Early High Court Decision 2015Du5408 ( December 28, 2015)

It constitutes a major shareholder of a stock-listed corporation and subject to capital gains tax

The plaintiff and related parties constitute a major shareholder of a stock-listed corporation and the plaintiff is liable to pay capital gains tax

2016Gudan53695 Revocation of Disposition of Imposing capital gains tax

We examine whether the provisions violate the Constitution.

The Plaintiff’s blood relatives within the sixth degree of relationship and relatives within the fourth degree of relationship without any restriction.

on the basis of the Constitution, deeming the person to be a specially related person is in violation of the Constitution.

The instant disposition is alleged to be unlawful, but at the time of December 31, 201, December 31, 2012, 201, and December 31, 2013, the Plaintiff, the Plaintiff’s mother, and Nonparty Company’s stocks owned by the Plaintiff’s siblings as of December 31, 2013 exceed 10 billion won. There is no dispute between the parties. Accordingly, according to this, regardless of whether blood relatives within the sixth degree of relationship and relatives within the fourth degree of marriage within the fourth degree of relationship own the stocks of the Nonparty Company, the Plaintiff, MaA, PartyB, and PartyCC’s transfer of the listed stocks capital gains.

Inasmuch as a major shareholder is liable to pay the acquisition tax, the Plaintiff’s assertion is based on this premise.

subsection (1) of this section.

2) Whether the instant provision violates the principle of equality

A long-term discussion on whether to impose capital gains tax on the transfer of listed stocks

A. However, Article 94 (1) 3 of the Income Tax Act prevents ex officio donation using listed stocks.

The trading of listed stocks in order to ensure the balance of taxation with the transfer of other assets, such as real estate, etc.

(2) If any transfer income tax is to be imposed, the transfer income tax shall be imposed, and

even if this listed stock is included in taxable objects, all of the shares in a lump sum.

to a certain extent, rather than to relieve the impact of the capital market and protect the interests of small-sum investors.

(2) If a person owns stocks of a certain scale or more, he/she shall be subject to the

If the Mayor develops soundly, the intention of the legislator who intends to gradually expand the scope thereof shall be half;

The Constitutional Court Decision 2004HunBa32, 2005HunBa delivered on February 23, 2006

63,102,104,105 (Joint), etc.)

Special provisions of this case holding the same listed stocks as one stockholder who is the taxpayer in this case

There was a difference in taxation burden between the person with a related party and the person who did not do so; or

The same taxation on a specially related person or a specially related person with no economic relationship;

discrimination or equal treatment, even if such discrimination or equal treatment has been made, shall be reasonable and reasonable.

As long as the provision of this case is determined within the scope of a major shareholder in consideration of financial policy, national economy, social policy, and tax and technical factors, such discrimination cannot be deemed arbitrary or unfair.

Therefore, this part of the argument is without merit.

3) Whether it goes against the principle of self-responsibility

Since the total amount of shares of a company owned by the plaintiff and new AA, EB, EB, and U.S., which are related to the relationship between the plaintiff and women or siblings, exceeds 10 billion won, it cannot be said that it is impossible to grasp the shares of the non-party company in consideration of the relationship between new AA, EB, ECC and the plaintiff. In addition, the plaintiff acquired shares of the non-party company for the first time according to his own intent, and in particular, in case where the total amount of shares held at the end of the business year is likely to exceed 10 billion won (or 5 billion won (or 5 billion won) after the market price) after the date of the transfer of shares in advance in the business year and after the expiration of the business year, if the total amount of shares held at the market price is less than 10 billion won (or 5 billion won). Thus, it is difficult to view that the transfer of shares in the following business year is contrary to the principle of self

Therefore, this part of the argument is without merit.

4) Whether the property right is infringed

The provisions of this case are subject to taxation on capital income accruing from the transfer of shares, but the lender has priority over others.

The purpose of the legislation is to induce the sound development of the capital market by imposing tax on the state only.

As seen earlier, the legitimacy of the purpose is recognized, and the above purpose of legislation is achieved.

section of this case is subject to taxation on the basis of a specified share ratio or total market value.

It is divided into large shareholders and non-taxable shareholders, which is to achieve the purpose of legislation.

appropriate means and in accordance with the ordinary taxation standards for capital income:

minimum of infringement and balance of legal interests as long as the taxation provisions on stock transfer income of shareholders are established;

It is also satisfied.

Therefore, this case’s provision infringes on property rights in violation of the excessive prohibition principle.

Part of the argument is without merit.

5) Whether it is against the principle of prohibition of dynamics

The prohibition of chain of conduct provided for in Article 13(3) of the Constitution shall be substantially caused between the act of relatives and the principal.

(1) The reason why the sole relative is a relative, unless such relations cannot be recognized.

applicable only to cases in which the person in question is treated disadvantageously. In other cases,

A person in a relationship with his/her relatives by finding any other constitutional norm or basic rights norm that protects disadvantages;

whether it is reasonable to give such disadvantage or to achieve the purpose of legislation; or

to the extent necessary by examining whether such legal regulations are legitimate.

This is because it can be sufficiently determined (see, e.g., Constitutional Court Order 2005HunMa19, Dec. 12, 2005).

However, in order to achieve the above legislative purpose, the provisions of this case transfer shares, etc.

corporation, and the person who has a special relationship with the corporation, shall identify all of the shares of the corporation.

Since this case's provision is taxable, it shall not be against Article 13(3) of the Constitution.

Therefore, this part of the argument is without merit.

6) Whether part of the disposition of this case is illegal

Under the tax law, additional taxes are paid in order to facilitate the exercise of taxation rights and the realization of tax claims.

Where a taxpayer violates various obligations, such as reporting and payment, prescribed by the Act without justifiable grounds, individual duties;

taxpayer's intentional and negligent acts shall be considered as administrative sanctions imposed as prescribed by tax laws.

On the other hand, it is not unreasonable for a taxpayer to be unaware of his duty.

under the circumstances in which it may be justified or the performance of its obligations is expected to be made by the parties.

Where there is a justifiable reason to believe that the failure to perform his/her duties is not attributable, such as a reason for objection, etc.

Unless otherwise, non-performance of obligations under tax law should be imposed (see, e.g., Supreme Court Decision 2010Du16622, Apr. 28, 201).

In this case, the disposition of this case shall be determined by the Plaintiff, New Women’s Related Persons New A, the Plaintiff, and MabB;

under section 36 of this title, the corporation shall have the duty to pay capital gains tax on the capital gains from listed stocks

the Plaintiff’s mother, her mother, HaB, HaB, and MaCC

Comprehensively taking account of the absence of data to deem that there is no special circumstance in which the status of possession cannot be verified;

It is difficult to deem that there is a justifiable reason that the Plaintiff cannot be found to have caused any negligence on the part of the Plaintiff.

Therefore, this part of the argument is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed for all reasons.

MaO

Head of the tax office of distribution and 1

August 24, 2016

September 23, 2016

1. The plaintiff's claims against the defendants are all dismissed.

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

Each tax imposition disposition in attached Form 1 that the defendant of the Gu office has made to the plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff, the Plaintiff’s mother, the Plaintiff’s sibling, the Plaintiff’s Plaintiff’s siblings, and JungB, and JungCC owned 17,157,150,00 won in total (2,036,280,000 won in total) as of the end of 2011; 14,593,615,000 won in total as of the end of 2012 (2,08,860,000 won in total); and 14,90,46,000 won in total as of the end of 2013 (2,90,941,901,501,500 won in possession of the Nonparty Company’s shares in the year 2012; and (2) the Plaintiff did not report the transfer income tax to the Nonparty Company’s shares in the year 2012,301,401,41,2013,4013.

C. Pursuant to Article 94(1)3 (a) of the Income Tax Act and Article 157(4)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24356, Feb. 15, 2013), the director of the tax office having jurisdiction over the transaction of the non-party company owned by the Plaintiff, New AA, EAB, and JungCC on the ground that the special relationship under Article 1-2(1) of the Enforcement Decree of the Framework Act on National Taxes is 10 billion won or more or 5 billion won, the director of the tax office having jurisdiction over the transfer income tax determined that the Plaintiff’s transfer constitutes a major shareholder of

D. Accordingly, the head of the tax office on August 1, 2015 determined and notified the Plaintiff of KRW 00,000,000,000 for the transfer income tax for the year 2012, KRW 00,000 for the transfer income tax for the year 2013, and KRW 00,000,00 for the transfer income tax for the year 2014. Accordingly, on August 1, 2015, the head of Seocho-gu decided and notified the Plaintiff of KRW 00,00 for the transfer income tax for the year 2012, KRW 00 for the local income tax for the transfer income tax for the year 2013, KRW 00 for the local income tax for the transfer income tax for the year 2014, and KRW 000 for the local income tax for the transfer income tax for the year 2014 (hereinafter collectively referred to as the “disposition”).

[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 and 2 evidence (including paper numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Article 157(4)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24356, Feb. 15, 2013); Article 157(4)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24356, Feb. 15, 2013) (hereinafter referred to as “instant provision”) violates the Constitution for the following reasons. Thus, the instant disposition based on this is unlawful. Considering that the social and economic ties significantly fall short of the status of relatives compared to the past, the “whether mutual ties are mutually traded,” or “whether separate ties are traded,” the pertinent provision on the taxation of capital gains tax cannot be deemed to be identical to that of relatives within the sixth degree, relatives within the fourth degree and relatives within the fourth degree of relationship, and whether the pertinent provision on the taxation of capital gains tax can be deemed to be an unreasonable difference between the pertinent person and his/her special related party, and thus, it is also unreasonable for the relevant person to be treated as one-party to whom the special relationship can be reported.

○ The instant provision includes not only an economic community but also an ordinary investor who does not have any management control over the pertinent legal entity, such as one shareholder, blood relatives within the sixth degree and relatives within the fourth degree of affinity, etc. without restriction, and where the total amount of the shares held exceeds 10 billion won (or five billion won), it violates the excessive prohibition principle, thereby infringing on property rights, as it violates the excessive prohibition principle, by imposing capital gains tax differently from other traders in the stock market.

If one of the relatives by blood within the sixth degree and relatives by marriage within the fourth degree of relationship holds a majority of the listed shares, it constitutes a specially related person and imposes a duty of taxation on him/her as a result of an act committed by relatives, and thus, the provision of this case is in violation of the prohibition principle on the annual

2) Even if the instant provision is not unconstitutional, the Plaintiff was independent of his blood relatives within the sixth degree of relationship with relatives within the fourth degree of relationship and relatives within the fourth degree of relationship with other relatives within the fourth degree of marriage, and no institutional system was established to ascertain the current status of shares owned by related parties, making it impossible to understand that the transfer of shares meets the taxation requirement of capital gains tax. The Plaintiff became aware of the Plaintiff’s duty to taxation after receiving contact with the tax office. Accordingly, the Plaintiff’s justifiable ground under Article 48(1) of the Framework Act on National Taxes exists. As

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) The Plaintiff asserts that the statute disputing the unconstitutionality of this case is the provision of this case, but the Enforcement Decree of the Income Tax Act, which applies to the disposition of this case, is amended several times, and there are different grounds laws applicable to each disposition. However, the part disputing the Plaintiff (one shareholder or one investor and a related party under Article 1-2(1) of the Enforcement Decree of the Framework Act on National Taxes, which is the same before