National Trial and Other 2013-0022 (2014.02)

A taxpayer of securities transaction tax of the stock at auction after the ownership is returned to a judgment of revocation of fraudulent act shall be the plaintiff who is the beneficiary.

A judgment revoking a fraudulent act filed by a donor against a donee who is the donee does not affect any legal relationship between the donor and the donee. Thus, the original contract between the donor and the donee is valid, and the person liable to pay tax due to the transfer of responsible property is the plaintiff who is the donee

Article 3 of the Securities Transaction Tax Act

2014Guhap61232 Action for revocation of the imposition of securities transaction tax

AAAA of a school foundation

o Head of the tax office

April 28, 2016

October 1, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are borne by the Plaintiff. The imposition of securities transaction tax by the Defendant against the Plaintiff on February 26, 2014 shall be revoked.

1. Details of the disposition;

A. On August 28, 2002, the Plaintiff received 98,000 shares (hereinafter “instant shares”) from the LBBB Co., Ltd. (hereinafter “BB”) from the LB, and completed the transfer of ownership in the future of the Plaintiff regarding the instant shares (hereinafter “instant gift agreement”).

B. DoD and KimE filed a lawsuit against the plaintiff for the cancellation of the gift contract of this case and the transfer of the shares of this case on the grounds that it is a fraudulent act. On October 20, 2005, the court of first instance decided to cancel the gift contract of this case as fraudulent act and deliver the shares of this case to the bankruptcy trustee DoD and KimE (Seoul Central District Court 2003Da62656, 204Da9560, Oct. 20, 200). The judgment of the court of first instance became final and conclusive on Oct. 20, 2005 (Seoul Central District Court 2003Da6270, May 10, 2007). The previous decision of the court of first instance became final and conclusive on May 10, 2007 (Seoul High Court 207Da140757, Dec. 27, 2007).

- - on May 14, 2008, the remaining 38,000 shares were sold to OrGG Co., Ltd. for b, bb, bb, bb, and bbb (hereinafter referred to as the "sale of this case" and the purchase of such shares together with the MFF Industrial Co., Ltd. and OGFFFFFFFF, etc.

D. On February 10, 2013, the Defendant rendered a disposition imposing securities transaction tax d, d, and dd won on the sale of the shares in this case, on the basis of the face value of the shares in this case, with respect to the sale of the shares in this case as its tax base.

E. Since then, on February 26, 2014, the Defendant: (a) deemed a transferor of shares as the Plaintiff; and (b) revoked the imposition of the said securities transaction tax against the Plaintiff; and (c) imposed a securities transaction tax f,ff,fff (including additional tax and additional tax for arrears) upon the Plaintiff on February 26, 2014 (hereinafter referred to as “instant disposition”).

Facts without any dispute arising in recognition, Gap's No. 1, 4, 7, 8, 11, 15, and Eul's No. 1 (including all family cards with a serial number), the purport of the whole pleadings.

2. Summary of the parties' arguments;

A. The Plaintiff did not transfer the instant shares to the FFF, and did not receive the sales price or profit from the consideration, and the person who received the benefit of the decrease in the debt due to the successful bid is the leastA, and thus, it cannot be deemed that the Plaintiff transferred the instant shares at a cost, and thus does not constitute a securities transaction tax taxable object.

B. On February 10, 2013, the Plaintiff rendered the instant disposition against the Plaintiff without any change in special circumstances after deeming the lowestA to be the transferor, and imposing securities transaction tax d, D, and dd, in relation to the instant sale, the Plaintiff again rendered the instant disposition against the Plaintiff without any change in circumstances. This is unlawful as it imposes duplicate taxation on the same matter.

- 4-

of this chapter.

C. The Defendant, prior to the instant disposition, imposed the securities transaction tax on the Plaintiff’s representative, on the Plaintiff, prior to the disposition, and this constitutes an expression of public opinion that the transferor is the leastA. In particular, the Plaintiff trusted this and did not report and pay the securities transaction tax for the payment of the securities transaction tax. Therefore, the Plaintiff’s imposition of the additional tax on negligent tax returns and the nonperformance of payment in the instant disposition violates the principle of trust protection.

D. The Defendant violated the National Tax Collection Act by failing to request the delivery of the proceeds from the auction procedure of the instant shares under the National Tax Collection Act, thereby unfairly infringing the Plaintiff’s property right.

E. Therefore, the instant disposition should be revoked as it is unlawful.

3. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

4. Determination

A. Whether the Plaintiff transferred the instant shares to the GyeyangFFF for consideration

1) The main sentence of Article 1 and Article 2(3) of the former Securities Transaction Tax Act (amended by Act No. 9274, Dec. 26, 2008) stipulate that securities transaction tax shall be imposed on a transfer of share certificates, and “transfer” refers to the transfer of share certificates at a cost due to contractual or legal causes. According to the above provisions, securities transaction tax is a distribution tax which is imposed regardless of the occurrence of profits where the share certificates are transferred at a cost (see Supreme Court Decision 2007Du14695, Sept. 10, 200).

On the other hand, the revocation of fraudulent act due to the exercise of creditor's right of revocation under Article 406 of the Civil Code

- Restoration is effective only in relation to the creditor, beneficiary, or subsequent purchaser, and does not directly acquire the debtor’s right (see, e.g., Supreme Court Decision 98Du11458, Dec. 8, 2000). In other words, even if the creditor is ordered against the beneficiary or subsequent purchaser to cancel a fraudulent act and restore the title of ownership to the debtor in the future, he/she is considered as the debtor’s liability property, and the debtor is not entitled to own or dispose of the property (if there is a surplus in the compulsory auction procedure for which the creditor applied for restitution to the property under the name of the debtor, the surplus will still be paid to the beneficiary in the position of the actual owner). Accordingly, in the revocation of a fraudulent act and restitution of a deviation property, the transferor of ownership shall be deemed the beneficiary or subsequent purchaser, who is a third party whose ownership does not affect the revocation of a fraudulent act if the property is sold at the auction procedure, and it shall not be deemed the transferor who has no right to the property.

2) In light of the above legal principles, the sale of the instant shares at auction, which is a type of sale, to the FFF, etc., constitutes transfer of ownership at a cost due to legal grounds and the sale price thereof cannot be deemed as transfer at a cost on the ground that it is not attributable to the Plaintiff, but used as a dividend to the creditors of the leastA. In accordance with the previous final and conclusive judgment, the gift contract of this case was revoked, and the name of the instant shares was restored to the leastAA, but the validity of the said judgment of revocation of fraudulent act was restored only to the CCC and the Plaintiff, but the LAA did not acquire the ownership or disposal right of the instant shares, and thus, the Plaintiff, the beneficiary, is still the owner in relation to a third party other than creditors, and the securities transaction tax as seen earlier, whether the profits accrued when the ownership of share

- Comprehensively taking account of the fact that the Plaintiff has the nature of the distribution tax without imposing tax, it is reasonable to deem that the Plaintiff constitutes a transferor who has transferred the instant shares at a cost through the sale of the instant case, and thus, it is deemed that the Plaintiff

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

B. Whether the instant disposition constitutes double taxation

As seen in the above facts, the defendant initially imposed the securities transaction tax on the largestA upon the sale of this case, but revoked it ex officio and issued the disposition against the plaintiff. According to such circumstances, the disposition of this case cannot be deemed to constitute double taxation.

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

C. Whether the instant disposition violates the principle of trust protection

In general, in administrative legal relations, in order to apply the principle of trust protection to the act of an administrative agency, administrative agency should have first given the public opinion list that is the subject of trust to an individual (see, e.g., Supreme Court Decision 2004Du13592, Feb. 24, 2006). The defendant has a tax base and tax amount on February 10, 2013; or the Seoul Regional Tax Office has issued the securities transaction tax to the head of the competent tax office on February 10, 2013; or on February 2013, it cannot be deemed that the Seoul Regional Tax Office issued a public opinion statement that the plaintiff would not impose securities transaction tax on the sale of this case solely on the ground that there is a deficit where the stocks of this case were transferred in accordance with the judgment of revocation of fraudulent act with respect to the fact that the stocks of this case were transferred to the head of the competent tax office by the 10th day of the following month. In addition, Article 10(1) and (2) of the former Securities Transaction Tax Act provides that the taxpayer of this case should pay the securities transaction tax.

- 7- Only circumstances after the expiration of the time limit for the return and payment.

Therefore, the disposition of this case cannot be deemed to violate the principle of trust protection, and there is no justifiable reason to believe that the plaintiff cannot be found to have attributable to the failure to report the securities transaction tax and to pay the tax. Therefore, the plaintiff's assertion on this part is

D. Whether the failure to request the delivery violates the Framework Act on National Taxes

A claim for delivery under the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011) is a claim for distribution of delinquent taxes by joining a compulsory refund procedure that is already in progress by a tax authority, and where a taxpayer fails to fulfill a tax obligation, the tax authority may take over the compulsory refund procedure that is already in progress and request a distribution from the money realized of the object without directly participating in the procedure. Thus, the instant disposition, which is the tax imposition disposition, which is the cause of the tax claim collection procedure, cannot be deemed unlawful, cannot be deemed as the grounds for the above procedural reasons that constitute the collection procedure of the tax claim, and thus, the Plaintiff’s allegation in this part is without merit without any further need.

5. Conclusion

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