Cho High Court Decision 2009Du2698 (2010.02.04)

Whether there is a special relationship between an investor and a venture business

Where a venture business is established by investing in the venture business in applying the special taxation for invested stocks of the venture business, it shall not be deemed that there is a special relationship between

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

Man Doz 300

1. On November 10, 2008, the head of the Defendant GG Tax Office’s revocation of each of the disposition rejecting the correction of capital gains tax against Plaintiff BB on November 14, 2008 by the head of the Defendant HH Tax Office against Plaintiff CB.

2. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

쇠지지鹬 u3000

1. Details of the disposition;

A. On October 29, 199, the Plaintiffs established FFF Co., Ltd. (hereinafter “FF”), which is a venture business, and acquired 15,440 shares, respectively. The Plaintiffs became to hold 1,981,536 shares of the non-party company without compensation and at par value division, respectively. The Plaintiffs transferred 2,520,000 shares of the non-party company (hereinafter “the shares of this case”) to the third party on March 24, 2008, and paid 2,520,000 won for transfer income tax to the Defendants on May 23, 2008, the Plaintiffs voluntarily reported to the effect that the shares of this case, which were acquired by investing in the non-party company with stocks under the Restriction of Special Taxation Act (amended by Act No. 1014, Sep. 18, 2008; hereinafter the same shall apply).

"라. 피고들은, 원고들은 소외 회사의 셜랩 당시의 대표자 및 최대주주(38%)로 당해 법인의 경영에 사실상 영향력을 행사하고 있어 법인세법 시행령 제87조 제1항 제1호에서 정하는 소외 회사와 특수관계에 있는 자에 해당하므로 구 조세특례제한법 시행령 (2010. 2. 18. 대통령령 제22037호로 개정되기 전의 것) 제12조 제1항 제2호에 의해 구 조세특례제한법 제14조 제l항 제4호의 과세특례(이하이 사건 과세특례'라 한다)가 적용되지 않는다는 이유로, 원고 서AA에 대하여는 2008. 11. 10.에, 원고 이BB에 대 하여는 2008. 11. 14.에 각각 위 경정청구를 거부하는 이 사건 각 처분을 하였다.",[인정근거] 다툼 없는 사실, 갑 제1호증의 1, 2, 갑 제2호증의 1, 2, 갑 제3호증의 1, 2, 갑 제4호증의 1, 2의 각 기재, 변론 전체의 취지

2. Whether the disposition is lawful;

A. The parties’ assertion and the issues of the instant case

(1) The plaintiffs asserted that the 136,600 shares of this case were acquired at the time of incorporation of the non-party company (15,440 shares that were acquired at the time of incorporation are divided at par value), 73,400 shares were acquired by capital increase without compensation (7,340 shares out of 157,48 shares that were acquired at the time of incorporation at the time of capital increase of 2000 are divided at par value in 2004) and there is no special relation between the non-party company and the plaintiffs, and since the shares of this case were transferred five years after the date of investment, the special taxation of this case should be applied.

(2) As to this, the Defendants asserted that the Plaintiff is a person having a special relationship with the Nonparty Company under Article 87 (1) 1 of the Enforcement Decree of the Corporate Tax Act, and thus, the special taxation of this case is not applicable.

(3) Therefore, the issue of this case is whether the Plaintiffs’ special taxation cannot be applied to the special relationship under Article 87(1)1 of the Enforcement Decree of the Corporate Tax Act with the non-party company and the special relationship under Article 87(1)1 of the Enforcement Decree of the Corporate Tax Act. In a case where a venture business is established by specifically investing, whether the special relationship between investors and venture businesses can be deemed

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) According to Articles 13(2) and 14(1)4 of the former Restriction of Special Taxation Act and Article 12(1) of the Enforcement Decree of the same Act, to be subject to the instant special taxation on the invested stocks of a venture business, the following requirements should be satisfied: (i) to be subject to the instant special taxation on the invested stocks of a venture business: (ii) to be a venture business not more than 3 years after its establishment or a venture business not more than 3 years converted into a venture business and having no special relationship as stipulated in Article 87 of the Enforcement Decree of the Corporate Tax Act with an investor; (ii) to be paid in capital at the time of its establishment; (iii) to be acquired through capital increase, capitalization

(2) Of the requirements for the application of the instant special taxation, there is no dispute between the parties with respect to the requirements. Accordingly, even in a case where a venture business is established by investing the issues of the instant case with respect to the said requirements, it shall be deemed that there is a special relationship between the investor and the venture business by applying Article 87(1)1 of the Enforcement Decree of the Corporate

Article 13(2) of the former Enforcement Decree of the Restriction of Special Taxation Act provides for "payment of capital at the time of establishment of a venture business by acquiring its stocks" (Article 13(1)); Article 14(2) provides that the application of the special taxation is limited to the acquisition method provided for in the above Article 13(2); (2) it does not conform to the purport of recognizing special taxation in the case of acquisition of stocks of a venture business already established by the venture business; and (3) it does not conform to the purpose of recognizing special taxation in the case of establishment of a new venture business, not by large-scale public offering, but by small-scale investors. Thus, if a venture business is newly established by a new venture business, there is a high possibility that it would be a person with special relationship with the corporation and thus, it would be difficult for the Plaintiffs to enjoy benefits of the special taxation in the case of establishment of a new venture business (Article 13(2)3 of the former Enforcement Decree of the Restriction of Special Taxation Act).

3. Conclusion

If so, the plaintiffs' claims are justified and all of them are accepted. It is so decided as per Disposition.