Whether the transfer margin of the shares in this case is the premium of the right to sell the issue

Despite the form of transaction made by the corporation of this case, the disposition of this case on the premise that it is legitimate to dispose of the amount received by the plaintiffs as a dividend among the amounts in question, by deeming the "amount in dispute to be a premium on the right to sell in this case according to its substance pursuant to the principle of substantial taxation, as the income amount in the transfer of the corporation's assets pursuant to the principle of substantial taxation.

2016Nu7579 Revocation of revocation of the revocation of the rectification of global income tax

Isa and 1

Head of the tax office

National Rotations

on 07 05 October 2017

on October 16, 2017

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

The judgment of the first instance is revoked. The defendant's judgment of the first instance against the plaintiffs on October 22, 2015 attached Form 1 against the defendant.

The rejection disposition of re-assessment of income tax shall be revoked.

1. The reasoning of the judgment of the court of first instance is as follows: (a) the relevant part of the judgment of the court of first instance is modified as stated in the reasoning of the judgment of the court of first instance, except to supplement or add the judgment as stated in the following paragraph (3); and (b) such part is cited as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence

2. Revised parts

○ 4. 9. 5. 5. 5. 5. 5. ....................

○ 10면 15행 아래에 다음을 추가 『⑨ 한편 주식회사 BB건설(이하 'BB건설'이라 한다)은 2010. 11. 19. CC를 상대로 'BB건설이 CC 등으로부터 이 사건 토지의 수분양자로부터 매수인 지위를 양도받을 수 있도록 토지매입업무를 위탁받으면서 매수가격에 따라 보수(용역비)를 받기로 하였고, 이에 따라 BB건설이 토지매입업무를 수행하여 CC가 매수인의 지위를 44억 원에 양수받아 결과적으로 프리미엄 없이 440억 원에 토지를 매수하게 되었다'고 주장하면서 약정에 따른 보수금 70억 원과 그 지연손해금의 지급을 구하는 소(수원지방법원 2010가합22128호)를 제기하였는데, 2012. 6. 21. 수원지방법원에서 원고 등이 매수인 지위를 양수한 대금을 44억 원으로 볼 수 없다는 이유로 청구 기각 판결을 선고받았다. BB건설은 이에 불복하여 항소(서울고등법원 2012나61126호)를 제기하였으나, 2013. 7. 25. 서울고등법원에서 'CC가 이 사건 토지의 매수인으로서의 계약상 지위를 양수한 대금은 그 명목이 비록 DD의 주식양도대금으로 되어 있다고 하더라도 그 실질은 CC가 김ZZ 등으로부터 토지매수인의 계약상 지위를 양수하기 위하여 지급하는 매수인의 지위에 대한 프리미엄으로 보아야 하므로 씨티스타의 매수인 지위에 대한 실질적인 양수대금은 주식양도대금 명목의 프리미엄 101억 5,900만 원을 포함한 145억 5,900만 원이다'라는 이유로 항소기각 판결을 선고받았고, 그 판결은 그 무렵 그대로 확정되었다(이하 '관련 판결'이라 한다).』

A person who resells a housing site in violation of Article 31-2 (Penal Provisions) with the following added at the last 13 pages, shall be punished by imprisonment for not more than three years or by a fine not exceeding 100 million won.

3. Supplementary and addition of judgment: 10. Cases where a person supplied with a construction site for multi-family housing resells it to a special purpose corporation (limited to a corporation meeting the requirements for establishment provided for in Article 51-2 (1) 9 of the Corporate Tax Act, which is a corporation meeting the requirements for establishment provided for in Article 51-2 (1) 9 and which is the largest shareholder) established by joint investment for the purpose of the housing construction

A. The plaintiffs' assertion

Unless there are special circumstances, the tax authority shall respect the legal relationship chosen by the person liable for tax payment. The Plaintiff, etc. is difficult to transfer the sales right of this case directly toCC due to concerns over the restriction on resale under the Housing Site Development Promotion Act (Articles 19-2 and 31-2) and the cancellation of the sale contract of this case (Article 9(1)2). Accordingly, the Plaintiff, etc. andCC transferred the sales right

For B, the Plaintiff et al. selected the legal form of the transfer of DD’s shares, and the Plaintiff et al. andCC could achieve the same economic purpose as the transfer of DD’s shares, instead of directly transferring DD shares. From the perspective of the Plaintiff et al., there was no need to conclude any further additional contract with the Plaintiff et al. on the sole basis of the transfer of shares. However, the Plaintiff et al. andCC demanded CC’s creditors and EE Construction (hereinafter “E Construction”) to directly secure the instant right to sell shares. Accordingly, the Plaintiff et al. concluded a contract with D to acquire the instant right to sell shares from D with the transfer of DD shares. However, since DD shares were concluded together with the transfer of the instant right to sell shares, the transfer of DD shares is merely the appearance of the transfer, or the substance of the issue amount, which is the price for the transfer of the instant right, could not be understood through the acquisition of the instant right to sell shares. The Plaintiff et al. did not obtain any economic benefits from CC.

Therefore, the instant disposition, which identified the key amount as the premium of the instant sales right, is unlawful, inasmuch as the transfer of D shares is not a legal form, as well as economic substance, as a corporate share transfer, even though there is no defect under the tax law.

B. Determination

The substance over form principle, which declares under Article 14(1) and (2) of the Framework Act on National Taxes, is a practical principle to realize the principle of equality, which is the basic ideology under the Constitution, in a tax legal relationship. In a case where unreasonable form or appearance, which is distinguishable from the substance with respect to the facts requiring taxation, is taken for the purpose of evading tax burden, the main purpose of this principle is to regulate unfair acts of tax avoidance and to realize tax justice by enhancing equity in taxation, by imposing tax at a place where the taxable capacity exists, notwithstanding its form or appearance. In addition, the substance over form principle under Article 14(1) of the Framework Act on National Taxes is that, in a case where there is a person who is different from the name on which the title on the subject of taxation, such as income, profit, property, transaction, etc., belongs, the person who is not the person to whom the title belongs on the ground of form or appearance, but the person who actually belongs, is the person liable for tax payment (Supreme Court en banc Decision 2008Du84999 Decided

[Reference]

After the sales contract on the land of this case was concluded on September 21, 2009, the plaintiff et al. on December 17, 2009

D, which is a special purpose corporation (SPC) for the development of the land of this case, is established, and is established in 209.

12. 18. The sales right of this case was transferred to D on 18.

D. 4.4 billion won paid as the purchase price to the plaintiff et al.

Gohap et al., on January 8, 2010, the issue amount of all DD shares toCC, monthly,

A contract is concluded between the L&A and the transfer of the right to sell the instant case for KRW 4.4 billion and April 7, 2010.

The payment was received on May 28, 2010, andCC has secured the right to sell in this case.

Afterward, D has not undertaken any particular project through D, and D has not undertaken such project.

It was dissolved in 2011.

After the conclusion of the above sales contract,CC's acquisition of the sales right of this case and D's dissolution

up to a relatively short period of progress, DD

In the end, the purpose of transferring the right to sell the instant shares toCC by the Plaintiff, etc.

of this title. The plaintiff et al. shall be deemed to have been a resale under the Housing Site Development Promotion Act.

due to Korea, it was not possible to resell the land of this case after receiving SCC premium, and therefore, it was not possible to resell it.

To dispose of the instant land, the volume of the instant land in DD established by joint investments by the Plaintiff, etc.

Article 19-2 of the Housing Site Development Promotion Act and Article 19-2 of the same Act have no choice but to devise methods for disposal.

Article 13-3 subparag. 9 and 10 of the Enforcement Decree). D is a special case established for the development of the land of this case.

In addition to the right to sell the case of this case taken over by the plaintiff et al., the corporation had no particular assets.

In substance, there is no way to operate any other business than transferring the sales right of this case toCC.

C. The restriction on resale and the nature, substance, role, and transaction of D, etc.

Considering that DD transfers the sales right of this case that it acquired from the Plaintiff, etc. toCC

In accordance with this section, the transferor of the sales right of this case, together with the transfer proceeds of the sales right of this case.

D must be fully reverted to D. If the premium is the price for the right of sale in this case

If it is transferred directly fromCC to the plaintiff, it shall be transferred toCC.

The transferor of the sales right of this case does not fit the economic substance of DD.

In addition, the result of permitting the evasion of laws by avoiding the resale restrictions under the Housing Site Development Promotion Act

shall be a person.

D has no particular asset in addition to the sales right of this case and is engaged in other business.

Now, the value of the shares can be assessed as the value of the sales right of this case and its premium.

D. The sales rights of this case are disposed of and accordingly the sales rights of this case

If the shares are not held any more, the shares do not in fact have any value.

D’s balance of the corporate passbook at the time of transfer of the right to sell the instant case is KRW 0,00,000.

Ro did not have any amount equivalent to capital stock). Accordingly, the Plaintiff et al. sold the instant case in lots.

The key amount received fromCC with the purchase price of D Shares excluding rights

In economic substance, the sales right of this case must be vested in DD

It is inevitable to view that it is reasonable.

On the other hand, according to the fact-finding results of this court's fact-finding, EE Construction is "CC."

(D) The transfer and acquisition of the sales right of this case between D andCC by the lending financial institutions.

in practice, such transfer/acquisition contract without knowing whether such transfer/acquisition contract was requested to be entered into.

If D has the right of sale in this case, it is not shaking. If D has the right of sale in this case

In addition, there was no reason to request a contract for the transfer or acquisition of the sale right (the employee in charge retires);

It is not possible to confirm facts, but it would not be possible to make such a request as EE Construction."

creditors ofCC financial institutions are entitled to answer with the content of the answer.

The instant allotment transfer contract between D andCC at the request of friendly construction

On the other hand, it is difficult to readily conclude that the Plaintiff et al.’s objection to their DD.

In order to receive 4.4 billion won of the purchase price of the purchase right, DDR shall be entitled to receive 4.4 billion won

It was necessary to transfer the right to sell and prepare the price of 4.4 billion won, and the plaintiff et al.

The shares in a stock transfer/acquisition agreement drawn up separately as of April 7, 2010 amongCC shall be held in the name of the company.

Pursuant to the preceding terms of the opening,CC shall pay 4.4 billion won for the sale price of this case to D.

D shall pay 4.4 billion won in cash and deposits to the Plaintiff, etc. of the sale price of this case

Dr. Dr. Dr. Dr. C.C. is required to pay S.C.

Considering the premium, the sale right of this case with the value of 14.4 billion won is transferred and the purchase price is generated.

Ro 4.4 billion won is received only 4.4 billion won in fact CC in fact D

On April 7, 2010, the date of payment of the key price for the purchase price of 4.4 billion won for the plaintiff et al.

On May 28, 2010, both were paid on May 28, 2010. In short, the transfer of shares to the Plaintiff et al. and the transfer of sales rights to DCC was conducted in close relation with each other.

(2) The court shall hold that the court shall

Considering the above circumstances comprehensively, the Plaintiff et al. directly received fromCC

The amount at issue, notwithstanding its legal form, shall be the substance of the DDCC

It is reasonable to grasp the transfer of the sales right of this case as a premium and further refer to the court of this case.

DD's burden through the above transaction form, as recognized in the judgment of the first instance court.

The title of tax avoidance because only corporate tax on the amount of issue that is not required to be paid exceeds 3 billion won;

It is reasonable to deem that there was an enemy (Plaintiffs have been in part under relevant provisions, such as Article 19-2 of the Housing Site Development Promotion Act)

If the sale is in excess of the quantity, the relevant legal act is null and void, and thus may be created at the beginning.

The purport that there is no logic that the sales right was avoided tax on the premium without the sales right cannot be established.

However, the taxable income is viewed as an economic aspect, and it controls and manages the gain in reality.

In addition, it is sufficient to consider that there is a tax-bearing force due to the acceptance of this, and the income has been earned.

Since the legal evaluation of the cause relationship is not necessarily a legitimate and effective one, it is not necessarily a valid one.

From an economic point of view, the acquisition, control and management of the sales rights premium in reality, and the direction of this;

If applicable, it can be taxed, so the plaintiffs' assertion is accepted.

Therefore, the plaintiffs' states seeking the revocation of the instant disposition on a different premise

The head of the office shall not have reasons.

4. Conclusion

If so, the plaintiffs' claims shall be dismissed in its entirety due to the lack of reasonable grounds. The conclusion is consistent with this conclusion.

The judgment of the first instance is just, and all appeals by the plaintiffs are dismissed on the ground that they are without merit.