13 middle 1164, 13rd 164, 1165, 1162, 13rd 163,1161 middle 13

The receipt date of constructive dividend is stipulated as the date of determining the retirement of stocks in subparagraph 4 of Article 46 of the Enforcement Decree of the Income Tax Act.

The instant taxation disposition pertains to the retirement of 00 shares, such as 00, on September 27, 10.00. As such, such retirement constitutes constructive dividend on 00, etc., and the claimant (re-appellant) et al. assessed the market price of the shares at the time of October 27, 10. Thus, there were no errors in the initial taxation disposition inasmuch as it constitutes a gain of gift by evaluating the market price of the shares at the time

Article 17 of the Income Tax Act, Article 42 of the Inheritance Tax and Gift Tax Act

2013Guhap23577 Revocation of Disposition of Imposing income tax, etc.

Park Aaly 4

◆◆세무서장외3

May 16, 2014

June 24, 2014

1. The plaintiffs' claims against the defendant are all dismissed.

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

Each disposition taken by the Defendants against the Plaintiffs shall be revoked in accordance with the attached disposition.

1. Details of the disposition;

A. AAAB Co., Ltd. (hereinafter "BB Co., Ltd.") changed its trade name from "AB Co., Ltd.", and hereinafter referred to as "this case") concluded a contract for stock transfer and acquisition (hereinafter referred to as "the contract of this case") with a shareholder at the time following the resolution of the board of directors on December 6, 200, cCC (hereinafter referred to as "ACC"), Plaintiff DD, and EE with shares issued by the company of this case (CCC 8,000 shares, D9, 612 shares, EE 27,297 shares) totaling 44,909 shares (hereinafter referred to as "the shares of this case") of the company of this case, which were held by the company of this case, to take over OO, total OO, OOOO won (hereinafter referred to as "the price of this case") and paid on December 21, 200 (hereinafter referred to as "the price of this case").

B. On September 27, 2010, the instant company: (a) held a special general meeting of shareholders on a day-to-day basis and passed a resolution to reduce its capital by free retirement of the instant shares; and (b) completed registration for change of capital reduction on December 9, 2010 following procedures such as public announcement. Plaintiff FF, HHH, and the GG Cultural Foundation (hereinafter “GG Cultural Foundation”) is the shareholders of the instant company at the time of capital reduction.

C. With respect to Plaintiff DD and EE, the Director of the Central Tax Office: (a) deemed that the Plaintiff constituted a constructive dividend under Article 17 subparag. 3 of the Income Tax Act in proportion to the difference between the instant price and the acquisition value of the instant shares; and (b) deemed that Plaintiff FF, HH, and GG Cultural Foundation had to impose gift tax on the Plaintiff DD and EE, on the grounds that the difference between the market price of the instant shares at the time and the price of the instant shares was less than the market price at the time due to the retirement of the instant shares; and (c) notified each tax authority thereof.

D. According to the above notice, the pertinent Defendants imposed gift tax on Plaintiff DD, EE, Plaintiff FF, HH, and G G Cultural Foundation (hereinafter collectively referred to as “instant global income detailed disposition,” and “the instant gift tax imposition disposition,” and “the instant disposition,” as indicated in the notice of imposition in attached Form.

E. On February 26, 2013, the Plaintiffs were dissatisfied with each of the instant dispositions and filed an appeal with the Tax Tribunal, but all of the appeals were dismissed on June 28, 2013.

Facts without any dispute, Gap's 1 through 5, 7, and Eul's 1 through 5 (including family identification cards; hereinafter the same shall apply), and the purport of the whole pleadings.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

(1) Joint assertion of each disposition of the instant case

피고 ▲▲세무서장은 이 사건 계약이 구 상법(2011. 4. 14. 법률 제10600호로 개정되기 전의 것, 이하 같다) 제341조의 요건을 갖추지 못하여 무효임을 전제로이 사건 대금이 업무무관 가지급금이라고 보아 이 사건 회사에게 법인세를 부과하였다. 그런데 이 사건 각 처분은 이 사건 계약이유효임을 전제로 한 것이어서 위 법인세부과처분과 양립할 수 없다. 따라서 위 법인세부과처분이 당연무효이거나 취소가 되지 않는 한 이 사건 각 처분은 위법하다.

(2) Claim on the disposition of imposing income tax of this case

Article 39(1) of the Income Tax Act provides that “The time of receipt of total revenue shall be determined based on the principle of confirmation of rights and obligations as provided for in Article 39(1).” Since Articles 45 through 50 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24823, Nov. 5, 2013; hereinafter the same shall apply) that provides the time of receipt by type of income or transaction is not a complete provision, the said provision

On the premise of this premise, Plaintiff DD and EE transferred the instant shares in accordance with the instant contract on December 21, 200, and received the payment thereof finally, and thereafter did not exercise shareholder rights to the instant company. Thus, the said Plaintiffs’ constructive dividend income should be deemed to have been determined when the right is objectively recognized on December 21, 200, inasmuch as Article 46 subparag. 4 of the former Enforcement Decree of the Income Tax Act provides for the time of receipt of the “the date of determining the retirement of shares, the reduction of capital, or the transfer of capital” in cases of constructive dividend as prescribed by Article 46 subparag. 4 of the former Enforcement Decree of the Income Tax Act, it cannot be deemed that the same applies to cases where the stock purchase price claim had already been acquired prior to the process of stock retirement, as in the instant case.

Therefore, the instant disposition imposing income tax on the premise that the said constructive dividend income is attributed to the year 2010 to which the date of decision on capital reduction belongs, rather than 200 years is illegal.

(3) Claim on the disposition of gift tax imposition of this case

The instant company assessed the instant shares as KRW 210,00 per share in accordance with the complementary evaluation method under the Inheritance Tax and Gift Tax Act, and acquired the instant shares from Plaintiff DD, EE, etc. Even if the value of the instant shares increases thereafter, insofar as it does not fall under a low-price transfer as of the time of transferring the instant shares, it cannot be deemed that the said Plaintiffs distributed profits to Plaintiff FF, HH, and GG Cultural Foundation. In addition, in calculating profits from capital reduction, the amount calculated by adding profits to Plaintiff FF, HH, and GG Cultural Foundation as of September 27, 2010 shall be calculated based on the same evaluation method as “the date of resolution of the general meeting of shareholders” and “the amount per share paid at the time of stock retirement” under Article 29-2(2) and (3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23591, Feb. 2, 2012; hereinafter “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”).

Therefore, the gift tax imposition disposition of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) As to the common argument

피고 ▲▲세무서장이 이 사건 계약에 따른 이 사건 회사의 자기주식취득이 구 상법 제341조의 요건을 갖추지 못하여 무효라는 전제에서 이 사건 돈은 업무와 무관하게 지급된 특수관계자에 대한 대여금(업무무관 가지급금)이라고 보아, 이에 대한 2004년부터 2008년까지 인정이자를 익금산입하고, 같은 기간 이 사건 회사의 차입금 관련 지급이자 중 이 사건 돈에 대한 지급이자를 손금불산입하여 이 사건 회사에게 ① 2010. 2. 24. 2004 사업연도 법인세 OOOO원, ② 2010. 5. 7. 2005 사업연도 법인세 OOOO원, 2007 사업연도 법인세 OOOO원, 2008 사업연도 법인세 OOOO원 및 ③ 2010. 5. 6. 2006 사업연도 법인세 OOOO원을 각 경정・고지한 사실은 당사자 사이에 다툼이 없다. 그러나 앞서 든 증거들에 변론 전체의 취지를 종합하면, 이 사건 회사는 2012. 1. 4. 피고 ▲▲세무서장을 상대로 이 사건 계약이유효하다고 주장하며 위 법인세부과처분의 취소를 구하는 소를 제기한 사실, 제1심 법원인 인천지방법원(2012구합106호)은 이 사건 계약이 무효라고 판단하였으나, 제2심 법원인 서울고등법원은 2014. 1. 10. 2012누28881호로 이 사건 회사가 주식소각의 목적으로 이 사건 주식을 취득하였으므로 이 사건 계약은 구 상법 제341조 제1호에 의하여 유효하다는 판단 아래 위 법인세부과처분을 모두 취소한 사실, 이에 피고 ▲▲세무서장이 상고하였으나 대법원은 2014. 5. 29. 2014두2645호로 상고를 기각하였고, 위 판결이 2014. 6. 2. 확정된 사실을 인정할 수 있다.

Therefore, since the above disposition of imposing corporate tax is revoked by the court's decision, the plaintiffs' assertion on the different premise is without merit.

(2) As to the disposition imposing income tax of this case

Article 39 (1) of the Income Tax Act provides that "the year to which the total income amount and necessary expenses of a resident belong shall be the taxable period to which the date when the total income amount and the necessary expenses are determined belongs." This provision provides for the principle of confirmation of rights and obligations as to the period to which the income accrue. The principle of confirmation of rights, which is the principle of determining the period to whom income accrue under the Income Tax Act, is not the time when the income is realized, shall not be the time when the income accrues, and shall be deemed the time when the income accrues when the income accrues, and shall be imposed in advance on an uncertain income. However, the concept of "determined" in the principle of confirmation of rights and obligations shall not be defined as the general principle without exception to the period to which the income accrues, and it shall be determined on the basis of whether the acquisition of stocks is considerably mature and definite (see, e.g., Supreme Court Decision 91Nu180, Jun. 22, 1993).

The gift tax of this case is imposed on profits acquired by the shareholders as a transaction that reduces the capital of a corporation, such as reduction of capital, pursuant to Article 42(1)3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter “former Inheritance Tax and Gift Tax Act”). It is not simply imposed on Plaintiff DD and EE, etc. on the ground that they transfer the shares to the company of this case. As such, the difference between the appraised value of the shares reduced and the amount paid at the time of stock retirement should be deemed to exist. As such, the existence of the gift interest should not be determined solely on the ground that the Defendants constitute low price transfer as of the date of stock transfer. In addition, Article 29-2(2)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “the rate of shares acquired at the time of capital reduction per share x 30 million won or more of the appraised value of shares paid at the time of capital reduction x 10 billion won or more of shares.”

3. Conclusion

Therefore, the plaintiffs' claims against the defendants are dismissed as it is without merit. It is so decided as per Disposition.