Whether the transfer margin of the shares in this case is the premium of the right to sell the issue

Despite the form of transaction made by the corporation of this case, the disposition of this case on the premise that it is legitimate to dispose of the amount received by the plaintiffs as a dividend among the amounts in question, by deeming the "amount in dispute to be a premium on the right to sell in this case according to its substance pursuant to the principle of substantial taxation, as the income amount in the transfer of the corporation's assets pursuant to the principle of substantial taxation.

Article 11 of the Framework Act on National Taxes

revocation of revocation of rejection of rectification of global income tax for Suwon District Court 2016Guhap63768

The sale contract of the land and the transfer/acquisition contract of the stock are separated into the right of sale and separate from the right of sale.

was prepared, but this will be cancelled from the Land Housing Corporation the sales contract for the land of this case

It seems that it was formally prepared to avoid risks and obtain consent to the transfer of the right to sell the instant case.

⑤ GG had no particular holding assets other than the instant sales right, except for the Plaintiff, etc.

Since there is no human or physical facility that can implement the project, "the dispute amount" refers to this.

It should be viewed that the value of the right to sell has been reflected.

6) GGG’s transfer of the instant sales right to HH and the Plaintiff, etc. to HH

Since the transaction of transferring shares was conducted at the same time, the value of shares of the GG is the right to sell this case.

It is reasonable to calculate from the assets of this GG through separate transactions.

shares of GGG that do not have any particular assets or business have any value in substance.

HH is difficult to consider that it is 10 billion won or more of such shares from the Plaintiff, etc.

The purchase by payment of the price cannot be deemed to be an economic rationality and HHA

There is no reason for the purchase of shares of GG with such payment. Accordingly, there is no reason for the Plaintiff, etc.

HH equivalent to KRW 100 million in capital of GG out of KRW 10.15 billion in the transfer price of shares of GG 10.9 million

It is reasonable to see that the remaining amount, except the amount, is the price for the transfer of the sales right of this case.

The 'amount' seems to be a premium due to the transfer of the right to sell the instant case.

7. The Plaintiffs, even if the Plaintiff, etc. transferred only the shares of GG to HH in KRW 10 billion.

H HH’s receipt of the transfer proceeds, and thereafter, GG’s transfer of the instant sales right

As a result, 14.4 billion won was paid by receiving the unpaid amount of KRW 4.4 billion; and

Where a contract is concluded by dividing into a stock transfer contract and a contract for the transfer of a right of sale, the same effect shall apply.

As such, it cannot be viewed as an act of tax avoidance, but GG with the Plaintiff, etc.

In light of the developments leading up to the conclusion of the contract as seen earlier between HH, the content of the contract, etc.

The conclusion of a contract for transfer and acquisition of only the shares of GG with the right to sell the shares in this case without the right to sell the shares.

I seem to have never been able to do.

8. Transfer income tax on the transfer of shares of GG via such transaction form

Only reported and paid, and the GG does not bear corporate tax for "the dispute amount";

for the purpose of calculating only corporate tax on the issue amount that would not be borne by the corporation;

The amount exceeds 3 billion won.

(3) Therefore, regardless of the form of transactions made by the Plaintiff, etc., GG and HH, “the dispute amount” according to its substance is deemed as a premium on the sales right of this case in accordance with the substance over form principle.

The amount of assets transfer income of GG shall be included in the gross income, and the plaintiffs received among the "indivate amount" shall be the plaintiffs received.

The instant disposition, based on the premise that the disposition of income as dividend is legitimate, is legitimate.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so ordered as per Disposition.

judgment.

AA and 1

GGG upon entering into a contract with HH to transfer the shares of GG in KRW 10 billion and the GGG

HH’s conclusion and conclusion of a contract to transfer the instant right to sell to HH in KRW 4.4 billion, and the Plaintiff, etc. from HH

This 10 billion won, and GG received 4.4 billion won, respectively, each of the above contracts is a separate independent map.

All of them are valid, and there was no tax avoidance purpose for the plaintiff et al.

As long as a contract cannot be deemed null and void as it is the most recent act, individual and specific denial

The validity of the share transfer contract by applying the substance over form principle under Article 14 of the Framework Act on National Taxes.

It cannot be denied, therefore, that “the dispute amount” corresponds to the share transfer price of GG, and that amount is the same as that of the share transfer price.

As a premium on the sales right of this case, on the premise that it falls under the transfer income of the GG’s assets

The instant disposition is unlawful.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

(c) Fact of recognition;

① HH on February 28, 2001, from the Land and Housing Corporation, OO-gu adjacent to the instant land.

JJ Housing Co., Ltd. (hereinafter referred to as "JJ Housing") that purchased 16-1 large scale 4,961.9m2

In addition, the above land and the instant land are jointly developed and an officetel is newly constructed and sold on the ground.

HH and J Housing have been implementing the project. HH and J Housing have been governed by the Land Housing Corporation.

Plaintiff BB, etc., who participated in the tender, but is not the HH and JJ Housing, during the said tendering procedure;

The land was awarded as a successful bidder.

② HH has consulted with the Plaintiff, etc. to purchase the instant land at the end, January 8, 2010.

In addition, "land sale rights and contracts for transfer and acquisition of shares" were concluded with the following contents:

③ GG means 4.4 billion won, the down payment originally paid in the course of transferring the instant sales right.

In case of receiving premium in excess of it, the former Housing Site Development Promotion Act (Law No. 10764, May 30, 201)

Article 19-2 of the previous amendments, hereinafter referred to as the "former Housing Site Development Promotion Act"), the former Housing Site Development Promotion Act

Article 13-3 of the Enforcement Decree of the Promotion Act (Amended by Presidential Decree No. 23113, Aug. 30, 201)

Accordingly, there was a risk that the sales contract for the instant land will be rescinded between the land and the housing construction corporation.

④ The Plaintiff, etc., GG, and HH shall have the right to sell the instant case from GG and HH on April 7, 2010.

The sale contract of a parcel of land, which is the object of transfer and acquisition of the right to parcel of land and the amount of 4.4 billion won, and the plaintiff

Between HH and transfer price of shares 10.1 billion won for the transfer and acquisition of shares, subject to transfer of shares of GG;

50 million won in the form of a contract for the transfer and acquisition of shares, and then the contract for the sale of the above land is prepared.

HHH by FF Corporation after reporting to the head of the OO for real estate transactions; and HH by FF Corporation

Consent to succession to all rights and obligations under the sales contract of GG for land

was received.

(5) The amount of corporate tax returned from 2009 to 2011 by the business year of the GG shall be the amount of income.

0 won, as above, there is no balance in the corporate account of GG at the time of the transfer of shares.

GG did not own any property other than the instant sales right, and GG did not own any property other than the instant sales right.

(6) The GG has changed its trade name on May 31, 2010 to 00 cities, and then on December 21, 2011.

It was dissolved by the resolution of the general meeting of shareholders.

[Ground of recognition] Unsatisfy, Gap evidence 6, 7, 9 through 13, Eul evidence 1, 4, 6

each entry, the whole purport of the pleading, including each number)

D. Determination

(1) The principle of substantial taxation that declares Article 14(1) and (2) of the Framework Act on National Taxes is constitutional.

tax as a practical principle for realizing the principle of equality, which is the basic ideology of tax law;

reasonable form that is distinguishable from the substance of the taxation requirement with a view to avoiding the burden; or

In the case of taking an external appearance, where there is a tax-bearing capacity according to the substance, regardless of the form or appearance;

The tax justice by regulating unfair tax avoidance acts and enhancing the equity of taxation.

The main purpose of this is to realize the principle of no taxation without law, which is the basic principle of tax law.

Application to economic and living relations which change various tax laws and regulations, not in a separate relationship;

to the extent that the predictability and legal stability are not undermined, the purpose and flexibility of which are consistent;

by interpreting it as a tax law in that it preventss and ensuress the effectiveness of punishing the principle of no taxation without law

It is a complementary and indivisible relationship with one another (Supreme Court Decision 19 January 19, 2012).

Supreme Court en banc Decision 2008Du8499 Decided January 2, 200

(2) In light of the aforementioned legal principles, the entirety of the facts acknowledged as above and the evidence revealed earlier.

In full view of the following circumstances, the Plaintiff, etc. and the GGG

HH entered into a contract for transfer and acquisition of the instant sales right and shares of GG;

The transfer and acquisition price of the sale right shall be 4.4 billion won, and "the dispute amount" shall be the transfer and acquisition price of the GG shares.

The inclusion in the price shall avoid restrictions on resale of housing sites under the former Housing Site Development Promotion Act; or

or, together with it, the appearance made in order to avoid the corporate tax of the GG, and substantial,

"The amount of dispute" is the transfer and acquisition price of the sales right of this case, and it is attributed to the GG, which is the transferor.

It is reasonable to view that the case was.

(1) HH develop the instant land and its adjacent land together with the construction and sale of officetels.

As such, the sales right of this case was actually acquired by HH.

GG shares were not shares of the GG.

(2) Even after HH actually acquired the shares of GG, progress of particular projects through GG.

GG was not dissolved in 2011.

③ On January 8, 2010, the Plaintiff, etc. and GG enter into an agreement with HH on the sale of land and the transfer and acquisition of shares.

At the time of conclusion, the transfer and acquisition price is 4.4 billion won, '4.4 billion won,' 'GG stocks issued' 10 billion won.

The total amount of transfer and acquisition shall be KRW 14.4 billion, and the capital of GG shall be the amount of transfer and acquisition.

In addition, the payment of down payment, intermediate payment, and balance was made on the basis of the total sum.

④ On April 7, 2010, the transferor was transferred to the Plaintiff, etc. and the shares and the shares of GG in relation to the subject matter of transfer.

00. Head of tax office

on October 08, 2016

October 27, 2016

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

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

The rejection disposition against the correction of income tax as shown in attached Form 1, which the defendant of the Gu office was against the plaintiffs on October 22, 2015, shall be revoked.

1. Details of the disposition;

A. On September 21, 2009, Plaintiff BB entered into a contract with CCC, DD, and EE Construction Co., Ltd. under which the FFF Corporation and GG Corporation were newly incorporated into FF Housing Corporation on September 21, 2009 (FF on October 1, 2009; hereinafter collectively referred to as “FFF Corporation”) under which the OO-dong OO-dong 16-2 large 4,640 square meters (hereinafter referred to as “the instant land”) were jointly purchased for 44 billion won, and paid 4.4 billion won down payment to FFF Corporation.

B. On December 18, 2009, Plaintiff AA entered into a joint purchaser of the instant land, Plaintiff CCC and DD (hereinafter “Plaintiff”) jointly established GGG corporation (hereinafter “GGG”) on December 17, 2009 (total number of outstanding shares: 200,000 shares, total amount of capital: 10,000,000 shares), and Plaintiff et al. held shares of GG 12%, Plaintiff BBBB 43%, and Plaintiff DD 25% in proportion to the total amount of KRW 40,000,000 (hereinafter “instant right to purchase shares”) of the instant land. The Plaintiff et al. transferred the Plaintiff et al.’s right to purchase shares to GG 40,000,000 won and KRW 40,000,000,000 (hereinafter “instant right to purchase shares”). The Plaintiff et al. transferred the right to purchase shares to G 18,200,000.

D. On April 7, 2010, the Plaintiff, etc. and HH changed the transfer price of GG stocks from KRW 10.15 billion to KRW 10.9 billion, which is “in dispute amount.” The Plaintiff, etc. received the said KRW 10.15 billion from HH over the period between April 7, 2010 and May 28, 2010.

E. On May 28, 2010, HH entered into a contract to succeed to all rights and obligations under the sales contract of GG and the land of this case with the GG on the instant land, and paid a total of KRW 39.6 billion out of the purchase price of the instant land to the Land Housing Corporation, HH completed the registration of ownership transfer in the future.

F. From August 13, 2013 to September 16, 2013, the director of the Central Regional Tax Office: (a) upon conducting a tax investigation with respect to the Plaintiff, etc., the Plaintiff, etc.: (b) deemed that “the disputed amount” falls under the asset transfer income of GG; (c) included KRW 10 billion in the gross income of GG in the gross income for the business year 2010; (d) among them, KRW 4.3 billion received by CCC; and (e) KRW 2.5 billion received by DD from Plaintiff AA; and (e) disposed of each amount of KRW 2 billion received by Plaintiff BB as a bonus to its members; and (e) notified the Plaintiffs of the amount of income on March 7, 2014 (the director of the Central Tax Office of the Central Tax Office changed the amount of income for the year 2014 to 3.7 years 2014; and (e) notified the change in the amount of income for 2014.”

G. On March 31, 2014, the Plaintiffs were dissatisfied with a revised return and payment of the comprehensive income tax for the year 2011 in accordance with the notice of change in the amount of income. On September 2, 2015, the Plaintiffs were dissatisfied with the Defendant’s disposal of some of the “indemable amount” of the “indemable amount” of the global income tax for the year 2011 as dividends to the Plaintiffs, and upon the revision of the tax base and tax amount for global income tax for the year 2011, the Defendant made a request for correction that the amount of tax payable by Plaintiff AB would be reduced to KRW 1,208,914 from KRW 319,100,738,977 to KRW 11,88,41,000 from KRW 561,738,977 to KRW 11,885,00, KRW 17839,00, KRW 200 to KRW 125,21316,25015.A.

H. The Plaintiffs appealed and requested for adjudication on December 8, 2015, but the Tax Tribunal rendered a decision to dismiss the Plaintiffs’ claims on March 8, 2016.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 7, 9 through 13, Eul evidence 1, 2, 3, and 6 (including each number), the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion