys Seo Jin-jin, Counsel for the plaintiff-appellant)

September 22, 2009

1. The plaintiff's claims against the defendants are all dismissed.

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

The disposition of imposition of the total amount of KRW 372,520,140 and the total amount of value-added tax 60,843,100 and the total amount of KRW 60,843,100 as stated in [Attachment 1] imposed on the Plaintiff on February 1, 2006 by the director of the Seoul District Tax Office, the disposition of collection of KRW 1,81,269,040 and the disposition of collection of KRW 335,42,455 and KRW 54,79,758 for each change of income for the year 2002 by the director of the Seoul District Tax Office against the Plaintiff on February 2, 2006 is revoked.

1. Details of the disposition;

A. Five limited partnerships established in the United States Deelwa State and the United Kingdom Order Sachs, etc. under the Alley Man Sachs, a U.S. corporate entity, established five limited partnerships in the Malaysia, etc. (hereinafter referred to as “the partnership in this case”) on March 8, 2001, established in the Malaysia X, Whiteallel X-II, GSpecci Op P.P., GS Speci Op Op L.P., L. L.P., L. L.P., a company in the United States, jointly invested for the purpose of investing in the real estate located in Korea; hereinafter referred to as “the partnership in this case”).

B. The Plaintiff jointly established the Plaintiff on March 10, 2001. On March 30, 2001, the Plaintiff purchased treatment securities buildings and provided leasing services. On January 6, 2003, the Plaintiff sold the treatment securities building at KRW 72 billion to the first special purpose company of MYOP established by Australia, and paid KRW 15.9 billion for profit dividends from the operation and disposal of the buildings (hereinafter “instant dividend income”).

C. During each business year from April 2001 to March 2003, the Plaintiff calculated the total amount of KRW 321,567,000,000, which was paid to the Jindo Co., Ltd. (hereinafter “ Jindo Co., Ltd.”) from Apr. 2001 to Jindo Co., Ltd., and the total amount of KRW 115,00,000,000, which was paid to Nonparty 1 and Jindo Co., Ltd. on Apr. 2001; ③ from Apr. 2001 to Mar. 2002, the Plaintiff deducted the total amount of KRW 275,202,213, which was paid to the legal company from Apr. 2001 to Mar. 2002, the Plaintiff calculated the amount of tax payable for each of the pertinent business years as corporate tax and the value-added tax for each of the pertinent business years.

D. The Plaintiff, holding 79% of the Plaintiff’s share, was collected and paid at source by applying the limited tax rate of 10% stipulated in the Korea-Mali Tax Treaty to the instant dividend income on the ground that it constitutes a beneficial owner under Article 10(2)(a) of the Convention between the Republic of Korea and the Government of Malaysia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (hereinafter “Korea-Mali Tax Treaty”).

E. The director of the Seoul Regional Tax Office conducted a regular investigation of corporate tax against the plaintiff and an investigation of changes in shares against a foreign shareholder. As a result, ① the service costs of this case are unrelated to the plaintiff's business, ② the machine Ⅲ notifies the director of the Seoul Regional Tax Office of the taxation of the defendant Young-gu of the taxation data that the tax rate (including resident tax, U.S. 11%, and 27.5%) of the tax treaty and domestic law with the resident state of the partnership of this case, which is the beneficiary, should be applied to the company established in Malaysia for the purpose of utilizing the investment profit in Korea as an investment route without any reasonable business purpose.

F. In accordance with the above taxation data notification, on February 1, 2006, the director of the Seoul District Tax Office notified the Plaintiff of the correction of the total amount of KRW 372,520,140, the total amount of the corporate tax stated in [Attachment 1], KRW 60,843,100, and KRW 1,811,269,040 for the dividend income belonging to the year 2003, respectively. The director of the Seoul District Tax Office excluded the service costs of this case from deductible expenses on February 2, 2006, and imposed the Plaintiff disposition of KRW 115,00,000 and KRW 275,202,213 for the total amount of the corporate tax of KRW 390,20,202,213 for the total amount of the corporate tax of KRW 20,843,213 for the dividend income belonging to the Plaintiff’s shareholders, and imposed the above disposition of KRW 275,2405,275.

[Ground of recognition] Facts without dispute, Gap evidence 6-1 to 10, Gap evidence 7 and 8-1, 2, Eul evidence 1 to 12, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

For the following reasons, the Defendants’ First and Second Dispositions are all unlawful.

(1) As to Disposition 1 of this case

㈎ 실질과세원칙은 적용될 수 없음

(1) A tax treaty, as a special law on domestic tax laws, must be strictly interpreted in accordance with the principle of no taxation without law. According to the provisions of the Vienna Convention on the Law of Treaties, the phrase of a treaty ought to be interpreted in accordance with its ordinary meaning. The main purpose of a tax treaty is to facilitate mutual exchange and investment by restricting the taxation of the source country and granting predictability to international trades. As such, the tax authorities in the source country of the source country based on the source of funds from foreign investors, thereby making a different application of the treaty is in violation of the aforementioned principle of interpretation of the treaty. Accordingly, the tax authorities in Korea should apply 10% of the limited tax rate as it constitutes a beneficial owner under Article 10(2)(a)

② Since the substance over form principle under Article 14(1) of the Framework Act on National Taxes and Article 4(1) of the Corporate Tax Act does not fall under the provisions for the prevention of abuse of treaty under the general provisions of domestic law, it cannot be applied to the interpretation of tax treaties in a special position with respect to domestic law, and the relevant note of the Economic Development Cooperation Organization (hereinafter referred to as the “CC”) amended in 2003 under the Model Convention for the Tax Treaty (hereinafter referred to as the “CC”) is not a court of any tax laws and regulations scheduled by the Korean Constitution, not any international law that recognizes the legal binding force, nor any international law that exists at the time of the conclusion of the Korea-Malaysia Tax Treaty, but any Malaysia is not a member state of the OECD, and thus cannot be applied to the interpretation of the Korea-Malaysia Tax Treaty.

㈏ 머서Ⅲ는 이 사건 배당소득의 실질적 귀속자로서 수익적 소유자에 해당됨

설령 이 사건 배당소득 귀속에 관하여 실질과세원칙이 적용될 수 있다고 하더라도, 그 실질이란 법적 실질을 의미하는 것이므로, 당사자의 거래행위를 그 법 형식과 달리 재구성할 수는 없고, 머서Ⅲ는 단순히 조세회피 목적으로 설립된 것이 아니라 투자의 효율성 및 사업상의 목적에 따라 설립된 특수목적회사(special purpose company, SPC)이므로, 머서Ⅲ가 이 사건 배당소득의 실질적 귀속주체로서 수익적 소유자에 해당된다.

㈐ 이 사건 파트너쉽에 대한 과세는 위법함

Inasmuch as the Defendants voluntarily denied the taxation subject of partnership through precedents, if the Defendants denied the substantial attribution subject of the dividend income of this case on the grounds that the Defendants did not have any substance with respect to machine III, it shall not be subject to taxation on the instant partnership, which is no longer authorized entity than machine III, and finally, the partnership (partners) that invested in the instant partnership shall be subject to tax liability. Accordingly, the instant disposition 1 against the dividend income of this case, recognizing the investment subject of the instant partnership and recognizing it as unlawful.

D. As to Disposition 2 of this case

㈎ 진산애셋의 용역대가 부분

Jinsan Asset provided services to the Plaintiff by ascertaining the basic status, such as the investment value of commercial real estate, investigating environmental problems, etc., and designing a structure of real estate-backed securitization. Since such services are directly connected to the commencement of the Plaintiff’s business, it cannot be denied that they are services provided to the Plaintiff’s business solely on the ground that the above services have been conducted prior to the Plaintiff’s establishment.

㈏ 소외 1 및 골드만삭스의 재무자문 용역비 부분

In order to raise and secure funds for the purchase of treatment securities buildings, it was necessary for the Plaintiff to issue senior bonds worth KRW 23 billion as collateral, and to color the financial institution to accept the senior bonds. However, Nonparty 1 and Caldys used Samsung Life Insurance Co., Ltd. (hereinafter “Taldys Life”) as the bonds acquisition financial institution for the Plaintiff, to negotiate the terms and conditions of the bonds required by Samsung Bio-resources on behalf of the Plaintiff, and to prepare documents necessary for the acquisition of the bonds, etc., and to provide the above services to the Plaintiff’s business.

㈐ 클리어리 고틀리브의 법률수수료 부분

The services provided to the Plaintiff by Cluri Liurib is directly related to the Plaintiff’s business, and was actually provided by Clurib by the Plaintiff, as the advice on the Plaintiff’s acquisition and sale of Daewoo Securities and Buildings.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) In the process of soliciting and managing a private equity fund, A.I.D., a global investment bank, established the instant partnership, and the instant partnership specifically sought ways to avoid the tax burden at the time of investing real estate in Korea. On March 8, 2001, A.I.D. jointly invested to establish A.I.D. 3 in A.I.D.

Kenya III obtained resident certification from the Malaysian Government to the effect that Malaysian Government is a resident under the tax laws of Malaysia, and is an offshore company under the Malaysian Law established with articles of incorporation, etc.

Fidelity III performed duties such as acting on behalf of an employee of a trust company (SHEAR SKINN SINER) and keeping documents, acting on behalf of a captain, filing legal reports, and paying annual fees, without an office or resident employee.

Applicant The officers of the above trust company, as the representative director of the above trust company, were registered as the legal director of the Ⅲ, and all officers and employees of the Madman, etc., other than the non-party 3, who were registered as the legal director of the Madman, etc. (the non-party 4, 5, 6, etc.) were not residents of the Madmania, and the Mac

(v) the officers and employees of Alleymans, including Nonparty 7, performed all important tasks such as the purchase of treatment securities buildings Ⅲ, delegation of duties and payment of expenses to contact Korea by the Plaintiff and the asset manager, and management of the Plaintiff’s funds and services contract.

⑹ 원고는 배당결의를 거쳐 2003. 4. 23. 머서Ⅲ의 라부안 계좌{(계좌번호 생략), 출금권한이 있는 서명권자는 소외 8, 9, 4 등 골드만삭스 소속의 직원들이었다}로 미화 11,757,206달러(한화 143억 2천만 원 상당)를 송금하였고, 위 금원이 머서Ⅲ의 이사회 회의를 거쳐 2003. 4. 24. 이 사건 파트너쉽 등 머서Ⅲ의 주주들에게 재송금 되었다(이후 골드만삭스의 계좌로 재송금 되었다). 위 배당금이 실제 송금된 다음 날인 2003. 4. 25. 머서Ⅲ의 정관 제28조에 따라 이사 3인이 서면 또는 전화통화 상으로 위 미화 11,750,000달러의 배당을 승인하는 내용의 이사회 결의가 있었다. 또한 2003. 6. 6.자 머서Ⅲ의 이사회 결의에 의하면, 머서Ⅲ는 골드만삭스와의 중계계좌이자, 위 재송금이 이루어진 위 골드만삭스의 계좌를 폐쇄하기로 하였다.

⑺ 원고는 외화표시채권에 대한 환율변동의 위험에 대비하기 위하여 제이피모건 체이스뱅크(이하 ‘제이피모건’이라 한다)와 사이에 통화선도거래계약을 체결하였는데, 원고는 골드만삭스 관계자인 소외 10, 11 등에게 위 통화선도거래에 따른 정산의 승인을 요청하고, 그로부터 최종 승인을 받은 후, 제이피모건에게 정산금 1,522,969,761원을 송금하였다.

⑻ 원고가 대우증권빌딩을 매각하면서 작성한 부동산처분신탁 계약서 제19조 제5항에 의하면, 이 사건 파트너쉽이 수탁자인 케이비 부동산신탁 주식회사에 대하여 위 빌딩의 양도와 관련된 모든 사후적 책임에 관한 보증을 하였다.

⑼ 서울지방국세청의 조사결과, 말레이시아 라부안에서는 2～3일이면 머서Ⅲ와 같은 역외회사를 쉽게 설립할 수 있고, 설립비용도 300만 원 정도로 저렴하며, 주주 등에 대한 비밀유지가 법적으로 보장되기 때문에, 다수의 외국계 사모투자펀드들이 한국에 투자하기 직전에 한국의 과세권 행사를 피하기 위하여 말레이시아 라부안에 도관회사를 설립한 후, 이를 통해 한국에 투자를 하고 있는 것으로 확인되었다.

⑽ 원고와 진산애셋과 사이에, 진산애셋이 원고에게 부동산 취득 관련 자문 및 컨설팅서비스를 제공하고, 이에 대하여 원고는 용역대금을 지급하기로 하는 내용의 2001. 3. 30.자 용역계약서가 작성되었다. 또한 원고가 진산애셋으로부터 실제로 용역을 공급받았다는 주장에 대한 증거로서 제출한 ‘대우증권 소유 전국 부동산 현황에 관한 보고서’(을 18호증)에는 당시 대우증권이 소유한 전체 부동산의 위치, 층수, 대지면적, 건평, 건축연도, 장부가액, 수익가치, 임대면적 등이 기재되어 있고, ‘서울특별시 소재 대우증권 빌딩에 대한 환경검토 보고서’(을 19호증)에는 대우증권빌딩의 현장개요, 지질, 수문, 오염배출, 저장탱크, 상·하수도, 폐기물 관리, 토양 및 지하수 오염 문제 등에 관한 내용이 기재되어 있다.

⑾ 진산애셋이 2001. 4. 24.부터 2003. 3. 10.까지 사이에 원고에 대하여 발행한 매출세금계산서에는 그 품목이 모두 ‘CONSULTING FEES(비용정산)’으로 일률적으로 기재되어 있고, 공급자의 대표자 성명과 공급받는자의 대표자 성명이 시기별로 소외 12 또는 소외 13으로 모두 일치한다.

⑿ 피고 서울지방국세청장은 원고에 대한 법인세 정기조사 및 외국주주에 대한 주식변동조사 당시, 원고에게 수차례에 걸쳐 진산애셋 관련 용역제공 내용에 대한 관련 서류를 제출할 것을 요청하였으나, 원고는 위 자료 이외에는 다른 증거자료를 제출하지 않았다. 원고가 제출한 진산애셋의 원고에 대한 청구서(갑 2호증)에 의하면, 진산애셋에 대한 용역대가 중 약 85%가 2001. 4. 24.자 청구서에 의해 청구되었는데, 세금계산서를 교부받은 용역대가 272,271,808원(부가가치세 제외)은 원고가 설립되기 전인 2000. 12.말부터 2001. 3.초까지 사이에 발생된 비용으로 기재되어 있다.

⒀ 원고와 골드만삭스 및 소외 1과 사이에, 골드만삭스와 소외 1이 원고에게 사채인수를 위한 금융기관 물색, 사채 인수조건에 대한 협상, 필요서류 준비 등의 용역을 제공하고, 이에 대하여 원고는 총 사채금액의 0.5%에 해당하는 115,000,000원을 수수료로 지급하기로 하는 내용의 각 2001. 3. 12.자 재무자문 용역계약서가 작성되었다(다만, 수수료 약정에 관하여는, 골드만삭스와의 계약에서는 총 조달자금의 0.5%로, 소외 1과의 계약에서는 115,000,000원으로 각 약정이 이루어졌다). 그런데, 원고의 사채인수자인 삼성생명은 2001. 2. 22.경 이미 대우증권빌딩에 관한 1순위 근저당권을 설정하는 것을 조건으로 230억 원의 대출을 하기로 결정하였다.

⒁ 클리어리 고틀리브는 원고에게 아래와 같은 내용의 법률자문 수수료에 관한 각 청구서를 작성·교부하였다.

㈎ 2001. 4. 23.자 청구서상 2001. 4. 15.까지 제공된 것으로 기재된 용역의 내용(수수료 합계 미화 171,002.68달러)

(1) Advice and support related to the structure of transaction, ② preparation, review and revision of asset management contracts, business trust contracts and real estate management music records, ③ preparation, review and revision of the Plaintiff’s investor (Uniters) contracts, ④ preparation, review and revision of financial documents, ⑤ review and revision of transfer contracts, lease contracts, and related subsidiary contracts, 6 review and revision of documents related to the plan for asset-backed securities, 7 review and revision of the Plaintiff’s articles of incorporation, 8 preparation of completion documents, 9 meeting and majority of discussions on wire between the representative director of the Bldman’s representative director and the legal advisor’s degree of interest.

㈏ 2002. 3. 4.자 청구서상 2001. 4. 16.부터 2002. 2. 28.까지 제공된 것으로 기재된 용역의 내용(수수료 합계 미화 41,424.50달러)

(1) Preparation of sensitive documents, (2) preparation of asset management contracts, preparation, review and revision of business trust contracts, (3) consultation on the change of asset administrators, (4) consultation on the change of asset administrators, (4) conference and majority of meetings on board with the representative director of Alley Mans, Alcon Korea and law firms, and

[Ground of Recognition] A without dispute, Gap evidence 11, 12, Eul evidence 13-1 through 4, Eul evidence 14-1, 2, Eul evidence 13 through 19, Eul evidence 20-1 through 5, Eul evidence 21-1, 2, Eul evidence 22 through 26, Eul evidence 28-1 through 9, Eul evidence 29, 30, Eul evidence 31-1 through 10, Eul evidence 32, 33-1, 2, Eul evidence 34-1, 34, and the purport of the whole pleadings

D. Determination

(1) As to Disposition 1 of this case

㈎ 실질과세원칙과 관련된 주장에 대하여

(1) Status of a tax treaty and the principle of strict interpretation thereof.

Article 6 (1) of the Constitution provides that "any treaty concluded and promulgated by the Constitution and any generally accepted international law shall have the same effect as that of the domestic law," so a tax treaty concluded with the consent of the National Assembly shall have the same effect as that of the domestic law, and in the legal relationship governed by the tax treaty, the treaty shall have the same effect as that of the domestic law, and such treaty shall take precedence over

In addition, the Constitution provides that "All citizens shall have the duty to pay taxes under the conditions as prescribed by Act (Article 38), and that "types and rates of taxes shall be determined by Act" (Article 59) shall be adopted the principle of no taxation without the law (Article 59). In determining tax requirements, tax exemption requirements, etc., the principle of no taxation without the law shall be prescribed by the law enacted by the National Assembly as the representative body of the people, and it shall be interpreted and applied strictly in enforcing the law.

In addition, Articles 26, 27, and 31 of the Vienna Convention on the Law of Treaties to which Korea is a party shall be observed, and the provisions of the domestic law shall not be invoked in such a way as to justify the non-performance of the treaty, and the wording of the treaty shall be interpreted faithfully in accordance with its ordinary meaning. Therefore, in cases of a tax treaty which is a kind of tax law, an administrative convenience expansion interpretation or analogical application is not allowed.

(2) Domestic legal basis of substance over form principle

Article 11(1) of the Constitution provides, “All citizens shall be equal before the law, and no person shall be discriminated against in any area of political, economic, social, or cultural life on account of gender, religion, or social status.” The principle of tax equality can be regarded as an expression of tax law in the principle of equality under the above Constitution or the principle of prohibition of discrimination. Therefore, in granting tax legislation, the State shall establish laws so that the burden of tax can be equally allocated among the citizens, and shall treat all the citizens equally in interpreting and applying the tax law. One of the legal systems for realizing the ideology of tax equality can be construed as the principle of substantial taxation as provided in Article 14 of the Framework Act on National Taxes. In addition, the principle of tax equality can be construed as the principle of realizing tax justice in the legislative process or enforcement process (see, e.g., Constitutional Court Order 8Hun-Ma38, Jul. 28, 198).

Therefore, the ideology of the principle of tax equality under the Constitution cannot be an exception to the interpretation of the tax treaty having the effect corresponding to the law. Therefore, the application of the principle of substance over form cannot be deemed to violate the principle of strict interpretation

3) As to the OECD Notes

With the increase in international trade, the OECD established a company on the document in a tax haven place that is not related to the actual transaction with the purpose of tax avoidance through changes in the crepan tax treaty and avoided taxes on capital transaction income such as interest, dividend, and stock gains through the form of transaction, the OECD has started to seek various regulatory measures for the tax avoidance act using the tax have been conducted through the international discussions of the OECD Harmful Tax Forum since 199.

Therefore, the OECD has widely dealt with the key issues of the OECD Model Convention, which are the criteria for interpreting the OECD Tax Treaty, as well as the types and methods of preventing the act of tax evasion, and the interpretation of the treaty-related interpretation. Article 1(7) of the OECD Model Convention provides that “The primary purpose of the Convention on the Prevention of Double Taxation is to promote human exchanges between goods, services, capital and human resources by preventing international double taxation.” The double taxation Convention also aims to avoid tax and to prevent the tax evasion and the prevention of Fiscal Evasion.” Article 22 through 24 of the same Article provides that “The substance over form principle prescribed in the laws of each country, the Act on the Control Company, and the rules on the prevention of abuse of tax treaties, such ascomed goods, are not mutually inconsistent with the tax treaty, and the regulations on the prevention of tax evasion under its laws are a part of its laws established by its country to determine tax burdens, and the provisions on the prevention of tax evasion under the laws of its country need not be affected by such tax treaty-related treaties.”

The OECD note above is not a treaty concluded and promulgated by the Constitution or an generally accepted international law, and thus is not legally binding, but is an international standard for the proper interpretation of a treaty between the OECD countries, and can be used as one reference for the interpretation of a treaty in relation to the substance over form principle, etc. under the domestic law.

(4) Interpretation of the Korea-End Tax Treaty

Since the language and text of the Korea-Malaysia Tax Treaty is apparent that it was concluded between the Republic of Korea and the Government of Malaysia to avoid double taxation and to prevent tax evasion, the purpose of the Treaty cannot be deemed to be limited to preventing international double taxation and promoting mutual exchange and investment by preventing international double taxation, and the prevention of tax evasion also deals with the important purpose of the Treaty as well as the avoidance of double taxation.

As seen earlier, the substance of the principle of no taxation without law and the basic principles on the interpretation of treaties under the Constitution, the basis and content of the substance over form principle, the purpose of the Korea-end Tax Treaty is to realize the principle of fair taxation burden and the ability to respond, and the substance over form principle under Article 14(1) of the Framework Act on National Taxes and Article 4(1) of the Corporate Tax Act applies equally to both a domestic corporation and a foreign corporation that are liable to pay corporate tax under the domestic law. As such, the substance over form principle can be applied to the interpretation of a tax treaty between the states, unless it does not fall under a expanded interpretation or analogical interpretation beyond the possible meaning of the text. As such, the Korean tax authorities can determine whether to impose tax on the dividend income of this case by applying the limited tax rate under Article 13 of the Korea-end Tax Treaty, recognizing the substantial person to whom it actually belongs as a resident, or by applying the limited tax rate under Article 13 of the Korea-end Tax Treaty as the partnership of this case.

㈏ 이 사건 배당소득의 실질적인 귀속자 및 한·말 조세조약의 적용 여부에 관하여

As seen earlier, considering the following circumstances, in light of the constitutional principles of no taxation without law, the substance of the substance over form principle, the purpose and content of the tax treaty, and the purpose of the Korea-Mali Tax Treaty, etc., the above facts of recognition can be comprehensively seen: (i) the Dominitcompa Company established to avoid the exercise of Korea’s taxation authority in the course of investing in the treatment securities building; (ii) the actual owner of the dividend income of this case is the partnership of this case, which actually provides and operates the investment fund; and (iii) the obligation to pay dividend income is against the partnership of this case, not Ⅲ. Accordingly, without examining whether the Plaintiff is a beneficial owner as prescribed in Article 10(2)(a) of the Korea-Mali Tax Treaty, the limited tax rate of 10% prescribed in the Korea-Mali Tax Treaty is not applicable to the disposition of this case.

① The instant partnership established Malaysia, Malaysia, after having decided to invest in real estate located in Korea, and specifically sought ways to avoid tax burden when investing in real estate located in Korea.

② The machine III was established, registered, and maintained by an employee of a trust company without an office or resident employee of the trust company, and most executives and employees of the Alley Mans are not residents of Malaysia, who are not residents of Malaysia.

③ The acquisition and sale of treatment securities and buildings, and the payment of the instant dividend income, etc., are entirely carried out in the name of Ⅲ, but machine Ⅲ only made the instant partnership formally in accordance with the investment structure designed to avoid the tax on the dividend income in advance, and in substance, officers and employees of Alley Mans, who established the instant partnership, carried out the important affairs of Ⅲ.

④ In the process of acquiring and selling treatment securities and buildings, Malaysia did not engage in particular business activities in Malaysia, which is the resident state, and did not independently obtain economic benefits with respect to the instant dividend income, and the instant dividend income was deposited into Mescin III and was immediately returned to Mescinium account.

⑤ Malaysia is the place where many foreign private equity funds are used as the place of establishment of the Do government company in order to avoid exercising the right to taxation in Korea immediately before it invests in Korea.

㈐ 이 사건 파트너쉽에 대한 과세에 관하여

According to the above facts, the defendants' rejection of the application of the Korea-end Tax Treaty by deeming Ⅲ as the subsidiary company is not based on the reasons why Ⅲ was formally made according to the investment structure designed as a way to avoid the tax on the dividend income of this case, and the special purpose company (SPC) without any material substance. Thus, the plaintiff's assertion on a different premise is without merit without any need to further examine.

D. As to Disposition 2 of this case

㈎ 비용의 존재와 비용액에 대한 입증의 필요

① In a case where a party liable to pay the whole or part of the expenses reported by the Plaintiff is concerned with the Plaintiff’s business and is not a legitimate cost to be paid by the Plaintiff. In a case where the Defendant, who is the tax authority, proves that the expenses were unrelated to the Plaintiff’s business and are not a legitimate cost to be paid by the Plaintiff, it should be deemed that it is necessary to prove that it is easy for the Plaintiff to present all materials, such as account books and evidence regarding the relationship between the expenses and the Plaintiff’s business, and the need for such expenses.

② Under this premise, we examine the service cost of this case.

㈏ 진산애셋의 용역대가 부분

① In full view of the aforementioned facts and the purport of the entire pleadings, the services provided by Jinsan Asset appears to have been mainly focused on reviewing the feasibility of the Plaintiff’s business regarding the acquisition of treatment securities buildings in relation to investment before establishment, even if the Plaintiff appears to have expressed its content, and even if that content, the tax invoice received by the Plaintiff may also distinguish the previous records of the Plaintiff’s establishment from the previous records of the establishment, thereby having no record of the value of supply by dividing the content and content of each service into the details of each service.

② In full view of these circumstances, it shall be deemed that the cost of the service for the Jinsan Deposit claimed by the Plaintiff is not the cost that the Plaintiff has to pay. Therefore, the necessity of proving the relationship with the Plaintiff’s work shall return to the Plaintiff.

③ However, in addition to the above materials, the Plaintiff did not submit any evidence as to the fact that the service cost for the Jinsan Asset ought to be borne by the Plaintiff. Thus, this part of the Plaintiff’s assertion is without merit.

㈐ 소외 1 및 골드만삭스의 재무자문 용역비 부분

① In full view of the aforementioned facts and the purport of the entire pleadings, Samsung Bio-resources, a bond underwriter, has already decided to grant a loan of KRW 23 billion to acquire bonds in relation to the acquisition of treatment securities buildings before the Plaintiff’s establishment, and even if considering the detailed details and details thereof, it does not seem that the first class securitization bonds acquired by Samsung Bio-resources significantly vary following negotiations. Moreover, it appears that the first class securitization bonds are real estate security loans and the terms and conditions of loans such as interest rate and loan period, etc. are more focused on the investor’s financing for the acquisition of treatment securities buildings in relation to the investment before the Plaintiff’s establishment. In light of the time of the loan decision and the method of agreement on the amount of fees, etc., there is considerable doubt that each financial advisory service contract made between the Plaintiff, Nonparty 1, and Alley Man-S were made after the Plaintiff’s establishment.

② In full view of these circumstances, it shall be deemed that the Plaintiff’s financial advisory service cost for Nonparty 1 and Alley Mans, as alleged by the Plaintiff, was proved to the extent that the Plaintiff’s financial advisory service cost for the Plaintiff is not the cost for the Plaintiff. Therefore, the need to prove the relationship with the Plaintiff’s work ought to be returned to the Plaintiff.

(3) However, in addition to the documents examined earlier, the Plaintiff did not submit any evidence as to the fact that the financial advisory service cost for Nonparty 1 and Alley Mans ought to be the cost of the Plaintiff. Therefore, this part of the Plaintiff’s assertion is without merit.

㈑ 클리어리 고틀리브의 법률수수료 부분

① In full view of the above facts and the purport of the entire pleadings, the services, such as legal advice, etc. provided by the Cluri Dauri Marib, are mixed with the services rendered before the establishment of the Plaintiff and the services that appear to have been conducted after the establishment of the Plaintiff, even if the content of each written claim submitted by the Plaintiff as evidentiary materials, and even if that content, it appears to have been relatively focused on the economic feasibility and feasibility review of the Plaintiff’s business regarding the acquisition of treatment securities and buildings with respect to investment before the establishment of the Plaintiff. In addition, the tax invoice submitted by the Plaintiff in filing a value-added tax return, distinguishing the Plaintiff’s previous conviction

② In full view of these circumstances, it shall be deemed that the Plaintiff’s legal fee for the Cluribrier’s claim was proved to the extent that it would not be the expense for the Plaintiff. Therefore, the necessity of proving the relationship with the Plaintiff’s work should return to the Plaintiff.

(3) However, in addition to the above materials, the Plaintiff did not submit any evidence as to the fact that the legal fees for the Cluribs should be the cost of the Plaintiff. Thus, this part of the Plaintiff’s assertion is without merit (it does not include the calculation of the fees for the services rendered before and after the establishment of the Plaintiff by dividing the fees for each service).

3. Conclusion

All of the Defendants’ First and Second Dispositions are legitimate, and all of the Plaintiff’s claims against the Defendants are dismissed as they are without merit.

[Attachment]

Judges Lee Jin-man (Presiding Judge)