2014Nu5752 Revocation of Disposition of Corporate Tax Imposition

The Korea-U.S. Tax Treaty shall apply to a partner of the United States partnership to the extent that the partner is liable to pay the United States tax.

Income generated from a partnership in the United States shall be treated as a resident of the United States under the U.S. Tax Treaty to the extent that a partner bears the U.S. tax liability.

AANDz.

Head of Seocho Tax Office

Seoul Administrative Court Decision 2009Guhap3538 Decided February 18, 2011

Seoul High Court Decision 2011Nu11336 Decided April 27, 2012

Supreme Court Decision 2012Du11836 Decided June 26, 2014

March 4, 2015

April 15, 2015

1. The plaintiff's appeal is dismissed.

2. The plaintiff shall bear the total costs of the lawsuit after filing the appeal.

The judgment of the first instance shall be revoked.

On May 1, 2007, the Defendant revoked the part of the corporate tax collection disposition for the Plaintiff for the business year of 2005 exceeding the OOO's KRW (the Plaintiff claimed revocation of the entire corporate tax collection disposition; the part of the OO's portion is already finalized by the judgment of remand; the object of the judgment of this court is limited to the part exceeding the O's KRW in the above corporate tax collection disposition).

1. Details of the disposition;

The reason for this decision concerning this part is that the relevant part of the judgment of the court of first instance is identical to the relevant part of the judgment of the court of first instance, and thus, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○○ 4, 2, and 3 shall be referred to as “each belongs”.

○○ 4, 6, and 7 overall parts of the corporate tax collection disposition [the part concerning the income accrued to BB Asia (OOO's portion) in the above corporate tax collection disposition by the defendant is finalized in the remanded judgment, and the part concerning the income accrued to the above CCC (OO's portion in excess of the above CO's won) is the part concerning the income accrued to this court; hereinafter the above CO's portion in the corporate tax collection disposition exceeds the OO's won].

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) DD is clear that it is a person who transfers the instant stocks to the Plaintiff and is a Belgium resident. Therefore, it is against the principle of proportionality by unilaterally denying the substance of DD by applying the substance over form principle, which is merely a legal principle under the domestic law, and allowing the Plaintiff, who is not a taxpayer, but a withholding agent, to identify the transferor or resident under the Korea-Belgium Tax Treaty, which has priority over the domestic tax law, to unilaterally deny the decision of the transferor or resident under the Korea-Belgium Tax Treaty. Thus, it is contrary to the principle of strict interpretation of the no taxation without law and the tax treaty and the principle of proportionality by excessively expanding the burden of the withholding agent.

2) DD is not a conduit company established for the purpose of tax avoidance, but an investment holding company, so-called SPC holding stocks of EEM with legitimate business objectives, and has been lawfully held at a general meeting of shareholders or the board of directors to make important decisions. Since it is a legal entity that has a legal entity, such as preparing separate financial statements and operating separate accounts independently from higher parent companies, DD’s disposition based on the premise that DD is a subsidiary company, is unlawful.

3) Even if DD is merely a conduit company, in light of the following facts, CCC does not have a substantial ownership of the instant capital gains.

A) In light of the fact that F is an organization established for investment purposes and is engaged in various investment activities, the legal nature of F is a limited liability company under the U.S. law and is recognized as a limited liability company under the Commercial Act, and the Commercial Act, F may be recognized as a legal entity or a legal entity, and thus, F cannot be deemed as an authorized company.

B) Even if the LCC considers the FF as a subsidiary company, in light of the fact that the Defendant is a special purpose corporation for investment holding and lending for the affiliates of the GCC, and its operation is entirely a parent company, and the directors and employees of the CCC are all members of the GG Group, the CCC cannot be deemed as the actual owner of the transfer income of the instant stocks, and the final investors should be deemed as the actual owner of the BB Asia (the CCC shares are owned by the GG Group, and the CCC is a U.S. corporation and subject to exemption from the transfer income under the U.S. Tax Treaty).

C) If BB Asia considers the company as the actual owner of the instant stock transfer income, there is no reason to regard the F, a limited liability company, as the Do-based company, and if the Si is deemed as the Do-based company, the BB Asia would not be deemed as the actual owner of the instant stock transfer income. However, it is obviously unreasonable for the Defendant to arbitrarily deny or grant the legal personality without any objective standard for taxation purposes.

4) Since the Plaintiff’s withholding duty is merely a cooperation duty in the collection process and did not fully grant the authority to investigate the facts against the taxpayer, the Plaintiff submitted an application for non-taxation and exemption to the Defendant to verify whether the Plaintiff was liable to withhold the transfer income of the instant stocks after acquiring stocks from DD, and did not withhold the tax by reliance upon the Defendant’s confirmation that the transfer income of the instant stocks was not subject to taxation, and the Defendant was recognized as the beneficial owner of the dividend income under Article 10 of the Belgium Tax Treaty with respect to the dividend income paid to DD around 2002. In full view of the circumstances, the instant disposition violates the principle of trust protection.

5) Demanding that the Plaintiff, as a transferee of the instant shares, who is the transferor, is liable to pay taxes in the United States or is a U.S. resident, is harsh to what is contrary to the principle of proportionality. The Plaintiff could not be aware of the fact that the Plaintiff had conducted a sincere investigation in the course of the instant stock transaction, and that there was a separate person to whom the income actually accrues even if the data secured therefrom, and thus, the Plaintiff is disqualified as a bona fide transferee.

B. Relevant statutes

Since the relevant column of judgment of the first instance court is the same as the entry, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

(c) Markets:

1) Whether the substance over form principle is applied

The reason for this decision concerning this part is as stated in Article 2-3 (1) (f), with the exception of the reasons for the judgment of the court of first instance as described in Article 2-2 (3) (1) (f), and therefore, it shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

The theory of the lawsuit (f)

As seen above, the substance over form principle, along with the basic principles on the interpretation of the no taxation without law and treaties, the basis and content of the substance over form principle, the purpose of concluding the Korea-Belgium Tax Treaty, and the purport of Article 13 of the Korea-Belgium Tax Treaty, is to realize the principle of fair taxation burden and the ability to respond, and is equally applied to both residents and non-residents under domestic law. In interpreting the provisions of tax treaties between countries, the substance over form principle may be used as the basis of interpretation unless it is inferred or expanded the meaning of the language itself or goes against the language and text (the Plaintiff’s amendment on May 24, 2006 of the Adjustment of International Taxes Act, which is applied preferentially to international trades, established the substance over form principle as provided by Article 2-2 in relation to the application of tax treaties with regard to international trades. At least, the Plaintiff’s establishment of the substance over form principle can only be seen as being applied to the transfer of stocks prior to the enforcement of the said provisions, not to the establishment of a new tax treaty. However, as seen earlier, the Plaintiff’s argument to the effect of the substance over form principle applied to the tax treaty.

Therefore, the defendant, who is the tax authority, can determine the attribution of the transfer income of the instant stocks according to the substance over form principle as to whether the actual offender and the person to whom the income accrued, are recognized as DoD which is a resident in the Belgium under the Korea-Belgium Tax Treaty, and whether the tax should be imposed by recognizing it as FF, etc. outside the scope of application of the Korea-Belgium Tax Treaty.

On the other hand, when withholding tax is subject to withholding under the domestic tax law, it appears that the withholding agent, in principle, has the duty to investigate the tax exemption requirements or burden of proof, and as seen thereafter, the Plaintiff appears to have known or could have known that the Plaintiff was not the actual owner of the stock transfer income of this case. In light of the fact that the Plaintiff, who is a withholding agent, who is not the taxpayer, knew or could have known that the Plaintiff was not the actual owner of the stock transfer income of this case, it cannot be deemed as going against the principle of proportionality as it excessively expands the burden of the withholding agent

Therefore, this part of the plaintiff's assertion is without merit.

2) Whether the instant transfer income falls under the person to whom the said transfer income actually accrues and the foreign corporation

A) The person to whom the transfer income of the instant shares actually accrues

(1) As seen earlier, comprehensively taking into account the constitutional principles of no taxation without the law and the interpretation of tax treaties between the states, the purport and contents of the substance over form principle, the purpose of the Korea-Belgium Tax Treaty and the purport of the tax exemption provisions on non-residents, etc., a corporation recognized as a resident in the Belgium under the Korea-Belgium Tax Treaty is a “transferr” under Article 13 of the Korea-Belgium Tax Treaty in order to make business transactions in the Republic of Korea and to benefit from tax exemption on income sources in accordance with the said Tax Treaty. Here, in determining the meaning of a transferor, the interpretation of the substance over form principle should be limited within the scope that is consistent with the purpose of preventing double taxation or tax avoidance and is not inconsistent with the language and text of the Treaty. Thus, if a non-resident with a nationality other than Belgium establishes a corporation in the Belgium for investment purpose and operates a business within the Republic of Korea with the name of the corporation for the purpose of capital acquisition, and thus, it is not clear that the Plaintiff’s legal entity is an effective owner of the Belgium and the substance over form of the Plaintiff’s legal act.

Therefore, in this case, the original investor who is recognized as a party to the transaction and a person to whom the income substantially accrues according to the substance over form principle becomes a taxpayer under the domestic law, and there is a tax liability under the Corporate Tax Act or the Income Tax Act and the tax treaty between the Republic of Korea and the resident state

(2) First, considering the absence of dispute between the parties or the following circumstances, DD and HH merely constitute an authorized company established to avoid taxation on the transfer income of the instant shares, and thus, DD or HH cannot be deemed as a substantial owner of the instant transfer income under the substance over form principle, in full view of the following circumstances: (a) Party’s evidence Nos. 28, 36, and 2, 2, 4, 6, 7, 9, 11-17, 25, 27, 28, 33, and 34; and (b) Party’s evidence Nos. 28, 36, and 2, and 34.

(A) The FF in the BB Asia and the United States located in the SSS established HH, a TT-based entity, by jointly investing 6.7% and 33.3%, respectively. In other words, HH and EED’s management jointly invested 88.75% and 11.25% each, and jointly invested Belgium, a Belgium-based entity on December 10, 1999, and EEEF provided BB Asia, FF, and EEP management.

(B) BBAP made a decision on investment conditions, etc. by participating in the parties to the ESP acquisition contract, such as signing various reports and contracts related to the ESP acquisition contract, which is the investment manager of BB Asia and F (hereinafter referred to as “BP”).

(C) BBP, around November 199, was conducted through due diligence such as visiting EEF factories, and on December 8, 1999, upon presenting franchises to EEEEF management (the acquisition of management or management by taking place in the pertinent business division, in whole or in part, or in part, an affiliated company, at the center of the pertinent business division or company) by presenting a plan to establish a new company in Belgium or TT, and immediately after that, DD was established on December 10, 1999, and DD immediately after the sale of the entire stocks of EEF to the Plaintiff.

(D) Even after DDD acquired EEP stocks, the management of EEP did not report its business activities to DD, but did not report to westJ and BBP personnel, who are employees of the domestic branch of BBP, and the west J reported ED’s domestic market situation, management status, investment status, and financial status of BBP personnel during each quarter to III, KK, etc.

(E) The distribution ratio of EEP sales proceeds is 66.7% and 33.3% of each of the BB Asia and F, and there is no difference between the amount in the distribution plan (DMF Returns-Far I) for EEP sales proceeds prepared by the Western J, an employee of the branch of BB AP branch. The distribution from EEP sales was transferred to BB Asia and F on August 2005, immediately after receipt of DD accounts in the name of DD and the fact was transferred to BB Asian and F on August 2005. In this process, there was no distribution from DD, a shareholder of EEP.

(f) DD directors consisting of seven members, including LL, MM, III, NN, etc. However, LL and III are employees of BB AP who are in charge of investment in Japan and Asian region, and MM and NN are employees of BB Capital N.V. (hereinafter “BP”).

(사) DDD의 주소지에는 BBB PPP의 사무실이 있을 뿐 DDD는 독립적인 사업장이 없고, DDD의 QQQ(기업정보/신용평가 기업으로 전 세계 개별기업의 신용정보, 마케팅정보, 구매정보 및 의사결정 지원 서비스를 제공하고 있음) 조회자료에 등재된 전화번호는 BBB PPP 직원의 전화번호이며, DDD는 자산의 대부분이 EE푸드의 주식이고 인건비 및 사업운영에 필수적인 사업비용도 거의 지출하지 않았다.

(H) HH has no independent place of business, and there are about 30 legal entities, including the name of the legal entity of HH, among the mail boxes of a building located in the domicile of the address. This photograph also has a minimum formal constituent element as a company, which is merely three and four employees belonging to BB AP, and most of the total assets are comprised of ESH’s shares and dividend receipt amount, and there is no essential type of assets such as buildings and fixtures.

(i) BB Asia, etc., conducted research and analysis of each country’s tax systems, tax treaties, etc. (SPC; hereinafter the same shall apply) to BB Asia, etc., and established HH in Belgium as an investment holding company (special purpose company (special purpose company (SPC). Belgium is exempted from domestic source tax on stock transfer income in accordance with the Korea-Belgium Tax Treaty, and from income tax on capital gains, TPP is exempted from income tax on source income exceeding a certain size, and TS is also exempted from income tax and source tax on foreign source income of its investment company, and TS is exempt from income tax and source tax on foreign source income of its investment company, and TS is recognized as a representative tax escape place providing tax preference, such as TS, corporate tax, SS is not subject to source tax on individual income tax, or even at the time of taxation.

(j) In managing funds, the necessity of an investment holding company, such as DD, cannot be denied for the efficient management and operation of investment funds and investment assets. The actual person in charge of actual source of funds, investment and asset management in investment through an investment holding company, and the ultimate attribution of investment profits cannot be reconvened by taking into account the ownership of the investment profits. However, establishing a variety of investment holding companies in the Belgium, which is irrelevant to the actual state of residence of investors in Korea and BB Asian, which is an investment target country, and making them complicated in investment governance by establishing investment holding companies in various stages, such as Belgium, which is irrelevant to the actual state of residence of the investors in Korea and BB Asian, rather than for efficient management and operation of the investment, is in accordance with the tax avoidance scheme planned by BB Asia, etc. from the beginning, and thus, such investment holding companies should be deemed a nominal company used for tax avoidance.

(3) Furthermore, as revealed in light of the aforementioned facts and the evidence revealed, it was intended to acquire the instant shares jointly with BB Asia to increase their value and sell them, and the F was also engaged in a large number of investment transactions other than investment in the instant shares, and the F was also the actual supplier of the funds necessary to acquire the instant shares with BB Asia, and recovered the instant capital gains from the investment fund. In full view of the fact that F is a company established for the purpose of tax evasion, it cannot be deemed that F is merely a conduit company established for the purpose of tax evasion. Of the instant shares, the part equivalent to the portion of the capital gains in relation to DD owned by FF with respect to D is deemed to have been reverted to F.

B) Whether the F is a foreign corporation of F

(1) Where a foreign unincorporated association, foundation or other organization acquires domestic source income under Article 119 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter “Income Tax Act”) or Article 93 of the former Corporate Tax Act (amended by Act No. 7838 of Dec. 31, 2005; hereinafter “Corporate Tax Act”) and distributes it to its members, if it can be deemed a foreign corporation under the Corporate Tax Act, it shall be liable for tax payment and collect corporate tax on domestic source income. If it cannot be deemed a foreign corporation under the Corporate Tax Act, the member of the organization shall be liable for tax payment and shall collect income tax or corporate tax on income distributed to each of its members, depending on the status of its members. In addition, whether such organization can be deemed a foreign corporation under the Corporate Tax Act shall be determined separately from its members in light of the substance and substance of the organization established in the Republic of Korea (see, e.g., Supreme Court Decision 201Du5261654, Feb.

(2) In the instant case, the legal nature of health class and F is a limited liability company with limited liability to all members to the extent of their investments in each company, which is able to actively participate in the management of the company and attracts and operates funds for investment purposes. A limited liability company is treated as a private corporation of the United States, which is a country ofF establishment, and even if FF selects a partner taxation in accordance with the provision that a limited liability company under the U.S. tax law can choose one of its corporate taxation and its constituent members, however, it does not depend on whether it is a foreign corporation under the Corporate Tax Act, rather than on whether it is a foreign corporation under the U.S. tax law, in light of the fact that FF is a private corporation under the U.S. tax law of the limited liability company, the legal nature of F is a separate entity that can be the subject of rights and obligations separate from the personal nature of its constituent members. Therefore, it can be deemed a foreign corporation subject to taxation under the Korean Corporate Tax Act.

C) Sub-determination

Therefore, although FF, which constitutes a foreign corporation under the Corporate Tax Act, is deemed as the beneficial owner of 33.3% of the transfer income of this case, the Defendant erred by deeming the beneficial owner as the FF’s members (CCC, etc.).

However, the Defendant asserts that the portion equivalent to 60% of the CCC shares, which is a Hong Kong resident, among the members of the FF, may be taxed under the Corporate Tax Act because the Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and the Encouragement of International Trade and Investment (hereinafter “Korea-U.S. Tax Treaty”) is not applicable, as the F is considered as the beneficial owner, insofar as the FF selected a partner taxation under the U.S.

3) Whether the F Tax Treaty is applied and the scope thereof is applicable

A) Article 16(1) of the Korea-U.S. Tax Treaty provides that “A resident of a Contracting State shall be exempt from taxation by the other Contracting State on income derived from the sale, exchange, or other disposal of capital assets, unless it falls under any of the following cases.” Since each subparagraph does not list “income from the transfer of stocks”, the transfer income of stocks acquired by a resident of a Contracting State of the Korea-U.S. Tax Treaty is ultimately exempt from taxation by the original State.

Meanwhile, Article 3(1)(b) of the Korea-U.S. Tax Treaty provides that “A resident of the United States” means: (i) “A corporation of the United States,” and (ii) “other persons residing in the United States (excluding corporations or organizations treated as corporations under the laws of the United States) for the purposes of tax purposes of the United States; (iii) in the case of persons acting as partners or trustees, it is limited to the scope that income generated by such persons must be subject to the tax of the United States as income of a resident; and Article 2(1)(e)(ii) of the Korea-U.S. Tax Treaty provides that “A corporation” or “corporation of the United States” means a corporation established or organized under the laws of the United States or the United States of America, or an unincorporated entity treated as a corporation of the United States for the purposes of tax purposes of the United States.”

The proviso of Article 3(1)(ii) of the Korea-U.S. Tax Treaty appears to be a provision related to an organization that does not reach a corporation, such as a cooperative, among the residents of the United States under its language and structure. In light of the context of a treaty, the proviso is a so-called transparent taxation organization that is not an organization with respect to income derived from its activities under the U.S. tax law but whose partner is liable to pay taxes in principle, but is not a resident of the U.S. under the Korea-U. Tax Treaty, if its partner is liable to pay taxes in the U.S., it can be understood as a special provision that grants tax treaties benefits to such an organization. Thus, it is difficult to find that an organization that does not take the form of a partnership such as a cooperative and a limited liability company is treated as a resident of the U.S. under the tax law that allows its partner to pay taxes in the U.S. for the purposes of establishing double taxation treaties.

Therefore, if an organization of the United States, which constitutes a foreign corporation under the private law of Korea, obtains income from the Republic of Korea, and does not bear the duty of tax in the United States, it constitutes a resident of the United States under the Korea-U.S. Tax Treaty to the extent that its members are liable for tax in the United States, and the tax treaty can be applied to the extent that its members are not treated as a resident of the United States among the income accrued in the Republic of Korea as

B) As seen earlier, F, a limited liability company of the United States, is an organization that selects corporate taxation and partner taxation among corporate taxation under the U.S. tax laws, and thus, constitutes an organization subject to investment and taxation under the U.S. tax laws, and thus, cannot be a resident of the United States who can be subject to the U.S.

Furthermore, according to the aforementioned evidence, the remaining members of FF, excluding CCC, are liable to pay the U.S. tax in relation to the transfer income of the instant shares, but CCC is not liable for tax in the U.S. as a Hong Kong resident. Therefore, with respect to the portion equivalent to 60% of the CCC shares out of the transfer income accrued to FF, F cannot be seen as a resident of the U.S. and thus, it is clear that the said portion is subject to taxation under the Korean Corporate Tax Act.

C) On this issue, the Plaintiff asserts that the FF’s member is liable to pay the instant capital gains in the U.S. and that the FF’s actual member, including GG Group, is a resident of the U.S. with respect to the entire income attributed to it, and that the instant disposition is unlawful, as long as the FF’s actual member, including GG Group, paid taxes in the U.S., constitutes a resident of the U.S. with respect to the entire income attributed

However, in light of the fact that there is no ground to see that the CCC is merely a Do government company, and that even if the GG Group is liable to pay the tax regarding the transfer income of this case, it cannot be deemed that CCC bears the comprehensive tax liability in the United States, the Plaintiff’s above assertion cannot be accepted.

4) Whether the principles of trust protection are violated

A) In general, in tax legal relations, in order to apply the principle of trust protection to the tax authority’s act, the tax authority should first state the public opinion that is the subject of trust to the taxpayer. Second, the taxpayer should not be responsible for the taxpayer’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’

B) We examine this case in light of these legal principles. (1) According to the evidence Nos. 29 and 31, it can be recognized that the fact that the BB fund, in 2000, entered Do Do Do d d Do 91.8% of the BB fund and EE Do 8.2% of the capital gains of this case, was known or could have known that it was not the actual owner of the capital gains of this case. (2) The defendant confirmed that the capital gains of this case were non-taxable and exempted under the tax treaty, and that it was non-taxable and non-taxable and non-taxable, and that it was non-taxable and non-taxable and non-taxable, and that the tax treaty was non-taxable and non-taxable and non-taxable, and that it was non-taxable and non-taxable, as stated in the evidence of evidence No. 1 of this case. (3) The fact that the tax treaty was non-taxable and non-taxable.

5) Whether the withholding obligation is excluded

A) The substance over form principle under Article 14(1) of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007) applies to withholding tax on the domestic source dividend income under the Corporate Tax Act. Thus, barring any special circumstance, a person who pays the domestic source dividend income is obligated to withhold corporate tax on the income based on the actual person to whom the income actually accrues after investigating whether there is a person to whom the income actually accrues, unlike the nominal nominal ownership. However, the person who pays the domestic source dividend income bears the withholding duty upon the request of public interest, such as securing the early tax revenue and promoting the efficiency of tax collection, while the person who pays the domestic source dividend income does not have the authority of investigation, such as the right of questioning, inspection, etc., which is granted to the tax authority. In light of the above, even if the person who pays the domestic source dividend income has faithfully investigated and secured the data in the course of transaction or payment of the income amount, it cannot be deemed that the actual person to whom the income actually accrues exists.

B) According to the above evidence in the instant case, “BB fund” described in the survey process conducted to take over EEM in the ABA group; “BB fund” in the report and the survey report, etc. refers to BB Asian and F. The BB Asian and F have been engaged in a large number of investment transactions through BBP as in the past. In other investment transactions, the withholding agent in the BB Asian and F have been taking the withholding of the CCC share out of F. In full view of these facts and facts, the Plaintiff appears to have known that the actual owner of the instant transfer income was not DD but BB Asian and FB Asian, and if the withholding agent is obligated to investigate the actual owner of the income, the Plaintiff is also obligated to investigate the requirements for exemption under the tax treaty based on the actual owner of the income. Nevertheless, the Plaintiff’s duty to investigate whether the nominal owner of the instant transfer income was a bona fide owner or a bona fide beneficial owner, and there is no reason to deem the Plaintiff’s tax exemption requirements to be satisfied.

3. Conclusion

Since the instant disposition is lawful, the corresponding part of the judgment of the first instance court that concluded as the same conclusion is justifiable. The Plaintiff’s appeal against this is dismissed.