early 2010west3656 ( October 27, 2012)

Local residents under the Income Tax Act;

In light of family relations, economic activities in Korea and the number of days of stay, etc., it shall be deemed as a domestic resident under the Income Tax Act even if a resident in the United States or China falls under the permanent residence in Korea, and in light of economic activities, the number of days of stay in Korea and the family relations in Korea, it shall be deemed as a

2013Guhap1628 Revocation of Disposition of Imposing capital gains tax, etc.

AA

The Director of Gangnam District Office

August 21, 2013

September 6, 2013

1. The part of the instant lawsuit seeking the revocation of the disposition imposing capital gains tax as of April 1, 2010 shall be dismissed.

2. All remaining claims of the Plaintiff are dismissed.

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

1. The judgment that the Defendant’s disposition of imposing OOO on the Plaintiff on April 1, 2010 is revoked.

2. The judgment that the Defendant around April 1, 2010 revoked the disposition of imposition of the capital gains tax of the year 2008 against the Plaintiff, and the judgment that the Defendant first revoked the disposition of imposition of the capital gains tax of the capital gains tax of the year 2008 against the Plaintiff on February 7, 2013.

1. Details of the disposition;

A. On March 1, 2006, BB established the CCC Co., Ltd. (CCC Co., Ltd., hereinafter “CC”) in Don only, Don, and received investment from Don Investment Corporation (DD), and conducted capital increase with 00,000 U.S. dollars. On June 1, 2006, the Plaintiff consulted about the establishment and the process of capital increase with CC, and acquired 80,000 U.S. shares (U.S. dollars 0.01).

B. On December 27, 2007, the Plaintiff entered into a sales contract with EE Co., Ltd. (former EEE Investment Advisory Co., Ltd., hereinafter referred to as “EEEE”), which sells 280,000 shares ofCC to OO won per share, and to receive 10,000 shares issued by OOO and FF Co., Ltd. (hereinafter referred to as “FFF”). Accordingly, on February 13, 2008, the Plaintiff entered into a sales contract with EE to receive 10,00 shares of cash OO and 10,000 shares of FF.

C. On March 4, 2008, the Plaintiff transferred 520,000 U.S. dollars stocks to GIST, and received all payment.

D. On April 1, 2010, the Defendant calculated the acquisition value of at least 800,000 shares ofCC as at the OOO, and calculated the transfer value as at the OOO, and imposed the global income tax for the year 2006 and the OOO of the capital gains tax for the year 2008 (hereinafter respectively referred to as “the global income tax imposition disposition,” and “the first disposition”).

E. In the initial disposition, the Defendant applied 10% of the transfer income tax rate reduced or exempted pursuant to Article 118-5 (1) 2 of the Income Tax Act by deeming thatCC was a small or medium enterprise, but, after that, the stocks issued by a foreign corporation are not subject to the reduction or exemption of the transfer income tax rate, and applied 20% of the transfer income tax rate by deeming that the stocks issued by the foreign corporation are not subject to the reduction or exemption of the transfer income tax rate. On February 7, 2013, the Plaintiff increased and notified the transfer income tax belonging to the Plaintiff in 2008 as an OO (hereinafter referred to as “

[Reasons for Recognition] The non-satched Facts, Gap evidence 1, Eul evidence 2, Eul evidence 1, and Eul evidence 1, and 9 through 12, and the purport of the whole pleadings

2. Whether the part concerning a request for revocation against the original disposition is legitimate;

Where a tax authority conducts a disposition to increase a tax base and amount of tax subsequent to a disposition of taxation, the disposition of rectification is not only adding the tax base and amount of tax originally determined but also a single tax base and amount of tax as a whole including the added portion, so the original decision loses independent value by absorbing the increased tax base and amount of tax (see, e.g., Supreme Court Decision 2008Du17134, May 14, 2009). However, the fact that the Defendant issued the initial disposition on April 1, 2010 but issued the increased tax amount on February 7, 2013 is the same as seen earlier, and thus, the original disposition was absorbed into the increased tax base and amount of tax, and thus, the part seeking the cancellation of the initial disposition among the Plaintiff’s primary claims is unlawful.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Main argument

The plaintiff is a U.S. citizen who has been living in a foreign country for not less than 30 years after the completion of a university, and operates an investment company with China, the U.S., and Hong Kong. For this purpose, the plaintiff is living in the United States and China on the lease of housing, while he does not have resident registration or own real estate in Korea, and only enters the Republic of Korea and stays for business purposes. Therefore, the plaintiff cannot be deemed to have resided in the Republic of Korea, and therefore the disposition of this case must be revoked on a different premise, as it cannot be seen as a resident under Article 1 (1) 1 and Article 3 of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008, hereinafter referred to as the "Enforcement Decree").

(2) Preliminary assertion (where the plaintiff is deemed to be a domestic resident)

(A) In revising the Income Tax Act on December 26, 2008, Article 3 proviso (hereinafter “proviso”) was newly established and the period of domestic domicile and residence is not more than 5 years prior to the end of the taxable period, and only the income paid in Korea or remitted to Korea is imposed on a foreign resident among income subject to taxation. The Plaintiff’s income subject to the disposition of this case was all income generated abroad and not paid in Korea or remitted to Korea, and thus, it cannot be taxed.

(B) Of the sales contract with the Plaintiff, the part on which only 10,000 FF shares and 140,000 shares ofCC shares were to be exchanged (hereinafter “instant contract”) with the Plaintiff (hereinafter “FF’s attraction of overseas investment”) lost its effect upon the fulfillment of the rescission condition due to failure to meet the FF’s attraction of overseas investment, and thus, the part on the instant contract during the increase disposition should be revoked.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Judgment on the main argument

(1) Whether the Plaintiff is a domestic resident

(A) Articles 1(1)1 and 3 of the Income Tax Act provide that an individual who has a domicile in Korea or has a domicile in Korea for not less than one year shall be deemed to be a resident and be subject to income tax. Articles 2 and 4 of the Enforcement Decree provide that the individual shall be deemed to have a domicile in Korea for at least one year, in cases where the individual has a domicile in Korea or has a domicile for at least one year, depending on the objective facts of his/her living relationship, such as his/her family living together in Korea, whether the person has assets, etc., and where the person has not been a close living room to the extent that he/she would have a domicile, but has not been a domicile

(B) According to the above determination criteria, the plaintiff was staying in Korea for 25 days on average of 15 days from 15, 24 Eul evidence 2, 3 Eul evidence 3, 4, 5, 7, and 8; (1) the plaintiff was living in Korea for 303 years, 203, 204, 205, 207, and 270 days from 207, and 232 days from 208, and 30 days from 208, and 30 days from 200 to 25 days from 200, and 30 days from 200 to 200, the plaintiff was living in Korea, and (2) the plaintiff was working in Korea for 30 years from 20, 30, and 30, 300, 300, and 40,000, 30,000 domestic, domestic, domestic, domestic, domestic, domestic, domestic, domestic, domestic, domestic, domestic, domestic, and OJ.

(2) Status as a dual resident

(A) On the other hand, the plaintiff asserts that he is a resident of the United States or China on the ground that he is actively engaged in economic activities with a certain residence in the United States or China, but the taxpayer who is a domestic resident is also a resident of a foreign country at the same time and thus the tax treaty should be applied to him (see, e.g., Supreme Court Decision 2006Du3964, Dec. 11, 2008). The plaintiff does not have any assertion and proof as to the criteria for recognition of residents under the laws and regulations of the United States or China.

(B) Even if the Plaintiff falls under a resident of the United States or China, and if so, it should be determined whether the Plaintiff is a resident of any country in accordance with 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 Convention”) or the Agreement between the Government of the Republic of China and the People’s Republic of China for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (hereinafter “Korea-U.S. Tax Convention”), and the Korea-U.S. Tax Convention and the Korea-China Tax Convention provide for the criteria jointly determined by the country in which the Plaintiff is a resident, and (1) the country in which the former has a permanent residence, and (2) the personal and economic relations are most closely related (in light of Article 3(2) of the Korea-U.S. Income Tax Convention and Article 4(2) of the Korea-U.S. Tax Convention, the date when the Plaintiff appears to be the spouse’s residence and place of residence.

(3) Sub-determination

After all, the plaintiff's primary argument is without merit.

D. Determination on the conjunctive assertion

(1) Whether the proviso is applied

The Addenda of the Income Tax Act ( December 26, 2008) requires that the provisions of Articles 1 and 2 (proviso) shall apply from the income accrued for the first time after January 1, 2009. Since the fact that the plaintiff's income that became the object of the disposition in this case was previously accrued, the provisions of the proviso in this case shall not apply.

(2) Whether the contract of this case was invalidated

Although the Plaintiff asserts that the rescission condition was fulfilled due to failure to attract FF’s overseas investment, the Plaintiff’s assertion that the rescission condition was fulfilled, and the confirmation document was written ex post facto (Evidence A 3) is insufficient to deem that the rescission condition alleged by the Plaintiff was included in the contents of the contract at the time of the instant contract, and there is no other evidence to prove that it was otherwise (In addition, considering the overall purport of the pleadings as a whole in the statement No. 2, the Plaintiff and EE appears to have redeemed 10,000 shares of FF and 140,00 shares ofCC after the execution of the instant contract).

(3) Sub-determination

After all, the plaintiff's conjunctive assertion is without merit.

4. Conclusion

Among the lawsuits in this case, the part seeking the cancellation of the initial disposition shall be dismissed, and all the other claims shall be made, and the costs of the lawsuit shall be borne by the plaintiff who has lost, as per the disposition.