Seoul Administrative Court 2008Gudan10532 ( October 30, 2009)

Examination Transfer 2008-0017 (2008.04.29)

The meaning of the overseas place of business of a domestic corporation when determining resident

In the special case of resident determination, it is reasonable to interpret that a domestic corporation's overseas place of business, etc. means a domestic corporation's overseas place of business or overseas branch or overseas branch of a domestic corporation, and furthermore, it cannot be interpreted that it includes a domestic corporation

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

1. The defendant's appeal is dismissed.

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

1. Purport of claim

On January 15, 2008, the defendant revoked a disposition rejecting a request for correction of transfer income tax in favor of the plaintiff.

2. Purport of appeal

The judgment of the first instance shall be revoked. The plaintiff's request shall be dismissed.

1. Circumstances of the disposition;

A. On June 16, 200, the Plaintiff became a member of △△△ Incorporated Co., Ltd. (hereinafter referred to as "non-party company"), and retired from the non-party company on April 30, 2006. From May 1, 2006, the Plaintiff was employed as an employee of △△△ and Inc. (hereinafter referred to as "non-party company") who holds 10% shares of the non-party company from May 1, 2006. As such, the Plaintiff continued to reside in the United States after leaving the Republic of Korea with his wife on April 15, 2006.

B. On October 11, 2006 and November 6, 2006, the Plaintiff transferred to 1,130,866,958 the total amount of 71,000 shares of a company other than those listed in the corporation listed in the United States of America (hereinafter “instant shares”). On February 28, 2007, the Plaintiff reported and paid KRW 196,050,339 capital gains tax on the transfer margin of 1,089,168,949 won.

C. On November 20, 2007, the Plaintiff filed a request for correction with the Defendant to the effect that since the Plaintiff transferred the instant shares to a domestic nonresident as it falls under the transfer of assets abroad, the Plaintiff did not have any tax liability, the Plaintiff filed a request for correction to the effect that KRW 196,050,339 of the transfer income tax reported and paid as above should be refunded. Accordingly, on January 15, 2008, the Defendant rendered the instant disposition rejecting the Plaintiff’s request for correction on the ground that the Plaintiff fell under a domestic resident and is liable to pay the transfer income

D. On January 24, 2008, the Plaintiff filed a request for review with the Commissioner of the National Tax Service on January 24, 2008, but was dismissed on April 29, 2008.

[Grounds for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1, 2, 4, 7 (including each number), the purport of the whole pleadings

2. Whether the disposition is proper; and

A. The plaintiff's principal

(1) At the time of the transfer of the instant shares, the Plaintiff, a foreign asset, was not obligated to pay capital gains tax on the transfer of the instant shares pursuant to Article 2(4)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301, Feb. 4, 2009; hereinafter “Enforcement Decree”).

(2) If a certain individual falls under both a domestic resident and a U.S. resident under the Income Tax Act and a person liable for income tax, etc. under the laws of the U.S. may be imposed double taxation on one income. Accordingly, the Convention was concluded 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 referred to as the "Korea-U.S. Tax Convention"). Since the Plaintiff acquired capital gains by disposing of the stocks of a corporation listed in the U.S. securities market held in the U.S. during his stay in the U.S., it shall be deemed as a resident of the U.S. under Article 3 (1) of the Korea-U.S. Tax Convention, and even if the Plaintiff recognizes the Plaintiff as a domestic resident under the Income Tax Act and simultaneously falls under the U.S. resident of the U.S., the Plaintiff shall be deemed as a resident of the U.S. who is ultimately a resident of the U.S. under Article 3 (2) of the Korea-U. Tax Convention. Income Tax Convention.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) A taxpayer under the Income Tax Act;

According to Article 1 (1) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter referred to as the "Act"), an individual (hereinafter referred to as a "resident") who has established his/her domicile in Korea or has his/her domicile in Korea for not less than one year, has a duty to pay taxes on any taxable object belonging to the resident global without any temporary restriction on the source of the taxable object, while a nonresident has a duty to pay taxes only on domestic source income.

According to the above evidence, since the shares of this case are not listed or registered in the domestic securities market, etc. and are listed only in the U.S., the transfer of the shares of this case constitutes the transfer of assets abroad pursuant to Article 118-2 subparag. 3 of the Act and Article 178-2(2) of the Enforcement Decree of the Act, and therefore, the existence of the Plaintiff’s liability to pay for the transfer of shares of this case shall be determined by whether the Plaintiff constitutes a resident under the law. Accordingly, we examine

(2) Whether the Plaintiff constitutes a resident under the Income Tax Act

(A) Facts of recognition

1) 원고는 2006. 4. 30.자로 소외 회사를 퇴직하고 2006. 5. 1.부터 소외 회사의 미국 현지법인의 직원으로 채용되어 근무하게 됨에 따라, 2006. 4. 15.경 당시 유일한 가족인 처와 함께 출국한 이후 미국 ♤♤d에서 계속 거주하고 있다.

2) Around May 7, 2006, the Plaintiff’s wife gave birth to the first son in the United States and thereafter registered the birth in the United States. On the other hand, from May 1, 2006 to May 1, 2006, the Plaintiff was working as an employee of the non-party company’s U.S. subsidiary in the U.S. and owned 9.7% of the shares of the non-party company by purchasing the shares of the non-party company through the non-party company’s subsidiary in the U.S. corporation around October 31, 2006 and owned 9.7% of the shares of the non-party company in the non-party company. The Plaintiff continued to work for the non-party company in the U.S. subsidiary even after the Non-party company became a controlling shareholder of the non-party company in the △△△△-si and the income tax was paid in relation to the income paid after May 2006.

3) On February 23, 2007, the Plaintiff registered the period of stay as 'the period of stay of April 14, 2006', 'the purpose of stay' and 'the status of stay' as 'the commercial matters'. The Plaintiff's wife registered the period of stay on October 12, 2007 as 'the period of stay of April 15, 2006', 'the purpose of stay', 'the period of stay' and 'the status of stay' as 'family body'. The Plaintiff and her wife obtained the permanent residence of the United States around April 9, 2009 upon filing an application for permanent residency in the United States on September 20, 2007.

4) 한편, 원고는 출국 얼마 전인 2006. 3. 31. 재건축 대상인 ○○ ○○구 ○○동 30-2 □□든 3동702호를 매수하였고, 원고와 그 처는 2006. 4.경 3년간 체류가 가능하고 주재원 내지 그 가족에게 발급되는 L1 내지 L2 비자를 받아 같은 해 4. 14. 출국하였다. 한편, 원고는 2004. 12. 27. ○○ △△구 △△동 소재 ◆◆아파트 101동 205호에 전입하였는데, 미국으로 출국한 이후인 2007. 1. 15. 주민등록이 무단전출을 이유로 직권말소되자, 원고는 2007. 3. 2. 위 주소지로 재등록하였다가 같은 날 위 □□든 3동 702호로 전입신고를 하였으며, 그 후 2007. 4. 27. 원고의 부친 및 결혼한 남동생이 함께 거주하고 있는 ○○ △△구 △△동 소재 ★★아파트 101동 1701호로 전입신고를 하였다.

5) According to the data of entry and departure, the Plaintiff entered the Republic of Korea on July 7, 2006 after his departure from the United States on April 15, 2006 and departing from the Republic of Korea on November 8, 2006, and entered and departing from the Republic of Korea on five occasions until April 15, 2007, including departure from the Republic of Korea on November 8, 2006. The Plaintiff’s wife entered the Republic of Korea on April 15, 2006 after his departure from the United States on March 29, 2007.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 6 through 11, 12, 13, and 17 (including each number), the purport of the whole pleadings

(B) Determination

1) According to Article 1(1) and (4) of the Act and Article 2(1) and (2) of the Enforcement Decree of the Act, "a person who has a domicile in the Republic of Korea or has a domicile in the Republic of Korea for not less than one year" means a person who has a domicile in the Republic of Korea. In determining whether a person is a "person who has a domicile in the Republic of Korea", the objective facts of living relationship should be comprehensively determined, such as whether a person has a family living together in the Republic of Korea, whether a person has an asset located in the Republic of Korea, a job, a foreign nationality, or whether a person has a permanent residence in the Republic of Korea. In light of Article 2(4)1 of the Enforcement Decree stipulating the detailed criteria for determining whether a person who has a domicile in the Republic of Korea has a domicile in the Republic of Korea for not less than one year, "when a person who has a domicile in a foreign country has an occupation ordinarily required to reside in the Republic of Korea", and considering the above provisions, it can be viewed as a resident if it is acknowledged that there exists in the Republic of Korea.

In addition, Article 3 (Special Cases of Resident Determination) of the Enforcement Decree provides that the officer or employee dispatched to a domestic corporation's overseas place of business, etc. shall be deemed a resident notwithstanding the provisions of Article 2 (4) 1 of the Enforcement Decree. Article 3 (Special Cases of Resident Determination) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301, Feb. 4, 2009; hereinafter referred to as the "former Enforcement Decree") provides that the officer or employee dispatched to a domestic corporation's overseas place of business or a foreign local corporation (limited to cases where a domestic corporation has invested 10/100 of the total number of issued stocks or equity shares) shall be deemed a resident notwithstanding the provisions of Article 2 (4) 1 of the Enforcement Decree of the same Act. It shall be interpreted that the domestic corporation's domestic place of business is not subject to the principle of no taxation without the principle of no taxation without the law or the interpretation of tax laws shall not be interpreted extensively or analogically without any justifiable reason (see, e.g., Supreme Court Decision 2002Du937, etc.).

2) According to the above facts, the plaintiff owned real estate in Korea at the time of transfer of the shares of this case. The plaintiff had been living abroad at the time of transfer of the shares of this case to 0 U.S., and left Korea with the non-resident. After the transfer of the shares of this case, the plaintiff had been living abroad at 0 U.S., and 5 times since his departure from Korea around April 15, 2006. The plaintiff's wife had been working abroad for 0 U.S. non-resident and 10 U.S. non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-resident non-party corporation non-resident non-party 2 and non-resident non-resident non-resident non-party corporation non-resident non-resident non-party company non-party company non-party company.

(3) Sub-decisions

Therefore, the instant disposition based on the premise that the Plaintiff is a resident under the Act is unlawful, without considering whether the Plaintiff constitutes a non-resident under the Income Tax Act and thus, constitutes a taxpayer under the Income Tax Act of the United States.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.