Whether the capital reduction of this case is the transfer of other assets

It is determined that the capital reduction in this case should be judged that the actual transfer of the specific stocks of Article 94 (1) 4 (c) of the Income Tax Act and Article 158 (1) 1 of the Enforcement Decree of the same Act has been made.

Article 14 [Real Taxation] of the Framework Act on National Taxes

Busan District Court-2014-Gu 21371 ( December 26, 2014)

A A

Article 94 (1) 4 (c) of the Income Tax Act and Article 158 of the Enforcement Decree of the same Act.

specific shares of section 1(1)1, i.e., one shareholder of a corporation and other shareholders of the corporation;

Whether transfer of 50/100 or more of total amount constitutes the transfer of such stocks, etc.

shall be determined according to its substance, not to the name or form of the transaction. E-Development

The capital reduction for holding 83,500 shares, ① the main contents of the contract for the acquisition of shares of this case

Ultimately, the entire shares issued by the GGG are transferred to the FG gas, and the EE Development also belongs to the above contract.

(2) in accordance with the above contract the EE Development prior to the transfer of the shares to the FFgas.

(3) EE Development was in a state in which it is not possible to exercise that right, and (3) EGG for such shares.

2.4 billion won received as the price for capital reduction, as provided for in the contract for the acquisition of shares of this case

The amount is the same as KRW 2.4 billion, and 4. When the original development was made in addition to the stock acquisition agreement of this case.

There is no reason to wish to reduce the paid reduction of 28,800 won per share which is remarkably lower than 66,000 won per share;

(5) The acquisition of shares in the instant case has been terminated effectively despite the reduction of capital for consideration, etc.

B. In light of B, the transaction to ensure that the Plaintiff’s transferred shares do not constitute a specific share.

As such, it is reasonable to grasp the transfer according to the substance. Therefore, the instant disposition is lawful.

3. Determination

A. Whether the shares constitute specific shares

1) Issues of the instant case

Article 94 (1) of the Income Tax Act prescribing the scope of capital gains shall apply to stocks of a corporation not listed corporations.

(c) Composition of shareholders of the corporation which issued stocks or investment certificates with respect to subparagraph 3 (c), real estate

Assets prescribed by Presidential Decree in consideration of the current status of possession or the type of business, etc.

(n) Division of ‘specific stocks', and accordingly Article 104 of the Income Tax Act shall apply to capital gains.

The tax rates are different.

On the other hand, Article 158 (1) 1 of the Enforcement Decree of the Income Tax Act, which provides for specific stocks, is a corporation's total assets.

50/10 or more of the total value of real estate and the right thereto (requirements for asset ratio), and

shares, etc. owned by one shareholder and a person with special interest in the aggregate of the shares, etc. of a corporation

corporation, at least 50/100 (requirements for share ownership), one shareholder, and its specially related persons;

If 50/10 or more of the total sum of the stocks, etc. are transferred to another person (requirements for the ratio of stock transfer).

‘the shares' in question is defined as such.

In this case, the requirements for the asset ratio of the GGG and the ratio ratio of the plaintiff and related parties are met.

There is no dispute between the parties that this part is subject to the share transfer ratio.

whether requirements are met, i.e., 83,500 shares of GGGG owned by EE Development under the Income Tax Act, to Fgas

Whether the share transfer ratio can be calculated by ascertaining that it has been the Do.

2) Determination

As seen earlier, the GGGG shares 83,500 shares of the GGGG owned by the EE Development formally.

It was retired due to the reduction of capital for consideration, but it was not directly transferred to the FFgas.

However, Article 14 (3) of the Framework Act on National Taxes provides that "in the case of indirect methods or more through a third party"

To receive benefits under this Act or other tax-related Acts by means of going through acts or transactions;

the parties have made a direct transaction according to the economic substance.

this chapter or other tax laws shall apply by deeming that such act or transaction has been conducted in succession.

is set forth in this section.

The transfer contract of the instant shares is wholly issued by GGGG as owned by the transferor.

the purpose is to transfer the FF gas to FF and to transfer the management right accordingly to FF gas.

EE Development was also a party to the contract, and at the time EE Development was owned by the party to the contract.

shares of the GGGG shares 83,500 shares, and the shares of the GGGG shares to be newly received later, for Fgas;

It agreed to transfer shares of this case by granting the right of subscription. However, the transfer of shares of this case is also a contract.

Unlike its contents, 83,500 GG shares owned by EE Development were retired by capital reduction at a cost.

However, in full view of the following circumstances, 83,500 shares of the EDCF owned by EE Development shall be paid for shares of 83,500 shares.

Capital reduction is the case where Article 94 (1) 4 (c) of the Income Tax Act and Article 158 (1) 1 of the Enforcement Decree of the same Act.

in the forest as to whether or not the shares have been transferred to the Fgas substantially;

It is judged that it will be.

(1) In the case of capital reduction for 83,500 shares of the GGGG shares originally owned by the EE Development, the Fgas is the shares above.

145,700 shares of GGG owned by the Plaintiff when exercising appraisal rights at an early stage.

Article 94 (1) 4 (c) of the Income Tax Act, and Article 158 (1) 1 of the Enforcement Decree of the same Act.

Then, there is a problem that additional capital gains tax not anticipated by the plaintiff may be created.

section 158(1)(2) of the Enforcement Decree of the Income Tax Act provides that one shareholder and other shareholders may hold shares.

If the shares are transferred over the session, within three years retroactively from the date on which one of them transfers the shares, etc.

and after consultation with the accounting firm, the number of shares transferred by them shall be included.

in the case of capital reduction for shares owned by the EE Development under the authoritative interpretation of the government, there is a determination of the above shares.

shares 145,700 shares of the GGG owned by the Plaintiff as excluded from the number of shares transferred; and

decision that the plaintiff does not constitute the EE Development, FFgas, and GGGG, and the plaintiff requests the EE Development, FGG

J.

② From the perspective of GGG, particular management is required to reduce the paid-in capital, in addition to those under such tax laws.

There was no need to do so, and EE Development actually owned 50% shares of the Plaintiff; and

The acquisition of the shares of this case between EE Development, FFgas, and GGGG as shown below

capital stock 83,500 shares owned by EE Development are transferred to Fgas, and is economically economical.

The interests have been adjusted.

3. The FGGG as the price reduction of 83,500 shares of the GGGG shares owned by the EE Development.

GGGGGGG, which is the purpose of the contract, as the acquisition of the shares of this case is owned in full.

have full control over this case.

④ The EE Development sells 83,500 shares of GGGG to Fgas in the instant contract for acquisition of shares.

The price determined shall be attached Form 1. The basis for calculating the sale price of shares following the exercise of the right to purchase shares.

In accordance with the anti-government principle, at least 2.4 billion won was set, and EE Development was converted into the paid reduction of the GGGG.

The paid-in capital amounting to KRW 2.48 billion (=83,500 x 28,800) is the acquisition of the shares of this case.

It is almost the same amount as the transfer price originally received from FFgas according to the contract.

⑤ Meanwhile, GGGG after its capital reduction at a cost, with the FF Gas on October 19, 201 new shares 71,000 per share 28,00 per share.

KRW 800,000,000 out of KRW 2.4 billion, which was paid for EE development by acquiring KRW 800,000,000 (=)

71,000 weeks x 28,800 won were restored.

6. FGGG’s acceptance of the total issued shares, as seen earlier, from the FG’s perspective.

acquisition of the instant shares has achieved the purpose of the contract, and against this, the acquisition of the instant shares

Only the amount equivalent to the expenses originally planned in the contract ( approximately KRW 350,000,000)

was disbursed.

Therefore, 145,700 shares of the GGGG that the Plaintiff transferred to the FG gas, Article 94(1) of the Income Tax Act

4(c) and Article 158(1)1 of the Enforcement Decree of the same Act shall be deemed to correspond to specific shares, and therefore,

The instant disposition on the grounds of this, is lawful.

B. Whether the principle of trust protection is violated

The principle of good faith, the principle of protection of trust, or the existence of non-taxable practices in tax and legal relations.

The principles are consistent with this definition, even if they sacrifice the principle of legality, to protect the taxpayer's trust.

The exceptional rule of law is applied only in the case of special circumstances recognized as such.

Therefore, applying the principle of good faith or the principle of protection of trust to tax authorities' actions.

average tax payment, the trust granted by the tax authority through the public opinion statement, etc.

have a reasonable and legitimate expectation. A taxation officer shall not have a reasonable and reasonable expectation.

Even if the audience expressed any opinion through inquiry, etc., it is important that it is an important fact

If it is based on questioning without revealing the relationship and legal issues properly, a public check;

It cannot be said that there is a trust that can have a legitimate expectation by the name of piracy.

(See Supreme Court Decision 2011Du5940 Decided December 26, 2013)

In this case, the questioning of the Ministry of Strategy and Finance and the National Tax Service, claiming that the Plaintiff trusted (A 6)

section 158(1)(1) of the Enforcement Decree of the Income Tax Act provides that “other assets referred to in section 158(1)(1) shall be

40% of the shares owned by one shareholder and other shareholders shall be transferred to the court for determination of whether the shares are equal or not.

Stocks, etc. reduced due to the reduction of capital at a cost, such as the reduction of capital at a cost, shall be included in the "transfer shares".

section 40% of the total number of shares issued by the corporation shall not be

It is the case where other shareholders have not found the subject of transfer after the Do, and the corporation has received the reduction of capital at a cost.

In light of the contents of such questioning, the shares of a corporation owned by another shareholder

value as a simple capital transaction, not a capital reduction made to transfer to the assignee;

Since the case of capital reduction and its interpretation are judged to be the case of this case, EE Development as in this case owns.

the GGGG’s share to the FGG is in capital reduction for the transfer of the FGG’s share to the FG gas.

That is not the content that can be applied directly.

Therefore, the above inquiry is income from the paid-in capital reduction of 83,500 shares of the GGG owned by EE Development.

It is called that the taxpayer expressed his opinion to the extent that the taxpayer would have a legitimate expectation in the evaluation under tax law.

Therefore, it is difficult to view the instant disposition as violating the principle of trust protection.

4. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

○ Head of tax office

November 21, 2014

December 26, 2014

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of KRW 2,284,271,90, including the transfer income tax belonging to the year 2009, which the defendant of the Gu office was against the plaintiff on December 1, 2012, shall be revoked.

1. Details of the disposition;

The shareholders of AA (hereinafter referred to as “AB”) including the Plaintiff enter into a contract with Fgas (hereinafter referred to as “Fgas”) on January 15, 2009 for acquisition of shares and management rights (hereinafter referred to as “this case’s acquisition of shares”). The content of AAA’s total outstanding shares 310,000 shares, 226,50 shares owned by the transferor (i.e., Plaintiff 145,70 shares + 80,800 shares total shares) (i.e., Plaintiff 145,70 shares + 145,700 shares + 80,000 shares total shares) and transferred to Fgas totaling KRW 15 billion (6,225 won per week), and the remaining AA,50,500 shares owned by EE and the right to claim for new shares issued by 300,000 shares will be granted to 300,000 won shares issued by EAF.

Accordingly, EE Development: (a) by converting the loans of KRW 300,000 to A. 1 on March 28, 2009; (b) KRW 5,30,00; (c) on April 9, 209; (c) KRW 40,400; (c) the transfer of shares of KRW 207,00,000, KRW 145,70,000 (A’s trade name was changed to KRW 145,70,000; (c) KRW 207,00,000; (c) KRW 307,00,000; and (d) KRW 207,00,000,000; and (e) KRW 145,70,00,000; and (e) the transfer of shares to the Defendant on May 24, 2010.

The Plaintiff filed an appeal with the Tax Tribunal on February 28, 2013, but was dismissed on March 26, 2014. [Grounds for recognition] The facts of no dispute, Gap evidence Nos. 1, 4, 5, 7, 8 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 3 through 5, and 11, and the purport of the entire pleadings.

2. Summary of the parties' arguments;

A. The plaintiff

① Of the shares owned by the EE Development, 83,50 shares retired due to the paid reduction of the GGG is only the capital transaction of the EE Development and the GGGG, and cannot be deemed as the transfer of the assets of the EE development and the FG gas, and there is no specific legal provision to deny the validity of the calculation of the act of the paid reduction of capital. Therefore, the transfer of shares does not constitute “transfer of shares.” Therefore, since the shares of the GGG that the Plaintiff transferred to the FG gas are less than 50% of the total shares issued by the GGGG at the time, the specific shares under Article 94(1)4(c) of the Income Tax Act and Article 158(1)1 of the Enforcement Decree of the same Act do not constitute “the shares, etc. in question, in which one shareholder and other shareholders of the corporation transfer not less than 50% of the total amount of the shares issued by the corporation.” Nevertheless, the disposition of the transfer of the Plaintiff’s shares is unlawful.

② The acquisition of the instant shares also stated in Article 5 of the contract that the time of exercising the right to claim the sale of the FFgas’s shares in GGGGGGGG shares was set at the expiration of three years from the date of the transfer of the Plaintiff’s shares. Accordingly, if FF gas exercises the right to claim the sale of shares, there was no room for the transfer of the Plaintiff’s shares to constitute a specific share under Article 94(1)4(c) of the Income Tax Act. Nevertheless, in determining whether the acquisition of the instant shares constitutes a specific share under the above Act, the parties to the contract did not include the transfer of shares, etc. that are reduced due to an unequal reduction of capital in determining whether the shares constitute a specific share under the above Act, with trust in the examination by the Ministry of Strategy and Finance and the National Tax Service, to the transfer of shares 83,500 shares owned by EE development. Accordingly, the disposition of the Plaintiff’s transfer of shares at a cost to 83,500 shares, different from the opinion of the Inquiry.

B. Defendant