early trial 2019No3560 (2020.04.01)
The statement of the change in stocks, etc. of the key company stated that the claimant acquired the outstanding stocks on April 17, 2016 and owned all the outstanding stocks issued by the key company, and that it is difficult to conclude that the claimant owned the outstanding stocks from the time of the incorporation of the key company and restored them, unlike the statement of the change in stocks, etc. by objective data such as final and conclusive judgment, etc.
Article 7 (5) of the Local Tax Act / Article 11 (1) of the Enforcement Decree of the Local Tax Act
The early 2018do0578
The appeal is dismissed.
1. Summary of disposition;
A. As a result of the tax investigation into an OO (hereinafter referred to as “a disputing corporation”), the agency imposed and notified acquisition tax and the OO (including additional OO won) calculated by applying the book value of objects subject to acquisition tax owned by the disputed corporation as of the date on which the liability to pay acquisition tax was established on July 19, 2019 on the ground that the claimant acquired an OO share (80%; hereinafter referred to as “OO share”) additionally from OO on April 17, 2016 when the claimant owns an OO share among the issued stocks of the at issue corporation, but did not report acquisition tax, etc. to oligopolistic shareholders.
B. The claimant appealed and filed an appeal on September 18, 2019.
2. Opinions of the claimant and disposition agency;
A. The claimant's assertion
The claimant established a key corporation on February 1, 2007, but held a title trust with all of the shares (100%) to three persons, such as OOO due to financial liabilities, but the claimant repaid his/her debt and recovered all of the shares in the title trust in the name of the claimant four times from March 201 to April 2016, and is not a new acquisition on April 17, 2016. The claimant was not only raising funds for the establishment and operation of the key corporation, but also directly conducting financial management, but also directly developing a computer program essential for sales as the key corporation, and the third person is a person who runs a business separate from the key corporation in the OO area from the time of the incorporation of the key corporation to the date of the establishment of the key corporation. Therefore, the claimant's acquisition of shares from OO on April 17, 2016 to the date of acquisition of shares in the key corporation and thus the disposition imposing acquisition tax on the claimant is unjust.
(b) Opinions of disposition agencies;
In the statement of changes in stocks, etc., the claimant acquired stocks in excess of 50/100 of the total number of issued stocks of the key corporation and becomes an oligopolistic stockholder by acquiring stocks in excess of 2016. In full view of the fact that the “stock title trust contract” submitted by the claimant is made between private persons and it is difficult to believe that it is made between private persons and that there is no other judgment or notarial document corresponding to the claim statement, the claimant shall be deemed to be an oligopolistic stockholder of the key corporation on April 17, 2016, and the disposition by the disposition agency on which acquisition tax, etc. is imposed
3. Hearing and determination
A. Key issue
Inasmuch as the claimant has returned the shares in question after the title trust, the propriety of the claimant's claim that the acquisition tax on the oligopolistic shareholder should be imposed on the oligopolistic shareholder by deeming that he/she became an oligopolistic shareholder.
B. Relevant statutes
(1) The Framework Act on Local Taxes (wholly amended by Act No. 13635, Dec. 29, 2015)
Where the property of a corporation (excluding a corporation which has listed stocks on the securities market prescribed by Presidential Decree, which is the securities market under the Financial Investment Services and Capital Markets Act) under Article 47 is insufficient to cover the impositions of a local government imposed on or to be paid by such corporation, any of the following persons as of the tax base date or the date on which tax liability is established (the date on which tax payment period commences, in cases of items of taxation for which no provision exists) shall assume secondary tax liability for such shortage: Provided, That in cases of oligopolistic stockholders under subparagraph 2, the limit is the amount calculated by multiplying the amount calculated by dividing the shortage by the total number of stocks issued (excluding non-voting stocks; hereafter the same shall apply in this Article) or total amount of investment of such corporation by the number of stocks owned (excluding non-voting stocks) or amount of investment of
2. A stockholder or one limited partner and a person prescribed by Presidential Decree from among his/her related parties, whose total amount of stocks held or investments exceeds 50/100 of the total number of stocks issued or investments made by the relevant corporation and who actually exercise the rights thereto (hereinafter referred to as "point stockholder").
(2) Local Tax Act (wholly amended by Act No. 13636, Dec. 29, 2015)
(5) Where a person becomes an oligopolistic stockholder under subparagraph 2 of Article 47 of the Framework Act on Local Taxes (hereinafter referred to as " oligopolistic stockholder") by acquiring stocks or equities of a corporation, the oligopolistic stockholder shall be deemed to have acquired real estate, etc. (including the real estate, etc. trusted by a corporation pursuant to the Trust Act and registered in the name of the trustee) of the relevant corporation. In such cases, Article 44 of the Framework Act on Local Taxes shall apply mutatis mutandis to the joint and several tax liability of oligopolistic stockholders.
(3) Enforcement Decree of the Local Tax Act (wholly amended by Presidential Decree No. 26836, Dec. 31, 2015)
(1) Where a stockholder or partner with limited liability who is not an oligopolistic stockholder (referring to an oligopolistic stockholder under Article 47 (2) of the Framework Act on Local Taxes; hereinafter the same shall apply) acquires stocks or shares (hereinafter referred to as "stocks, etc.") of another stockholder or partner with limited liability or becomes the first oligopolistic stockholder due to capital increase, etc., he/she shall be deemed to have acquired all stocks, etc. of a corporation owned by the relevant oligopolistic stockholder as of the date on which he/she first becomes the oligopolistic stockholder, and shall be imposed acquisition tax pursuant to
C. Facts and determination
(1) According to the review materials submitted by the claimant and the disposition agency, the following facts are revealed.
(A) The key issue corporation was established by OO on February 1, 2007 as a target project for software development, etc. The capital at the time of the establishment is an OO member, and the shares issued are an OO (100%) (a certified copy).
(B) The details of stock changes from 2007 to 2016 of the key corporation as indicated in the statement of stock changes are as follows.
1. Details of stock changes by the key corporation
(C) The claimant continued to title trust shares from the time of the incorporation of the pertinent corporation until the recovery of the outstanding shares, and the remaining nominal holders except the OO are all the title trustees of the claimant, and submitted a stock title trust agreement.
(D) At the time of the incorporation of the key corporation, the claimant borrowed OO Won from OO to pay the stock price, and the head of the key corporation has been kept by the claimant. Since the incorporation of the key corporation, the claimant asserted that the applicant raised the operating fund from time to time after the incorporation of the key corporation and submitted a copy of the passbook (OO Won of the key corporation on February 5, 2007) in the account of the applicant corporation, a certificate of borrowing (the applicant borrowed OO Won Won from OO of the key corporation on February 5, 2007), a certificate of deposit (the applicant borrowed OO Won Won in full from OO on July 12, 2007), an X-cell (the applicant from around 207 to OO) in the account transaction of the applicant corporation.
(2) In determining whether a person is an oligopolistic shareholder in relation to the liability for deemed acquisition tax of an oligopolistic shareholder, the fact of ownership of the stocks can be proven by the tax authority based on the list of shareholders, the statement of changes in stocks, the register of corporate register, etc., and where there are circumstances such that the tax authority has stolen the shareholder’s name or has been registered in the name other than the real shareholder’s name, the nominal owner who asserts that he/she is not a shareholder shall not be deemed the shareholder, but the nominal owner who asserts that he/she is not the shareholder should prove that he/she was stolen or borrowed by the court’s final judgment or objective data, etc. (see, e.g., Supreme Court Decisions 2018Do578, Jun. 12, 2018; 20
(3) Comprehensively taking account of the above facts and relevant statutes, the statement of changes in stocks, etc. of the key corporation is stated that the claimant acquired the key stocks on April 17, 2016 and owned all outstanding stocks issued by the key corporation, and the fact that it is difficult to deem that the claimant, unlike the statement of changes in stocks, etc. by objective data such as final and conclusive judgment, etc., owned the key stocks from the time of the incorporation of the key corporation and restored them. Thus, it is reasonable to view that the claimant is an oligopolistic stockholder of the key corporation by acquiring the key stocks on April 17, 2016 and became the oligopolistic stockholder of the key corporation. Therefore, it is deemed that there was no error in imposing acquisition tax, etc
This case shall be decided as ordered in accordance with Article 96 (6) of the Framework Act on Local Taxes and Articles 81 and 65 (1) 2 of the Framework Act on National Taxes, since the petition for appeal is groundless as a result of the review.