Seocho 2013west 1285 ( November 25, 2013)

It is reasonable to view that the instant dividend belongs to the owner who is the nominal owner of the shares.

It is reasonable from an economic and substantial perspective to view that the substance of the asset management company cannot be deemed to have been established and held for the purpose of tax avoidance, and that the dividend belongs to the holders of the shares and that the dividend in this case belongs to the asset management company, not the fund, in principle, to the holders of the shares.

2014Guhap52886 Demanding revocation of the disposition of revocation of corporate tax collection

○○○ Este et al.

AA Head of the Tax Office

October 29, 2014

January 30, 2015

1. The Defendant’s imposition of KRW 00,000,000 of the corporate tax withheld for the business year 2008 (including additional taxes), KRW 000,000,000 of the corporate tax withheld for the business year 2009, KRW 000,000 of the corporate tax withheld for the business year 2009 (including additional taxes), KRW 000,000,000 of the corporate tax withheld for the business year 2010, and KRW 0,000,000 of the corporate tax withheld for the business year 202 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff's status, etc.

(1) On October 5, 199, the Plaintiff: (a) was a company established as its main business purpose with real estate leasing business, etc.; (b) around March 2005, the Plaintiff acquired BB building located in XX Dong (hereinafter “instant building”); and (c) sold the instant building to the AA entrusted management real estate investment company on February 14, 2012; and (d) dissolved on July 23, 2012.

(2) The △ Global (hereinafter referred to as the “△ Global”) is a listed or public model investment fund created in accordance with the German Investment Law around 2002, and distributes profits generated from the management of the fund to investors.

(3) On November 29, 1966, ○○ MMB (hereinafter referred to as “D○”) is a German limited company established for the purpose of managing an investment fund under the German Investment Law. D○○ owns 100% of the shares issued by the Plaintiff in its name.

B. Payment of dividend and taxation

(1) 원고는 2008. 9.경부터 2012. 6.경까지 □□펀드에 이 사건 건물의 임대 등으로 발생한 소득 합계 00,000,000,000원(이하 '이 사건 배당소득'이라 한다)을 지급하면 서, '대한민국과 독일연방공화국간의 소득과 자본에 관한 조세의 이중과세 회피와 탈세방지를 위한 협정'(이하 '한독 조세조약'이라 한다) 제10조 제2항 가목의 제한세율 5%을 적용하여 아래와 같이 법인세 및 주민세(2010. 1. 1. 법률 제9924호로 개정되면서 이후부터 지방소득세로 세목이 변경되었다. 이하 주민세로 통칭한다) 합계0,000,000,000원(=0,000,000,000원 + 000,000,000원)을 피고에게 납부하고, 나머지00,000,000,000원을 □□펀드 명의의 독일 XX뱅크계좌(계좌번호: 00000,이하 '이 사건 계좌'라 한다)로 송금하였다.

(2) Around November 2012, the Defendant conducted a written investigation with the Plaintiff and discovered the fact that D○○○ became an investing member under the Plaintiff’s articles of incorporation. Accordingly, on December 3, 2012, the Defendant rendered a disposition to the Plaintiff on the ground that “The △ Fund that received the dividend income of the instant case does not constitute a “corporation directly holding at least 25% of the capital of the corporation paying the dividend” under Article 10(2)(a) of the Korea- Germany Tax Treaty by applying the limited tax rate of 15% under Article 10(2)(b) of the Korea- Germany Tax Treaty (including additional taxes), 200,000,000 corporate tax withheld for the business year 209,000,000,000 won withheld for corporate tax for the year 209 (including additional taxes), the corporate tax withheld for the business year 20,000,000 won withheld for the business year 20,000 won (including additional taxes).

(3) On December 17, 2012, the Defendant: (a) designated the Plaintiff’s secondary taxpayer as the secondary taxpayer; and (b) imposed and notified the Plaintiff’s corporate tax withheld at KRW 0,000,000. Accordingly, D○ filed a lawsuit seeking revocation of the disposition imposing corporate tax against the Defendant at this court (2014Guhap54189).

C. Objection

The Plaintiff dissatisfied with the instant disposition and filed an appeal on February 28, 2013, but was dismissed by the Tax Tribunal on November 25, 2013.

[Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5 (including paper numbers), Eul evidence Nos. 1 and 2 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) In light of the fact that △○ Fund acquired the Plaintiff’s issued stocks under the name of ○○○ pursuant to the German Investment Act, which cannot be deemed an asset owner, and that ○○ has been operated for more than 40 years, and does not fall under the purpose of tax avoidance, and that the purpose of tax avoidance is not recognized, and that the Defendant recognized the entity of ○○○ as an oligopolistic shareholder under Article 39 subparag. 2 of the Framework Act on National Taxes (amended by Act No. 11845, May 28, 2013; hereinafter the same) and imposed corporate tax withheld by designating the secondary taxpayer as the oligopolistic shareholder under Article 39 subparag. 2 of the Framework Act on National Taxes, it shall be deemed that the beneficial owner of the instant dividend income is ○○○. Since ○○○ meets the requirements of Article 10(2) of

(2) Even if the beneficial owner of the instant dividend income is deemed a △ fund, if it denies ○○○, a formal owner pursuant to Article 14(3) of the Framework Act on National Taxes and Article 2-2 of the Adjustment of International Taxes Act (hereinafter “International Taxes Adjustment Act”) stipulating the substance over form principle, it should be deemed that △ Fund directly owns the Plaintiff’s issued shares through Do○○○ in compliance with German investment law (actually, ○○○ Fund and Do○○ acquired the Plaintiff’s issued shares). Since △ Fund and Do○○ acquired the Plaintiff’s issued shares through Do○○○, Do○ Fund and Do○○ acquired the Plaintiff’s issued shares in its entirety), it is difficult to interpret the “direct possession” of Article 10(1)(a) of the Korea- Germany Tax Treaty only in cases where Do○ Fund and Do○ Fund are in the position of shareholders. Thus, it is reasonable to directly determine whether the person who owns the relevant shares and the shareholder’s shares, and to interpret the tax treaty to the extent that it is reasonable.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Operation, etc. of △ Fund

on November 30, 201, the Fund is a German resident from the German tax authority on November 30, 201 to the extent as defined in Article 4 of the Korea- Germany Tax Treaty, and the tax code number is 000000,000." is issued with a German resident certificate (Evidence 4). However, the Fund is separately exempted from corporate tax and business tax in accordance with Article 11(1) of the German Investment Tax Act and distributed dividends generated by operating its assets to investors.

(2) Operation, etc. of D○○

(A) D○○ was established on November 1, 1966, and is located in German francisco. According to the corporate register, D○○ is intended business, pursuant to Article 2(6) of the German Investment Act, including the management of real estate funds, etc., the management of real estate investment personal assets, and investment advice, etc. In accordance with Article 2(6) of the German Investment Act, D○ owns the property belonging to the fund solely or jointly with investors pursuant to Article 30(1) of the German Investment Act. D○○ owns the property belonging to the fund, either solely or jointly with investors, with capital 10,225,90, 293, 174.5.3 billion won, and manages the fund property with 19,241.8 billion U.S.

(B) The D○○ has been making management decisions through the board of directors. D○ owns assets of 66,712,110 as of December 31, 2010, and includes shares and other non-fixed interest rates equivalent to 31,857,657 shares and other non-fixed interest rates. From among the profits of D○○ in the business year 2010, it accounts for the largest ratio of asset management commission (219,345,939 shares) among the profits of D○ in the business year 2010. It consists of management commission (110,160,000 shares) and sales premium (109,186,000 shares).

As of 2010, the number of employees of D○○ was 43, and 38 of them were regular employees. D○ reported corporate tax to the German tax authorities from 2006 to 2009.

(C) D○○ did not include the instant dividend income in his own income. On the contrary, △ Fund reported to the German tax authorities by including the instant dividend income in its own income.

(D) The relevant contents of the articles of incorporation are as follows.

Ⅱ Terms of contract;

General contract terms are applied to the legal relationship between investors and the D○○○ (hereinafter referred to as the “company”) located in franc, for real estate-special asset funds created by D○○, and may be applied together with the special conditions for each special fund.

§ 1. Summary

1. The Company shall be an investment company and the German Investment Law shall apply to it.

2. An investment company shall, in principle, invest in its company on its own behalf, separate from its own assets, the amount deposited in its own name for investors, in the form of a special fund, the risk of assets allowed by German Investment Law.

3. The assets shall be the company’s assets.

5. The legal relations between investors and investment companies shall be governed by this Agreement and German Investment Law.

§ 4. Operation of Funds

1. The Company shall, with due care, purchase and operate its assets under its own name for investors with due care. The Company shall, without regard to the Trust Bank, act to recognize its obligations and to ensure the full interest of investors and the soundness of the market.

2. The Company shall have the right to purchase and resale assets with the money deposited by investors and to invest in other locations. The Company shall also have the right to negotiate legal negotiations arising from the management of assets.

3. The company shall determine whether to sell real estate assets or shares of a real estate company in accordance with appropriate business operations (the first sentence of Article 9 (1) of the German Investment Act). The sale of real estate assets or shares shall not be affected by the suspension of repurchase of beneficial rights under Article 12 (5).

(3) Name, etc. of the instant account

이 사건 계좌는 2002. 9. 25. XX뱅크에서 개설되었는데, XX뱅크의 담당자는 "D○○가 □□펀드를 대신하여 이 사건 계좌를 개설하였다. 은행 거래내역서상 예금주가 □□펀드로 표기되어 있으나, D○○가 이 사건 계좌의 소유주이다."는 공증진술서(갑 제15호증)를 작성하였다. 또한, 원고가 2012. 6. 28. 이 사건 계좌에 이 사건 배당소득을 송금하면서 작성된 '외화송금발신전문사본'(갑 제16호증)에도 '받으실분: □□펀드를 대신하여(on behalf of) D○○'라고 기재되어 있다.

(4) Contents of the consent to ratification;

According to the Korean government's consent to the ratification of the Korea-U.S. Tax Treaty, with respect to Article 10(1), "distributions are taxed at the following limited tax rates in the country of payment in order to encourage investment in both Contracting sections and promote technology: Dividends between juristic persons (at least 25 per cent control): 10 per cent."

In addition, the review report of the consent to ratification of the Korea-Japan Tax Treaty dated December 2000 by the Uniform Diplomatic and Trade Commission is to contribute to the promotion of economic cooperation relations between the two countries by replacing the current agreement with this Agreement to reflect the changing economic environment of the two countries after the conclusion of the current agreement in 1976 and to meet international taxation standards. Examining the major amendments, in order to revitalize direct investment between the two countries, if a company possessing more than 25% of investment shares receives dividends from an invested company, the limited tax rate on the dividend income shall be reduced from 10% up to 5% at the present rate, thereby reducing the right to levy investment on the dividend income."

(5) Relevant German law provisions

(A) The relevant provisions of German investment law are as follows.

Article 2 (Definitions)

(2) Pursuant to the provisions of the fund governing the legal relationship between the German Investment Law and the Asset Management Company and the investor, the fund means a group of domestic investment assets organized in accordance with the contract law managed by the Asset Management Company for investors.

(6) The Asset Management Company means a domestic company with the main purpose of operating a set of domestic investment assets or a set of EU invested assets as well as personal investment management.

Article 30 (Fund)

(1) In accordance with the provisions of the fund, the property belonging to the fund is owned by the asset management company or jointly owned by the investors. The fund must be necessarily separated from the property of the asset management company.

(2) No one may belong to the Fund, including the fact that the Asset Management Company is based on the right to belong to the Fund or acquired through legal transactions related to the Fund, or that the person entitled to the Fund receives in return for the right to belong to the Fund.

Article 31 (Disposition Rights, Trust Management Affairs, and Furnishing Security)

(1) The Asset Management Company shall have the right to dispose of the property belonging to the Fund in its own name in accordance with German Investment Law and the Fund regulations and to exercise the rights belonging to the Fund.

(B) The relevant provisions of the German Corporate Tax Act are as follows.

§ 1.(Unlimited Liability for Tax Payment)

(1) The following corporations, associations, or foundations which have a place of management or address in Korea are liable to pay unlimited corporate tax:

5. An unincorporated association, institution, foundation, or private law or other special purpose foundation;

[Reasons for Recognition] Each entry of Gap evidence Nos. 4 through 17 (including paper numbers), the purport of the whole pleadings

D. Determination

(1) Provisions of the Korea- Germany Tax Treaty

Article 10(1) and (2) of the Korea-Japan Tax Treaty provides that dividends paid by a corporation which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other Contracting State at the same time, and at the same time, a corporation paying such dividends may also be taxed in accordance with the laws of that Contracting State, a resident: Provided, That the proviso to Article 10(2) of the Korea- Germany Tax Treaty provides that, if the beneficial owner of the dividends is a resident of the other Contracting State, the tax imposed by the Contracting State, a resident, shall not exceed 5% of the total amount of dividends if the beneficial owner directly holds 25% or more of the corporate capital of the corporation paying the dividends, and the total amount of dividends in all cases, shall not exceed 15% of the total amount of dividends if the beneficial owner of the dividends owns 25% or more of the corporate capital of the corporation paying the dividends directly. The purport of the aforementioned provision is to facilitate direct investment between the two countries by limiting the authority to impose dividend income in the host country.

(2) The meaning of the beneficial owner;

(A) In order to apply 5% of the limited tax rates stipulated in Article 10(2)(a) of the Korea- Germany Tax Treaty, the beneficial owner must meet certain equity requirements, and the meaning of the beneficial owner does not have any definition in the Korea- Germany Tax Treaty, domestic tax law, etc.

(B) Original beneficial owner is a concept derived from the Trust Act of the United Kingdom. It was unreasonable that a third country resident who was not a party to a tax treaty was entitled to benefit from the tax treaty on the ground of the nominal owner or his agent. On the ground that it was unfair, the pertinent treaty was introduced under Articles 10(2), 11(2) and 12(1) of the Tax Treaty on Income and Capital, which was established by the Organization for Economic Cooperation and Development (hereinafter “the OECD”) at the request of the United Kingdom, and the concept of the beneficial owner was introduced. However, the pertinent model did not have a definition provision on the beneficial owner. However, the pertinent model was presented to the agent and the nominal owner who cannot be deemed as the beneficial owner. However, it was deemed that there was no need for the introduction of the concept of the beneficial owner’s income or the nominal owner’s tax liability, and thus, there was no need to understand the concept of the beneficial owner’s income belonging to the principal.

(C) On November 27, 1987, the OECD adopted the report on the "Use of the Convention and the Convention on Taxation" and the "Use of the Government Enterprise. The report presented that, in order to prevent abuse of a tax treaty, a person who only has the narrow authority as a mere mandatory or manager should be considered not to be a beneficial owner. The OECD Model Treaty note amended in 2003, reflected the above report's position in regard to the concept of a beneficial owner used in subparagraph 12 of Article 10, subparagraph 8 of Article 11, and subparagraph 4 of Article 12, the term "beneficial owner" in Section 12.1 of Article 10 is not used in a narrow mechanical sense, but only the person who has an additional concept of "beneficial owner" in the context of double taxation, avoidance of tax evasion and evasion of taxes, and the scope and purpose of the tax treaty should be understood to be the owner's agent and manager's agent's agent's agent's agent's license to prevent abuse of a tax treaty.

(D) On April 23, 2010, the OECD published a report on the "Grant of Benefits to the Tax Treaty on the Income of the Collective Investment Organization", and the contents were reflected in the OECD Model Treaty note as amended in 2010, and the "Collective Investment Organization" was owned by a large number of shareholders in the note 6.8 of Article 1, and is subject to regulation on the protection of investors in the country where the establishment was made, and the "Fund subject to regulation on the protection of investors" was defined as the "Fund subject to regulation on the income of the collective investment organization," which includes the content that the manager of the collective investment organization treats as the beneficial owner of the income accrued from its assets as long as he has the discretion to manage its assets.

(E) The OECD Model Treaty note is not an generally accepted international law but an internationally recognized interpretation standard for the treaty concluded between OECD Members. Since the Korea-China Tax Treaty was also concluded on March 10, 200, referring to the OECD Model Treaty note, the above content presented by the OECD Model Treaty note can be referenced as one guideline in interpreting the concept of beneficial owner as stipulated in the Korea- Germany Tax Treaty.

(F) Meanwhile, Article 14(1) of the Framework Act on National Taxes provides that "where a person to whom income, profit, property, act, or transaction which is subject to taxation belongs is merely nominal and there is another person to whom such income, profit, or transaction belongs, the person to whom such income, profit, act, or transaction belongs shall be subject to the application of tax-related Acts." Article 4(1) of the Corporate Tax Act (amended by Act No. 11607, Jan. 1, 2013) provides that "where a corporation to which all or part of income, or income, which belongs legally different from a corporation to which such income, belongs, this Act shall apply to the corporation to which such income, profit, property, act, or transaction belongs." Article 2-2(1) of the International Tax Adjustment Act provides that "where a person to which such income, profit, or transaction belongs is different from the nominal one, the person to which such income, etc., belongs is not the nominal one but the person to which such income, etc., actually belongs to the person to whom such income, belongs, is not the nominal and manager.

(G) In full view of the following: (a) the concept of "beneficial owner" as seen above, the background leading up to the introduction of the OECD Model Treaty into the OECD; (b) the background leading up to the transformation of the interpretation of the OECD Model Convention on the concept of "beneficial owner; (c) the concept of the subject of actual attribution of income derived from the substance over form principle under the Korean tax law; and (d) if a corporation is recognized as the subject of actual attribution of income under the Korean tax law, the corporation shall be deemed as the owner of the income; and (e) if a corporation is recognized as the subject of actual attribution of income under the Korean tax law, it is difficult to recognize the subject of actual attribution of income as the owner of the income and recognize the other corporation as the owner of the income as the owner of the income as the owner of the income, such other corporation shall not be allowed in relation to the no taxation without law, such as the OECD Model Model Convention in 1977, and even if it is necessary to expand the scope thereof to prevent abuse of the treaty,

(H) However, when interpreting the concept of a beneficial owner as above, it would result in the same interpretation even if no corporation is a corporation to which the tax treaty applies if it is not the actual owner of income. However, the concept of a beneficial owner in a country to which the actual owner of income is liable as a taxpayer would not have any special meaning. However, since the establishment of the OECD Model Treaty in 1977, the concept of a beneficial owner was raised as a problem since the establishment of the OECD Model Treaty in order to deny the status of a party to whom the tax treaty applies to the nominal owner of income in relation to the relationship with the principle of no taxation without law at the time when the Korea-Japan Tax Treaty was concluded. Therefore, in such a situation, the concept of a beneficial owner appears to have been fulfilled, and could have played a considerable role in preventing abuse of treaty, and the interpretation and application of the tax treaty may apply the principle of substantial taxation to the new concept of a beneficial owner in accordance with the current standard established in the German Tax Treaty cannot be interpreted differently solely on the ground that it is difficult to interpret the concept of a beneficial owner in light of the international treaty.

(3) A beneficial owner of the instant dividend income

In light of the above legal principles, it is reasonable to view the beneficial owner of the instant dividend income as D○○ in light of the following circumstances. Since D○ is a German resident and directly owns 100% of the Plaintiff-issued shares, corporate tax on the instant dividend income ought to apply the limited tax rate of 5% pursuant to Article 10(2)(a) of the Korea-Japan Tax Treaty. Accordingly, the instant disposition taken on a different premise is unlawful.

(1) The D○○ has been established on November 1, 1966 and has been operated for not less than 40 years, and has been paid a considerable amount of asset management fees in return for its operation. It is difficult to view it as an artificially small entity for the purpose of tax evasion by clarifying its substance, such as paying corporate tax, etc. upon the existence of an employee.

② The source of funds managed and operated by ○○○○ stipulates that △ Fund or Article 30 of the German Investment Act provides that the assets belonging to the Fund shall be owned by an asset management company or jointly owned by investors. Therefore, △○ Fund is not entitled to acquire the Plaintiff’s issued stocks directly or indirectly hold them through Do○○○. As such, Do○○ is merely holding the Plaintiff’s issued stocks in its own name due to restrictions under the German Investment Act, and it does not constitute a tax avoidance act, such as establishing a company via a third country favorable to the application of taxes.

③ If △○ Fund directly holds the Plaintiff’s outstanding shares, it would have ordered that it would be subject to the 5% limited tax rate as stipulated in Article 10(2)(a) of the Korea- Germany Tax Treaty. Rather, as a △○ Fund, it would put the risk at which it would be subject to the 15% limited tax rate as a result of an indirect ownership method via D○○, and the holding of the Plaintiff’s outstanding shares is deemed to be due to the limitation under the German Investment Law, and thus, it is difficult to recognize the purpose of tax

④ According to the articles of D○’s articles of incorporation, D○ shall invest an amount deposited in the company on behalf of investors, separate from its own assets, and purchase and operate assets in its own name on behalf of investors by exercising due care as a prudent business operator. In addition, investors shall have the right to purchase and resale assets with the money deposited by them, and to negotiate legal matters arising from the rights to invest and asset management in other places.

⑤ The D○○ received the instant dividend income from the instant account opened for △ Fund, and was recognized by the person in charge of the bank as the ownership of the instant account. D○○ is the subject of management decision-making, etc. as the Plaintiff’s shareholder (i.e., △ Fund has no authority to make a decision-making on the Plaintiff), and should be deemed to have held the legal and substantial right to the Plaintiff’s issued and outstanding shares, and to the rights accordingly (including the instant dividend income).

(6) Article 31(1) of the German Investment Act provides that “The assets of an investor, such as D○, shall have the right to dispose of the assets belonging to the fund under his/her own name and exercise the right to exercise the rights to the fund in accordance with the German Investment Law and the Fund Regulations,” and that “The assets of an investor shall be the assets of D○○○.” Thus, the investors’ assets shall be treated as the assets of D○○.

한편, ㉠ 독일 투자법 제30조 제1항은 "펀드는 반드시 자산운용사의 재산과 구분되어야 한다."고 규정하고 있는데, 이는 D○○의 고유자산과 혼용을 방지하여 투자자의 권리를 보장하기 위한 것인 점, ㉡ 세법상 자산운용사와 투자자의 관계를 어떻게 취급을 할 것인지(예컨대, 신탁관계로 보아 투자자에게 세금을 부과할 것인지, 아니면 자산운용사의 실체를 인정하여 자산운용사에게 세금을 부과할 것인지)는 각국의 조세정책에 위임되어 있는 점, ㉢ 조세조약의 목적상 거주자가 되기 위해서는 일방체약국의 납세의무를 부담하여야 하나, OECD 모델조약 제4조 주석의 8.6은 '납세의무가 있는(liable to tax) 인(person)'에 관하여, "설사 체약상대국에서 실제로는 세금을 부과하지 않고 있는 인이라 하더라도 많은 국가들이 이러한 인도 포괄적인 납세의무가 있는 것으로 간주하고 있다. 예를 들어 연금기금, 자선단체 및 기타 단체의 경우 조세가 면제될 수 있으나, 관련 세법에서 특정하고 있는 소정의 면제요건을 모두 충족하는 경우에만 과세가 면제된다. 따라서 이들 단체는 체약상대국의 세법의 적용을 받고 있는 것이다. 이들 단체가 정해진 요건을 충족하지 못하는 경우에는 실제로 세금을 납부해야한다. 대부분의 국가들은 이러한 단체를 조세조약의 적용목적상 거주자로 보고 있다."(8.6 Paragraph 1 refers to persons who are "'liable to tax' in a Contracting State under its laws by reason of various criteria. In many States, a person is considered liable to comprehensive taxation even if the Contracting State does not in fact impose tax. For example, pension funds, charities and other organisations may be exempted from tax, but they are exempt only if they meet all of the requirements for exemption specified in the tax laws. They are, thus, subject to the tax laws of a Contracting State. Furthermore, if they do not meet the standards specified, they are also required to pay tax. Most States would view such entities as residents for purposes of the Convention)고 되어 있고, D○○는 독일과세당국에 의하여 거주자로 취급되고 있는 점(D○○가 이 사건 배당소득에 관하여 법인세를 부담하지 아니하는 것은 독일 투자법에 따른 규정을 충족하기 때문이므로, 한독조세조약의 적용을 받는 거주자에 해당한다) 등을 고려할 때, "독일 투자법상 D○○의 자산과 구분되고, 투자자인 □□펀드에만 세금을 부과되고 있다."는 사정만으로 이 사건 배당금의 귀속주체가 □□펀드라고 볼 수 없다.

7. Dividends are reverted to the holders of shares, and in principle, the holders of shares are the holders of the shares. △ Fund is the sole owner who is not in a position to claim the payment of dividends against the Plaintiff as a shareholder and is entitled to exercise only D○○ as a shareholder.

Therefore, insofar as ○○ received dividend income of this case through the instant account with the Plaintiff’s right to withdraw as the Plaintiff’s shareholder, it is reasonable to deem that the instant dividend income has reverted to ○○○.

8) △ Fund is a collective investment scheme established by collecting investors’ funds for the purpose of economic benefits. D○ is a fund manager who collects investment profits earned from the management of the said funds in lieu of paying the investment profits to △ Fund.

On the other hand, since Do○○ became a direct shareholder using △ Fund’s funds and established the Plaintiff, the dividends paid by the Plaintiff naturally belong to Do○○○○. Therefore, even if Do○○ remitted dividends to △○ Fund, or the Plaintiff transfers dividends to △ Fund without going through Do○○, it is merely a method that Do○○ pays profits to △ Fund as an asset management company in accordance with the agreement.

3. Conclusion

Thus, the claim of this case is justified, and it is decided as per the Disposition.

(c)