Suwon District Court-2015-Gu Partnership-67572 ( August 23, 2016)

Cho-2014 Middle-1555 (Law No. 18, 2015)

The disposition of this case rejecting the claim for correction by determining the amount received by the plaintiffs by deeming the transfer margin of the shares of this case as a bonus is legitimate.

Despite the form of transaction made by the plaintiff et al. and corporations, it is reasonable that the plaintiffs received the amount as bonus in accordance with the principle of substantial taxation by deeming "the dispute amount" as a premium for the right to sell in this case according to its substance.

Article 14 (Real Taxation)

2016-Nu65475 Disposition of revocation of refusal to correct capital gains tax

Plaintiff-Appellants

AA and 1

Sovers, Appellants

o Head of the tax office

2017.06.20

oly 2017.18

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

Cheong-gu Office

The judgment of the first instance shall be revoked. The defendant's refusal to correct income tax as stated in the attached Form against the plaintiffs on July 7, 2014 shall be revoked.

1. Quotation of judgment of the first instance;

이 법원이 이 사건에 관하여 설시할 이유는, 제1심 판결 제2면 아래에서 제6행의 '발생주식'을 '발행주식'으로, 제9면 제2〜3행의 '00스타'를 '00스타'로 각 고치고, 원고들의 주장에 대하여 다음과 같은 판단을 추가하는 외에는 제1심 판결의 이유 기재와 같으므로 행정소송법 제8조 제2항, 민사소송법 제420조 본문에 의하여 이를 인용한다.

2. Additional determination

A. The plaintiffs' assertion

Unless there exist special circumstances, the tax authority shall respect the legal relationship chosen by the person liable for tax payment. The Plaintiff, etc. was difficult to transfer the ownership of this case directly to 00 billion won because of the provisions on restriction on resale under the Housing Site Development Promotion Act and the cancellation of the sale contract of this case. Accordingly, the Plaintiff, etc. and 00 billion won selected the legal form of transferring the ownership of this case. In lieu of directly transferring the ownership of this case, the Plaintiff, etc. and 00 billion won transferred the ownership of this case’s shares to 100% of the ownership of this case’s ownership, thereby achieving the same economic purpose as transferring the ownership of this case’s ownership. From the point of view of the Plaintiff, etc., there was no need to enter into any further additional contract with the Plaintiff, etc., on the sole basis of these shares transfer. However, since the Plaintiff, etc. and 000 billion won were required to secure the ownership of this case directly, the transfer of the ownership of this case’s shares and the transfer of the ownership of this case’s shares was unlawful by the Plaintiff, etc.

B. Determination

The substance over form principle, which declares Article 14(1) and (2) of the Framework Act on National Taxes, is a practical principle for realizing the principle of equality, which is the basic ideology under the Constitution, in a tax legal relationship, and is a unreasonable form or appearance that is distinguishable from the substance with respect to the facts requiring taxation for the purpose of evading tax burden.

The main purpose of tax justice is to regulate unfair tax avoidance acts and enhance equity in taxation by imposing tax on a place with a tax-bearing capacity according to its form or appearance, notwithstanding its form or appearance. In addition, the taxation principle on beneficial owners under Article 14(1) of the former Framework Act on National Taxes is that, in cases where there is a separate person to whom such income, profit, property, transaction, etc. belongs differently from the nominal owner, the nominal owner should be the person to whom such income, profit, property, or other taxation belongs, rather than the nominal owner, as the taxpayer (see, e.g., Supreme Court en banc Decision 2008Du8499, Jan. 19, 2012).

After the sales contract on the instant land was concluded on September 21, 2009, the Plaintiff et al. established AADAW, a special purpose corporation (SPC) for the development of the instant land on December 17, 2009, and transferred the instant sales right to AAD on December 18, 2009 (it means that the Plaintiff et al. paid 4.4 billion won as the down payment for the said sales contract to the Plaintiff et al.). On January 8, 2010, the Plaintiff et al. concluded a contract to transfer the instant sales right at KRW 4.4 billion to AADAW, and did not receive the sales right from the Plaintiff et al. on May 28, 2010, and the Plaintiff et al. did not receive the sales right from AADAW from the Plaintiff et al. on January 8, 2010.

Examining a relatively short period of process from the conclusion of the above sales contract to the dissolution of AADAW, the Plaintiff et al. can be seen as having been conducted for the purpose of transferring the sales right of this case to 00 billion won. The Plaintiff et al. was not able to resell the instant land after receiving premium due to the restriction on resale under the Housing Site Development Promotion Act. Thus, in order to dispose of the instant land, the method of transferring the instant land to AADAW established by joint investment by the Plaintiff et al. to dispose of it was inevitable (Article 19-2; Articles 13-3, 9, and 10 of the Enforcement Decree of the Housing Site Development Promotion Act). If the Plaintiff et al. were to be a special purpose corporation established to develop the instant land without any specific asset acquired by the Plaintiff et al., and practically, it is difficult for the transferor to separately transfer the ownership of this case from the Plaintiff et al., the substance and substance of the sale right to the instant land to the AADAW, the transfer of ownership to the Plaintiff et al.

AADA has no particular asset other than the instant right to sell in lots, and therefore, its value can be evaluated as the value of the instant right to sell in lots and its premium. If such AAD ADA disposes of the instant right to sell in lots and accordingly does not hold a premium more than that of the instant right to sell in lots, the shares are virtually no value of the shares (the balance of the corporate passbook of AAAD AADA at the time of transfer of the instant right to sell in lots is KRW 0,00, and the amount equivalent to the actual capital is not remaining). Nevertheless, the issue amount received by AAD AD AD AD AD (excluding the instant right to sell in lots) from the Plaintiff, etc. with the value of the instant right to sell in lots except for the instant right to sell in lots, shall be deemed as the premium of the instant right to sell in real economic substance, which should be attributed to AADAD.

Meanwhile, according to the statement of evidence No. 24, BB construction of this Court’s fact-finding, without knowing whether financial institutions of 00 Cost AD 2 requested to conclude the instant transfer and takeover contract between 00 billion won and 00 billion won. In practice, if ADD 2 had the instant right to sell, it would not have any reason to request the instant transfer and takeover contract. (It would not be possible to confirm the fact-finding by the employee in charge, but it would not have made such a request as BB 4). It is difficult to conclude that BA 40 billion won’s credit financial institutions and 00 billion won entered into the instant transfer and purchase right contract between 40 billion won and 40 billion won. On the other hand, the Plaintiff et al. transferred the instant transfer and purchase right to 40 billion won to AD 400 billion won and 400 billion won, and it is necessary to establish a separate transfer and purchase right between 400 billion won and 400 billion won of the instant transfer price.

In full view of the above circumstances, it is reasonable to grasp the substance of the issue amount directly received by the Plaintiff, etc. from 00 billion won, notwithstanding its legal form, as the interest rate for the transfer of the right to sell the instant case to 00 billion won by AADian. Therefore, the Plaintiffs’ assertion seeking the revocation of the instant disposition on a different premise is without merit.

3. Conclusion

If so, the judgment of the first instance court is justifiable, and the plaintiffs' appeal is dismissed as it is without merit.