Small and Medium Enterprises under Article 2 of the Small and Medium Enterprises Act.

One of the requirements of small and medium enterprises is that it is a company not belonging to an enterprise group subject to limitations on mutual investment under Article 14(1) of the Monopoly Regulation Act, but does not invoke Article 14(3) of the Monopoly Regulation and Fair Trade Act. Thus, there is no notification that it belongs to an enterprise group subject to limitations on mutual investment as of the end of the

2013Guhap61470 Revocation of Disposition of Imposing capital gains tax

AA

Head of the tax office;

March 28, 2014

April 11, 2014

1. The Defendant’s imposition of the capital gains tax for the year 2009 against the Plaintiff on August 1, 2012 that exceeds the OOO0 won (including additional OOO0), shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff owned all the shares issued by CC Co., Ltd. (hereinafter “CC”) established on October 27, 1983 under the name of three persons, including OOO, as the chairperson of the AA Group, which is an affiliate company of AA (hereinafter “AA”), Aaa, BBA, etc.

B. On June 1, 2009, the Plaintiff transferred 35,000 shares of cccccc 40,300 shares held under the name of OO (hereinafter “the shares of this case”) to OO who takes over 35,00 shares per share, and reported and paid the transfer income tax by applying 10/100 of the transfer income tax rate for shares of small and medium enterprises under Article 104(1)4(b) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter “ Income Tax Act”).

C. Prior to this, the Plaintiff’s Monopoly Regulation and Fair Trade Commission on February 2008 and February 2009

A business group subject to limitations on mutual investment in accordance with the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Mono Regulation Act").

required to submit data for designation, but without good cause, submitted data omitted from the content of cc, etc.

D. On March 18, 2011, AA reported to the Fair Trade Commission that CC was incorporated as an affiliate of AAA group, and the Fair Trade Commission notified that CC was incorporated into AA group, a business group subject to a restriction on mutual investment, retroactively from October 27, 1983, the date of incorporation, pursuant to Article 14-3 of the Monopoly Regulation Act and Article 21(5) of the Enforcement Decree of the same Act.

E. The director of the Seoul Regional Tax Office, as a result of conducting an investigation of stock change with cC from April 3, 2012 to June 1 of the same year, transfers the instant shares at a low price to O, a person with a special relationship.

The defendant was deemed to have reported this to the defendant.

F. Accordingly, pursuant to Article 101(1) of the Income Tax Act and Article 167 of the Enforcement Decree of the same Act, the Defendant

In calculating the transfer value of stocks again, CC deemed that it is not a small or medium enterprise as an affiliate of AA group, and applied 20/100 of the transfer income tax pursuant to Article 104(1)4(c) of the Income Tax Act and Article 63(3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the "Inheritance Tax and Gift Tax Act"), and assessed 30/100 as the shares owned by the largest shareholder, and notified the Plaintiff on August 1, 2012 of correction and notification (hereinafter referred to as the "instant disposition").

[Ground of recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1 to 6

each entry and the purport of the whole of the arguments.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

As of December 31, 2008, as of December 31, 2008, cc has not been notified that it belongs to an enterprise group subject to limitations on mutual investment under Article 14(1) of the Monopoly Regulation and Fair Trade Act. Nevertheless, unlike the language of Article 2(1)2 of the Small and Medium Enterprises Act and Article 3(2) of the Enforcement Decree of the same Act, the Defendant determined that cc does not constitute a small and medium enterprise under tax law by applying Article 14-3 of the Monopoly Regulation and Fair Trade Act, unlike the language of Article 2(

B. Relevant statutes

Attached Table 1 "Related Acts and subordinate statutes" shall be as stated in the attached Table 1.

C. Determination

1) Provisions of tax law on the transfer of stocks of small and medium enterprises

A) Article 104(1)4(b) of the Income Tax Act and Article 167-8 of the Enforcement Decree of the same Act provide that 10/100 of the tax base shall apply to the transfer of stocks that have occurred by a small or medium enterprise under Article 2 of the Small or Medium Enterprises Act as of the end of the business year immediately preceding the business year in which the date of the transfer of stocks falls. In addition, Article 101 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter “Special Taxation Act”); Article 167(5) of the Enforcement Decree of the Income Tax Act; Article 53(6) of the Inheritance Tax and Gift Tax Act provides that where stocks of the largest shareholder under Article 2 of the Small or Medium Enterprises Act and its specially related shareholders are transferred before December 31, 209, the evaluation of the largest shareholder under Article 63(3) of the Inheritance Tax and Gift Tax Act shall not apply to the transfer of stocks in this case.

B) As to this, Article 2(1)2 of the Small and Medium Enterprises Act, Article 3 subparag. 2 of the Enforcement Decree of the same Act, and attached Table 2 of the same Act stipulate that one of the requirements of small and medium enterprises shall be a company that does not belong to an enterprise group subject to limitations on mutual investment under Article 14(1) of the Monopoly Regulation and Fair Trade Act. Meanwhile, Article 14(1) and (2) of the Monopoly Regulation and Fair Trade Act provides that the Fair Trade Commission shall designate and notify an enterprise group subject to limitations on mutual investment according to certain standards, and shall be subject to the prohibition of mutual investment and debt guarantee for affiliate companies from the date of receipt of such notification. Furthermore, Article 14-3 of the Monopoly Regulation and Fair Trade Act and Article 21(5) of the Enforcement Decree of the same Act provide that where a person requested by the Fair Trade Commission to submit materials for designation of an enterprise group

2) Principle of no taxation without law and strict interpretation

In light of the principle of no taxation without law, or the requirements for non-taxation or tax reduction and exemption, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring special circumstances, and it shall not be allowed to expand or analogically interpret without reasonable grounds (see, e.g., Supreme Court Decision 2007

See, 205Du13537, etc.). In light of the language, structure, and content of the pertinent statute as seen earlier, the foregoing provision is applicable.

In light of Article 3 subparagraph 2 and attached Table 2 of the Enforcement Decree of the Act on Small and Medium Enterprises, one of the requirements of small and medium enterprises is monopoly.

It shall be a company that does not belong to an enterprise group subject to limitations on mutual investment under Article 14 (1) of the Regulation Act.

Article 14(3) of the Monopoly Regulation and Fair Trade Act provides that a company may issue stocks because it does not invoke Article 14(3)

In determining whether a small or medium enterprise falls under a small or medium enterprise under Article 104(1)4 of the Income Tax Act and Article 63(3) of the Inheritance Tax and Gift Tax Act, it is possible to interpret the language and text that the provision that a small or medium enterprise is not included in a business group subject to limitations on mutual investment under

(2) The principle of no taxation without the law, which provides for any defects in the taxation requirements by interpretation.

There is a violation of the principle of strict interpretation.

In particular, Article 167-8 of the Enforcement Decree of the Income Tax Act provides that, in order to prevent changes in the situation after the transfer of stocks, the applicable tax rate varies due to changes in the situation, and to ensure the predictability of taxpayers, it shall be determined as the end of the business year immediately preceding the business year in which the date of the transfer of stocks falls. Thus, it is not permissible to extend the tax base and tax rate of capital gains tax to the shareholders of an enterprise deemed to be converted into a business group subject to limitations on mutual investment retroactively to a certain period under Article 14-3 of the Monopoly Regulation and Fair Trade Act and Article 21(5) of the Enforcement Decree of the same Act because it harms the legal stability of tax laws and

3) In the case of the transfer of the instant shares

c As of December 31, 2008, the end of the fiscal year immediately preceding the fiscal year in which the transfer date of the instant stocks belongs, it was not notified that the instant stocks belong to an enterprise group subject to limitations on mutual investment under Article 14(1) of the Monopoly Regulation and Fair Trade Act as of December 31, 2008, and the remainder of the requirements under Article 2 of the Small and Medium Enterprises Act and Article 3 of the Enforcement Decree of the same Act are all satisfied (this is not particularly disputed by

Therefore, with respect to the transfer of the instant shares, the Plaintiff’s transfer income tax for the year 2009 shall not apply to the increase of the largest shareholder under Article 104(1)4(b) of the Income Tax Act, Article 167(5) of the Enforcement Decree of the same Act, Article 101 of the Restriction of Special Taxation Act, and Article 63 of the Inheritance Tax and Gift Tax Act. The transfer income tax rate shall be 10/100 with the entry of the attached Table 2’s “calculated details” and the OO(including additional OO). The instant disposition is reasonable only within the scope and is unlawful.

3. Conclusion

The plaintiff's claim is accepted and the costs of lawsuit are assessed against the losing defendant. It is so ordered as per Disposition.

partnership.