National High Court Decision 2006west0929 (No. 30, 2009)

Determination of actual holders of stock transfer income;

According to the treaty concluded between the Republic of Korea and Singapore, which is the resident state of the Republic of Korea and the Plaintiff, both Contracting States may exercise the right to impose tax on the transfer income of shares. As such, the taxation on the part to which the tax authority belongs among the transfer income of shares belongs to the Plaintiff is justifiable.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of corporate tax of KRW 7,559,274,210 against the Plaintiff on November 1, 2005 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a juristic person established under the laws of Singapore for the purpose of investing in real estate. ○○○ Red LP and ○○ Red Port LP (hereinafter collectively referred to as “○○○○ Fund”) are real estate investment funds of the United States, and N○○ Red Holdings Limited Partnership Limited Partnership (hereinafter referred to as “L2”) is NLC. ○○○○○○ △△△△ △△ △△ △△ △ △△ △ △ △ △ △△ △△ △△ △○ △, a subsidiary of the ○○ Fund, established under the laws of the State of the United States of Deelwa. △△△ △△ △△ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○, a domestic corporation established on June 9, 197, and △△ △△ ○ 500, May 10, 2001, respectively.

나. ○○ 펀드의 자회사인 ○○ Asia LLC는 2000. 8. 10. □□타워의 주주인 ▲▲계열 5개사와 사이에 □□타워의 발행주식 전부(이하 '이 사건 주식'이라 한다)를 198억 원에 매수하는 내용의 매매계약을 체결하였다.

D. The Plaintiff’s subsidiaries located in ○○○○○○ △△△, II, and Malaysia, Malaysia, established the LLC (hereinafter referred to as “△△△△△△△△△△△△”) with 50% joint investment (○○○○○○ 48.17%, ○○ ○○ △△△△ ② 1.83%, 50%, and △△△○ 50%). The △△△△△△△△△△△△△△△△△△△△△△△△ established △△△△△△△△△△△△△△△△△△, 10% of each of 10% on September 19, 200, established △△△△△△△△ and △△△△△△△○ at the State of Deteg in the U.S. deteg, and established △△△△△△ and II.

라. △△ I, II 는 2000. 9. 28. ○○ Asia LLC로부터 이 사건 주식을 취득할 수 있는 권리 등을 양도받아 이 사건 주식을 취득하였다(원고는 ▽▽안을 통해 은행으로부터 ▲▲그룹 계열사들에게 지급할 주식대금 19,800,000,000원의 절반을 차입 하였고 위 은행으로 하여금 위 차입금을 ▲▲그룹 계열사들에게 직접 송금하도록 하였다).

E. Around March 2003, △△△△△△ has acquired the entire shares of △△ Do-Da, a corporation located in Do-ri, Do-ri (hereinafter referred to as “Do-ri, Do-ri,”) and transferred the entire shares of △△△ and II to Do-ri on May 1 of the same year (investment in kind).

F. △△△ I, and II, on August 28, 2003, sold the instant stocks to German corporations (hereinafter referred to as “○○W”) for KRW 40,245,507,106, and acquired gains from transfer (hereinafter referred to as “the instant stock transfer income”).” Pursuant to the U.S. federal tax law, △△△△△, and II selected a partner tax not as a juristic person and not as a corporate tax under the U.S. federal tax law, and △△△△△△△-B, a company in the form of a corporate company, which is one stockholder, may choose a corporate or DNAized company under the U.S. federal tax law. In the event of the latter’s choice, △△△△△△△△△ has to file a total report on the income at the higher shareholders’ level.

Around October 9, 2003, Article 13(4) of the former Corporate Tax Act (amended by Act No. 7005 of Dec. 30, 2003; hereinafter referred to as the “former Corporate Tax Act”) provides that income from stock transfer shall be imposed only in the resident state of the transferor, the △△△△ and II, a higher shareholder in the △△△△ and II, was selected by the latter) and accordingly filed an application for non-taxation on capital gains pursuant to Article 98-4 of the former Corporate Tax Act (amended by Act No. 7005 of Dec. 303; hereinafter referred to as the “former Corporate Tax Act”).

H. The director of the regional tax office of ○○○ (hereinafter referred to as “the director of the regional tax office”) made a regular investigation of the corporate tax from April 19, 2005 to June 30, 2006 with regard to the foreign shareholder and the details of stock changes. As a result, the director of the regional tax office of ○○○ (hereinafter referred to as “the director of the regional tax office”) found that the Doctrine was merely a Doctrine company (the Doctrine Company, a company incorporated for the purpose of tax avoidance without actual income or right to own and manage assets), and thus, the transfer income is substantially attributed to the Plaintiff and ○○ Fund (hereinafter referred to as “Plaintiff, etc.”) (50%). Accordingly, the Defendant rendered a disposition of KRW 93 subparag. 7 of the former Corporate Tax Act, Article 1817 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 18130, Dec. 30, 2003); Article 205(13).25

I. On January 27, 2006, the Plaintiff filed a request with the Tax Tribunal for an appellate trial against the instant disposition, but the said appellate court dismissed on September 30, 2009.

(j) Meanwhile, ○○ Fund was imposed and notified of KRW 7,559,274,210 of the corporate tax for 2003 business year on the grounds of the Plaintiff, and the said taxation disposition became final and conclusive as it was, on the grounds that ○○ Fund did not object thereto.

[Ground for Recognition: Facts without dispute, Gap 1 through 3 evidence, Gap 4-1, 2, Gap 5 through 10 evidence, Gap 12, Eul 1, 2 evidence, Eul 6-1 through 3, Eul 24 evidence, and the purport of the whole pleadings]

2. The plaintiff's assertion

The Defendant: (a) △△△, II selected members to impose tax pursuant to the U.S. Federal Tax Law; (b) △△△△, II, △△△△, △△, etc.; (c) considered the actual owner of the instant stock transfer income as the Plaintiff, etc. by applying the substance over form doctrine on the ground that the instant disposition was unlawful for the following reasons, on the grounds that the said transaction was merely a typical conduit company to obtain non-taxation benefits under the Korea-U.S. Tax Treaty, and that the said transaction was led by the Plaintiff, etc.

(1) The issue of taxation on a company under domestic tax law is determined by the existence of a company’s corporate personality. △△, a limited liability company established by the laws of the United States, and Section II are corporations similar to limited liability companies or limited partnership companies, and the parties to the legal act that acquired and transferred the instant stocks. Since the application of the principle of trust and good faith to a tax payer is extremely limited, △△ I and II selected members of the instant capital gains, and accordingly, △△ I and II selected members of the instant capital gains, and accordingly, △△△ I and II applied for non-taxation on the instant capital gains on the sole basis that △△△△, a higher-level shareholder in II and II applied for non-taxation on the instant capital gains on the instant stocks. It does not mean that △△△, a subsidiary company, and △△ I and II are deprived of the corporate personality

(2) To deny the validity of a party’s transaction based on the substance over form principle as an act of tax avoidance notwithstanding its legal form, there must be individual and specific denial provisions under the principle of no taxation without law. In addition, the tax authority must assert and prove the application of the provision. In addition, when the taxpayer engages in economic activities, one of the two legal relationships can be selected in order to achieve the same economic purpose, and the tax authority should respect the legal relationship chosen by the parties, barring any special circumstance.

(3) In order to apply the substance over form principle, the Defendant denied the substance of △△△ and II, which is a subsidiary established by the parent company as the principal agent of the act distinct from himself/herself, and deemed the subsidiary’s act and income as the parent company’s act and income. This is in violation of the principle of no taxation without law that adopts the theory of denial of legal personality exceptionally recognized under the private law, and is

(D) The circumstances cited by the Defendant as the grounds for denying the legal personality of △△△△△, II, etc. by applying the substance over form principle are merely the inherent and intrinsic characteristics of SPC established as an investment holding company, and thus, the Defendant’s judgment is ultimately denying the transaction subject of all SPCs. In particular, international fund investment is generally writing to select the establishment of SPC in consideration of the tax treaty in order to prevent double taxation, etc., and Korea entered into a tax treaty that gives up the right to impose tax on stock transfer income between this country and this country. The Plaintiff’s selection of such countries and establishment of an investment holding company and then make investments in Korea.

(5) Article 16(1) of the Korea-U.S. Tax Treaty clearly and simply stipulates that only the resident state of the transferor has the right to impose tax on the transfer income of stocks, and there is no separate benefit limitation provision or abuse prevention provision under the domestic law. Nevertheless, exercising the right to impose tax on the transfer income without the resident state of the transferor is contrary to the Korea-U.S. Tax Treaty and the purpose of Article 6 of the Constitution and the Treaty on the Interpretation of the Treaty (hereinafter referred to as the “ Vienna Convention”). The Defendant still has the right to impose tax on Korea due to the “Agreement between △△△ and the U.S. tax authorities,” which is a mutual agreement between Korea and the U.S. and the U.S. tax authorities, even if the actual owner of the transfer income of stocks of this case is △△ and II.

3. Related statutes;

It is as shown in the attached Form.

4. Determination

A. Whether the tax treaty and the principle of substantial taxation are applied

(1)Relation between a tax treaty and a domestic tax law

Article 16 (1) of the Constitution of the Republic of Korea provides that "any treaty concluded and promulgated by the Constitution and any generally accepted international law shall have the same effect as domestic law," so a tax treaty concluded with the consent of the National Assembly shall have the same effect as that of the law, and in the legal relationship governed by the tax treaty, the treaty shall have the same effect as that of the domestic law, and the treaty shall take precedence over the domestic law, as

On the other hand, the tax treaty is concluded to prevent double taxation and tax avoidance and to create the conditions of international trade through adjustment of the authority to impose taxes on a certain transaction, etc. by adjusting such countries and the authority to impose taxes. Thus, in principle, the tax treaty does not create an independent authority to impose taxes, but functions as allocating or restricting the authority to impose taxes already established under the tax laws of each country. Therefore, matters concerning the occurrence of the authority to impose taxes are governed by the tax laws of each country in the first place, but the tax treaty determines the location of the final authority to impose taxes by applying the tax treaty to matters prescribed differently from the domestic

As above, a tax treaty is subject to the regulation of the right to impose taxes already established under the domestic tax law, so in applying a tax treaty to the taxes of a Contracting State, unless otherwise defined in a tax treaty or the context requires a different interpretation, it shall be deemed as applicable in accordance with the meaning stated in the domestic tax law, which serves as the basis for the right to impose taxes of that State

(2) The principle of no taxation without law and strict interpretation of tax treaties

Article 38 of the Constitution provides that "All citizens shall have the duty to pay taxes under the conditions as prescribed by Act," and Article 59 provides that "the items and rates of taxes shall be determined by Act," and adopts the principle of no taxation without the law. In determining the tax requirements or tax exemption requirements, the principle of no taxation without the law shall be stipulated by the law enacted by the National Assembly, which is the representative of the people, and shall be strictly interpreted and applied in enforcing the law. The above principle of interpretation shall also apply to foreigners whose status is guaranteed in accordance with international law and treaties pursuant to Article 6 (2) of the Constitution.

In addition, Articles 26, 27, and 31 of the Vienna Convention in which Korea is a party shall be observed, and the provisions of the domestic law shall not be invoked in such a way as to justify the non-performance of the treaty, and the term of the treaty shall be interpreted faithfully in accordance with its ordinary meaning. Therefore, in the case of a tax treaty which is a kind of tax law, an administrative convenience expansion interpretation or analogical application shall not be allowed.

(3) Domestic legal basis of the substance over form principle

Article 11(1) of the Constitution of the Republic of Korea provides that "All countries shall be equal in front of the law." This principle of tax equality shall not be discriminated against in all areas of political, economic, social, and cultural life on the basis of gender, religion, or history." Accordingly, in granting tax legislation, the State must establish laws so that the burden of tax can be equally distributed among the people, and the State shall be treated equally in interpreting and applying the tax law. One of the legal systems for realizing the ideology of the principle of tax equality is the principle of substantial taxation as provided in Article 14 of the Framework Act on National Taxes, Article 4 of the Corporate Tax Act, and such principle of tax equality is equally treated, and the application of the principle of justice is unreasonable, so that the principle of tax equality can not be regarded as a violation of the legislative process of the tax law or the principle of tax law enforcement (see, e.g., Supreme Court Decision 198Hun-Ga38, Jul. 19, 198).

(4) The basis for the consideration of the OECD Model Convention

As an increase in international trade is caused by the increased number of cases where a company on documents is established in a tax haven place that is not related to the actual transaction for the purpose of tax avoidance through the change of the other tax treaty, and taxes on capital transaction income, such as interest, dividend, and stock transfer, are avoided through the form transaction, the OECD has sought various regulatory measures for the act of tax avoidance using the tax haven since 199, through the international discussion of the OECD's Harmful Tax Forum that began in 199.

Accordingly, the OECD has widely dealt with the type and method of preventing the act of tax avoidance, and the interpretation of the treaty-related provisions in the OECD Model Convention, which is a standard for interpreting the tax treaty of each country. As a representative example, Article 1(7) of the Model Convention provides that "the basic purpose of the Convention on the Prevention of Double Taxation is to prevent international double taxation, thereby promoting exchanges between goods and services, capital and human resources by preventing international double taxation." The Convention on the Prevention of Double Taxation also aims to avoid tax evasion and the prevention of Fiscal Evasion" and Article 22(2) through (24) of the same Note provides that "the substance over form principle, law of each country's company, and law of each country's company" are not inconsistent with the tax treaty, and therefore, it is not necessary to stipulate "the resident's general tax treaty-related provisions to prevent abuse" and "the resident's domestic tax treaty-related provisions are not subject to the definitions of the treaty-related provisions, and it is not necessary to stipulate "the resident's general tax treaty-related provisions."

The note of the OECD Model Convention is not a treaty concluded and promulgated pursuant to Article 6(1) of the Constitution, but a generally accepted international law is not legally binding. However, it is not an international standard for the proper interpretation of a tax treaty between member countries of the OECD, which is an international standard for the proper interpretation of a tax treaty between member countries of the OECD and can be considered as one reference for the interpretation of a treaty between member countries of the OECD regarding substance over form

(5) Provisions and interpretation method of the Korea-U.S. Tax Treaty (the same applies to the Korea-U.S. Tax Treaty)

Korea-U.S. Tax Treaty (the Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation, the Prevention of Evasion of Tax Evasion, and the Encouragement of International Trade and Investment) is clear in the text and text of the Treaty in that it was concluded between the Government of the Republic of Korea and the Government of the United States of America for the avoidance of double taxation and the prevention of tax evasion, so it cannot be said that the purpose of the Treaty is simply to prevent international double taxation and to facilitate the exchange of goods and services by simply preventing international double taxation, and the "prevention of tax evasion" also deals with the important purpose of the Treaty like the avoidance of double taxation.

As long as Article 16(1) of the United States and the United States Tax Treaty provides for every portion of the right to impose capital gains in question in this case, the resident of a Contracting State does not fall under the following cases:

Article 3 (1) (b) of the Treaty provides that "income derived from the sale, exchange, or other disposal of capital assets shall be exempted from taxation by the other Contracting State," and Article 3 (1) (b) of the same Treaty provides that "resident of the United States of America shall be excluded from taxation by the other Contracting State," and that "resident of the United States of America" shall be limited to (i) corporation of the United States of America, (ii) other persons residing in the United States of America (other than corporations or organizations treated as corporations under the laws of the United States) for the tax purposes of the United States, provided that in the case of a person acting as a partner or trustee, income arising from such person shall be subject to taxation by the resident of the United States of America." Meanwhile, Article 3 (2) of the Convention provides that "other terms used in the Convention, but not defined in the Convention, have the meaning in accordance with the laws of the Contracting State in which the tax is determined, unless the context otherwise requires."

As seen above, in order to determine the normative meaning of "resident" and "transferor", as seen earlier, the strict interpretation of the principle of no taxation without law should be followed. In the case of strict interpretation, the expansion or analogical application of administrative convenience beyond the meaning of the possible language is not allowed. However, within the meaning of the possible language, the systematic and logical interpretation that clearly expresses the ordinary and logical meaning of the language in accordance with the legal systematic relationship that takes into account the legislative intent and purpose of the pertinent provision within the meaning of the pertinent provision is the most adjacent to the essential contents of the relevant provision, and thus, the above interpretation is not in violation of the principle of no taxation without law. In other words, the interpretation of the tax law is neither a requirement for taxation under the principle of no taxation without law nor a requirement for non-taxation or tax exemption, nor a interpretation of the tax law without any reasonable ground, which is contrary to the principle of no taxation without law, and thus, it is not permitted to interpret the principle of no taxation without law in the form of a special law, which is contrary to the principle of no taxation without law.

In addition, Article 26 of the Vienna Convention emphasizes that all effective treaties shall be bound by the parties and shall be implemented in good faith by the parties concerned. Article 31(1) of the Convention emphasizes that "any treaties shall be interpreted faithfully in accordance with the ordinary meaning that is granted to the text of a treaty, considering the context and purpose of the treaty and the object and purpose of the treaty," so it is also stipulated that "the context of the treaty and the object and purpose of the treaty shall be considered in accordance with the ordinary meaning that are granted to the text of the treaty," so it is difficult to deem the above interpretation criteria to be contrary to the Vienna Convention. Furthermore, it is difficult to see that the above interpretation criteria are contrary to the Vienna Convention, not to establish an independent taxation authority, but to divide or limit the taxation authority established by the law of a Contracting State. Therefore, the issue of whether the taxation authority of the other Contracting State has arisen under the premise of the application of the tax treaty should be determined in accordance with the domestic tax law of a Contracting State.

(6) Sub-determination

As seen above, the principle of substantial taxation under Article 14 of the Framework Act on National Taxes and Article 4 of the Corporate Tax Act is applied equally to both the residents and the non-resident as the purpose of realizing the principle of fair taxation burden and the principle of equal compliance with the principle of fair taxation under domestic law, together with the basic principles on the interpretation of the principle of no taxation without law and treaties, the basis and contents of the principle of substantial taxation, the purpose of which is to establish the Korea-U.S. Tax Treaty, and the purport of Article 16 of the Korea-U.S. Tax Treaty, and the principle of substantial taxation under Article 4 of the Corporate Tax Act. In full view of the above, the principle of substantial taxation can be considered as the basis of interpretation unless it extends and expands the meaning of the language itself in interpreting tax treaties between the states, or it does not go against the language and text.

B. Determination as to the person who actually reverted to the transfer income of the instant shares

Under the premise of the foregoing legal doctrine, we examine as follows who is the actual owner of capital gains from the transfer of stocks or the transaction entity of the transfer of stocks of this case.

(1) Facts of recognition

(A) Of the written contract for the establishment of △△ I and II, the notification provisions stipulate that the Plaintiff’s head of the legal affairs office is subject to notification, and the notification provisions set forth in the written contract for the establishment of △△△△△○ Foundation that stipulate that the duplicate of the notification provision shall be notified to BB Hong, the representative director of the Plaintiff, BB Hong, who is the Plaintiff’s representative director. BB Hong was registered as a director of △△△I and II until acquiring and transferring the instant shares. The written approval of the members of the advisory committee for the decision-making of △△△△△△△△○○○○○, △△△ I, II, and ○○○W, and performed the role of a signatory and a person in charge of the Plaintiff’s contractual guarantee provisions, who represent △△△△△△ (the notification point is the Plaintiff’s domicile), seller, △△△, and △△△, who represent both the seller, and the Plaintiff.

(나) □□타워는 2000. 9.경 완공 예정인 □□타워 빌딩을 담보로 제일은행으로부터 프로젝트 파이낸싱을 통하여 700억 원을 차입하였는데, 원고 등이 위 빌딩의 완공보증을 하였다. 당시 □□타워가 제일은행에 제출한 기업여신신청서에 '본건은 미국의 ○○ 펀드와 싱가포르의 원고가 50%씩 투자하여 △△빌딩(= □□타워 빌딩)만을 소유하고 관리하는 △△개발 주식회사를 기존 대주주인 ▲▲그룹으로부터 인수하기 위한 자금의 대부와 완공시까지 필요한 건설자금 및 완공 후 운영자금을 파이낸싱 하는 조건으로 ... '라는 문구가 기재되어 있고, 차입거래의 개관에 원고 등이 각 각 조세회피를 목적으로 특수목적회사를 이용하였음을 명기하고 있다. 제일은행은 위 대출과 관련하여 수차례에 걸쳐 □□타워에게 공문을 보냈는데, 위 공문들의 공동 수신처에는 원고 등만 기재되어 있고 △△ I, II 등 그 하위 단계의 회사는 기재되어 있지 않다.

(C) On October 3, 200, Doldong borrowed USD 2.5 million from △△, I, II to use for the construction cost of the building in Doldong Building. On the request of △△△, △△, △△, and II, the loans were transferred from the Plaintiff to the Plaintiff from May 2001 to June, 200, and the above loans were repaid to the Plaintiff, etc. In addition, ○○ ○○ ○○ (the representative director of the Si was DDdd, the director was Dodddd, and the director was BB red) paid the capital of KRW 18.5 billion to the Plaintiff, etc. on September 5, 2002 at the request of △△△, and II.

(D) When △△△ I and II acquired the instant shares, △△△ I and II under the Korea-U.S. Tax Treaty transfer the instant shares, the taxation authority on the capital gains was in the U.S., which is formally the △△ I and the resident state (the resident state of the transferor) of II, but on the basis of the agreement between the U.S. and the Republic of Korea around 2001, △△△ I and II, on the following grounds: (a) when transferring the instant shares, the transfer income was deemed a real estate transfer income and the Republic of Korea can be taxed by the Republic of Korea.

(마) △△ ◇◇터는 △△ I, II가 보유하고 있는 이 사건 주식을 매각하기 위하여 2002. 9. 17. ◆◆살 유한회사(이하 '◆◆살'이라 한다)의 투자담당이사인 EE 양과 중개계약을 체결하였고, 이에 따라 EE 양은 매수희망자를 물색하다가 2003. 1.경 ○○W 측으로부터 매수의향서를 받아 이 사건 주석의 매각을 잔행하게 되었다, △△ ◇◇터는 2003. 3.경 유럽의 새로운 조세회피지역(포르투갈 정부는 낙후된 지역경제를 살리기 위해 마데이라를 경제자유구역으로 지정하고 법인세 등의 조세를 면제하는 등 여러 가지 혜택을 주고 있다. 이 사건에서도 포르투갈이 과세권을 행사할 경우 이 사건 주식양도소득에 대한 법인세가 면제된다)으로 떠오르고 있는 포르투갈령 마데이라에 소재한 법인인 ☆☆카를 5천 유로에 인수한 다음, 2003. 5. 1. △△ I, II의 지분 전부를 ☆☆카에게 이전하였다. 위 지분이전계약 시 양도인 및 양 수인으로 서명한 DDi(이하 'DD드'라 한다)는 ○○ Asia LLC의 사장으로 ○○ 펀드의 임원이자 □□타워의 대표이사였다. 위 지분이전 계약서에 따르면 ☆☆카는 △△ I , II 설립계약상의 모든 조건, 의무 등을 이행하도 록 되어 있다.

(바) △△ ◇◇타가 ☆☆카를 인수할 명・시 ☆☆카는 재무제표상 5천유로의 자본금을 주주가지급금 형태로 보유한 외에 다른 자산이나 사업활동이 없었고 고용한 직원이 없어 임직원 급여, 사무실 임차비용 등의 비용을 지출한 사실이 없었다(그 이후에도 ☆☆카의 수입은 이 사건 주식양도소득이유일하다). ☆☆카의 소재지에는 ☆☆카의 사무실이 없고 ●●sa라는 법률회사와 ▼▼se라는 위탁관리회사(도관회사 관리업체로 보인다)의 사무실이 있다. ☆☆카의 관리자인 GGha는 위 법률회사의 변호사이고, 또 다른 관리자는 위 BB 홍과 DD드이다.

(G) △△△, a shareholder of △△△, a shareholder of △△, or a shareholder of △△△△, and the sole asset owned by △△△, and Section II, did not perform any particular role in the sale of the instant note. The minutes related to the sale of the instant shares of △△△, a decision to sell shares without discussion or review related to the sale of shares, and a signature of DDD’s comprehensive delegation of the relevant business affairs to BB Hong. The transfer price of the instant shares transferred by △△△△ and II (in US$ 16,964,605 each transfer) was deposited into the bank account of △△△△△, a single shareholder of △△△, and △△△△, and △△△△ transferred the amount deposited on the following day to the Plaintiff and ○○ Fund.

(h) Of the notification provisions of Article 16 of the sales contract on the instant note concluded between △△ I, II and ○○W, the Plaintiff et al. was placed in the seller’s C/O column, and the Plaintiff et al. guaranteed the performance of contractual obligations owed by △△ I and II in accordance with the said share sales contract. In addition, in various tax and legal advice processes related to the said share sales contract, domestic and foreign corporations are written only in the c/O and the c/O of the documents, written request, etc. notified to ○○○ City and △△△△△△, and the △△△△△△△△△△, △△△△△, etc., and are not written in the c/O and the c/O of the documents, request, etc.

(자) 원고의 재무담당자인HHe는 2004. 3. 11. ◆◆살에게 이메일을 보내 원고 등이 공동으로 ☆☆카를 소유하고 있고 ☆☆카는 □□타워를 소유하고 있으므로 이 사건 주식 매각에 관한 중개수수료 청구서를 ☆☆카 앞으로 보낼 것을 요청하였고, 2004. 4. 2. 재차 같은 내용의 이메일을 보내면서 JJo를 참조 수신자로 기재하여 JJo(앞에서 본 ☆☆카 소재지에 있는 법률회사의 변호사로 성명 전부를 표기하면 KKta이다)에게 ◆◆살로부터 중개수수료 청구서를 받으면 즉시 알려달라고 요청하는 내용을 첨부하였다, 이에 따라 ◆◆살은 2004. 4. 6 수신자를 위 LLia로 하여 ☆☆카 앞으로 중재수수료를 청구하였는데, ☆☆카 명의로 ◆◆살에 중개수수료를 송금한 지역은 미국이다.

(j) The Plaintiff and Redne (HONG LENG) Group indicated that the Plaintiff acquired the instant building by means of joint investment with LLC in the news report published on its website. The Plaintiff arranged the instant share transfer in the annual report in 20031 as a major case of August, 200, the Plaintiff evaluated the Plaintiff’s shareholders as a positive decision. From the financial report in 2003, the details of the decrease in the share in the Dolldong, compared with the year 2002, were summarized. In the financial report in 2004, the Plaintiff stated that part of the profits of 203 years from the revenue and loss statement in the financial report in 2004, as a result of the instant tin transfer.

[Ground for Recognition: Facts without dispute, entries in Eul 3 through 22 and the purport of the whole pleadings and arguments (including all remaining numbers except for Eul 9-1): No statement of increase contrary to the above recognition is believed.

(2) The following circumstances revealed through the facts acknowledged earlier, namely, △△△△, △△△, II, △△, etc. established a special purpose company for the acquisition of the shares of this case and established the special purpose company related to the acquisition, sale, etc. of the shares of this case and the person who acquired gains gains from transfer is the plaintiff et al. and the foreign corporations of this case are not practically engaged in such business, but merely performed the role of providing the plaintiff et al. with the name or legal form, and it is necessary for the plaintiff et al. to establish an investment holding company for overseas investment. However, for the acquisition and sale of the shares of this case, the purpose of establishing △△△△△△△△, △△△, △△, and △△, etc. or taking over the △△△ for the acquisition and sale of the shares of this case is to only have a favorable way to avoid tax, and it is difficult to find any other purpose or necessity, in light of the fact that the actual owner of the shares of this case is a formal company.

C. Sub-decision

Therefore, the Defendant may impose tax on the Plaintiff on the capital gains of this case by applying the principle of substantial taxation. According to the tax treaty concluded between the Republic of Korea and the Plaintiff’s resident state and Singapore, both Contracting States can exercise the right to impose tax on the capital gains of stocks. Thus, the Defendant’s disposition of this case against the part to which the capital gains of this case belongs to the Plaintiff is lawful in accordance with domestic law.

As such, inasmuch as the Plaintiff recognizes the Plaintiff as the actual attribution of 50% of the transfer income of the instant shares by applying the principle of substantial taxation, there is no room to apply the Korea-U.S. Tax Treaty, and there is no need to deny the legal entity of the corporation whose income is formally attributed to its income in applying the principle of substantial taxation. Therefore, the Plaintiff’s assertion related thereto is without merit without further review (In addition, even if a transaction related to the instant shares and establishment of a special purpose company were led by ○○ Fund, such circumstance may not interfere with the determination of one of the actual holders of the transfer income of the instant shares as the Plaintiff).

5. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.