The concept of majority shareholder is also applied to the shareholders of the corporation which is non-listed corporation as a small and medium enterprise.

Since the concept of majority shareholder is applied to the shareholders of the non-listed corporation as small and medium enterprises, the transfer income tax rate of 20% is applied to the plaintiffs.

Article 104 of the Income Tax Act (Tax Rate on Transfer Income)

2019Gudan6851 Revocation of Disposition rejecting capital gains tax rectification

OO

O Head of tax office

October 18, 2019

November 8, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's rejection disposition against the plaintiff of 2018O.O. is revoked. The defendant's rejection disposition against the plaintiff of 2016 of the transfer income tax OO.O. shall be revoked.

1. Details of the disposition;

A. The Plaintiff transferred the listed shares of unlisted stocks issued by AAA Company, a small and medium enterprise, to BB, to the OB, and reported and paid capital gains tax by applying 20% of the capital gains tax rate on O.O.O., 2016 by 20%.

B. Thereafter, the Plaintiff asserted that the Defendant should additionally deduct the KRW O of the securities transaction tax from the necessary expenses, and that the Plaintiff is not a major shareholder of the stock-listed corporation, and that the Plaintiff should apply the transfer income tax rate of 10% under Article 104(1)11 (b) of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter the same) and filed a claim for correction that the total amount of the transfer income tax should be refunded.

C. On the other hand, the Defendant accepted only the assertion that securities transaction tax should be added to the Plaintiff’s above assertion, and the transfer income tax rate should be applied by 20% under Article 104(1)1(b) of the former Income Tax Act, rather than 10% under Article 104(1)1(b) of the same Act, and thus, rendered a disposition to refuse a part of the Plaintiff’s request for correction (hereinafter “instant disposition”).

D. The Plaintiff, who is dissatisfied with the instant disposition, filed an objection against the Defendant, but dismissed 2018O.O.O.O., and again requested the Commissioner of the National Tax Service for the examination on O.O.O., 2018, but dismissed O.O.O., 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

Article 94 (1) 3 (a) of the former Income Tax Act (amended by Presidential Decree No. 27829, Feb. 3, 2017; hereinafter the same) delegates the scope of "large stockholder" to the Presidential Decree, and Article 157 (4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 27829, Feb. 3, 2017; hereinafter the same). However, it is deemed that the scope of the large stockholder of an unlisted corporation is defined as the scope of the large stockholder of the unlisted corporation and that there is no delegation or provision in relation to the scope of the large stockholder of the unlisted corporation. In other words, the transfer of the stock of the unlisted corporation, which is a small or medium-sized corporation, requires the application of the capital gains tax rate of

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

In full view of the following circumstances revealed from the aforementioned evidence, the scope of major shareholders under Article 94(1)3 (a) of the former Income Tax Act and Article 157(4) of the former Enforcement Decree of the Income Tax Act shall be deemed to include not only the stock-listed corporation but also the scope of the major shareholders of the non-listed corporation. However, the instant disposition taken on the same premise is lawful since the Plaintiff’s transfer of shares owned by the Plaintiff constitutes 67.86% of the shares issued by AAA and the Plaintiff constitutes a major shareholder under Article 157(4) of the former Enforcement Decree of the Income Tax Act. Thus, the transfer of shares does not constitute 10% under Article 104(1)11 (b) of the former Income Tax Act, but also 20% under Article 104(1)11 (c)

1) Article 94 (1) 3 (a) of the former Income Tax Act provides that "a major shareholder prescribed by Presidential Decree (hereafter referred to as "major shareholder" in this Chapter) transfers stocks, etc. of a stock-listed corporation taking into account the ratio of stocks held, total market value, etc." In this context, it seems that "the portion of stocks, etc. of a stock-listed corporation as the last part" can be "transfer" of the stocks, etc. of a stock-listed corporation, and it is difficult to view "major shareholder"

2) Article 104 (1) 11 (b) of the former Income Tax Act provides that "limited to cases where a person who is not a major shareholder transfers the scope of a major shareholder", but does not separately stipulate the scope of a major shareholder or delegate it to the Presidential Decree. However, Article 94 (1) 3 (a) of the former Income Tax Act provides that "major shareholder prescribed by Presidential Decree (hereafter referred to as "major shareholder" in this Chapter)" shall be delegated the scope of a major shareholder to the Presidential Decree and it is clearly stated that the concept of a major shareholder will be used uniformly in the same chapter. As long as both Articles 94 and 104 of the former Income Tax Act belong to Chapter 3 of the former Income Tax Act, the concept of a "major shareholder"

3) Article 157(4) of the former Enforcement Decree of the Income Tax Act, which prescribes the scope of major shareholders pursuant to delegation of Article 94(1)3(a) of the former Income Tax Act, does not distinguish a stock-listed corporation and an unlisted corporation, and sets the scope of major shareholders

4) Article 94(1)3 of the Income Tax Act amended by Act No. 14389, Dec. 20, 2016

1) Article 94(1)3 (a) of the Income Tax Act explicitly states that the contents delegated by Presidential Decree to a stock-listed corporation are the scope of a major shareholder of a stock-listed corporation. In light of this, the major shareholder of Article 94(1)3 (a) of the Income Tax Act also requires that the major shareholder of the stock-listed corporation be referred to only the major shareholder of the stock-listed corporation. However, Article 94(1)3 (a) of the Income Tax Act amended by Act No. 14389 also amends part of the same Act as above, and Article 104(1)11 (a) of the Income Tax Act also amended by Act No. 104(1)1 as well as Article 104(1)11 (a) of the same Act as shares transferred by a person other than the major shareholder as prescribed by Presidential Decree, taking into account the ratio of shares owned, total market value, etc. of the stock-listed corporation, the Enforcement Decree of the Income Tax Act separate from Article 94(1)3 (a) of the Income Tax Act from the former Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.