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대주주가 양도하는 중소기업 비상장주식에 대하여 10%의 양도소득세율을 적용해야 한다는 청구주장의 당부
조세심판원 조세심판 | 2018-06-28 | 조심2018중2196 | 양도
【Request Number】

[Request Number] Trial 2018J 2196 ( June 29, 2018)

[Items]

[C] Assignment [Type of Decision] Dispact

[Summary of Decision]

[Determination] The "large stockholder" in the dispute rule shall be deemed to be the same as the "large stockholder" who delegates the scope thereof to the Presidential Decree pursuant to Article 94 (1) 3 (a) of the former Income Tax Act. Article 94 (1) 3 (a) of the former Income Tax Act provides for the scope of capital gains and provides that "large stockholder as a stock-listed corporation's stocks, etc. shall be transferred by taking into account the ratio of stocks owned by the stock-listed corporation's stocks, total market price, etc." Thus, it is reasonable to see that "large stockholder" in the above provision includes both listed corporation and non-listed corporation's large stockholder. Thus, the disposition agency's disposition of refusing the claimant's request for correction should be deemed to be subject to 20

[Related Acts]

[Related Acts and subordinate statutes] Article 94 of the Income Tax Act / Article 104 of the Income Tax Act / Enforcement Decree of the Income Tax Act / Article 157 of the Enforcement Decree of the Income Tax Act

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. On June 24, 2016, the claimant was a major shareholder holding 45% of the shares of the OO as of the end of 2015 and transferred OO 2,000 shares of unlisted shares issued by the key corporation (hereinafter “instant shares”) to O and filed a preliminary return on transfer income tax for the transfer of outstanding shares on August 30, 2016, the claimant reported and paid OOO for the transfer income tax for the year 2016 by applying the tax rate of 20% by deeming that the transfer of the instant shares constitutes the shares of a small and medium enterprise that is transferred by the major shareholder.

B. Since then, the claimant filed a request for correction with the disposition agency for refund of the capital gains tax on the ground that the major shareholder under Article 104(1)11(b) of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter “former Income Tax Act”) is not included in the major shareholder of the non-standing small and medium enterprises, and thus, the 10% tax rate is applied to the 10% of the non-standing small and medium enterprises.

C. After examining the claimant’s request for correction accordingly, the disposition agency notified the claimant of his refusal of request for correction on January 8, 2018 by deeming that the transfer income tax rate of 20% for the shares transferred by the large shareholder should be applied to the shares transferred by the large shareholder.

D. The claimant appealed and filed an appeal on April 2, 2018.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

Before the key provisions were amended on December 15, 2015, the 10% tax rate is applied to all the transfer income of small and medium enterprises, while the 10% tax rate is applied as amended on December 15, 2015, the case where the 10% tax rate is applied to a transfer by a person who is not a major shareholder.

Meanwhile, Article 94(1)3 (a) of the Income Tax Act amended on December 15, 2015 delegated the scope of "large stockholder" to the Presidential Decree, and Article 157(4) of the Enforcement Decree of the same Act provides that the scope of "large stockholder" in Article 94(1)3 (a) of the same Act shall be deemed delegated to a large stockholder, but it shall be deemed that the scope of "large stockholder of an unlisted corporation" was not delegated to a large stockholder, and the scope of "large stockholder of an unlisted corporation" shall

Such interpretation made it clear that Article 94 (1) 3 (a) of the Income Tax Act as amended on December 20, 2016 by amending "large shareholder prescribed by Presidential Decree" to "large shareholder of a stock-listed corporation prescribed by Presidential Decree" was the scope of "large shareholder of a stock-listed corporation". It is confirmed that only Article 104 (1) 11 (a) of the Income Tax Act as amended was delegated to the scope of the large shareholder of a stock-listed corporation under Article 167-8 (1) of the Enforcement Decree of the Income Tax Act.

Therefore, “Large shareholder of a small or medium enterprise (limited to cases where a non-large shareholder transfers shares of a small or medium enterprise)” should be construed as “large shareholder of a small or medium enterprise from among stock-listed corporations.” Therefore, 10% tax rate should be applied to outstanding shares of a non-listed corporation, which are shares of a small or medium enterprise, pursuant to the Income Tax Act before the amendment.

(b) Opinions of disposition agencies;

As of the end of 2015, the claimant owned 45% of the shares of the key corporation and thus falls under "large stockholder" in Article 94 (1) 3 (a) of the Income Tax Act, and the former main provisions of the Act partially amended by Act No. 13558, Dec. 15, 2015 stipulate that the 10% tax rate shall apply to all transfer income of the shares of small and medium enterprises. In this regard, Article 94 (1) 3 (a) of the same Act provides that the scope of transfer income shall be limited to the scope of transfer income, and all before and after the amendment of December 15, 2015, "the transfer by the large stockholder prescribed by Presidential Decree taking into account the ratio of shares held by the stock-listed corporation to the total market price of the shares held by the stock-listed corporation, etc." shall be construed as "large stockholder" in Article 94 (1) 3 (a) of the same Act.

The claimant shall be deemed to mean the "large stockholder of a small or medium enterprise among listed corporations". Thus, the 10% capital gains tax rate is applied to the stocks of a small or medium enterprise which are stocks of a non-listed corporation. However, Article 94 (1) 3 (a) of the same Act provides for the scope of capital gains and Article 94 (1) 3 (a) of the same Act provides that "large stockholder shall transfer stocks, etc. of a stock-listed corporation to a large stockholder prescribed by Presidential Decree in consideration of the ratio of stocks owned by a stock-listed corporation and the total market value thereof." Thus, it is reasonable to interpret that "large stockholder" in the above provision includes all of the large stockholders of a listed corporation and an non-listed corporation, and therefore, it is reasonable to apply the tax rate of 20% to the stocks transferred by a large stockholder.

3. Hearing and determination

(a) Points in dispute;

The legitimacy of the claim that the transfer income tax rate of 10% shall apply to non-listed stocks transferred by the large shareholder;

(b) Relevant statutes (attached Form)

C. Facts and determination

(1) On June 24, 2016, the claimant transferred the outstanding shares to OO on a preliminary return and payment of capital gains tax on the transfer income on August 30, 2016, and submitted a claim for correction to the agency that the major shareholder is not included in the major shareholder of the unlisted corporation under the relevant provisions on the return of capital gains tax on January 2, 2018, and the agency filed a claim for correction to the effect that the tax rate of 10% should be applied because the major shareholder is not included in the major shareholder of the unlisted corporation. Accordingly, the agency filed a claim for correction to the effect that the major shareholder is a small and medium enterprise, but the major shareholder of the unlisted corporation is also included in the major shareholder of the non-listed corporation in light of the relevant provisions and

(2) As to the fact that the key shares constitute shares of an unlisted company and the claimant constitutes “large shareholder” under Article 94(1)3(a) of the Income Tax Act (wholly amended by Act No. 13558, Dec. 15, 2015), there is no dispute between the claimant and the disposition authority.

(3) When arranging the contents of Article 94(1)3 (a) and Article 104(1)11 of the Income Tax Act, the following are as follows:

OO

(4) The amended provisions of Articles 157(4) and 167-8 of the Enforcement Decree of the Income Tax Act are as follows.

OO

(5) At the time of the amendment of the Income Tax Act on December 15, 2015, the amended purpose of Article 104(1)1(b) of the Income Tax Act is as follows.

OO

(6) In full view of the above facts and relevant laws and regulations, the claimant argues that the "large shareholder" means the "large shareholder of a small and medium enterprise among the stock listed corporations" and the "large shareholder" should be applied with 10% capital gains tax rate for the outstanding shares of an unlisted corporation and a small and medium enterprise. However, the "large shareholder" in the main provisions stipulate that the scope of capital gains shall be the same as the "large shareholder" delegated by Presidential Decree under Article 94 (1) 3 (a) of the former Income Tax Act, and Article 94 (1) 3 (a) of the former Income Tax Act provides that "large shareholder transfers stocks, etc. of a stock listed corporation as prescribed by Presidential Decree taking into account the ratio of stocks owned and the total market price of stocks owned as a stock listed corporation" and therefore, it is reasonable to see that the "large shareholder" in the provisions

Therefore, it is judged that the disposition agency's rejection of the claimant's request for correction because it is an unlisted corporation and a non-listed corporation and a small and medium enterprise is subject to the transfer income tax rate of 20%.

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for adjudication has no merit as a result of the review.

The attached Form shall be attached thereto.

Relevant Acts and subordinate statutes

(1) Income Tax Act (before the partial amendment by Act No. 13558 on December 15, 2015)

Article 94 (Scope of Capital Gains) (1) Capital gains shall be the following incomes, generated in the relevant taxable period:

3. Income generated from transfer of stocks or investment shares falling under any of the following items (including preemptive rights to new stocks, and securities depository receipts prescribed by Presidential Decree; hereafter referred to as "stocks, etc." in this Chapter):

(a) Transfer of stocks, etc. of a stock-listed corporation under the Financial Investment Services and Capital Markets Act (hereinafter referred to as "stock-listed corporation") by its major shareholders prescribed by Presidential Decree (hereafter referred to as "major shareholders" in this Chapter) in consideration of the ratio of stocks owned, total market value, etc., and transfer of stocks, etc. not based on trading in the securities market under the same Act

(b) Stocks of corporations which are not listed corporations.

(1) The amount of capital gains tax of a resident shall be calculated by applying the following tax rates to the tax base of capital gains in the relevant taxable period (hereinafter referred to as "calculated amount of capital gains tax"). In such cases, where one asset falls under at least two of the following tax rates, the amount of capital gains tax calculated by applying the relevant tax rate shall be the larger of the calculated amount of capital gains tax calculated by applying the relevant tax rate; and the tax rate under subparagraph 12 may be reduced by Presidential Decree within the extent of 50/100 of such tax rate, if necessary for fostering the capital

11. Assets under Article 94 (1) 3:

(a) Stocks, etc. of a corporation, other than small and medium enterprises prescribed by Presidential Decree (hereafter referred to as "small and medium enterprises" in this Chapter), whose large shareholders hold less than one year

30/100 of the tax base of capital gains;

(b) Stocks of small and medium enterprises;

10/100 of the tax base of capital gains;

(c) Other stocks, etc.;

20/100 of the tax base of capital gains;

(2) Income Tax Act (wholly amended by Act No. 13558, Dec. 15, 2015)

Article 94 (Scope of Transfer Income) (1)

3. The same period as before the amendment)

(a) The same offense as before amendment;

(b) The same period as before amendment;

(1) The amount of capital gains tax of a resident shall be calculated by applying the following tax rates to the tax base of capital gains in the relevant taxable period (hereinafter referred to as "calculated amount of capital gains tax"). In such cases, where one asset falls under at least two of the following tax rates, the amount of capital gains tax calculated by applying the relevant tax rate shall be the larger of the calculated amount of capital gains tax calculated by applying the relevant tax rate; and the tax rate under subparagraph 12 may be reduced by up to 75/100 of such tax rate, as prescribed by Presidential Decree, if necessary for fostering the capital market:

11. Assets under Article 94 (1) 3:

(a) Stocks, etc. of a corporation, other than small and medium enterprises prescribed by Presidential Decree (hereafter referred to as "small and medium enterprises" in this Chapter), whose large shareholders hold less than one year

30/100 of the tax base of capital gains;

(b) Stocks, etc. of small and medium enterprises (limited to where a person other than a large shareholder transfers them);

10/100 of the tax base of capital gains;

(c) Other stocks, etc.;

20/100 of the tax base of capital gains;

(3) Income Tax Act (wholly amended by Act No. 14389, Dec. 20, 2016)

Article 94 (Scope of Capital Gains) (1) Capital gains shall be the following incomes, generated in the relevant taxable period:

3. Income generated from transfer of stocks, etc. falling under any of the following items:

(a) Stocks, etc. of a stock-listed corporation, which fall under any of the following:

1. Stocks, etc. transferred by large stockholders of a stock-listed corporation prescribed by Presidential Decree in consideration of the ratio of stocks owned, total market value;

(ii) stocks, etc. transferred by a person who is not a major shareholder under subparagraph (i) not through trading in the securities market (hereinafter referred to as “securities market”) under the Financial Investment Services and Capital Markets Act;

(b) Stocks, etc. of an unlisted corporation;

(1) The amount of capital gains tax of a resident shall be calculated by applying the following tax rates to the tax base of capital gains in the relevant taxable period (hereinafter referred to as "calculated amount of capital gains tax"). In such cases, where one asset falls under at least two of the tax rates under the following subparagraphs, the larger of the calculated amount of capital gains tax calculated by applying the relevant tax rate shall be the amount:

11. Assets under Article 94 (1) 3:

(a) Stocks, etc. of a small or medium enterprise prescribed by Presidential Decree (hereafter referred to as "small or medium enterprise" in this Chapter), which is transferred by a person other than a large stockholder prescribed by Presidential Decree (hereafter referred to as "large stockholder" in this Chapter), taking into account the ratio of stocks owned, total market value, etc.: 10

(b) Stocks, etc. owned by the large stockholder of less than one year, which are corporations other than small and medium enterprises: 30/100 of the tax base of capital gains;

(c) Other stocks, etc.: 20/100 of the tax base of capital gains.

(4) Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26982, Feb. 17, 2016)

(4) "Large shareholder prescribed by Presidential Decree" in Article 94 (1) 3 (a) of the Act means any of the following persons (hereafter referred to as "large shareholder" in this Chapter):

1. Where one stockholder or one investor (hereafter referred to as "one stockholder" in this Chapter) holding stocks or equity investment shares of a corporation (including preemptive rights to new stocks and securities depository receipts under paragraph (1); hereafter the same shall apply in this Chapter) and a related party under Article 1-2 (1) and (3) 1 of the Enforcement Decree of the Framework Act on National Taxes (hereafter referred to as "other stockholders" in this Chapter) possess not less than 2/100 (referring to a corporation which has issued stocks listed on the KOSDAQ market (hereinafter referred to as " KOSDAQ market") under Article 8 of the Enforcement Decree of the Financial Investment Services and Capital Markets Act, No. 24697 of the Enforcement Decree of the Financial Investment Services and Capital Markets Act) possess not less than 2/100 of the total amount of stocks, etc. of the relevant corporation as of the end of the business year immediately preceding the business year in which the date of transfer of stocks, etc. belongs, but fall short of 10/100 of the Enforcement Decree of the Act on Special Measures for the Promotion of Venture Businesses as of the Act;

2. One stockholder and other stockholders in cases where the total market value of the stocks, etc. of the relevant corporation owned by one stockholder and other stockholders as of the end of the immediately preceding business year whereto the transfer date of stocks, etc. belongs is not less than five billion won (in cases of stocks, etc. of listed corporations on the KOSDAQ market and stocks, etc. of venture business under Article 2 (1) of the Enforcement Decree of the Act on Special Measures for the Promotion of Venture Businesses which are traded under Article 178 (1) of the Financial Investment Services and Capital Markets Act, four billion won, and in cases of stocks, etc. of listed corporations on

"Small and medium enterprises prescribed by Presidential Decree" in Article 104 (1) 11 (a) of the Act means small and medium enterprises under Article 2 of the Framework Act on Small and Medium Enterprises as of the date of transfer of stocks, etc.

(5) Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 26982, Feb. 17, 2016)

(4) "Large shareholder prescribed by Presidential Decree" in Article 94 (1) 3 (a) of the Act means any of the following persons (hereafter referred to as "large shareholder" in this Chapter):

1. In cases where one stockholder or one investor (hereafter referred to as "one stockholder" in this Chapter) possessing the stocks or equity investment shares of a corporation (including the preemptive right to new stocks, and securities depository receipts under paragraph (1); hereafter referred to as "stocks, etc." in this Chapter) and a related party under Article 1-2 (1) and (3) 1 of the Enforcement Decree of the Framework Act on National Taxes (hereafter referred to as "other stockholders" in this Chapter) as of the end of the business year immediately preceding the business year in which the date of transfer of stocks, etc. belongs, occupy 1/100 or more in the aggregate of the stocks, etc. of the relevant corporation as of the end of the business year immediately preceding the business year whereto the date of transfer of stocks, etc. belongs (hereafter referred to as "ratio of owned stocks, etc." in this Chapter), one stockholder and other stockholders. In such cases, while it has been short of 1/100 as of the end of the immediately preceding business year immediately preceding the date of acquisition, but thereafter come to possess 1/

2. One relevant stockholder and other stockholders in case where the total market price of the stocks, etc. of the relevant corporation possessed by one stockholder and other stockholders as of the end of immediately preceding business year immediately preceding that whereto the transfer date of stocks, etc. belongs is not less than 2.

"Small and medium enterprises prescribed by Presidential Decree" in Article 104 (1) 11 (a) of the Act means small and medium enterprises under Article 2 of the Framework Act on Small and Medium Enterprises as of the date of transfer of stocks, etc.

(6) Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 27829, Feb. 3, 2017)

(4) "Large shareholders of a stock-listed corporation prescribed by Presidential Decree" in Article 157 (1) 3 (a) (i) of the Act means persons falling under any of the following subparagraphs (hereafter referred to as "large shareholders of a stock-listed corporation" in this Article and Article 167-8):

1. In case where one stockholder or one investor who owns stocks, etc. (hereafter referred to as "one stockholder" in this Chapter) and a person under the following classification (hereafter referred to as "other stockholders" in this Chapter) as of the end of the business year immediately preceding that whereto belongs the transfer date of stocks, etc., occupy 1/100 or more in the aggregate of stocks, etc. of the relevant corporation (hereafter referred to as "ratio of stocks owned" in this Article and Article 167-8) as of the end of the business year immediately preceding that whereto belongs the transfer date of stocks, etc., the relevant one stockholder and other stockholders. In such cases, while it has been short of 1/100 as of the end of the immediately preceding business year, but thereafter come to possess 1/100 or more by acquiring stocks, etc. thereafter, one stockholder and other stockholders after the date of such acquisition shall be included:

(a) Where the total ratio of stocks owned by one stockholder and a person in a special relationship with him/her under Article 43 (8) 1 of the Enforcement Decree of the Corporate Tax Act (hereafter referred to as "one stockholder, etc." in this Article) is the largest from among one stockholder, etc. of the relevant corporation: Any of the following persons:

(a) A person falling under any subparagraph of Article 1-2 (1) of the Enforcement Decree of the Framework Act on National Taxes;

2. A person who falls under Article 1-2 (3) 1 of the Enforcement Decree of the Framework Act on National Taxes.

(b) Where the total ratio of stocks owned by one stockholder, etc. is not the largest among one stockholder, etc. of the relevant corporation: Any of the following persons:

(i) lineal ascendants and descendants;

(b) A person falling under Article 1-2 (1) 3 or 4 of the Enforcement Decree of the Framework Act on National Taxes;

(c) A person falling under Article 1-2 (3) 1 of the Enforcement Decree of the Framework Act on National Taxes;

2. One stockholder and other stockholders in case where the total market price of the stocks, etc. of the relevant corporation possessed by one stockholder and other stockholders as of the end of immediately preceding business year whereto the transfer date of stocks, etc. belongs (hereafter referred to as the "total market price" in this Article and Article 167-8) is not less than the amount classified as follows:

(a) Where stocks, etc. are transferred by March 31, 2018: 2.5 billion won;

(b) Where stocks, etc. are transferred during the period from April 1, 2018 to March 31, 2020: 1.5 billion won;

(c) Where stocks are transferred on or after April 1, 2020: One billion won;

(1) "Large shareholders prescribed by Presidential Decree" in Article 104 (1) 11 (a) of the Act means persons falling under any of the following subparagraphs (hereafter referred to as "large shareholders" in this Chapter):

1. Stock-listed corporations;

2. A shareholder of a stock-listed corporation who falls under any subparagraph of Article 157 (4): Provided, That the ratio of stocks owned shall be at least 4/100, while the total market price shall be at least four billion won only for stocks, etc. of a venture business defined in Article 2 (1) of the Enforcement Decree of the Act on Special Measures for the Promotion of Venture Businesses traded pursuant to Article 178 (1) of the Financial Investment Services and Capital Markets Act.