Where a transfer of stocks restored to their original state is made according to a judgment revoking a fraudulent act, the beneficiary is not a taxpayer of securities transaction tax.

Where an auction procedure is conducted for the shares restored to original state by a judgment revoking a fraudulent act, the beneficiary is not entitled to any counter-payment, and thus the disposition to impose a securities transaction tax against the beneficiary is illegal.

2016Nu70620 Demanding revocation of the disposition imposing securities transaction tax

○○ Private Teaching Institute for Between the Corporation

Head of Pyeongtaek Tax Office

Suwon District Court Decision 2014Guhap61232 decided October 11, 2016

on October 17, 2017

on October 21, 2016

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of securities transaction tax of KRW 82,064,280 (including additional tax) against the Plaintiff on February 26, 2014 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The reasons why the court has stated in this part are not sufficient or additional to

The corresponding part of the judgment of the court of first instance (from No. 2 to No. 3) is the same as the corresponding part of the judgment of the court of first instance, and thus, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ 제2쪽 이유 제16행의 "◎◎◎◎금융"을 "◎◎◎◎금융의 파산관재인 ◇◇◇◇공사"로 고친다.

○ 제3쪽 제3행의 맨 뒤에 "위 매각대금 합계 9,075,900,000원 중 집행비용을 공제한나머지 금액은 모두 최AA이 연대보증을 한 ◆◆◆◆산업 주식회사의 채무 변제에 충

(1) add "....."

○ 5 pages 4,118,940's "(including additional taxes)" will be added to "4,118,940."

○ The 3rd page "No. 15" of the 12th page shall be considered as "No. 17, 18".

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, since the reasons for this decision are the same as that of the corresponding part of the judgment of the court of first instance (Article 15 to 410 of the 3th judgment).

B. Relevant statutes

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

C. Determination

1) First, we examine whether the Plaintiff constitutes a taxpayer of securities transaction tax under the former Securities Transaction Tax Act (amended by Act No. 9274, Dec. 26, 2008; hereinafter the same) at the time of sale of the instant case.

A) The main sentence of Article 1 of the former Securities Transaction Tax Act provides that “The time when the transaction of stock certificates, etc. is confirmed according to delegation (amended by Presidential Decree No. 21286 of Feb. 3, 2009) shall be determined by Presidential Decree.” Article 2(3) provides that “The transfer of stock certificates, etc. shall be made at a cost due to contractual or legal causes.” Article 5(1) and (2) of the former Securities Transaction Tax Act provides that “the time when the transfer of stock certificates, etc. is finalized” shall be determined by Presidential Decree. Article 2 of the former Enforcement Decree of the Securities Transaction Tax Act (amended by Presidential Decree No. 21286 of Feb. 3, 2009) provides that “the time when the transfer price of stock certificates, etc. is settled or paid in full (Article 2(2)2), or when the stock certificates, etc. are delivered at a cost or transferred in full (Article 216(3)2) or the ownership thereof shall be determined at a cost (see Supreme Court Decision 20160Da21616131310 of the former Act.

B) In light of the following: (a) the sales price paid by △ Construction, etc. that acquired the instant shares at the time of the sale of the instant case, except for the execution expenses, was appropriated for the repayment of the joint and several liability debt of △△ Construction, etc., and the Plaintiff did not receive any payment in connection with the sale of the instant case; (b) the securities transaction tax is a distribution tax levied regardless of the occurrence of profit when the ownership of the instant shares is transferred at a cost (see Supreme Court Decision 2007Du14695, Sept. 10, 2009). However, the term “the occurrence of profit” in this case means the transfer margin, and it does not mean that the tax can be imposed even where the “price as the opposite benefit” is not paid at all. In light of the above, the Plaintiff cannot be deemed to have transferred the instant shares as stipulated in Article 2(3) of the former Securities Transaction Tax Act at the time of the sale of the instant shares, and therefore, the Plaintiff cannot be deemed to constitute the “person liable to pay the relevant share certificate, etc.”

C) Meanwhile, the revocation of a fraudulent act by exercising the right of revocation under Article 406 of the Civil Act and restitution of deviation property to the original state is only effective in relation to the creditor, beneficiary, or subsequent purchaser, and does not directly acquire the debtor’s right (see, e.g., Supreme Court Decision 98Du11458, Dec. 8, 2000). However, recognizing only the relative effect as above as above for the revocation of a fraudulent act is for adjusting the interests of the creditor, beneficiary, and third party (see, e.g., Supreme Court Decisions 2004Da49532, Nov. 10, 2005; 2008Da7109, Jun. 11, 2009). If the revocation of a fraudulent act and restitution of the original property that deviates from the fraudulent act are to return to the debtor for the entire creditor, the right of revocation is subject to compulsory execution between the creditor and beneficiary, and is subject to restitution of the debtor’s property (see, e.g., Supreme Court Decision 2007Da28484,207,4.

not later than the stage of acquiring the ownership of a valid responsible property by the purchaser of the auction

It does not mean that the above relative effect should be applied as it is (such interpretation as above).

of the property restored to the original state after the revocation of the fraudulent act.

In this respect, even if the creditor has received a judgment seeking cancellation of fraudulent act and restitution of the excess property and has restored the registration title to the original state, the actual ownership is still the taxpayer of the property tax.

The person who is a beneficiary shall not be deemed to be in conflict with the Supreme Court Decision 2012Du8151 Decided August 23, 2012, 2012, where the registration, etc. under the title trust or under the title trust is made and the tax authority imposes gift tax pursuant to the main sentence of Article 45-2 (1) of the Inheritance Tax and Gift Tax Act on this matter, and where the registration, etc. is restored to the original state by a judgment revoking a fraudulent act, the provision on deemed donation does not apply, or where the above reason does not fall under the ground for requesting a subsequent correction under Article 45-2 (2) of the Framework Act on National Taxes.

D) In addition, the securities transaction tax is a kind of distribution tax imposing taxes by gathering the fact that the ownership of stock certificates is transferred at a cost, based on the fact that the ownership is transferred at a cost. The sale of this case was made according to the circumstance that the sale of this case was carried out as a result of the revocation of fraudulent act by the creditor of the leastA and the claim for restitution of the shares, which was filed by the creditor of the largestA, and that it cannot be controlled by the plaintiff regardless of the plaintiff's intent, and thus, it is unreasonable to have the plaintiff bear the securities transaction tax on the transfer of the shares in this case from the perspective of the above taxable capacity.

2) Ultimately, the instant disposition, based on the premise that the Plaintiff is the transferor of share certificates, etc. under the former Securities Transaction Tax Act, should be revoked in an unlawful manner without any further need to determine the remainder of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is reasonable and acceptable. Since the judgment of the court of first instance differs from this conclusion, the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked and the disposition of this case is revoked. It is so decided as per Disposition.