early 2007west2489 ( October 17, 2008)

Whether tax treaties, substance over form principle, and the principle of non-discrimination are applied.

If a non-resident with a nationality other than Belgium establishes a corporation for the purpose of domestic investment and takes capital gains in the name of a corporation and only performs the role of a transaction party for a primary investor, and if the actual transaction party is the original investor, it cannot be recognized as a transferor under the Korea-Belgium Tax Treaty.

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

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of imposing corporate tax of KRW 4,762,485,760 (including additional tax) against the plaintiff on December 18, 2006 shall be revoked.

1. Circumstances of the disposition;

A. The △○○○ Asia’s International ELI (Abcd AsIa Redelivery International L.P.) and the △△○ Asian Social II (Abcd AsIa Redelivery International L.P.; hereinafter referred to as “YI”) are a partnership in which investors outside the U.S. invested as a partnership on May 30, 201.

"나. ☆☆☆ I, II는 한국 내 부동산에 투자할 목적으로 공동으로 자금을 출연하여 룩셈 부르크에 ☆☆☆ 아시아 리커버리 인터내셔널 I 에스에이알엘(Abcd AsIa Recovery InternatIonal I SARL) 및 ☆☆☆ 아시아 리커버리 인터내셔널 n 에스에이알옐 (Abcd AsIa Recovery InternatIonal II SARL, 이하 위 각 법인을 통틀어 '룩셈부르크 법인들'이라 한다)를 설립하고 이를 통하여 벨지움국(이하 '벨기에'라 한다) 법률에 의하여 벨기에 법인인 ☆☆☆ 아시아 리커버리 벨지움 I 에스씨에이(Abcd AsIa Recovery BelgIum I SCA, 이하벨기에 법인 I'이라 한다)와 ☆☆☆ 아시아 리커버리 벨지움 H 에스씨에이 (Abcd AsIa Recovery BelgIum II SCA, 이하 '벨기에 법인 II'라 하고, 벨기에 법인 I, II를 통틀어 '벨기에 법인들'이라 한다)를 설립하였는데, 벨기에 법인들은 2002. 2. 1. 자산유동화에 관한 법률에 따라 설립된 엘에이알에프 # #게이트(LARF ##gate) 유동화전문유한회사(이하 '# #게이트'라 한다)의 주식 전부(이하 '이 사건 주식'이라 한다)를 4,725,000,000원에 인수한 다음, # #게이트를 통하여 서울 종○구 적○동 66 토지 및 그 지상의 현○상선빌딩 이하('이 사건 건물'이라 한다)을 매수하여 보유하던 중 2004. 9. 9. 이 사건 주식을 영국법인인 원고에게 43,295,000,000원에 매각하여 주식 양도차익(이하 '이 사건 양도소득'이라 한다)을 얻었다.",다. 원고는 「대한민국과 벨지움 간의 소득에 대한 조세의 이중과세회피와 탈세방지를 위한 협약」(이하 '한・벨 조세조약'이라 한다) 제13조에 의거하여 주식양도로 인한 소득은 양도언의 거주지국에서만 과세되도록 규정되어 있다는 이유로 벨기에 법인들에 대한 이 사건 주식 양도대금 지급시 이 사건 양도소득에 관한 법인세를 원천징수하지 않았다.

D. Regarding this, during the period from January 26, 2006 to November 16, 2006, the Seoul Regional Tax Office conducted an integrated investigation of corporate tax and changes in shares on Belgium Meet, and then notified the Defendant that the transfer income of the instant shares is not subject to the Korea-Belgium Tax Treaty, and that the transfer income of the instant shares is substantially reverted to △△△ I, and II, and the Defendant deemed the actual owner of the instant shares, and the Defendant imposed a total of KRW 13 of the Convention between the Government of the Republic of Korea and the UK for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Transfer Income (hereinafter “Korea-U.S. Tax Convention”), Article 10 of the former Corporate Tax Act (amended by the Presidential Decree No. 7289, Dec. 31, 2004); Article 10 of the former Enforcement Decree of the Corporate Tax Act (amended by Act No. 25137, Dec. 28, 2004; Presidential Decree No. 297, etc.

E. On March 16, 2007, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on March 16, 2007, but the said appeal was dismissed on January 17, 2008.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 4, Gap evidence 10-1, 2, Gap evidence 19, Eul evidence 1-1 to Eul evidence 2-4, Eul evidence 26, and the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. Summary of the plaintiff's assertion

1) The Belgium corporations that transfer the instant shares to the Plaintiff are not the Belgium corporations for the following reasons.

A) Belgium corporations are corporations with legal entities in accordance with the Belgium law, as they have employees to carry on their business within Belgium and engaged in investment activities inside and outside Belgium, and therefore have legal entities.

B) In view of the fact that special purpose companies such as investment companies or asset securitization companies under the Act on Business of Operating Indirect Investment and Assets and their employees are companies on documents, and as such, as recognized under domestic tax law as beneficial owners, Belgium corporations are legally established under the Belgium Act, and are also recognized as beneficial owners of related income in accordance with the Belgium tax law, deeming the Belgium corporations possessing human and material assets, which are not companies on documents, as the Belgium corporations, as the Belgium corporations are in violation of the principle of non-discrimination under Article 23 of the Korea-Belgium Tax Treaty.

C) The purpose of Luxembourg corporations is not to unfairly enjoy tax reduction and exemption benefits under the Korea-Belgium Tax Treaty, but to enjoy tax reduction and exemption benefits under the Belgium tax law. The Belgium corporations, not only have been established for the investment of Belgium but also have a substantial investment in Korea and abroad, but also have commercial risks, have been raised in the form of investment or loan from Luxembourg corporations which are shareholders of Belgium corporations, and have been paid through bank accounts in the name of Belgium corporations in the form of investment or loan from Luxembourg corporations, and the payment of income derived from investment activities by Belgium corporations in the form of dividends, etc. to shareholders or related companies is due to the unique characteristics of the investment companies recognized internationally. Belgium corporations have used some income not distributed all of Belgium corporations but also for internal reservation or re-investment.

2) For the following reasons, the instant capital gains pursuant to the Korea-Belgium Tax Treaty and the Korea-Belgium Tax Act are reverted, and there is no legal basis for imposing corporate tax.

A) The Korea-Belgium Tax Treaty provides that a taxation authority shall be imposed on the transfer income of the stocks of the Belgium resident only in the Belgium resident. The Belgium corporation is a resident in the Belgium resident under the Korea-Belgium Tax Treaty where corporate tax is imposed on all global income pursuant to the Korean-Belgium Tax Treaty, and thus, the Korean tax on the transfer income of this case is exempted, and the Korea-Belgium Tax Treaty does not have a provision that the beneficial owner may be imposed on the transfer income. Therefore, △△△△, I and II cannot be imposed on the transfer income of this case by deeming them as the beneficial owner.

B) Tax treaties are preferentially applied to domestic tax laws, so it cannot be applied to the principle of substantial taxation under domestic tax laws, and even if the principle of substantial taxation can be applied to domestic affairs, it should be determined based on the legal substance, not the economic substance. Thus, unless there is an individual and specific provision on tax avoidance under domestic tax laws, it shall be deemed that the transfer income of this case belongs to ○○ I, and II, and it shall not be subject to corporate tax.

3) 원고는 이 사건 주식의 양도소득이 한・벨 조세협약에 따라 비과세된다는 비과세면제신청서를 피고로부터 확인받아 이에 따라 법인세를 원천징수하지 아니하였는바, 이는 원고의 귀책사유에 해당하지 아니하므로 원고에게 원천징수불성실가산세를 과세하는 것은 위법하다.

(b) Related statutes;

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the tax treaty, the substance over form principle, and the principle of nondiscrimination are applied

a)the tax treaty and the domestic tax law relations

Article 6 (1) of the Constitution of the Republic of Korea provides that treaties entered into and promulgated by the Constitution and generally accepted international laws shall have the same effect as domestic laws, so tax treaties entered into with the consent of the National Assembly shall have the same effect as those of domestic laws, and in legal relations governed by tax treaties, the treaties concerned shall have the same effect as those of domestic laws and shall take precedence over domestic laws.

On the other hand, the tax treaty is concluded to prevent double taxation and tax avoidance and to create the conditions of international transactions by adjusting the authority to impose taxes on a certain country in relation to a certain transaction, etc. Therefore, in principle, the tax treaty does not create an independent authority to impose taxes, but functions as allocating or restricting the authority to impose taxes already established under the tax laws of each country. Therefore, the matters concerning the occurrence of the right to impose taxes are subject to the tax laws of each country in the first place, but the tax treaty determines the location of the final authority to impose taxes by applying the tax treaty with respect to matters determined otherwise

As above, a tax treaty is subject to the regulation of the right to impose taxes already established under the domestic tax law, so it shall be deemed as having the meaning contained in the provisions of the domestic tax law, which serves as the basis of the right to impose taxes of the country, unless the tax treaty defines otherwise or the context otherwise requires. Article 3 of the Korea-Belgium Tax Treaty also prescribes.

B) Principles of interpretation of foreign tax laws and regulations

Article 38 of the Constitution provides that all citizens shall have the duty to pay taxes under the conditions as prescribed by law, and Article 59 provides that the items and rates of taxes shall be determined by law, thereby adopting the principle of no taxation without the law. In determining the tax requirements or tax exemption requirements, the principle of no taxation without the law shall be stipulated by the law enacted by the National Assembly, which is the representative body of the people, and shall be strictly interpreted and applied to the enforcement of the law. The above interpretation principle also requires foreigners who are guaranteed their status under the conditions as prescribed by international law and treaties pursuant to Article 6(2) of the Constitution.

In addition, Articles 26, 27, and 31 of the Vienna Convention on the Law of Treaties to which the Republic of Korea is a party shall be observed, and a treaty shall not be invoked in such a way as to justify the non-performance of a treaty, and the text of a treaty shall be interpreted faithfully in accordance with its ordinary meaning.

Therefore, in the case of a tax treaty, which is a kind of tax law, an extended interpretation or analogical application of administrative convenience is not allowed.

C) The domestic legal ground for the substance over form principle

Article 11(1) of the Constitution of the Republic of Korea provides that all citizens shall be equal in front of the law. Any person shall not be discriminated against in political, economic, social, and cultural life on the basis of gender distinction, religion, or social status. The principle of tax equality is an expression of tax law in accordance with the above constitutional provisions or in the principle of equality or the principle of prohibition of discrimination. Therefore, in implementing tax legislation, the State must establish laws so that tax burden can be equally distributed among the people, and have the duty to treat all the people equally in interpreting and applying the tax law. One of the legal systems for realizing such principle of tax equality can be deemed as the principle of substantial taxation as provided in Article 14 of the Framework Act on National Taxes. Such principle of tax equality is equal in accordance with the concept of justice, and it can be said that the principle of tax justice should be realized in the course of legislative process or enforcement of the tax law by equally treating the same as the principle of justice (the Constitutional Court Order 8Hun-Ma38, July 1989).

Therefore, the constitutional principle of tax equality cannot be an exception to the application of the tax treaty having the same effect as the law, and such application does not violate the principle of strict interpretation of the tax treaty. In applying the principle of substantial taxation to foreigners, international law at the time of application in accordance with Article 6(2) of the Constitution and the contents of treaties with the country of nationality of foreigners should be considered. Such interpretation is consistent with the principle of equality and the principle of tax equality under the Constitution, which is not mechanical and formal equality.

D) As to OECD Notes

With the increase in international trade, the OECD established a company on the document in a tax haven place that is not related to the actual transaction with the purpose of tax avoidance through changes in the crepan tax treaty and avoided taxes on capital transaction income such as interest, dividend, and stock gains through the form of transaction, the OECD has started to seek various regulatory measures for the tax avoidance act using the tax have been conducted through the international discussions of the OECD Harmful Tax Forum since 199.

Therefore, the OECD has widely dealt with the main contents of the OECD Model Convention, which is the standard for interpreting the tax treaty in each country, such as types and methods of preventing the act of tax evasion, and the interpretation of the treaty-related interpretation. Article 1(7) of the OECD Model Convention on the Prevention of Double Taxation provides that the basic purpose of the double taxation Convention is to prevent international double taxation, thereby facilitating exchanges between goods and services, capital and human resources.The Convention on the Prevention of Double Taxation also aims to avoid tax evasion and tax evasion, and Article 22(2) through (24) of the OECD Model Convention provides that the substance over form rule prescribed in its laws of each country, and the provisions of the OECD Model Convention on the Prevention of Abuse of Tax Treaty, including law-related interpretation of the parent company, are not subject to the definitions of the treaty-related laws of each country and regulations on the prevention of tax evasion, which are not subject to the definitions of the treaty-related laws of each country.

Article 6 (1) of the Constitution of the Republic of Korea is not a treaty concluded and promulgated by Article 6 (1) of the Constitution, but a generally recognized international law is not legally binding. However, this is an international standard for the proper interpretation of a treaty between OECD countries, which can be considered as one reference for the interpretation of a treaty between OECD countries in relation to the substance over form principle, etc. under domestic law.

E) Interpretation of the Korea-Belgium Tax Treaty

(1) The purpose and structure of the Korea-Belgium Tax Treaty

As can be seen in the text of the Korea-Belgium Tax Treaty, it is apparent in the language and text of the Treaty that the Government of the Republic of Korea and the Belgium have been concluded for the avoidance of double taxation and the prevention of tax evasion with respect to income. Therefore, the purpose of the Treaty cannot be limited to simply the prevention of international double taxation, thereby promoting the exchange of goods, services, etc., and the "prevention of tax evasion" also deals with the important purpose of the Treaty like the avoidance of double taxation.

In addition, Article 4 (3) of the Korea-Belgium Tax Treaty provides that if a person other than an individual is a resident of both Contracting States due to the reasons under the above paragraph (1) above, he shall be deemed to be a resident of the Contracting State in which his actual management is located. Article 13 (1) of the same Treaty provides that profits derived from the transfer of real estate under Article 6 (2) may be taxed in the Contracting State in which the property is located. Paragraph (3) of the same Article provides that profits arising from the transfer of property other than that under paragraphs (1) and (2) above shall be taxed only in the Contracting State in which the transferor is a resident. Meanwhile, Article 3 (2) of the same Treaty provides that unless the context otherwise requires, terms not otherwise defined in the application of this Convention shall have the meaning to be promulgated in the laws of the Contracting State related to the taxes of this Convention, and that Article 14 of the Framework Act on National Taxes concerning the transfer income under the above Convention shall not apply.

(2) Interpretation of transferor under Article 13 (3) of the Korea-Belgium Tax Treaty

In order to determine the normative meaning of the “transferr” as stipulated in Article 13(3) of the Korea-Belgium Tax Treaty, it shall be in accordance with the principle of strict interpretation in accordance with the principle of no taxation without law as seen earlier. In the case of strict interpretation, it shall not be permitted to expand or analogically apply to administrative convenience beyond the meaning of the possible language. However, the systematic and logical interpretation that clearly expresses the ordinary and logical meaning of the language in accordance with the legal systematic relationship that takes into account the legislative intent and purpose of the relevant provision within the meaning of the possible language is for the most adjacent interpretation to the essential contents of the relevant provision, and thus, it is in accordance with the principle of no taxation without law. Therefore,

In other words, under the principle of no taxation without law, the interpretation of tax laws shall be interpreted as the text of the law, unless there are special circumstances, and it shall not be permitted to expand or analogically interpret the tax laws without any reasonable grounds, which would be contrary to the principle of fair taxation, which is the basic ideology of the tax law. Thus, the principle of substantial taxation, which is the derived principle of tax equality, is one of the general principles concerning the interpretation and application of the tax law, and even if Article 14 of the Framework Act on National Taxes does not explicitly stipulate it, the existence of the principle of substantial taxation as the constitutional principle cannot be denied. Thus, the interpretation of the principle of substantial taxation cannot be deemed as being contrary to the principle of strict interpretation. The legal form chosen by the parties should be respected, but the purpose of selecting the law form is to avoid tax evasion, and the exercise of the tax authority before the law form is not allowed.

In addition, from the same point of view, the substance over form principle can not be applied to a tax treaty, which is a special law, as it falls under the general provisions of domestic law. Article 26 of the Vienna Convention on the Law of Treaties emphasizes that all treaties in force are bound by the parties concerned and should be implemented in good faith by the parties concerned. Article 31(1) of the Convention emphasizes that "in good faith implementation" should be interpreted in accordance with the ordinary meaning granted in terms of the context of a treaty and the subject and purpose of a treaty, and it also states that "the context of a treaty and the subject and purpose of a treaty" can be considered to be "for the faithful interpretation of a treaty". Thus, it is difficult to see that the above interpretation criteria are contrary to the above Convention.

F) Sub-decision

As seen above, the substance over form principle under Article 14(1) of the Framework Act on National Taxes is to realize the principle of fair taxation burden and the ability to respond, and is equally applied to both residents and non-residents, along with the constitutional principles on the interpretation of the no taxation without law and treaties, the basis and content of the substance over form principle, the purpose of which the Korea-Belgium Tax Treaty was concluded, and the purport of Article 13 of the Korea-Belgium Tax Treaty, and the principle of substance over form principle under Article 14(1) of the Framework Act on National Taxes. ① In interpreting tax treaties between countries, the principle of substance over form can be interpreted as the basis of interpretation unless it expands the meaning of the language itself or does not go against the language and text. ② The Korea-Belgium Tax Treaty provides for taxation requirements, non-taxation and tax exemption requirements for corporations, and the defendant, who is the tax authority, recognizes the transfer of the shares in this case and the ownership of the transfer margin as a resident of the Belgium Tax Treaty, and determines whether the substance over form principle should be applied under the OECD Tax Treaty’s domestic law and its domestic law.

I will not accept any objection.

Furthermore, the principle of non-discrimination under the tax treaty is prohibited in taxation based on nationality, and under the principle of reciprocity, a national of a Contracting State is not treated more disadvantageous than that of a national of another country in which another country is in the same situation. In order to apply the above principle, it must be satisfied that a national of one Contracting State and a foreigner are in the same situation. Thus, it is not possible to directly belong to a foreign corporation in Korea through abuse of a tax treaty and a domestic asset securitization company that is subject to taxation, such domestic source income directly belonging to a foreign corporation that can be subject to tax through abuse of a tax treaty and a domestic asset securitization company that is subject to taxation, such domestic source income directly belongs to the same situation. Thus, the plaintiff's assertion that differs from this premise is without merit.

(b) Person who has de facto reverted to the stock transfer income of this case; and

A) Article 14 of the Framework Act on National Taxes provides for the principle of substantial taxation on the attribution of income, transaction, etc. subject to taxation. If a taxpayer can choose one of the various lawful and effective legal relations in order to achieve a uniform economic purpose in economic activities, the issue of whether to take such a method is the matter of his/her own choice, taking into account the efficiency of achieving the purpose and the degree of bearing the relevant expenses, such as taxes, etc. Therefore, if a taxpayer selected one of them and formed a legal relationship, the contents and scope of the tax so expressed shall be determined individually in accordance with the legal relations (see Supreme Court Decision 200Du963, Aug. 21, 2001).

In light of the above legal principle, a taxpayer’s taxation should be based on an individual and specific provision under the principle of no taxation without representation (see, e.g., Supreme Court Decision 95Nu5301, May 10, 1996).

However, as seen earlier, comprehensively taking account of the constitutional principles of no taxation without law, the interpretation of tax treaties between Korea and countries, the purport and contents of the substance over form principle under Article 14 of the Framework Act on National Taxes, the purpose of the Korea-Belgium Tax Treaty, and the purport of the tax exemption provisions on non-residents, etc., a corporation recognized as a resident in the Belgium shall conduct business transactions in Korea within the scope of Korea, and shall be a transferor as prescribed by Article 13 of the Korea-Belgium Tax Treaty in order to receive tax exemption benefits on income source under the said Tax Treaty. In determining the meaning of "transferor", the meaning of "the substance over form principle" must be limited to the extent that it conforms to the purpose of preventing double taxation or tax avoidance and does not conflict with the language and text of the Tax Treaty. Thus, if a non-resident with a nationality other than Belgium establishes a corporation in the Belgium for investment purpose in Korea and operates a business with the name of the corporation for the purpose of capital acquisition within the Republic of Korea, the entity is deemed as a taxpayer of the Belgium Tax Treaty only for the purpose of tax exemption and its original investor's.

Under the premise of the foregoing legal doctrine, we examine who is either the trading entity of the instant stock transfer or the actual owner of the capital gains accrued therefrom.

(b)a recognition;

(1) Lapses before the incorporation of the Belgium corporations.

(1) On May 30, 2001, 195, 198, 198, 198, 198, 198, 198, 198, 199, 199, 199, 199, 199, 200, 200, 200, 200,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00

땐 그 후 ☆☆☆ I, II의 권한을 위임받은 싱가포르 자문사가 2001. 10. 23. 이 사건 건물의 입찰절차에 참여하여 2001. 12. 7. 최종입찰자로 선정되자, ☆☆☆ I, II는 2001. 12. 10과 2002. 1. 22.에 룩셈부르크 법인들과 벨기에 법인들을 순차적으로 설립한 후 2002. 2. 1.에는 # #게이트를 설립하였고, 2002. 2. 20. 이 사건 건물의 매매 계약서상의 매수자를 싱가포르 자문사에서 # #게이트로 변경하였다.

㉰ 한편, 싱가포르 자문사는 벨기에 법인들이 설립되기 이전에 한국에서의 투자 활동을 수행할 자로 크리@@@ 킴(ChrIstopher KIm)을 임명하였는데, 싱가포르 자문사의 한국 내 법률자문을 맡았던 법무법인 세종이 2001. 11. 28. 크리@@@ 킴에게 보낸 업무연락에 의하면, 이 사건 건물의 매입시 ABS 방식{여기에서 ABS란 자산담보부증권 (Asset Backed SecurIty)의 약자로서 유동화회사가 일반채권 등을 기초로 하여 지급책임 을 지는 채무증서를 말한다. 이와 같이 고정자산화된 대출채권 등을 증권화하여 자금을 조달하는 금융기법을 자산유동화라 하는데, 이는 비유동적인 자산의 유동성을 높이는 일련의 행위로서 대개 현금흐름이 있는 대출 및 매출채권 등 비유동적인 자산을 보유한 금융기관이나 기업이 그 채권을 조기에 회수하기 위하여 그 자산을 제3자에게 매각하거나 그 자산을 기초로 유가증권, 기타 채무증서를 발행하여 투자자들에게 처분하는 순서로 진행된다}을 취하도록 되어 있고 이를 위해 대표적인 조세피난처로 알려진 말레이시아의 라부안(Labuan)이나 다른 나라에 지주회사(Holdcompany)를 설립한 다음 SPV(SpecIal Purpose VehIcle, SPV란 자산보유자인 금융기관 또는 기업 이유동화를 위 해 설립하는 특수목적기구를 말한다. 특수목적기구는 일정한 규모의 집합화된 자산을 자 산보유자인 금융기관 등으로부터 양수한 후 유동화증권을 발행하여 투자가에게 매각하고 그 대금을 자산보유자에게 지급하는 방식으로 자금을 회수하게 된다) 형태의 유한회사를 설립하도록 자문하였다.

㉱ 이 사건 건물을 매입하기 위한 자금의 상당 부분은 ○일은행으로부터 후순위채로 조달되었는데, 2002. 1. 28.자 ○일은행 기업여신신청서(을 제9호증)에 의하면, 차주로 아직 미설립 상태인 신설법인(SPC)인 '## Gate ABS SpecIalty Company LLC'가, 주주로 싱가포르 자문사가 각 기재되어 있고, 싱가포르 자문사의 지배를 받는 신설법인이 라부안에 설립될 예정인 것으로 기재되어 있다.

on December 28, 2001, e.g., KeIthurman (KeIthurman), the representative of Luxembourg corporations, deposited USD 5,678,030.30 (7,495,00,000) with respect to the purchase of the building of this case, and the fact that the payment was approved by Luxembourg, the Bank of Luxembourg, was delivered on December 27, 2001, and notified it to the third-party law firm.

㉳ ○일은행에 ☆☆☆ I, II 명의로 개설된 외화예금 개설신청서(을 제14, 15호증)에는 # #게이트의 인감도장이 날인되어 있다.

(2) After the incorporation of Belgium corporations

(1) The MaMaMaMaMa (hereinafter referred to as MaMaMa-Ma-Ma-Ma (hereinafter referred to as "Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma]

땐 그런데 2002. 2. 19. 크리@@@ 킴이 산업은행과 법무법인 세종에 보낸 계약 이행보증금 인출 요청문(을 제17호증)에 의하면, 당초 산업은행에 이체된 계약이행보증금 미화 5,678,015달러를 같은 달 20. ☆☆☆ I 명의의 ○일은행 계좌로 이체하여 줄 것을 요청하면서 향후 이 금액은 위 @항 기재 유동화사채 구업에 사용될 것임을 명시하고 있다.

B. On the other hand, in accordance with the answer (No. 19) that was prepared by the △○○○○○○○○○○○○○○○○ Company’s agreement on the asset management of the building of this case (hereinafter “MMMMMMMMK”) and entered into with the mother-type SPK, the title of the pertinent shares is included in the name of the corporation and the exemption from liability (the same shall apply to the instant shares) in the name of the corporation, where the title of the instant agreement was expressed to the actual owner of the share of 95% of the 195% of the 197.6% of the 196666.

③ Sale of the instant shares

(1) On May 3, 2004, after the purchase of the building of this case, Joscang 【JJJ') and on May 3, 2004, the contract (No. (No. 20) prepared by the Singapore advisory company at the time of entering into a real estate sales advisory contract for the real estate sales advisory fund of △△△ Asia (Abcd As Icarereredelivery, hereinafter referred to as the “LARF”) was expressed as being in LARF. The above real and economic disposal rights of the building of this case are expressed as being located in LARF, and the contract itself was concluded by the △△△△, Singapore advisory company and JJ, not by the owner of the building of this case, but by the owner of the building of this case, the owner of the building of this case and by all delegations from △△△, Singapore and JJ.

(C) (A) In addition, the owner of the building of this case is indicated as a “Abcqui IsIs,” even though the owner of the building of this case is a party to a PrudIs Property Management LIs (hereinafter referred to as the “PIM”) and DTIs LIs LIs (hereinafter referred to as the “BHP”) for the purpose of real estate acquisition.

According to the e-mail (Evidence No. 22) sent by the Sct Gard, a domestic activity adviser of the JJ, to Young R. H. on June 1, 2004, which is an employee of the Singapore advisory company, the Singapore advisory company requested the Plaintiff to inform the Hong Kong, an advisory company, that the Plaintiff may acquire the instant building in the form of securities in relation to the instant building in order to avoid the tax burden (5 billion won in Won-do tax), in relation to the Plaintiff’s proposal to trade the instant building in the form of real estate.

According to the e-mail (Evidence B No. 23) dated 7, 2004, which was sent by Youngung L. H. H. H. H. H, an employee of the JJ advisory company of Singapore, the person who actually and economically exercises the right to dispose of the building in question, such as preparing a memorandum of understanding (MU) that actually sells the building, unlike the fact that the owner on the registry of the building in question is MaMaogle, is the LARF.

As of June 11, 2004, 'JJ's reply to the disposition of MaMa MaMat'(Evidence 24) includes the fact that an advisory company of Singapore would avoid tax liability (5 billion won in the real estate transaction) due to the real estate transaction and can acquire the building in this case in the form of securities by the plaintiff, and that an advisory company of Singapore would be able to obtain the building in this case in the form of securities from the purchaser of this case.

(4) Investment activities of Belgium corporations, economic activities in Belgium corporations, etc.

According to the list of other investment assets of Belgium corporations (No. 9-1 and No. 2), I and Belgium corporations are punished for investment activities of USD 13 million and USD 5 million as follows, in addition to the building of this case.

The Belgium corporations are employing only part-time workers, and do not have a full-time worker.

(b) Belgium corporations have not paid corporate tax or dividend income tax on the Belgium with respect to the transfer margin of the stocks of this case, subject to the application of exemption provisions as prescribed by the tax laws in the Belgium.

[Evidence] Facts without dispute, Gap evidence Nos. 8-1 through 4, Gap evidence No. 9-1, 2, Eul evidence No. 5-26, the purport of the whole pleadings

c)Indivate

In full view of the following circumstances acknowledged by comprehensively taking account of the purport of the entire pleadings, Belgium corporations are merely performing the role of the parties to the transaction in the form of the English corporations, and the actual transaction entity is the only purpose of tax avoidance of the English corporations. Thus, the parties to whom the transfer of the instant shares and the profits therefrom accrue are the parties to the transaction in the form of the English corporations. Therefore, the Plaintiff’s assertion that Article 13 of the Korea-Belgium Tax Treaty should be applied on the ground that the parties to whom the transfer of the instant shares and the profits therefrom belong are substantially Belgium corporations.

① In order to seek and realize measures to avoid the tax burden on investment in real estate in the Republic of Korea at the time of its establishment, △△△, I and II focused on the laws and systems of investment hub countries, such as Korea and Belgium, in order to design the optimal investment structure in order to benefit from tax exemption under the tax treaties with Korea, Belgium, etc.

② As a result of such research and analysis, △△△△△ and II established Belgium corporations solely for the purpose of being exempted from taxation pursuant to the Korea-Belgium Tax Treaty, with the aim of being subjected to exemption from taxation by the Korean government on the transfer income of stocks in the Republic of Korea of Belgium, and designed the investment governance of the instant building solely for the purpose of tax evasion, such as the purchase of the instant building by making it the principal agent.

③ The acquisition and purchase of the instant building and its purchase funds, transfer of the instant shares, etc. are all made by corporations in form as Belgium corporations, and investment entities against Belgium corporations also become their superior holding companies. However, such investment governance was made formally in accordance with the investment structure and governance designed by Luxembourg and II as a way to avoid taxes on the transfer margin from investment in the instant building, and in substance, the funds invested in Korea, such as the purchase price of the instant building, were paid directly by △△△ I and II by borrowing the names of all the corporations in Belgium, and the sales contract, the payment of the purchase price, and the payment of the purchase price of the instant building after the acquisition of the instant building, and the consultation service provider was in charge of Singapore.

④ The Plaintiff asserts that Belgium corporations are practically engaged in economic activities in the Belgium, and that, in addition to the investment cases in the instant building, the Plaintiff has an entity as a business entity, such as having an office and employing its employees, etc., while performing investment affairs in Asian areas, including Korea and Japan. However, it is difficult to view that the evidence submitted by the Plaintiff alone alone was insufficient to prove that the Belgium corporations were established for the purpose of substantially engaging in business other than the purpose of tax avoidance, or that there was an independent economic interest in the investment of the instant building.

3) Whether the imposition of additional tax on the Plaintiff’s failure to withhold withholding is made on the basis of law

“As seen earlier, the JJ discussed the Plaintiff’s advisory company BHK in connection with the composition of the transaction structure related to the sale and purchase of the instant building; ② the owner of the instant building in the real estate consulting proposal for real estate acquisition in which the PPEM and DTZ and BHP are the parties; ③ Singapore advisory company may acquire the instant building in the form of securities in order to avoid the tax burden (5 billion won tax) upon the Plaintiff’s proposal for the transaction of the instant building in the form of real estate transaction; and, in full view of the fact that Singapore requested the Plaintiff to inform the Plaintiff that the Plaintiff would actually belong to △△ and II, the Plaintiff could not claim that the transfer income of the instant building was the cause for the Plaintiff’s failure to pay the transfer income tax of this case. Accordingly, the Plaintiff’s failure to pay the transfer income tax of this case is not reasonable.

Thus, the plaintiff's claim is dismissed, and it is so decided as per Disposition.