Seocho 2013west 3874 ( October 26, 2014)

Transfer of stock certificates entrusted by the National Pension Service from the State to the National Pension Fund shall be exempted from taxation.

The transfer of share certificates entrusted by the National Pension Service to manage and operate the National Pension Fund from the Minister of Health and Welfare is subject to non-taxation of securities transaction tax because the State transfers the share certificates

Article 6 of the Securities Transaction Tax Act / [Non-taxable Transfer]

2014Guhap60856. Revocation of disposition rejecting correction, such as securities transaction tax,

△△won

△△△ Director

oly 24, 2014

November 11, 2014

1. The Defendant’s disposition rejecting correction of KRW 00,000,000 and special agricultural and fishing villages tax of KRW 00,000,000 against the Plaintiff on June 5, 2013 is revoked.

2. The costs of the lawsuit shall be borne by the Defendant, including those resulting from the supplementary participation.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff’s Intervenor (hereinafter “National Pension Service”) entrusted the Minister of Health and Welfare with the management and operation of the National Pension Fund, and transferred the share certificates acquired from the National Pension Fund on the securities market during the period from March 2010 to December 2010 (hereinafter “instant share certificates”).

B. As to the transfer of share certificates of this case, the Plaintiff collected securities transaction tax of KRW 00,000,000 and special rural development tax of KRW 00,000,000 and paid it to the Defendant.

C. The National Pension Service requested the Plaintiff to return the amount of tax collected on the ground that the instant share certificate transfer falls under “the case where the State transfers the share certificates,” and the Plaintiff filed a request for correction for refund of the amount of tax collected on April 8, 2013. However, on June 5, 2013, the Defendant rendered a disposition to refuse the said request for correction on the ground that the instant share certificate transfer does not fall under “the case where the State transfers the share certificates,” and thus, it does not fall under “the case where the share certificates are transferred,” and thus, the said request for correction was not a non-taxation transfer (hereinafter “instant disposition”).

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal on August 29, 2013, but did not err in the tax judgment.

On March 26, 2014, the Board dismissed the plaintiff's appeal.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 7 and 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant share certificates transfer, which the National Pension Service entrusted by the Minister of Health and Welfare with the management and operation of the National Pension Fund, constitutes “cases where a country transfers stock certificates” under Article 6 subparag. 1 of the former Securities Transaction Tax Act (amended by Act No. 10401, Dec. 27, 2010; hereinafter “Securities Transaction Tax Act”) and constitutes non-taxable objects. However, the instant disposition made on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

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(c) Fact of recognition;

(1) On May 31, 1993, when the National Pension Management Corporation is entrusted to the Minister of Health and Welfare with the management and operation of the National Pension Fund established under the National Pension Act by the Ministry of Health and Welfare, the transfer of the share certificates, etc. acquired in the name of the Fund constitutes a non-taxable transfer as prescribed in Article 6 subparagraph 1 of the Securities Transaction Tax Act. The tax authorities replyed with authoritative interpretation (Reconsumption 46450-74). The tax authorities imposed no securities transaction tax on the transfer of the share certificates, etc. acquired from the National Pension Fund by the National Pension Service according to the above reply from May 31, 1993 to May 24, 2001.

(2) Following the amendment of the Restriction of Special Taxation Act by Act No. 6480 on May 24, 2001, Article 117(1)18 of the Restriction of Special Taxation Act was newly established to the effect that the right purchased by the annual fund is exempted from securities transaction tax if it is transferred through the securities market or electronic securities intermediary transaction, and that it is temporarily applied until December 31, 2003. The Ministry of Finance and Economy stated in the revised tax law theory that “The Ministry of State Management and Public Funds are exempt from securities transaction tax, and the Private Management Fund and other Funds are taxed, and the Private Management Fund and other Funds are also exempted from taxation by 2003.” Article 117(1)18 of the Restriction of Special Taxation Act continues to be extended until the end of December 31, 2009, and it is not applied since January 1, 2010.

(3) On the other hand, on the other hand, on December 29, 2009, the Minister of Strategy and Finance sent an authoritative interpretation (environmental energy tax and 612) that "the transfer of share certificates to the Plaintiff on or after January 1, 2010 by a fund established pursuant to the Act specified in attached Table 2 of the National Finance Act constitutes subject to securities transaction tax in the event of promulgation and enforcement of a revised bill under Article 117 (1) 18 of the Restriction of Special Taxation Act."

(4) On August 25, 2010, the Minister of Strategy and Finance pre-announces a bill to amend the Securities Transaction Tax Act by the Ministry of Strategy and Finance No. 2010-179 on August 25, 2010, and publicly announced that “The head of a central administrative agency clearly makes it clear that the transfer of share certificates by a fund managing body is subject to securities transaction tax because it does not fall under the transfer of share certificates by the State, etc.” as the main contents of the amendment of Article

(5) After the Plaintiff’s Intervenor traded and paid KRW 0,00,000,000 for securities transaction tax on the share certificates transferred from January 2, 2010 to February 2010 and KRW 0,000,00 for special rural development tax and KRW 0,000,00 for rural development tax, the Plaintiff filed a claim for correction against the Defendant on the ground that the said share certificates transfer constituted non-taxation transfer under Article 6 subparag. 1 of the former Securities Transaction Tax Act. However, upon the Defendant’s refusal of the said claim on June 3, 2010, the Seoul Administrative Court rendered a lawsuit seeking revocation of the correction of securities transaction tax, etc. under the Seoul Administrative Court’s 201Guhap1075. The Seoul Administrative Court rendered a final judgment dismissing the Plaintiff’s claim on October 21, 201, and the Seoul High Court revoked the Defendant’s final judgment on January 25, 2013 and revoked the Defendant’s final judgment on KRW 300,000.30.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 6, 9, Eul evidence No. 3, the purport of the whole pleadings

D. Determination

In light of the above facts and the following circumstances revealed in the argument of this case, it is reasonable to view that the transfer of share certificates by the National Pension Service constitutes "where the State transfers share certificates" under Article 6 subparagraph 1 of the Securities Transaction Tax Act, and thus, the disposition of this case conducted on a different premise is unlawful.

(1) (A) Article 6 of the Securities Transaction Tax Act, enacted on December 5, 1978, provides that "non-taxable transfer" shall be subject to securities transaction tax in any of the following cases, and subparagraph 1 of the same Article provides that "where a State transfers stock certificates," the Securities Transaction Tax Act shall remain in force on December 27, 2010, and the Securities Transaction Tax Act was amended on January 1, 201, and entered into force on January 1, 201, Article 6 of the same Act provides that "non-taxable transfer" shall be subject to securities transaction tax in any of the following cases, and subparagraph 1 of the same Article provides that "the State shall not impose securities transaction tax in any of the following cases, and the State shall transfer stock certificates: Provided, That as a fund established pursuant to the Act specified in attached Table 2 of the National Finance Act, a fund managing entity transfers stock certificates acquired from the fund, the head of a central administrative agency, and a postal service overall agency pursuant to Article 2 subparagraph 2 of the Act on Special Cases concerning the Management of Postal Services."

(B) The amended Securities Transaction Tax Act provides for the non-taxation transfer of share certificates in cases where the State transfers the share certificates acquired from the fund that is the head of a central administrative agency. In light of the fact that the management entity transfers the share certificates acquired from the fund that is the head of a central administrative agency, the transfer of the share certificates to the head of a central administrative agency shall be deemed to be an exception under the premise that the "the case where the management entity transfers the share certificates acquired from the fund that is the head of a central administrative agency" falls under the case where the State transfers the share certificates.

(C) Therefore, when a fund management authority falls under a case where a fund manager transfers stock certificates acquired from a fund that is the head of a central administrative agency, it constitutes a case where a state transfers stock certificates before January 1, 201, and thus, it constitutes a case where a state transfers stock certificates, and it is not a non-taxation transfer exceptionally, even if it falls under a case where a state transfers stock certificates from January 1, 201.

(2) (A) The National Pension Act, amended on December 31, 1986, provides that the Minister of Health and Welfare shall establish, manage, and operate the National Pension Fund, and the Minister of Health and Welfare may entrust part of the affairs related to the management and operation of the National Pension Fund to the National Pension Management Corporation. This provision was maintained except that the Minister of Health and Welfare changed to the Minister of Health and Welfare and the National Pension Management Corporation to the National Pension Service until the Securities Transaction Tax Act was amended on December 27, 2010. However, as seen earlier, the instant share certificate transfer is transferred by the National Pension Service to the securities market between March 201 and December 2010, since the National Pension Service entrusted with the affairs related to the management and operation of the National Pension Fund by the Minister of Health and Welfare and the National Pension Service transferred the share certificates acquired from the National Pension Fund to the National Pension Fund from March 2010 to December 1, 2011.

(B) According to the above facts, on May 31, 1993, when the National Pension Corporation is entrusted to the Minister of Health and Welfare with the management and operation of the National Pension Fund established under the National Pension Act by the Ministry of Health and Welfare, the transfer of the share certificates, etc. in the name of the Fund constitutes a non-taxable transfer under Article 6 subparagraph 1 of the Securities Transaction Tax Act. (Re-consumption 4650-74). The tax authority did not impose securities transaction tax on the transfer of the share certificates purchased from the State Management Public Fund according to the above reply. The above reply of the Minister of Finance and Economy or the tax authority's non-taxation is consistent with the view that the transfer of the share certificates in this case from March 3, 2010 to December 2012, 200.

(3) (A) Article 117(1) of the Restriction of Special Taxation Act amended on May 24, 2001 provides that "in cases falling under any of the following subparagraphs, securities transaction tax shall be exempted," and subparagraph 18 of Article 74(3) of the same Act provides that "in cases where the Fund subject to Article 74(3) of the same Act, transfers stock certificates purchased through the securities market or electronic securities intermediary transactions."

Article 74 (3) of the Restriction of Special Taxation Act provides that in case where a non-profit corporation prescribed by Presidential Decree among corporations managing and operating funds established under the Act prescribed in attached Table 2 of the Framework Act on Fund Management accrues from the transfer of stocks of a stock-listed corporation and an Association-registered corporation under the Securities and Exchange Act acquired from the fund until the business year ending on or before December 31, 2003, Article 29 (1) 4 of the Corporate Tax Act, the total amount of the income may be included

Article 70 (4) of the Enforcement Decree of the Restriction of Special Taxation Act provides that "non-profit corporation prescribed by Presidential Decree" in Article 74 (3) of the Restriction of Special Taxation Act means a non-profit corporation that manages and operates funds permitted to be acquired and transferred in accordance with the relevant Act among funds established pursuant to the Act specified in attached Table 2 of the

As above, Article 117(1)18 of the Restriction of Special Taxation Act, which provides that securities transaction tax shall be exempted, continues to be extended due to sunset, and on December 31, 2009, the sunset period has arrived and has not been enforced since January 1, 2010.

(B) As seen earlier, the National Pension Act provides that the Minister of Health and Welfare, who is the head of the central administrative agency, shall establish, manage, and operate the National Pension Fund.

On the other hand, at the time of the amendment of the Restriction of Special Taxation Act on May 24, 2001, the Public Officials Pension Act as "the Public Officials Pension Act" stipulates that the Public Officials Pension Act as "the Public Officials Pension Act" shall be amended as "the Public Officials Pension Act", and that the Corporation shall manage and operate the Public Officials Pension Fund at the time of the amendment of the above Act.

(C) As to Article 117(1)18 of the Restriction of Special Taxation Act that provides that the Defendant is exempt from securities transaction tax as above, the Defendant asserts that the authoritative interpretation by the tax authorities that the transfer of the stock certificates purchased by the National Management Fund constitutes the subject of exemption from securities transaction tax is legalized. In addition to the modification of the above authoritative interpretation, the securities transaction tax is imposed on the National Pension Fund from January 1, 2010 when the time limit for sunset under Article 117(1)18 of the Restriction of Special Taxation Act expires, and therefore, the securities transaction tax can be imposed on the instant stock certificates transfer from March 201 to December 2010.

(D) In light of the above, Article 6 of the Securities Transaction Tax Act provides that securities transaction tax shall not be imposed, and Article 117(1)18 of the Restriction of Special Taxation Act provides that "tax exemption" shall be excluded from securities transaction tax from the beginning, while "non-taxation" is excluded from the taxation object, on the other hand, the exemption is a reduction of all or part of the tax liability in the case where the tax obligation is included in the taxation object, but there are special reasons.

Article 117 (1) 18 of the Restriction of Special Taxation Act and Article 74 (3) of the same Act provide that securities transaction tax shall be exempted in the case of transfer by a nonprofit corporation that manages and operates a fund.

However, the National Pension Fund will be managed and operated by the Minister of Health and Welfare, which is a "head of a central administrative agency," while the National Pension Service is merely entrusted by the Minister of Health and Welfare, it will be managed and operated by the Public Official Pension Fund or the Private School Pension Fund.

Therefore, Article 117 (1) 18 of the Restriction of Special Taxation Act provides that "non-taxation in the case of a non-profit corporation" by a person who manages and operates the Fund, and the person who manages and operates the Fund does not provide for "non-taxation in the case of a central administrative agency". Thus, Article 6 of the Securities Transaction Tax Act provides that "non-taxation in the case of a transfer of stock certificates by the State" does not change or restrict the content or effect of the provision pursuant to Article 117 (1) 18 of the Restriction of Special Taxation Act.

(E) According to the above facts, with respect to Article 117 (1) 18 of the Restriction of Special Taxation Act amended on May 24, 2001, which was published by the Ministry of Finance and Economy in 2002, the revised tax law, which was amended by the Ministry of Finance and Economy in 2001, stated that the former is exempt from the State Management Fund under the Framework Act on the Management of Special Funds, and imposed tax on the private management Fund, but it would not be temporarily exempted from the Private Management Fund.

The Framework Act on Fund Management, which was enforced at the time of the amendment, provided that a person who manages and operates a fund as a fund management authority by law, is excluded from the fund management entity.

In light of the above circumstances, the purport of the above explanation is that the fund managed and operated by the head of a central administrative agency is exempt from taxation as before, and the fund managed and operated by a non-profit corporation is subject to non-taxation pursuant to Article 117 (1) 18 of the Restriction of Special Taxation Act. This is consistent with the reply of the Minister of Finance and Economy on May 31, 1993 to the Minister of Health and Welfare (Repaid 4650-74) when the National Pension Service is entrusted by the Ministry of Health and Welfare to manage and operate the National Pension Fund established under the National Pension Act from the Ministry of Health and Welfare, and the transfer of the stock certificates, etc. acquired in the name of the Fund constitutes non-taxation transfer under Article 6 subparagraph 1 of the Securities Transaction Tax Act. In addition, the above explanation also accords with the provision that Article 6 of the Securities Transaction Tax Act provides that "where the State transfers stock certificates, it shall not be subject to non-taxation" under Article 117 (1) 18 of the Restriction of Special Taxation Act.

(F) Meanwhile, according to the above facts, the Minister of Strategy and Finance sent a reply to the Plaintiff on December 29, 2009, and sent a reply that Article 117(1)18 of the Restriction of Special Taxation Act was enforced only until December 31, 2009, and the transfer of the share certificates of the National Pension Fund from January 1, 2010 also becomes subject to securities transaction tax.

However, Article 117 (1) 18 of the Restriction of Special Taxation Act provides that "in the case where the State transfers the share certificates," Article 6 of the Securities Transaction Tax Act shall not be deemed to be a modification of the provision or restriction of its effect. Article 117 (1) 18 of the Restriction of Special Taxation Act provides that "in the case where the State transfers the share certificates, it shall not be deemed that only Article 6 of the Securities Transaction Tax Act shall be effective if the validity is maintained until December 31, 2009, as the above Article 117 (1) 18 of the Restriction of Special Taxation Act begins. In such a situation, if the share certificates transfer of the National Pension Fund is subject to securities transaction tax, it shall be contrary to the Ordinance of the Ministry of Finance and Economy's response to the Minister of Health and Welfare on May 31, 193, it shall be contrary to the defendant's exemption from the transfer of the share certificates by the National Pension Service on May 24, 2001.

If so, it is difficult for the Minister of Strategy and Finance to accept the answer made on December 29, 2009 by the Minister of Strategy and Finance as it is about the interpretation of Article 117 (1) 18 of the Restriction of Special Taxation Act and Article 6 of the Securities Transaction Tax Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.