Cho High Court Decision 2009Da1994 ( December 10, 2010)

Since it appears to be the acquisition of treasury stocks for the retirement of shares, the disposition of constructive dividend taxable as a dividend is legitimate.

The transferee of shares is written as the representative director of the corporation who is not an individual, and the seal of the representative director of the corporation is affixed in the name sealing column, and the "purchase subject" item of the written agreement shows that the "purchase subject" is the acquisition of treasury shares for the purpose of the retirement of shares, such as the acquisition of treasury shares, and the purchase price is the funds of the company, so

2011Guhap523 global income and revocation of disposition

Song AA

Kim Jong-soo

May 10, 2012

June 7, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of global income tax of KRW 000 against the Plaintiff on February 11, 2009 shall be revoked.

1. Details of the disposition;

A. On March 24, 2003, the Plaintiff, Nonparty 2, and YellowCC agreed that they were the shareholders of the DD type Co., Ltd. (hereinafter referred to as the “instant company”), and the three parties agreed that the agreement on stock transfer or acquisition (hereinafter referred to as the “instant agreement”) with the following contents, and accordingly, the Plaintiff and YellowCC disposed of the shares of the instant company owned by each party (hereinafter referred to as “the shares owned by the Plaintiff”).

B. On April 1, 2003, the Plaintiff received the payment in full from the instant company and paid the transfer income tax to the Defendant.

C. On February 11, 2009, the Defendant issued a correction and notice of the total income tax for the Plaintiff in 2003 as KRW 307,725,210 (including penalty tax on the return and the unfaithful payment) on the ground that the price of the instant shares falls under the constructive dividend income (hereinafter “instant disposition”).

D. On April 10, 2009, the Plaintiff appealed against the instant disposition and filed a request for a trial with the Tax Tribunal, and on December 10, 2010, the Tax Island Board reduced the amount of KRW 22,418,950, which is part of the penalty tax against the return and the unfaithful payment, and dismissed the Plaintiff’s request for payment.

Facts without dispute over recognition, Gap 3, 4, 5, and Eul 1 to 5, and the purport of the previous body for pleading

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

① Although the instant stock disposal act constitutes a transfer of shares to a rooftopB individual rather than the acquisition of the company’s own shares, the Defendant deemed the sales price of the instant shares as the income from deemed the constructive dividend, and the instant disposition is unlawful, and ② even if the instant stock disposal act constitutes the acquisition of one’s own shares, the part on imposition of the penalty tax is unlawful.

2) The defendant's assertion

① Since the instant disposal of shares constitutes the acquisition of treasury shares for the retirement of shares by the instant company, the instant disposal is lawful, and ② the portion imposing penalty tax is lawful on the Plaintiff on the ground that there is no justifiable ground that it is not attributable to the Plaintiff’s failure to pay tax.

B. Relevant statutes

Paper in the Appendix

C. Determination

1) Determination on the portion on taxation of constructive dividend income

A) Whether the sale of stocks constitutes a transfer of stocks as a profit and loss transaction or constitutes a retirement of stocks as a capital transaction or a refund of capital is to be determined based on the contents and intent of the transaction and the intent of the parties concerned. However, under the substance over form principle, it is not simply dependent on the contents or form of the contract concerned, but should be determined based on the overall process of the transaction, such as the parties’ intent and the process of concluding the contract, the method of determining the price, and the progress of the transaction (see Supreme Court Decision 2008Du19628, Oct. 28, 201

B) In light of the following circumstances, it is reasonable to see that the instant company acquired from the Plaintiff for the purpose of stock retirement, in light of the following circumstances, which are recognized in combination with the period of 1, 3, 6, 7, 11, 2, 3, and 9 7 through 10, and the entire purport of the pleading.

① Under the instant agreement, the transferee of the instant shares is not BB, and the name seal of the representative director at the end of the agreement is signed and sealed, respectively. (iii) In the item of paragraph 1 of the agreement, the term "purchase subject" means "self-acquisition of the shares and the purchase price shall be made in the company's funds," and (iv) in the agreement, the transferee of the instant shares under the instant agreement is not B, and the transferee of the instant shares is not 3B. Accordingly, the Plaintiff is not 4 in the instant agreement by distinguishing the text of the instant agreement, Article 7 (c) (e) and (e), and Article 1 from "Company B", and the representative director at the end of the agreement, and the representative director at the date of "DB" from "B" from "B" to "B", and it is not sufficient to recognize that the Plaintiff's shares are "B" as the whole the Plaintiff's shares, but it is not sufficient to interpret the terms "B" as "B" of the instant agreement.

(2) 2003. 3. 21. 및 같은 달 31. 개최된 이 사건 회사의 임시주주총회에서 이 사건 주식을 000원에 매입하고，매입한 자사주는 추후 감자 또는 제3자에게 매도하기로 하는 내용의 결의가 이루어졌고，원고는 주주이사로 참가하여 해당 의사록에 기명 날인을 하였다. 이에 대하여 원고는 위 날짜에 작성된 임시주주총회 의사록은 뒤늦게 작성된 허위의 것이라고 주장하나，위 주장사실에 부합하는 듯한 갑 8호증의 기재，증인 김QQ의 증언，이 법원의 주식회사 DD종합기계에 대한 문서제출명령 결과 및 사실조회 결과만 으로는 그 입증이 충분히 되었다고 보기 어렵고(원고가 각 해당 의사록에 직접 날인한 사실은 원고 또한 인정하고 있기도 하다)， 달리 반증이 없다.

③ The shareholders’ general meeting of the instant company was resolved to reduce treasury stocks on October 13, 2009, and the company announced the reduction of capital on November 14, 2009, and the company was actually subject to the registration of alteration on November 26, 2009.

④ According to Article 341 of the former Commercial Act (amended by Act No. 10696, May 23, 2011), the main food company can acquire shares only in certain cases, such as retirement of its own shares, and the Plaintiff is in office as a director of the instant company at the time of the disposal of the shares, and the Plaintiff seems to have been aware of the aforementioned restrictions.

C) Meanwhile, the Plaintiff’s acquisition of the company’s treasury stocks must be calculated by using the “profit accrued to the company” as its source, and it is not proven that the acquisition price of the company’s stocks in this case constitutes earned surplus, and therefore cannot be deemed as the income from dividends. However, Article 17(2)1 of the Income Tax Act (amended by Act No. 7006 of Dec. 30, 2003) stipulates the fictitious dividend as “the value of the funds or other property acquired by the shareholder due to the retirement of stocks or reduction of capital, or the value of other property acquired by the employee or investor due to retirement or retirement, withdrawal, or reduction of investment, or the amount of funds or other property acquired by the employee or investor exceeds the amount required for the acquisition of the relevant stocks or investment, and does not limit the acquisition price of the company’s treasury stocks to the earned surplus. Therefore, this part of the Plaintiff’

D) Accordingly, the part on taxation of constructive dividend in the instant disposition is lawful.

2) Determination on the imposition of additional tax

A) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under the tax law is an administrative sanction imposed as prescribed by the individual tax law in cases where a taxpayer violates various obligations, such as a declaration, and tax payment, without justifiable grounds, and where there are circumstances under which the taxpayer could reasonably present his/her obligations or where it is unreasonable for the taxpayer to expect the performance of his/her obligations to the party concerned, etc., and where there are justifiable grounds for not being able to cause the breach of his/her obligations (see, e.g., Supreme Court Decision 2003Du4089, Apr. 15, 2005; 2003Du4089, Apr. 15, 2005). However, it does not constitute justifiable grounds for not being able to cause the breach of such obligations (see, e.g., Supreme Court Decision 2005Du10545, Apr. 26, 2007).

B) When comprehensively considering the following facts: ① the Plaintiff reported capital gains tax on May 2, 2003 with the disposal price of the instant stocks at KRW 00,00, and ② the amount of disposal of the instant stocks at the time of the Busan regional tax office’s audit on the Defendant in 2006, the Defendant issued a notice of correction of the said capital gains tax on July 31, 2006, and ③ thereafter, it was pointed out that the disposal price of the instant stocks at the time of the comprehensive audit of the North Korea tax office on the North Korea tax office on December 2008 falls under the deemed dividend income, and accordingly, the Defendant is able to recognize the fact that the disposal price of the instant stocks at the time of the instant disposition at the time of the comprehensive audit on the North Korea tax office, and accordingly, the Defendant received the Plaintiff’s report on capital gains tax, and did not have any trust in the Plaintiff’s judgment, and the Plaintiff did not have any justifiable reason for imposing penalty tax on the instant stocks at the time of the above recognition.

D. Sub-committee

Therefore, all of the disposition in this case is minor.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as there is no ground.