208Guhap10707 Disposition of revocation of imposition of acquisition tax, etc.

△△ Stock Company

Seoul

Representative Director 000

[Plaintiff-Appellee-Appellant]

Attorney Lee In-bok et al., Counsel for the defendant-appellant

1. △ City;

Attorney Park Jae-soo, Counsel for the defendant-appellant 000

2. △ City;

[Defendant-Appellant] Gyeong-gu et al.

Attorney 000

March 9, 2009

April 8, 2009

1. As to the plaintiff:

A. The part of acquisition tax of 1,963, 421, 090 won, special rural communities tax of 196, 342, 100 won, among dispositions made on October 00, 2008 by Defendant Seocho-si;

B. The portion of acquisition tax of 1,921, 385, 190 won, special rural communities tax of 192, 138, 510 won, among dispositions made on October 0, 2008, 00.

Each cancellation shall be revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

A. On October 00, 2008, the Plaintiff owned a total share of 9, 897, 352 shares among 352 shares, 8, 392, and 622 shares ( approximately 84. 8%) of △△△, which became an oligopolistic shareholder of △△△△.

B. At the time, △△ was holding the assets of KRW 92,789, 420, building 114, 023, 92, 200, building 1, 748, 347, 027, vehicle transport equipment, 501, 549, 086, 116, 366, 677, and 733 in total (hereinafter referred to as “△△ branch”), and held the assets of KRW 112,097, 225, 196, 484, 095, vehicle transport equipment, 273, 165, 275, 1636, 275, 275, 276, 275, 276, 775, and 733.

C. Meanwhile, the △ Terminal and △ Terminal are real estate acquired under the condition that the △△ Logistics will gratuitously revert to the State after it was operated for 30 years in accordance with the business method under Article 4 subparagraph 3 of the Act on Private Participation in Infrastructure (hereinafter “Private Investment Act”), which is subject to acquisition tax exemption pursuant to Article 106(2) of the Local Tax Act.

D. The Plaintiff asked the Defendants as to whether the acquisition tax was not levied on the Plaintiff who became an oligopolistic stockholder of △△ logistics, as in the case where the acquisition tax was not imposed on the △△ terminal and △△ terminal. However, the Defendants responded to the purport that the acquisition tax is not exempted on October 00, 2008 against the Plaintiff.

E. Accordingly, on September 16, 2008, the Plaintiff calculated the tax base for the △ terminal at KRW 98, 675, 033, 444 ( = 116, 366, 67, 733, and 733 X Plaintiff’s equity ratio) and subsequently confirmed the Defendant’s market (tax base x 2%) at KRW 1,97, 350, 060 (tax base x 197, 350, 060) total 2,170, 850, 720, and 444, and calculated acquisition tax base for the terminal at KRW 16, 30, 67, 196, 96, 16, 276, 96, 276, 196, 96, 276, 276, 97, and 97).

F. In this case, the Plaintiff argued that only the acquisition tax, etc. on a building and structure is exempt. In other words, among acquisition tax reported at △△△, the Plaintiff’s shareholding ratio (8, 392, 622 weeks/9, 897, and 352 weeks) of the Plaintiff by the amount calculated by multiplying the Plaintiff’s shareholding ratio of KRW 115, 772, 339, 227 by 2% of the acquisition tax, and the acquisition tax rate of KRW 1,963, 421,09, among acquisition tax reported at △△△, the portion of KRW 113,293, 709, and KRW 116, each of which is the amount calculated by multiplying the Plaintiff’s shareholding ratio and acquisition tax rate by the respective shareholding ratio of KRW 1,921, 385, 190, respectively, is disputing the revocation of the Special Rural Development Tax.

【Uncontentious facts, entry of Gap evidence Nos. 1 through 4, purport of the whole pleadings

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

A. The plaintiff's assertion

(1) Since Article 106(2) of the Local Tax Act provides that "real estate acquired on condition of donation shall not be subject to acquisition tax," if a person acquires stocks of a corporation (hereinafter referred to as "contributation corporation") which has decided to grant donation and becomes an oligopolistic shareholder, it shall be exempted from taxation on the acquisition of real estate under the conditions of donation led by the head of the occupation.

(2) If it is interpreted that acquisition tax is imposed on an oligopolistic shareholder of a legal person who has agreed to contribute property under Articles 105(6) and 106(2) of the Local Tax Act, a legal person who directly acquires the pertinent property on the same property bears acquisition tax only to an oligopolistic shareholder who is deemed to gain such tax even if he/she is exempted from acquisition tax, and thus, is unconstitutional in violation of the principle of equality, the principle of guaranteeing property rights, and the principle of proportionality under the Constitution.

B. The defendants' assertion

(1) The act of acquiring the pertinent property, such as a corporation’s real estate, and the act of arranging acquisition by an oligopolistic stockholder pursuant to Article 105(6) of the Local Tax Act constitutes an independent acquisition that differs from each other’s concept and constitutes a separate taxable object. Since acquisition tax is a kind of distribution tax, based on the fact that the transfer of goods is a transfer of goods, and recognizes and imposes tax on the oligopolistic stockholder, so long as the oligopolistic stockholder deemed acquisition of donated assets, the imposition of acquisition tax is lawful.

(2) Not only a taxation requirement under the principle of no taxation without law, but also a non-taxation requirement is interpreted as a law, barring any special circumstance, and it is not allowed to expand or analogically interpret without reasonable reason. Unless there is a separate provision on reduction and exemption of acquisition tax and non-taxation against oligopolistic stockholders, it is reasonable to impose acquisition tax on deemed acquisition by oligopolistic stockholders.

(3) The contract of donation is a kind of donation contract established by a donor’s expression of intent to donate his own property to the State, etc. and expressing his/her consent to it by the State, etc. The parties to such donation contract are not the Plaintiff, not the Plaintiff, and the Plaintiff does not constitute a person who acquired the instant real estate on a case-by-case basis.

(4) Supreme Court Decision 9Du6897 Decided January 30, 2001 also ruled that the corporation was exempted from acquisition tax when it acquires real estate, etc., and that it does not immediately exempt the person who becomes an oligopolistic stockholder from acquisition tax liability.

(5) Article 105(6) of the Local Tax Act does not infringe on property rights, as it satisfies the legitimacy of legislative purposes, the appropriateness of the method, and the balance of the legal interests.

(c) Relevant statutes;

As shown in the attached Form.

D. Determination

(1) deemed acquisition tax system

Article 105 (6) of the Local Tax Act provides that when an oligopolistic stockholder becomes an oligopolistic stockholder by acquiring stocks or shares of a corporation, the oligopolistic stockholder shall be deemed to acquire assets, such as the real estate of the corporation concerned. However, separate from the acquisition tax paid when the corporation acquired real estate, the acquisition tax is deemed to have been acquired at the ratio of the shares to acquire the real estate of the corporation concerned. The purpose of this provision is to regulate the monopoly of stocks or shares in the tax system to restrain the monopoly of the stocks or shares and distribute them, and it is not much different from that of the person directly owning the assets of the corporation in fact because the oligopolistic stockholder is in a position to dispose of or manage and operate the assets of the corporation in fact free of discretion, and thus, it is imposed by deeming that the person has a taxable capacity (see Supreme Court Decisions 79Du136, Jul. 22, 198; 92Nu1138, May 24, 1994).

(2) Whether the deemed acquisition system itself is unconstitutional and not the principle of no taxation without law

Article 105 (6) of the Local Tax Act provides that acquisition tax shall be imposed on the assets of the relevant corporation under the fair taxation and substance over form principle because it is nothing more than the acquisition of the relevant corporation's right to manage the assets when a corporation becomes an oligopolistic stockholder, and thus, it is fair to impose acquisition tax under the fair taxation and substance over form principle. It is recognized that the purpose of legislation is reasonable, and it can be fair to impose tax on the place where the taxable capacity actually occurs through the transfer of the assets. In addition, the imposition of acquisition tax on the oligopolistic stockholder of the corporation is not subject to special heavy tax rate, unlike the imposition of acquisition tax, and the imposition of acquisition tax on all oligopolistic stockholders of the corporation does not impose acquisition tax on all oligopolistic stockholders of the corporation, rather than imposing acquisition tax on all oligopolistic stockholders who are subject to imposition of acquisition tax, but limited to the scope of oligopolistic stockholders subject to imposition of acquisition tax to the necessary extent, and thus, it cannot be deemed that the excessive means is more than necessary to achieve the legislative purpose of fair taxation pursued by Article 105 (6) of the Local Tax Act.

Therefore, Article 105(6) of the Local Tax Act, which provides for deeming acquisition to impose deemed acquisition tax on an oligopolistic shareholder, does not infringe on the property rights of an oligopolistic shareholder. However, it is not only an exceptional provision that considers the acquisition system not included in the original acquisition concept, but also an exceptional provision that imposes tax on an oligopolistic shareholder, which reflects the net asset value of the relevant corporation, even though the value of the stocks actually acquired by an oligopolistic shareholder is reflected in the net asset value of the relevant corporation. However, it is necessary to strictly interpret the same as the acquisition tax is imposed on the entire asset value that is not entirely reflected in the liabilities, and it is consistent with the principle of no taxation without law.

The defendants argued that the application of the provisions on non-taxation and reduction should be strictly interpreted under the principle of no taxation without law on the basis of natural premise of the deemed acquisition tax system, but it seems to be attributable to the misunderstanding of the purpose and purpose of the deemed acquisition tax system.

(3) Interpretation of the Supreme Court Decision 99Du6897 delivered on January 30, 2001

In the above case, the plaintiff argued to the effect that since a corporation was exempted from acquisition tax and registration tax pursuant to the Do Tax Reduction and Exemption Ordinance, the person who became an oligopolistic stockholder of the corporation shall not be deemed as having acquired the real estate of the corporation thereafter. However, the above decision decided to the effect that when the corporation becomes an oligopolistic stockholder, it shall not be exempted from acquisition tax by acquiring the Do Tax, etc., and that the person who became an oligopolistic stockholder shall not be exempted from acquisition tax. In fact, the Do Tax Reduction and Exemption Ordinance in the above case decided to the effect that when it becomes an oligopolistic stockholder, it shall re-examine whether the person becomes an oligopolistic stockholder at the time of becoming an oligopolistic stockholder. In fact, the Do Tax Reduction and Exemption Ordinance in the above case decided to the effect that the person who first purchased the land, etc. in an agro-industrial complex is limited to the corporation, and thereafter, the person who is deemed to have again acquired the real estate owned by the corporation does not constitute the person subject to exemption since

In contrast, with regard to the interpretation of Article 106(2) of the Local Tax Act that no acquisition tax shall be imposed on real estate acquired on the condition of donation, it can be determined on October 00, 2008, when the Plaintiff becomes an oligopolistic shareholder, that “the Plaintiff may be deemed to have acquired the relevant real estate on the condition of donation.” Thus, the existence of the above precedents alone cannot be readily concluded that the Defendants’ disposition of this case is lawful.

(4) Whether real estate acquired on the condition of donation and oligopolistic stockholders are exempt from taxation

The contract of donation is a kind of contract formation by expressing the will of the State to approve the acquisition tax on the real estate owned by the donator to the State. However, in light of the overall purport of pleading on the evidence No. 9, the representative director of △△ may report the change of the investor of △△△, and request the change of the investor in the future. If the change of the investor is made in the future while approving the change of the investor, it shall be deemed that the acquisition tax on the real estate is carried out by the oligopolistic shareholders without any justifiable reason, and it shall be able to be carried out without any restriction on the acquisition tax on the real estate acquired by the oligopolistic shareholders, and it shall be able to be carried out without any justifiable reason in view of the provisions of Article 9 of the concession agreement and Article 58 of the Local Tax Act, so even if the above procedure is not implemented, it shall be able to be carried out without any restriction on the oligopolistic shareholders' property acquired by the oligopolistic shareholders.

(5) Sub-decisions

Ultimately, each of the dispositions of this case is illegal as it imposed on non-taxable objects.

3. Conclusion

Thus, since the plaintiff's claim is reasonable, all of them shall be accepted, and it shall be decided as per the disposition.

The presiding judge shall be appointed from among the judges.

Judges Park Jin-jin

Judges Ahn Jae-cheon

Related Acts and subordinate statutes

Local Tax Act

Article 22 (Secondary Liability for Tax Payment of Contributors)

2. An oligopolistic stockholder (a stockholder or a partner with limited liability and his relative or other special relationship as prescribed by the Presidential Decree;

The total amount of stocks owned or invested by the persons concerned or the total amount of investment made by the corporation

Not more than 50/100 of the total amount;

Article 29 (Time when Tax Liability comes into Existence)

(1) A liability to pay local taxes shall accrue at the following times:

1. Acquisition tax: Where an object of taxation of the acquisition tax is acquired;

Article 105 (Persons Liable for Tax Payment, etc.)

(6) If a person becomes an oligopolistic stockholder by acquiring the stocks or shares of a corporation, the oligopolistic stockholder shall be the corporation concerned.

Real estate, vehicles, mechanical equipment, standing trees, aircraft, ships, mining rights, golf membership condominiums, riding club membership rights.

Membership rights or membership rights to use sports facilities shall be deemed to have been acquired: Provided, That it shall be issued at the time of incorporation;

Where a person becomes an oligopolistic stockholder by acquiring stocks or shares, this shall not apply.

Article 106 (Non-Taxation on State, etc.)

(1) Acquisition tax on the acquisition by the State, local governments, local government associations, foreign governments and international organizations in Korea.

foreign governments which impose tax on the acquisition of government agencies of the Republic of Korea shall not be imposed, except that such foreign governments

this provision shall not apply to acquisition.

(2) Reversion or donation to the State, a local government, or a local government association (public officials of infrastructure facilities).

subject to subparagraph 3 of Article 4 of the Inter-Korean Investment Act (including any case attributable to the method referred to in subparagraph 3 of the same Article);

No acquisition tax shall be imposed on real estate acquired.

Public-Private Partnership Act on Infrastructure

Article 4 (Method of Implementing Private Investment Projects)

Private investment projects shall be conducted in one of the following methods:

1. Ownership of the infrastructure facilities shall revert to the State or a local government upon the completion of construction;

for a certain period of time to the project implementer (the case falling under subparagraph 2).

excluding)

2. Ownership of the infrastructure facilities shall revert to the State or a local government upon the completion of construction;

for a certain period of time shall be granted to the project implementer the right to manage and operate the facility, and the State or local government

The method by which organizations, etc. rent and use and take profits during the period prescribed in the Convention.

3. The concessionaire shall assume ownership of the infrastructure facilities for a specified period after the completion of the infrastructure facilities;

The ownership of facilities belongs to the State or local governments upon the expiration of the period.

4. The mode by which the concessionaire shall assume ownership of the infrastructure facilities upon the completion of construction;

5. Proposal by the private sector for a project under Article 9 or modification under Article 12; and

(1) In the case of a plan, the competent authorities shall present the methods other than those of subparagraphs 1 through 4 to promote the project.

Method adopted as it deems reasonable and reasonable by the

6. Other proposals made by the competent authority on the instruction for proposal formulated under Article 10.

Method