Seocho 2015west081 (2015.04.09)

No provision stipulating the scope of the majority shareholder shall be null and void.

In light of the legislative provisions of this case and the enforcement decree provisions of this case, the legal provisions of this case and the enforcement decree provisions of this case shall not be deemed null and void because they violate the principle of equality under the Constitution, the principle of self-responsibility and the principle of excessive prohibition, etc., or violate property rights.

Article 94 of the former Income Tax Act / [Scope of Transfer Income]

2015Gudan56055 Revocation of Disposition of Imposing capital gains tax, etc.

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○ Head of tax office

On 21, 2016

October 05, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposing capital gains tax on the Plaintiff on December 9, 2014 is revoked.

1. Details of the disposition;

A. The Plaintiff and the Plaintiff’s mother owned shares of ○○ FElectronic Co., Ltd. (hereinafter “FF electronic”) in total as of the end of 2011, the Plaintiff’s mother, MabB, BaB’s spouse, BaB, and BaB’s children, BaB’s children.

B. On January 4, 2011, the Plaintiff subscribed to the GG Investment Securities (State), and owned FF electronic shares of 1,355 shares as of the end of 201 (the end of the year ○○) and 978 shares of common shares (the end of the year ○○).

C. From January 20, 2012 to October 31 of the same year, the Plaintiff transferred the FF electronic shares on a total of nine occasions as indicated in the following chart.

D. The Plaintiff, upon knowing that the Plaintiff’s failure to report capital gains tax is a major shareholder under the provisions of Article 1-2(1) of the Enforcement Decree of the Framework Act on National Taxes and that the total market value is at least ten billion won as of the end of 2011 when adding up the shares held by the Plaintiff and the related parties, etc. under Article 1-2(1) of the Enforcement Decree of the Framework Act on National Taxes, the Plaintiff paid KRW 00,000,000,000,000 won or more (amended by Act No. 12738, Jun. 3, 2014; hereinafter “former Income Tax Act”) and Article 94(1)3(a) of the former Income Tax Act and Article 157(4)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24356, Feb. 15, 2013; hereinafter “former Enforcement Decree”).

E. Accordingly, on December 9, 2014, the Defendant notified the Plaintiff that the transfer income tax for the year 2012 should be determined based on the details of the report, and the Plaintiff appealed and filed an appeal with the Tax Tribunal on January 8, 2015, but the said claim was dismissed on April 9, 2015 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5 (including branch numbers), the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the instant disposition is lawful

A. As to whether a disposition is based on an unconstitutional law

1) Article 94(1)3 (a) of the former Income Tax Act (hereinafter referred to as the “instant legal provision”) provides that income generated from the transfer of stocks, etc. of a stock listed corporation under the Financial Investment Services and Capital Markets Act, which is transferred by a major shareholder prescribed by Presidential Decree in consideration of the ratio of stocks owned, total market value, etc. shall be subject to capital gains tax. Article 157(4)2 (hereinafter referred to as the “Enforcement Decree provision of this case”) of the former Enforcement Decree of the Income Tax Act provides that one shareholder and other shareholders of the relevant corporation as of the end of the fiscal year immediately preceding the fiscal year in which the transfer date of stocks, etc. belongs, shall be the relevant one shareholder and other shareholders in cases where the total market value of stocks, etc. of the relevant corporation owned by one shareholder and other shareholders is at least 10 billion won as of the end of the fiscal year immediately preceding the fiscal year in which the transfer date of stocks, etc. belongs.

2) The plaintiff's assertion

The instant legal provision and the Enforcement Decree thereof aim at preventing unfair and unfair transactions, such as modified donations. The scope of the specially related persons is met to properly limit the scope of the specially related persons or to prevent substantially unfair transactions, or all of the specially related persons, who are related to blood without considering whether they belong to an economic community, are subject to taxation. Since the scope of such relatives is too wide, it is practically impossible for the relevant taxpayer to verify the total market value of shares held by his/her relatives, tax liability can be determined by the method of tax return.

The enforcement decree of this case violates the principle of equality by unfairly discriminating with other general stock traders without reasonable grounds, violates the principle of self-responsibility, violates the principle of excessive prohibition, thus infringing on property rights, and is null and void in violation of the principle of prohibition of the annual system.

3) Determination

The purpose of this case’s legal provisions and the Enforcement Decree’s legal provisions is to promote the equity of taxation in cases where other assets, such as real estate, are transferred. As such, taxation on the gains from transfer of listed stocks is consistent with the equity of taxation. However, taxation on the gains from transfer of listed stocks is consistent with the equity of taxation. However, the scope of taxation is gradually expanding according to the development of the capital market while it is subject to transactions, etc. by those who own stocks more than a certain size in order to alleviate the shock of the capital market and protect the interests of small investors without covering all stocks at once (see Constitutional Court Order 2004Hun-Ba32, Feb. 23, 2006; 2005Hun-Ba63, 102, 104, 105, and 105, etc.). Therefore, it is not always necessary for a taxation subject to

In addition, the purpose of this case’s legal provision and the Enforcement Decree’s provision is to prevent any misappropriation using listed stocks, etc.. In order to prevent any misappropriation using listed stocks, etc., not only one stockholder who transfers stocks, etc., but also one spouse, children, etc., and the related parties should be identified and taxed as a whole.

In light of the accessibility to information on the relevant criteria for major shareholders and the status of stockholding of major shareholders under the Enforcement Decree of the instant case, if a shareholder owns listed stocks as an object of taxation with due care and care, he/she may predict whether he/she falls under a major shareholder subject to capital gains tax, and take appropriate measures following the verification procedures (see Supreme Court Decisions 2006Du4394, Nov. 10, 2006; 2014Du12116, Jan. 15, 2015). However, considering that the scope of major shareholders is not limited to one shareholder at the time of legislation and changes in the social environment or family community, it is necessary to restrict the scope of the shareholder as a relative within the scope of 7th degree of relationship with the Plaintiff and his/her spouse as his/her relative relative (the Plaintiff and his/her relative relative within the 6th degree of 7th degree of relationship). However, the Plaintiff and his/her spouse’s relative relative is still excluded from the scope of 3rd shareholder.

Therefore, the instant provision is limited to the imposition of transfer income tax by adding up the shares owned by one shareholder, lineal ascendants and descendants, blood relatives within the third degree, or relatives within the second degree of affinity. In light of the purport of the instant provision and the instant provision, the said provision cannot be deemed null and void because it violates the principle of equality under the Constitution, the principle of self-responsibility, and the principle of excessive prohibition, or infringes on property rights. As long as the instant provision is assessed as above, the said provision cannot be deemed to have any substantial relation between the act of relatives and the principal, it cannot be deemed that the instant provision itself violates the principle of prohibition of the annual relationship, which is an issue where disadvantageous treatment is imposed solely on the ground that the said provision is a relative, notwithstanding the fact that

The plaintiff's assertion in this part cannot be accepted.

B. As to whether shares of the Plaintiff related to the investment scheme may be added to the shares of the Party A

1) The plaintiff's assertion

The Plaintiff subscribed to the so-called Wrap Ac Account (hereinafter referred to as “Wrap goods”) and acquired the FF electronic stocks by the decision of the asset management company, and the Party A concluded a discretionary investment contract with HH Asset Management Company (hereinafter referred to as “HH”) and acquired and sold the FF electronic stocks by HH’s asset management decision. Since all of them are an investment by indirect investment method, the stocks acquired through such an investment should be excluded from the total stocks when determining whether they fall under a major shareholder.

2) Determination

In full view of the evidence as seen earlier, Gap evidence and the purport of Gap evidence No. 11 and all the pleadings, it was true that the plaintiff subscribed to rap goods, and Jung has concluded a discretionary investment contract, but it is not the name of the asset management company, but the fact that the company acquired shares in its own name, the asset management company may be entrusted with the investment decision, but it may designate the company as a specific company to acquire shares, etc., and the asset management company may confirm the status of the company's acquisition of shares at any time, and the result of the investment by the asset management company is related to both

According to the method of acquiring shares, only the Plaintiff and the AA can be deemed to have acquired shares directly through the management of the asset management company, and it is difficult to view this as the acquisition of shares by the indirect investment method.

On a different premise, the Defendant’s assertion on this part cannot be accepted.

C. As to imposition of penalty tax

1) The plaintiff's assertion

The Plaintiff and JungA, the Dob, the headCC, the DoD, and the DoE have acquired each F electronic shares without any connection, and in particular, the Plaintiff and JungA acquired F electronic shares at their own will, not by acquiring F electronic shares but by an asset management company’s investment. As such, the Plaintiff could not be known that the Plaintiff held FF electronic shares in excess of 10 billion won in the market price, together with a related party. Accordingly, there was justifiable reason not to mislead the Plaintiff into neglecting his/her duty to report and pay capital gains tax.

2) Determination

In light of the following circumstances known by adding to the purport of the entire arguments as seen earlier, there is no justifiable reason to believe that the Plaintiff is not negligent in neglecting his/her duty to report and pay capital gains tax.

A) The instant legal provisions and the enforcement decree provisions clearly and clearly stipulate the tax requirements and effects, and the Supreme Court has already ruled that the enforcement decree provisions of the instant case cannot be deemed invalid provisions against Article 10 of the Constitution, etc. (see, e.g., Supreme Court Decision 2006Du4394, Nov. 10, 2006).

B) Since the transfer value of the shares held by the Plaintiff is larger than 10 billion won in close vicinity to the market price, which is a major shareholder’s judgment standard, and the transfer of shares has been over several times, it was necessary for the Plaintiff to identify the current status of stockholding by his relatives and other persons having special relations with respect to the instant legal provisions and the Enforcement Decree provisions. There is no evidence to deem that the Plaintiff attempted to do so.

C) The Plaintiff is in the relationship of relationship between AA, BaB, SCC, DoD, DoD, DoD, DoE and his lineal ascendants and descendants, and relatives within the third degree of affinity and the second degree of matrimonial relationship. In particular, the Plaintiff is a person in the relationship between DoB and DoB, and it seems generally easy to confirm whether the Plaintiff holds shares as prescribed by the Enforcement Decree of the instant case. There is no evidence to deem that there is no special circumstance to deem it difficult to confirm it.

4. Conclusion

The plaintiff's claim is dismissed as it is without merit.