Seoul Administrative Court-2015-Gu Partnership-74678 ( April 14, 2016)

Since the GP of the offshore fund is not a collective investment entity under the Capital Markets Act, it is not a taxpayer of education tax.

Since the GP of the offshore fund is not a collective investment entity under the Capital Markets Act, it is not a taxpayer of education tax.

Seoul High Court-2016-Nu-4379

AA

Samsung Head of Samsung Tax Office

Seoul Administrative Court-2015-Gu Partnership-74678

November 16, 2016

December 07, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

3. In the disposition of the first instance court, "the first term portion in 2012", "the second term portion in 2012", and "the fourth term portion in 2012", respectively, shall be corrected to "the second term portion in 2012", "the fourth term portion in 2012", and "the first term portion in 2012".

1. Purport of claim

On February 10, 2014, the Defendant completely revoked each disposition of imposition of education tax of KRW 49,809,130 for the second term of 2011, KRW 51,744,030 for the fourth term of 2011, KRW 4,267,830 for the second term of 2012, KRW 13,824,640 for the second term of 2012, KRW 107,080 for the fourth term of 2012 (including additional tax), and KRW 107,080 for the fourth term of 2012 (including additional tax) for the first term of 201. (C)

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as follows, and it is consistent with the reasoning of the first instance court's judgment, except for the part of which the pertinent matter is determined additionally in the next paragraph. Thus, it is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ Of the taxable periods of the face Table 3, "The First Period of 2012", "the Second Period of 2012", and "the fourth period of 2012" are each "the Second Period of 2012", "the fourth period of 2012", and "the First Period of 2012".

Each "investment company" in the 00th 8th 3 parallels and 5 parallels shall be regarded as "company".

○ 8 Doz. 13 to 9 Doz. are as follows:

In full view of the special provisions on foreign collective investment securities and other provisions on authorization or registration, the former Capital Markets Act is interpreted to the effect that, in cases of collective investment schemes established and established under foreign laws and regulations, collective investment schemes are registered with the Financial Services Commission in Korea in order to sell collective investment securities (referring to collective investment schemes with the indication of investment shares in such collective investment schemes) but the operator of such collective investment schemes does not need to obtain authorization from the

As seen earlier, since the Plaintiff established a foreign corporation and established and established a collective investment scheme in accordance with the foreign laws and regulations through the foreign corporation, the Plaintiff is obligated to register the collective investment scheme with the Financial Services Commission even if it sells the collective investment securities of four foreign collective investment schemes (foreign collective investment schemes), and the Plaintiff itself, the operator of the collective investment scheme, is not required to obtain authorization from the Financial Services Commission. In addition, even if the Plaintiff operated the collective investment scheme by investing most of the funds raised from the foreign fund in the domestic company, so long as the collective investment scheme was created and established in accordance with the aforementioned foreign laws and regulations, it shall be deemed that there is no need for authorization from the Plaintiff in light of the purport of the above provision.

2. Additional determination

A. First, the Defendant asserts that since the Plaintiff established and operated a private equity fund under Article 9(18)7 of the former Capital Markets Act, it should obtain authorization from the Financial Services Commission.

According to the reasoning of the evidence No. 5 and the argument, the Plaintiff established three private equity funds, including ****, advanced convergence private equity funds, and managed them as its managing partner. However, Article 272(4) of the former Capital Markets Act provides that “Article 11 does not apply where managing partners of a private equity fund operate and store the property of the private equity fund, sell and repurchase shares of the private equity fund, etc.” and thus, the managing partner of the private equity fund does not need to obtain authorization of collective investment business. Thus, the Plaintiff cannot be deemed to constitute a case where the private equity fund runs collective investment business without obtaining authorization from the

B. Furthermore, the Defendant asserts that the Plaintiff should be deemed a collective investment business entity under the former Capital Markets Act, even if the obligation to authorize the management of the private equity fund was not exempted or need to be authorized.

However, in light of the fact that the former Capital Markets Act only excludes the executive partner of a private equity fund from the application of the financial investment business authorization provision, and does not have any provision such as the legal fiction of authorization, the defendant's above assertion is interpreted beyond the legal text as seen earlier.

C. Ultimately, the above arguments by the defendant cannot be accepted (or each disposition of this case ****** since the above arguments by the defendant related to the management of private equity funds are not directly related to the legality of each disposition of this case).

3. Conclusion

Since the judgment of the court of first instance is justifiable, the defendant's appeal is dismissed. However, it is obvious that "the first term portion in 2012", "the second term portion in 2012" and "the fourth term portion in 2012" in paragraph (1) of the judgment of the court of first instance are clerical errors, and they are corrected to each "the second term portion in 2012", "the fourth term portion in 2012", and "the first term portion in 2012".