Cho High Court Decision 2009Da3656 (Ob. 23, 2010)

If the time of acquisition of transferred stocks is unclear, the tax amount of capital gains tax and gift tax shall be calculated in accordance with the post-entry Act.

Article 162(5) of the Enforcement Decree of the Income Tax Act that provides for the calculation of gains from transfer pursuant to the first in first in first in first in first in and first in order cannot be applied to this case only if the acquiring time of transferred assets is unclear, and the amount of capital gains tax and gift tax should be calculated pursuant to the Act on the investment in first in and

2010Guhap1604 Revocation of Disposition of Imposing capital gains tax, etc.

1.박〇〇2.박△△

〇〇 세무서장

1. The defendant

A. The portion exceeding KRW 4,921,580,842 of the disposition of imposition of capital gains tax of KRW 4,947,236,945, belonging to the year 2005 against Plaintiff Park Jong-A on January 2, 2009;

B. The portion exceeding KRW 278,192,022 out of the disposition of imposition of capital gains tax of KRW 510,346,548 for the year 2007 against Plaintiff Park Jong-A on January 2, 2009;

C. The portion exceeding KRW 1,343,235,351, out of the imposition of gift tax of KRW 3,001,305,030 on June 1, 2009 against Plaintiff ParkB for the imposition of gift tax of KRW 3,001,30 for the year 207

Each cancellation shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

(a) Imposition of transfer income tax for 2005;

"1) 원고 박AA는 본인 명의 또는 원고 박BB이나 정CC의 명의를 빌려 개설한 △△증권 주식회사(이하△△증권'이라 한다)와 〇〇증권 주식회사(이하 '〇〇증권'이라 한다)의 증권계좌를 통해 별지 1 주식거래내역 기재와 같이 □□증권 주식회사(현 □□ 투자증권, 이하□□증권'이라 한다) 발행주식을 취득하여, 2005. 6. 28. 특수관계인인 처와 함께 당시 □□증권 총 발행주식의 3% 이상을 소유함으로써, 구 소득세법 시행령 (2006. 2. 9. 대통령령 제19327호로 개정되기 전의 것)에서 정한 대주주가 되었다.",2) 피고는 2009. 1. 2. 원고 박AA에 대하여, 원고 박AA가 2005. 12. 19.부터 2005. 12. 29. 사이에 △△증권과 〇〇증권의 증권계좌를 통해 양도한 □□증권 발행주식 합계 951,480주와 관련하여, 그 양도한 주식의 취득시기가 분명하지 않다는 이유로 구 소득세법 시행령(2010. 12. 30. 대통령령 제22580호로 개정되기 전의 것) 제162조 제5항에서 규정한 선입선출법에 따라 양도차익을 산정하여 2005년 귀속 양도소득세 4,947,236,945원(가산세 포함)을 부과하는 처분(이하 '이 사건 2005년 귀속 양도소득세 부과처분'이라 한다)을 하였다.

3) The Plaintiff Park Jong-A requested the Tax Tribunal for a trial against the objection, but the Tax Tribunal dismissed the request on February 4, 2010.

(b) Imposition of transfer income tax for 207;

1) 원고 박AA는 원고 박BB과 정CC의 명의를 빌려 개설한 ●●증권 주식회사와 △△증권의 증권계좌를 통해 별지 1 주식거래내역 기재와 같이 ☆☆스 주식회사 (이하 '☆☆스'라 한다) 발행주식을 취득하여, 2006. 6. 30. 특수관계인인 ■■실업 주식회사, 정산개발 주식회사와 함께 ☆☆스 발행 주식의 3% 이상을 소유함으로써, 구 소득세법 시행령(2009. 2. 4. 대통령령 제21301호로 개정되기 전의 것)에서 정한 대주주가 되었다.

2) On January 2, 2009, the Defendant: (a) imposed a disposition imposing KRW 1,222,625,720 (including additional tax) on the grounds that the acquiring time of the transferred shares is unclear with respect to the total amount of 481,540 shares issued by the Plaintiff Park Dong, who lent the name of the Plaintiff ParkB and Jung-gu, from August 27, 2007 to November 9, 2007, the Plaintiff Park Jong-gu transferred through the securities and △△△ Securities Co., Ltd. from August 27, 2007, for the reason that the transferred shares are not obvious; (b) on the ground that the acquiring time of the transferred shares is calculated in accordance with the first instance method stipulated in Article 162(5) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22580, Dec. 30, 201).

3) On February 4, 2010, Plaintiff Park Jong-A asked the Tax Tribunal for a trial against this objection, and the Tax Tribunal rendered a decision to partially accept the tax base and tax amount to correct on the ground that the said transfer income tax was erroneously applied in calculating the tax rate.

4) Accordingly, on February 11, 2010, the Defendant adjusted the said capital gains tax to the Plaintiff Park Jong-A at KRW 510,346,548 (hereinafter “instant disposition imposing tax on imposition of KRW 510,346,548 remaining after the reduction in the imposition of capital gains tax for the year 2007 as of January 2, 2009”).

(c) Imposition of gift tax;

1) Plaintiff ParkB completed a transfer on July 18, 2006, with respect to 100,000 shares issued in △△ Securities Account, which was acquired between April 21, 2006 and April 27, 2006, through the name of Plaintiff ParkB, and the transfer of title between Plaintiff ParkB on December 31, 2006, with respect to 150,000 shares acquired during the period from September 8, 2006 to September 19, 2006 (the transfer of title is completed in the name of Plaintiff ParkB on December 31, 2006, between Plaintiff ParkB and September 3, 2007 to acquire more than 237,490 shares from September 3, 207, and the transfer of title between Plaintiff ParkB and the remaining shares in the name of Plaintiff ParkB on September 26, 2007, the transfer of title between Plaintiff ParkB and the remaining shares in the name of Plaintiff ParkB.

2) On June 1, 2009, the Defendant regarded the acquisition of the above shares as the title trust for the purpose of tax avoidance; pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007), which deemed that the title trust property was donated from the actual owner; (i) imposed on Plaintiff B on July 18, 2006 the gift tax of KRW 262,904,400 on the 1,500 shares, which were transferred on December 31, 2006; (ii) imposed the gift tax of KRW 976,568,110 on the 150 shares, which was transferred on December 31, 2006; and (iii) imposed the gift tax of KRW 207,207, 207, 207, 2007, 206, 207, 2007 shares were transferred on the title trust.

3) The Plaintiff ParkB filed an appeal with the Tax Tribunal on February 23, 2010, but the Tax Tribunal dismissed the appeal.

[Ground of recognition] Facts without dispute, entry of Gap 1 to 7 evidence, purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

Although the securities companies that managed the plaintiffs' accounts have managed the stock entry and exit pursuant to the latter Act, each of the dispositions of this case, which the Defendant deemed to have first transferred the stocks acquired pursuant to the first-in first-out and first-out method, to have been unlawful.

(b) Related statutes;

Attached Form 4 shall be as listed in attached Table 4.

C. Determination

1) In full view of the statement in Gap evidence No. 8, Sep. 17, 2010, Oct. 11, 2010, Nov. 4, 2010, the fact inquiry results of the fact inquiry results with respect to the Korea Exchange, and the Korea Securities Depository, the purport of the entire pleadings as to the plaintiffs' share transaction results, comprehensively taking into account the following: (a) since the implementation of Article 81-3 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5584 of Dec. 28, 1998), a securities company in charge of the plaintiffs' share transaction gives benefits to long-term stock dividend; (b) after January 1, 1998, the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 15976 of Dec. 31, 198), Article 80(7) of the Income Tax Act (amended by Presidential Decree No. 15976 of Dec. 31, 20198) provides that part of the shares acquired at the first transfer method.

2) In calculating the acquisition value and gains on transfer of stocks pursuant to the Earlier Shipping Act, the fact that the capital gains tax for the year 2005 and the year 2007, which was to be imposed on the Plaintiff Park Jong-A, is not a dispute between the parties concerned, and that, in accordance with the Earlier Shipping Act, the attached Table 1 and 2 of the Political Party Tax Table 3 is not a dispute between the parties concerned. Likewise, in the case of Plaintiff ParkB’s transfer of shares issued by △△, 120,000 out of 222,620,620 shares issued by △△, which was changed as of December 31, 2007, was already imposed on the portion of shares acquired in 206 and the gift tax was already imposed on 2006, and thus, the remaining 102,620 shares are shares newly trusted in 207 (the detailed statement of transactions is the same as the attached Table 20 trade statement), and there is no dispute between the parties, such as the parties concerned.

3) Therefore, the portion exceeding KRW 4,921,580,842 of the disposition imposing capital gains tax for the year 2005 of this case, and the portion exceeding KRW 278,192,02 of the disposition imposing capital gains tax for the year 2007 of this case, and the portion exceeding KRW 1,343,235,351 of the disposition imposing capital gains tax for the year 2005 of this case, should be revoked illegally.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.