1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The first instance court.

1. The issues of the instant case and the judgment of the court of first instance

A. The key issue of the instant case is (1) whether the substance over form principle can be applied to the transfer of the instant shares; (2) If the substance over form principle applies to the transfer of the instant shares, whether the actual owner of the income accrued from the transfer of the instant shares is the person to whom the income accrued, and (3) whether the instant disposition, which denied the benefits of the Netherlands Tax Treaty by deeming the Plaintiff as an intentional company, violates the non-discrimination principle as prescribed in Article 24(1) of the Korea Netherlands Tax Treaty.

B. The judgment of the court of first instance is with respect to the issue ①. The court of first instance determined that “the substance over form principle is a principle based on the Constitution, which can be applied as a matter of course to the interpretation of tax law in accordance with the principle of equality of taxes under the Constitution, and this cannot be an exception to the application of a tax treaty having the legal effect.” The court of first instance determined that “the substance over form principle can be applied to the transfer of stocks of this case,” “the size of the office leased by the plaintiff, the number of employees employed by the plaintiff, details of the business activities conducted by the plaintiff, details of Article 3(1) of the Netherlands Tax Treaty, tax treaties do not establish independent taxation authority, but distribute or restrict the taxation right established by the tax laws of one of the Contracting States.” As such, the first determination of whether a tax treaty applies to the transfer of stocks of this case is a matter of issue ②, the court of first instance determined that “the substance of business activities raised by the plaintiff, the subject of modern securities investment funds to Hyundai Bank and the subject of investment decision of Hyundai Bank.”