Seoul Administrative Court 2014Guhap67758 ( May 8, 2015)

In case of trading at the closing price on the day by means of overtime trading between persons with a special relationship, the provisions of the wrongful calculation of capital gains shall be applied.

(1) In light of the fact that the shares transferred in this case are only 2.9% of the total shares, but are in conflict with the control of the company, and both parties agree to do so by means of an over-hour transaction within the securities exchange, the act of trading at a price lower than the market price is an abnormal transaction that disregards economic rationality, and thus, the rejection of a request for correction is legitimate.

Article 167 of the Enforcement Decree of the Income Tax Act

2015Nu45863, revocation of revocation of request for rectification, such as capital gains tax

(Appellant)

IsaA

(Appellant)

BB Director of the Tax Office

Seoul Administrative Court Decision 2014Guhap67758 decided May 8, 2015

May 11, 2016

June 1, 2006

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The defendant's rejection disposition of correction of securities transaction tax of August 23, 2013 against the plaintiff and the rejection disposition of correction of capital gains tax of September 10, 2013 against the plaintiff shall be revoked.

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The defendant's rejection disposition against the plaintiff on September 10, 2013 shall be revoked.

B. Defendant

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Partial citement of judgment of the first instance;

The reasoning of this court's judgment is as follows, except for the dismissal of part of the judgment of the court of first instance and addition of the judgment under Paragraph (2) of this Article, and therefore, it is identical to the reasoning of the judgment of the court of first instance.

From the 3rd bottom to the 698,028 note "17.45%" with 698,028 note "17.45%".

From the 4th bottom to the "transfer", the "transfer" is turned into the "transferr".

From the 6th bottom to the bottom of the 7th "Enforcement Decree of this case" to the bottom of the 5th is as follows.

Article 63 (1) 1 (a) and (3) of the former Inheritance Tax and Gift Tax Act (amended by the Enforcement Decree of this case and Article 63 (1) 1 (a) and (3) of the former Inheritance Tax and Gift Tax Act, which are applicable mutatis mutandis thereto, are contrary to the principle of actual transaction under Article 96 (1) of the former Income

○ 8 10 pages 10, the following shall be added:

In addition, the majority shareholder, etc. holds special values and so-called management rights to exercise management rights or control rights of the company in addition to their value. The legislative intent of this case and Article 63 (1) 1 (a) and (3) of the former Inheritance Tax and Gift Tax Act, which applies mutatis mutandis thereto, is to ensure a fair evaluation method to prevent the transfer of control rights of the company without legitimate taxation (see, e.g., Constitutional Court en banc Order 2002Hun-Ba61, Jan. 30, 2003). Therefore, these provisions can only be deemed to have decided by taking into account the demand for realization of tax justice through fair tax burden, tax policy and technical requirements for efficiency of tax administration, and thus, can not be deemed to have exceeded legislative formation limits, and thus, it does not violate the principle of tax equality (see, e.g., Constitutional Court en banc Order 2002Hun-Ba61, Jan. 30, 2003).

C. As to the rejection disposition of correction of the securities transaction tax of this case

1) Relevant regulations and issues

Article 7 (1) of the former Securities Transaction Tax Act (amended by Act No. 13628, Dec. 29, 2015; hereinafter referred to as the "Securities Transaction Tax Act") provides that the transfer of share certificates under the provisions of subparagraph 1 of Article 3 shall be the transfer price of share certificates in the case of transfer of share certificates under the provisions of subparagraph 1 of Article 3.

Article 3 (1) 1 of the Securities Transaction Tax Act provides that a taxpayer for securities transaction tax shall be the Korea Securities Depository in the case of settling the stock certificates falling under any of the following items by means of transfer between accounts, and 'share certificates transferred in the securities market' and 'share certificates transferred in the manner prescribed by Presidential Decree outside the securities market'.

The defendant is aware that the shares of this case fall under the share certificates that are transferred from the securities market under Article 3 subparagraph 1 (a) of the Securities Transaction Tax Act on the grounds of rejection of claim for correction of the securities transaction tax of this case, but the transfer does not fall under the case where the transfer is settled by transfer between accounts. Thus, we examine this issue.

(ii) the facts of recognition

① 원고는 2011. 10. 18. 〇〇증권 주식회사(이하 '〇〇증권'이라 한다)에 개설된 원고의 계좌에 원고 소유의 〇〇 주식 103,000주를 입고하였고, 〇〇증권에 개설된 원고 계좌의 종전 〇〇 주식 잔고 13,022주와 합하여 잔고수량은 116,022주가 되었다.

② 〇〇증권은 2011. 10. 18. 한국예탁결제원(이하 '예탁결제원'이라 한다)에 원고로부터 입고받은 〇〇 주식 103,000주를 예탁하였다. 이로써 2011. 10. 18. 현재 〇〇증권이 예탁결제원에 예탁한 〇〇 주식 잔량은 위 103,000주를 포함하여 553,443주가 되었다.

③ 〇〇증권 본점과 지점을 통해 거래되어 2011. 10. 20. 결제된 〇〇 주식은 매도수량이 116,032주〔=10주(장내일반) + 116,022주(장내대량)〕이고, 매수수량이 116,024주〔=2주(장내일반) + 116,022주(장내대량)〕로 매도수량이 8주 많았고, 위 매도수량이 예탁결제원의 예탁수량에 반영되어 8주가 결제(예탁자의 거래로 계좌 간 대체의 방법으로 결제가 이루어진 것)됨으로써 〇〇증권이 예탁결제원에 예탁한 〇〇 주식 잔량은 8주가 줄어 553,435주가 되었다.

④ 예탁결제원에 예탁된 예탁자(회원사)의 주식 수량은 예탁자 간의 거래에 있어 순증가, 순감소에 따른 결제 수량만이 반영된 결과이므로, 〇〇증권의 투자자(고객) 사이의 〇〇 주식의 보유 수량에는 변화가 없고, 예탁결제원의 위 결제 수량 8주는 원고의 매도로 〇〇증권으로부터 다른 예탁자(회원사)로 예탁 명의가 이동한 것이다.

(5) A customer (investors) shall open his/her account in a securities company and engage in stock transaction. If a customer has trading orders through a securities company, the Korea Exchange is the place where such trading is made, and if securities transaction has been made through the Korea Exchange, the settlement shall be made by means of transfer through an account opened by each securities company in the Securities Depository, reflecting the result thereof.

[인정근거] 갑 제11호증의 기재, 이 법원의 한국예탁결제원, 〇〇증권 주식회사에 대한 각 사실조회결과, 변론 전체의 취지

3) Determination

위 인정사실에 의하면, 원고는 2011. 10. 18. 〇〇증권에 개설된 원고의 계좌에 〇〇 주식 103,000주를 입고하여 이 주식이 예탁결제원에 예탁됨으로써 원고가 〇〇증권을 통하여 예탁결제원에 예탁한 〇〇 주식은 종전 예탁 주식 13,022주를 포함하여 합계 116,022주가 되었고, 위 116,022주는 2011. 10. 20. 〇〇증권을 통하여 장내에서 시간외대량매매 방식으로 매매되어 예탁결제원에서 계좌 간 대체로 매매결제가 이루어졌다.

따라서 이 사건 주식은 증권거래세법 제3조 제1호 (가)목의 증권시장에서 양도되는 주권으로서 이〇〇에 대한 양도는 계좌 간 대체에 의하여 매매결제한 경우에 해당하므로, 이와 다른 전제에서 과세표준을 적용한 이 사건 증권거래세 경정청구 거부처분은 위법하다.

○ 15 pages 15, the Securities Transaction Tax Act is amended by Act No. 13628, Dec. 29, 2015).

○○ 16 pages 16, the former Securities Transaction Tax Act is applied to the Enforcement Decree of the former Securities Transaction Tax Act.

○ 16 pages 10, the following shall be added:

Article 310 of the Financial Investment Services and Capital Markets Act (Investors' Deposit in Depositor)

(1) The depositor who deposits securities, etc. deposited by investors in the Securities Depository shall prepare and keep an account book of investors by stating the following matters:

1. Names and addresses of investors;

2. Type and number of deposited securities, etc. and names of issuers;

3. Others prescribed by Ordinance of the Prime Minister.

(2) A depositor shall, upon entering as referred to in paragraph (1), deposit the relevant securities, etc. in the Securities Depository without revealing that they are deposited by investors.

(3) The depositor shall, when it enters matters under paragraph (1), keep securities, etc. separately from its own until it deposits such securities, etc. in the Securities Depository pursuant to paragraph (2).

(4) Securities, etc. recorded in an account book of investors under paragraph (1) shall be deemed deposited in the Securities Depository.

2. Additional determination

A. Whether Article 101 (1) of the former Income Tax Act is applied

(1) Summary of the Plaintiff’s assertion

The transfer transaction of this case is "one-day closing price," and the closing price on the day falls under the market price, and even if not, it cannot be said that the Plaintiff unfairly reduced tax burden solely on the ground that the Plaintiff transferred stocks to a related party at a price lower than the market price. Thus, the provision on denial of wrongful calculation under Article 101 (1) of the Income Tax Act does not apply.

(2) Determination

Even if the transaction price is determined as 'one-day closing price' when trading stocks by means of overtime trading, the stocks in this case constitute 116,022 shares belonging to 60.17% of the total shares owned by the largest shareholder, etc., and are associated with management rights as they fall under 2.9% of the total shares issued 4,000,000 shares. Since the stock transaction in this case is not a transaction between many and unspecified persons but a transaction between both parties, so the transaction price is determined as 'one-day closing price', the transaction price cannot be deemed as 'one-day closing price. In addition, according to the provisions of the Enforcement Decree of this case, if shares held by the largest shareholder, etc. exceed 50% of the total number of shares issued and outstanding as shown in the Plaintiff, the appraised value of the shares shall be added to 30% of the total amount of shares assessed as '

In addition, the circumstances that the tax authority unfairly reduced the tax burden should prove that there is a difference between the transfer price and the market price, and the special circumstances that the transfer price should be deemed the market price should be attested by the taxpayer. However, the Plaintiff did not prove the situation that the transfer price should be the market price. Rather, the Plaintiff did not prove the circumstances that the transfer price should be the market price. Rather, the Plaintiff is not 2.9% of the total shares, but is in connection with the company's control, and the transaction of this case is not a transaction between many and unspecified persons, but a transaction agreed upon by both parties by means of overtime trade. In light of the fact that the transaction of this case is not a transaction between many and unspecified persons, it is reasonable to deny the application of the wrongful calculation of Article 101 (1) of the Income Tax Act to the instant transaction.

B. Whether the latter part of Article 167 (3) 1 of the former Enforcement Decree of the Income Tax Act is invalid

(1) Summary of the Plaintiff’s assertion

The latter part of Article 167 (3) 1 of the former Enforcement Decree of the Income Tax Act stipulates that if an asset is transferred to a related party at a price lower than the market price, it shall be deemed an unconditional act. Therefore, the above provision is null and void by deviating from the limit of delegated legislation.

(2) Determination

As seen earlier, Article 101(5) of the former Income Tax Act provides that “The purpose of this Act is to realize fair taxation by embodying the substance over form principle as a system that denies the taxation authority's rejection of the tax burden and makes it deemed objective and reasonable by the method prescribed by the law in cases where it is deemed that the tax authority unfairly avoided or reduces the tax burden as a transaction between persons with a special relationship.” Article 101(5) of the former Income Tax Act provides that “the scope of persons with a special relationship under paragraph (1) and other matters necessary for

Article 167(3)1 of the former Enforcement Decree of the Income Tax Act provides that “when assets are transferred at a price lower than the market price to a person with a special relationship within the scope of delegation, the tax burden shall be reduced unfairly, considering the relationship that the transaction would affect the company’s control within the scope of delegation.” This is merely a specification in line with the legislative intent of the parent law, and does not exceed the scope of delegation.

3. Conclusion

All appeals filed by both the plaintiff and the defendant are dismissed.