logobeta
본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
arrow
(영문) 대전고등법원 2013. 01. 24. 선고 2012누605 판결
회계상 자본준비금 계정에서 자본전입된 것을 이익잉여금이 자본전입된 것으로 보아 배당소득세를 부과할 수는 없음[국패]
Case Number of the immediately preceding lawsuit

Daejeon District Court 201Guhap3915 (2012.08)

Case Number of the previous trial

Cho Jae-chul2010 Before 335 (Law No. 23, 2011)

Title

No dividend income tax may be imposed on the earned surplus that has been transferred from the account for the capital reserve fund for the accounting because it has been capitalized.

Summary

Even if the capital surplus actually is appropriated as earned surplus, the dividend income tax may not be imposed on such sole ground on the ground that the earned surplus has been capitalized in the account of capital reserve in violation of the provisions of the Income Tax Act.

Related statutes

Article 17 of the Income Tax Act

Cases

2012Nu605 Dividend income and revocation of disposition

Plaintiff, Appellant

XX Co., Ltd

Defendant, appellant and appellant

The Director of the National Tax Service

Judgment of the first instance court

Daejeon District Court Decision 201Guhap3915 Decided February 8, 2012

Conclusion of Pleadings

November 22, 2012

Imposition of Judgment

January 24, 2013

Text

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1. Purport of claim

The Defendant’s disposition of imposing KRW 000 on the Plaintiff on July 1, 2010 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

A. The plaintiff offered capital increase by issuing 20,000 shares each of 10,000 shares on January 14, 200 and January 30, 200 of the same month (the issue value per share of 000 won, face value 000 won, hereinafter referred to as "the shares in this case") to thisA (the "BB after the opening of this case; hereinafter referred to as "A") and allocated all of the shares in this case to thisA (the "B"). The plaintiff received 000 won from thisA for the total amount of 00 won for the capital increase and deducted directly related expenses, such as the capital increase from registration tax, from the total amount of the issue value and face value of 00 won for the capital increase, and then appropriated 00 won for the capital increase (the capital increase of 00 won) as earned surplus in this case.

C. Around August 2008, the Plaintiff entered capital in excess of KRW 000,00 of the capital surplus account, and paid free of charge, and issued 379,498 share free of charge as of October 23, 2008 and allocated it to the existing shareholders in proportion to the number of shares held.

D. On July 1, 2010, the Defendant: (a) deemed that the said gratuitous allocation was a legal dividend under Article 17(2)2 of the former Income Tax Act (amended by Act No. 11146, Jan. 1, 2012; hereinafter “former Income Tax Act”); and (b) rendered a disposition imposing a tax amount of KRW 00 (including additional tax) on the dividend income tax for the year 2008 on the Plaintiff (hereinafter “instant disposition”).

F. The Plaintiff appealed and filed an appeal with the Tax Tribunal on October 8, 2010, but was dismissed on August 23, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 9, 10, 12, 13, Eul evidence No. 1 (including each number), the testimony of the witness of the first instance court and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The financial resources of capital transfer around August 2008 are capital reserve prescribed in Article 459 (1) 1 of the Commercial Act, and is excluded from dividend income tax pursuant to the proviso of Article 17 (2) 2 (a) of the former Income Tax Act. However, the disposition of this case on which dividend income tax is imposed should be revoked because the financial resources of capital transfer are the surplus prescribed in the main sentence of Article 17 (2) 2 of the former Income Tax Act.

B. Relevant statutes

It is as shown in the attached Form.

C. Judgment on the Plaintiff’s assertion

(1) Article 17 (1) of the former Income Tax Act provides for dividend income, and provides that where profits reserved in the company in the form of legal reserve, earned surplus reserve, or other voluntary reserve are returned to stockholders or investors for the reasons prescribed in each subparagraph of Article 17 (2) of the former Income Tax Act, such profits shall be deemed as economic profits similar to cash dividend, and thus, deemed as dividend in light of the principle of equity in taxation, it shall be deemed as an item of dividend income. In addition, Article 17 (2) of the former Income Tax Act provides that "the value of stocks or investment acquired by transferring all or part of a corporation's surplus to capital or financing shall be deemed as dividend at the time of capital transfer," and the proviso provides that "the capital reserve under Article 459 of the Commercial Act and the revaluation reserve under the Assets Revaluation Act shall not be deemed as dividend at the time of capital transfer."

(2) According to the above provision, the value of the instant gratuitous share, which capitalizing the excess of the issuance of capital reserve, does not constitute deemed dividend.

D. Judgment on the defendant's assertion

(1) The defendant's assertion

(A) The share price paid by thisA in relation to the instant shares and the share price paid by the Plaintiff to thisA are the actual payment and return of the loan pursuant to a monetary loan for consumption and the principal and interest thereof. The instant shares issued by the Plaintiff with capital increase and allocated to thisA are the transfer for the said loan.

(B) Meanwhile, the Plaintiff appropriated the difference between the issue value and the face value as the amount in excess of the issue value when offering capital, but received a demand for reimbursement from thisA, and transferred the loss equivalent to the amount in excess of the issue value as earned surplus, thereby compensating for the loss in excess of the issue value, and then transferred the excess amount in excess of the issue value to the capital at the time of capital increase without compensation. The capital for gratuitous increase is the earned surplus that the substance of the capital increase

(C) The Plaintiff’s above act is an alternative accounting method to avoid dividend income. Considering that the entire process of transaction pursuant to the provisions of Article 14 of the Framework Act on National Taxes is practically identified, the earned surplus that is not issued at the time of capital increase on August 2008 should be considered to have been capitalized, and thus, the amount of gratuitous dividend distributed in capital transfer constitutes deemed to constitute deemed dividend under Article 17(1)3 of the former Income Tax Act and thus, is subject to dividend income tax.

(2) Facts of recognition

(A) On January 9, 2004, the Plaintiff entered into a monetary loan agreement with thisA (hereinafter “instant agreement”). The main contents are as follows.

ThisA shall lend 00 won to the Plaintiff under an agreement for a loan for consumption with a view to resolving the light of operating capital arising from the collection of tax against the Plaintiff (Article 1), and the Plaintiff shall borrow this loan (Article 2), and the interest shall be set at 7% per annum (Article 2), the Plaintiff shall provide 20,000 shares newly issued by the Plaintiff as a security for the loan (Article 3), and the loan may be used only for the purpose of operating funds or the repayment of the loan, and if used for other purposes, thisA may require the Plaintiff to promptly repay the loan (Article 4), and thisA may require the Plaintiff to repay the loan if 12 months have elapsed from the date of the loan for consumption contract (Article 5), and if the Plaintiff refuses to comply with the request for repayment of thisA, thisA may recover the loan by voluntarily selling new issued shares provided for the purpose of security to a third party (Article 6).

(B) According to the agreement of this case, the Plaintiff offered capital increase through the resolution of the board of directors, and allocated 10,000 shares to thisA by the third party allotment method on January 14, 2004, and offered 10,000 shares as security by allocating forfeited shares on January 30, 2004. There was no agreement between the Plaintiff and thisA as of January 30, 2004, such as restricting the exercise of shareholder rights of this case, and there was no fact that thisA exercised shareholder rights while retaining the key shares.

(C) The Plaintiff made repayment of the loan at the request of thisA, and acquired and retired the shares of this case. The Plaintiff made a resolution on May 9, 2005, followed by the resolution of the board of directors on May 25, 2005, a temporary general meeting of shareholders on May 27, 2005, and conducted reduction of capital on June 28, 2005 by acquiring the shares of this case from thisA on May 27, 2005.

(D) The director of the Gangnam Tax Office: (a) deemed that the Plaintiff-existing stockholders who renounced the acquisition of new shares to this case were donated to thisA (the difference between the appraised value and the acceptance value after capital increase) and determined and notified this to thisA; and (b) thisA filed a national tax appeal on the ground that the substance of this case, upon objection, assigned the shares to themselves, constitutes a transfer for security under a monetary loan. The National Tax Tribunal on September 14, 2007, issued the instant shares constitutes the issuance of new shares for the purpose of security; and (c) can be confirmed that the Plaintiff’s issuance of the instant shares constitutes the issuance of new shares for the purpose of security; and (d) after the Plaintiff paid interest to this case before the gift tax was imposed, the acquisition of the instant shares in this case appears to be the substance of the transaction. Accordingly, the disposition authority revoked the disposition of this case on the ground that it was against the substance over form principle by applying the gift tax provision under Article 39(1) of the Inheritance Tax and Gift Tax Act.

[Ground of Recognition] Facts without dispute, Gap evidence 7, 8, 12, and 16 (including each number), the testimony of the witness B of the trial of the party concerned and the purport of the whole pleadings

(3) Determination

(A) The former Commercial Act (amended by Act No. 10600, Apr. 14, 201; hereinafter “the Commercial Act”) requires a company to accumulate a certain portion of surplus funds arising from its management activities as earned surplus reserve (Article 458) and as capital reserve (Article 459). The company is promoting the rationalization of its capital adequacy principle, creditor protection or investment in capital by restricting the purpose and method of disposal of its legal reserve (Articles 460 and 461). In other words, when the company issues shares above face value, it shall accumulate its capital reserve (Article 459(1)1 of the Commercial Act), and the earned surplus reserve and capital reserve shall not be disposed of unless they are appropriated for deficit in capital reserves, and the company may, if it fails to do so, make up for the capital reserve in whole or in part, for the capital reserve in accordance with a resolution of the board of directors (Article 460 of the Commercial Act).

(B) According to the facts established above, the Plaintiff’s act of calculating the difference between the issue value and the face value in the issuance of the instant shares as the amount in excess of the issuance of shares, and act of compensating for losses arising from capital reduction with earned surplus or capitalizing the amount in excess of the issuance of stocks in the capital surplus account to the existing shareholders in proportion to the number of stocks held by the existing shareholders by capital increase without compensation is a legitimate corporate accounting process under the provisions of the Commercial Act. Therefore, it cannot be said that there is any defect in the Plaintiff’s act of disposing of corporate accounting under the provisions of the Commercial Act, which the Plaintiff, while borrowing money from thisA to resolve business difficulties at the time, issued and offered stocks as security by issuing stocks by capital increase.

(C) In addition, it is a matter of tax policy whether to impose a tax on certain income, and it is determined in accordance with the tax law as to whether to consider the value of the stocks to be transferred in capital and issued as dividend or not. The provisions of the Income Tax Act on constructive dividend include the proviso that does not regard the value of the stocks acquired in accordance with the capital reserve as the constructive dividend. In such a case, it is not a non-taxation on the value of the stocks, etc. received by the stockholders, etc. according to the capital transfer, but a policy consideration to protect the company creditors through the capital increase and promote the capital transfer in order to promote the rationalization of corporate management by raising the company's credit, it shall not be deemed as a constructive dividend when capital transfer is made in the capital transfer, but it shall not be deemed as a taxation on the remaining excess amount or reserved interest after the occurrence of a cause as prescribed in Article 17 (2) of the former Income Tax Act (see Supreme Court Decisions 90Nu2154, Feb. 28, 1992; 9Nu1983, May 2, 1993).

(D) If, as alleged by the Defendant, even though the amount is in the form of capital transaction and counted in the capital reserve as prescribed by the Commercial Act, in substance, it is deemed that the capital reserve has been actually accounted only in the form of a capital transaction, and if it is necessary to impose the dividend income tax on the case where the amount of earned surplus converted into capital is deemed a constructive dividend, it is necessary to revise the law, and it is not possible to achieve by expanding the scope of application of the principle of substantial taxation without limitation, as argued in the instant case.

E. Sub-committee

Therefore, even though the Plaintiff’s capital transfer of excess amount issued by the capital surplus account on August 2008 satisfies each of the requirements under the proviso of Article 17(2)2(a) of the former Income Tax Act and Article 459(1)1 of the Commercial Act, the instant disposition that deemed the capital transfer of excess amount issued solely on the ground that the issuance of the instant shares is attributable to the purpose of collateral security, as the capital transfer of earned surplus, should be revoked as it constitutes a disposition that is light of the tax legal principle.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is justified with this conclusion, and the defendant's appeal is dismissed. It is so decided as per Disposition.

arrow