Examination Transfer 2008-0017 (2008.04.29)

Whether it constitutes a non-resident at the time of stock transfer

In light of the Plaintiff’s occupation and residence of the family members living together with the Plaintiff, etc., a person who resided in a foreign corporation at the time of stock transfer and worked in a foreign corporation and has been ordinarily required to dwell in a foreign country for not less than one year, and the basis of his living may not be recognized as having been residing in Korea or re-entry and mainly in Korea.

The contents of the decision shall be the same as attached.

1. The Defendant’s disposition rejecting an application for rectification of capital gains tax against the Plaintiff on January 15, 2008 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

same as the entry.

1. Details of the disposition;

가. 원고는 2000. 6. 16. 소외 @@@댄 주식회사(이하 '소외 회사'라고 한다)에 입사하여 근무하다가 2006. 4. 30. 소외 회사를 퇴직하고, 2006. 5. 1.부터 소외 회사의 미국 현지법인의 직원으로 채용되어 근무하게 됨에 따라, 2006. 4. 14. 처와 함께 출국한 이후 계속 미국에서 거주하고 있다.

B. On October 11, 2006 and November 6, 2006, the Plaintiff transferred to KRW 1,130,866,958 the total amount of shares of the non-party company that was listed in the U.S. corporation (hereinafter “instant shares”) and reported and paid KRW 196,050,339 for the transfer margin on February 28, 2007.

C. On November 20, 2007, the Plaintiff filed a request for correction with the Defendant to the effect that since the Plaintiff’s transfer of the instant shares constitutes the transfer of assets abroad by a domestic nonresident, the Plaintiff did not have any tax liability, the Plaintiff filed a request for correction to the effect that KRW 196,050,339 of the capital gains tax declared and paid as above should be refunded. Accordingly, on January 15, 2008, the Defendant rendered the instant disposition rejecting the Plaintiff’s request for correction on the ground that the Plaintiff constitutes a domestic resident, and the Plaintiff is liable to pay the

[Reasons for Recognition] Gap evidence Nos. 1, Eul evidence Nos. 1, 2, and Eul evidence Nos. 4, the whole pleadings

Purport

2. Whether the disposition is lawful;

A. The plaintiff's assertion

At the time of the transfer of the instant shares, the Plaintiff, a foreign asset, is not obligated to pay capital gains tax on the transfer of the instant shares pursuant to Article 2 (4) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301, Feb. 4, 2009; hereinafter referred to as the “Enforcement Decree”).

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) A taxpayer under the Income Tax Act;

According to Article 1 (1) of the Income Tax Act (hereinafter referred to as the "Act"), an individual who has a domicile in Korea or has a domicile in Korea for not less than one year (hereinafter referred to as a "resident") has a liability to pay taxes on taxable objects belonging to the resident globally without any spatial limit on the source of taxable objects, while a nonresident has a liability to pay taxes only on domestic source income.

According to the above evidence, since the shares of this case were not listed or registered in the domestic securities market, etc. and listed in the United States Bridge, according to Article 118-2 subparag. 3 of the Act and Article 178-2(2) of the Enforcement Decree of the Act, the transfer of the shares of this case constitutes the transfer of assets abroad. Therefore, the existence of the Plaintiff’s tax liability for the transfer of shares of this case shall be determined by whether the Plaintiff is a resident under the law, and

(2) Whether the plaintiff is a resident under the Income Tax Act

(A) Facts of recognition

1) As the Plaintiff retired from a non-party company as of April 30, 2006 and worked as an employee of the U.S. subsidiary of the non-party company from May 1, 2006, the Plaintiff continued to reside in the U.S. Mercer I’s land after departure with his wife as the only family member at the time of April 14, 2006.

2) On May 7, 2006, the Plaintiff’s wife gave birth to the first child in the United States. Meanwhile, from May 1, 2006, the Plaintiff worked as an employee of a non-party company as a local employee of the non-party company, and on October 2006, the Plaintiff continued to work as Senior in the United States corporation after a local corporation of the non-party company in the United States was merged into RO as a U.S. corporation after the merger into the non-party company in the United States corporation. Since May 2006, the Plaintiff paid the U.S. resident as a U

3) On February 23, 2007 through October 12, 2007, the Plaintiff and its wife registered overseas Koreans with the period of stay as 'the period of stay on April 14, 2006', 'the purpose of stay', 'the period of stay', 'the period of stay as 'the commercial stay or living together', 'the status of stay', 'the status of stay as 'the commercial stay or family stay', and filed an application for permanent sovereignty on September 20, 2007.

4) 한편, 원고는 출국 직전인 2006. 3. 31. 재건축 대상인 서울 서초구 반포 동 30-2 삼○가든3동 702호를 매수하였고, 원고와 그 처는 2006. 4.경 3년간 체류가 가능하고 주재원 내지 그 가족에게 발급되는 L1 내지 L2 비자를 받아 같은 해 4. 14. 출국하였다. 한편, 원고는 2004. 12. 27. 서울 강○구 염○동 소재 이○스내○에아파트 101동 205호에 전입하였는데, 미국으로 출국한 이후인 2007. 1. 15. 주민등록이 무단전출을 이유로 직권 말소되자, 원고는 2007. 3. 2. 위 주소지로 재등록하였다가 같은 날 위 @@가든 3동 702호로 전입신고를 하였으며, 그 후 2007. 4. 27. 원고의 부친 및 결혼한 남동생이 함께 거주하고 있는 위 염○동 소재 무○아파트 101동 1701호로 전입 신고를 하였다.

[Reasons for Recognition] Each entry of evidence Nos. 6, 9 through 11, 2, 7 and 8, and the purport of the whole pleadings

(B) Determination

According to Article 1(1) and (4) of the Act and Article 2(1) and (2) of the Enforcement Decree of the Act, the person who has a domicile in the country or has a domicile in the country for not less than one year means the person who has a domicile in the country. In determining whether a person is a person who has a domicile in the country, the objective facts of living relationship should be comprehensively determined, such as whether a family living in the country has a family living together in the country, whether a family living in the country has an asset, a occupation, a foreign nationality, or whether a person has a permanent residence in a foreign country. In light of Article 2(4)1 of the Enforcement Decree stipulating the detailed criteria for determining whether a person who has a domicile in the country has a domicile in the country, it shall be considered that there is no domicile in the country. Thus, considering the above provisions, even if it falls under Article 2(4)1 of the Enforcement Decree of the Act, if it is deemed that there is a basis for living in the country, it can be viewed as a resident.

As to this case, although the plaintiff owned real estate in Korea at the time of transferring the shares of this case, he had maintained his domicile in Korea with the visa resident, and left Korea with the U.S. resident registration after the transfer of the shares of this case. However, according to the above facts of recognition, the plaintiff retired from the non-party company and was employed for the non-party company as the only family member living together on April 14, 2006, and left Korea with the non-party company as the non-party company was employed for the non-party company's subsidiary, and the non-party company's local corporation was an independent corporation other than the non-party company's overseas business office or overseas branch. In particular, until the transfer of the shares of this case, the non-party company's local corporation was merged with the non-party company's U.S. corporation's U.S. corporation, and continued to work in Korea as the employee of the non-party company's U.S. corporation, and the plaintiff's family member who applied for the occupation of this case can be recognized as having been residing in Korea.

(3) Sub-decisions

Therefore, it is illegal that a transfer to another person is a resident under the plaintiff's Family Law.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.