Early High Court Decision 2013J 4777 ( October 24, 2014)

propriety of the disposition imposing tax on the transfer date of the shares at issue as the transfer date;

Considering the fact that the transfer date which the disposition agency conducts prior to the settlement of the balance is the transfer date, the disposition imposing tax on the transfer date is not erroneous by regarding the transfer date, in full view of the fact that the transfer date is made by simple mistake, and the specific circumstances or persuasive reasons are not presented.

Article 94 of the Income Tax Act

Suwon District Court 2014Guhap53484 (2)

depth*

○ Head of tax office

.03.19

204.04.02

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 5,478,010 and additional securities transaction tax of KRW 2,860,90 on October 10, 2013 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. On December 28, 2009, the Plaintiff agreed to transfer 7,500 shares issued by BB (hereinafter “instant shares”) to AAAA (hereinafter “AB”) for KRW 3,00,000,000,000,000 for shares issued by BB (hereinafter “issued”), and the transferee company paid and changed the transfer of ownership for the period of payment. On September 30, 2010, the transferee company entered into an agreement to pay and complete the transfer of ownership for the instant shares (hereinafter “instant transfer agreement”). By November 30, 2010, the intermediate payment was KRW 30,000,000,000,000,000 for the remainder within one month after the date on which the issuer fully pays the PF loans to the lender, and at the same time, paid and paid the balance (hereinafter “instant transfer agreement”).

B. On August 6, 2010, the Plaintiff received respectively payment of KRW 300 million from the transferee company, KRW 20 million as part of the intermediate payment on October 15, 2010, KRW 680 million of the remainder intermediate payment on November 5, 2010, and KRW 2050 million of the remainder on January 19, 201, and the issuing company prepared a detailed statement of changes in stocks, etc. on November 5, 2010, that the instant shares were transferred from the transferee company in full.

C. After receiving any balance on January 19, 201, the Plaintiff reported and paid KRW 295,725,000 and securities transaction tax of KRW 15,250,000 as of May 31, 201, which is within two months from the end of the pertinent quarter pursuant to Article 105(1)2 of the former Income Tax Act (amended by Act No. 12852, Dec. 23, 2014) as of the date of the payment of the balance, which is the date of the payment of the balance.

D. However, on November 5, 2010, the transfer date of the instant shares was deemed as the transfer date, the Defendant calculated capital gains tax and securities transaction tax based thereon. On October 10, 2013, the Defendant issued a disposition imposing an additional tax of KRW 55,478,010 and additional tax of KRW 2,860,90 to the Plaintiff (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on November 7, 2013, but the Tax Tribunal dismissed the disposition on March 24, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Gap evidence No. 7, Eul evidence Nos. 1 through 5 (including various numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

A. Article 98 of the Income Tax Act, in principle, provides that the time when the price has been settled shall be the time of transfer, and "cases prescribed by the Presidential Decree, such as where the date of the settlement of the price is unclear" shall be another time of transfer. Based on delegation, Article 162(1)2 of the Enforcement Decree of the Income Tax Act provides that even if the date of the settlement of the price is clear for administrative convenience, the time of the transfer shall be the date of receipt of the transfer registration, etc., which is null and void because it impedes the organic and rational interpretation with the mother law. Therefore, the above provision of the Enforcement Decree shall apply only where the transfer registration, etc. is made prior to the settlement of the price for intentional or unlawful purposes, and therefore, the time of the transfer of the shares shall be the time of settlement of the price

B. Under the tax law, penalty taxes may not be imposed upon taxpayers if they violate various obligations, such as reporting and tax payment, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim. It is an administrative sanction imposed upon taxpayers if there is a justifiable reason for nonperformance of their duty. The Plaintiff and the transferee agreed to transfer the ownership at the same time as the payment of the balance in the instant transfer agreement, but the employees of the issuing company prepared a detailed statement of changes in stocks, etc. on November 5, 2010, when the part payment was made in full due to the error of the employees of the issuing company, which is the

3. Determination

A. Time of transfer of the instant shares

Article 162 (1) 2 of the Enforcement Decree of the current Income Tax Act (amended by Presidential Decree No. 22580, Dec. 30, 2010) on the premise that the date of establishment of the transfer income tax is the date of receipt of the balance of the shares of this case. However, in the event that the transfer of the shares of this case is deemed the transfer date because the Income Tax Act and the Enforcement Decree thereof were amended between the date of the transfer of the shares and the date of the receipt of the balance of the shares of this case, unlike the Plaintiff’s assertion, Article 98 of the former Income Tax Act (amended by Presidential Decree No. 10408, Dec. 27, 2010) and Article 162 (1) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22580, Dec. 30, 2010) are applicable to the transfer of shares of this case. Ultimately, the purport of the Plaintiff’s dispute is that the transfer date

Article 98 of the former Income Tax Act provides that "the time of acquisition and time of transfer of assets shall be determined by Presidential Decree in calculating gains from transfer," and Article 162 (1) 2 of the former Enforcement Decree of the Income Tax Act provides that "the date of liquidation shall be the time of acquisition and time of transfer, in principle, but the date of receipt of registration entered in the register, register, or list (including the registration and statement of change of the name) before the price is settled shall be deemed the time of acquisition and time of transfer. The transfer income tax is levied on the difference of transfer of assets, and even if the transfer income is not realized in reality, if the maturity and determined is considerably high in the possibility of realization. In particular, if there is transfer registration of ownership, the transferor is highly trusted in the performance of the transfer contract and there is a high possibility that the transferor controls and manages the transfer even before the date of settlement of price. Therefore, the above provision of the former Enforcement Decree of the Income Tax Act provides that the date of receipt of the registration shall be deemed the time of transfer, taking into account this, and there is no dispute over the validity of the plaintiff's assertion.

Meanwhile, the time of transfer under Article 98 of the former Income Tax Act and Article 162 (1) of the former Enforcement Decree of the Income Tax Act shall not be determined as a general principle without exception to the time of attribution of capital gains. It is reasonable to reasonably determine the time of transfer based on whether the transfer income is considerably mature and definite (Supreme Court Decision 2010Du22597 Decided May 9, 2012), even if the transfer income is not realized in reality by considering the management of capital gains, the degree of the control and transfer income, and the timing of securing taxpayers’ fees, etc. in a specific case (see, e.g., Supreme Court Decision 2010Du22597, Nov. 5, 2010). Since the Plaintiff received the down payment and intermediate payment in accordance with the transfer contract of this case until November 5, 2010, the fact that the transfer of the shares in this case was made on the same day, it is reasonable to deem that the payment of the transfer income in this case has been made to the extent of 15 days.

(b) the existence of justifiable grounds

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, a taxpayer’s intentional or negligent act is not considered, and the site, error, etc. of statutes do not constitute justifiable grounds that do not constitute a breach of duty (see, e.g., Supreme Court Decision 2001Du4689, Nov. 13, 2002).

The record of evidence No. 7 and the fact-finding conducted on November 5, 2010 by an employee of the issuing company, based on the purport that the employee of the issuing company completed the transfer of the shares of this case on November 5, 2010, or the following circumstances, the purport of the entire pleadings is considered as follows. ① Transfer of shares is a requirement to oppose the issuing company, i.e., the transfer of shares constitutes a contract between the transferor and the transferee. As the transfer of shares itself takes effect solely on the contract between the transferor and the transferee, the procedure of requesting the transfer of shares is necessary by notifying the transferor of the transfer or proving the transferee’s transfer of shares. ② In light of the above transfer of shares, the statement of change of shares and the external audit report of the issuing company stating that the shares of this case were transferred to the company on November 5, 2010 is difficult to view the Plaintiff’s obligation to cooperate with the issuing company on the grounds that the transfer of shares was transferred to the transfer company prior to the due date of the transfer of shares. ③ The Plaintiff’s obligation to provide the transfer of shares at the transfer company’s early payment procedure is difficult.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.