The early high-2013-China 4916

It is reasonable to view that the acquisition of the Plaintiff’s own shares under the Commercial Act is null and void, and it is reasonable to regard the retirement of treasury shares as

The Plaintiff’s acquisition of the Plaintiff’s own shares does not err by deeming it invalid under the Commercial Act, and it does not seem that the Plaintiff’s own shares are acquired for the purpose of retiring its own shares. Therefore, this is an asset transaction, not capital transaction, and related constructive dividend income taxation is illegal disposal

Article 16 of the Corporate Tax Act Constructive Dividends or Distributions

revocation of the rejection disposition, etc. of filing a request for rectification of corporate tax with the District Court 2014Guhap1326

MM Distribution North Korea Co., Ltd.

Head of the Pakistan Tax Office

March 29, 2016

May 10, 2016

1. The Defendant’s imposition of KRW 96,026,420 of the dividend income tax for the year 201 against the Plaintiff on November 6, 2013 and KRW 11,157,516 of the corporate tax for the year 2011 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 30% is borne by the Plaintiff, and 70% is borne by the Defendant, respectively.

Cheong-gu Office

Disposition Nos. 1 and the Defendant’s disposition rejecting a request for correction of KRW 30,688,800 for corporate tax for the year 2010 against the Plaintiff and KRW 18,946,960 for corporate tax for the year 2011 is revoked.

1. Details of the disposition;

A. The plaintiff on April 10, 1995, 17 publishing companies, such as MD, etc., store and deliver the warehouse.

In order to jointly conduct the business, each company established by investing KRW 84 million from around 2005 to around 201, acquired 322 shares of the company from MD, SS, K, and LL (hereinafter referred to as "MD, etc.") which is a shareholder, on six occasions from around 2005 to around 201, and retired 318 shares among them through a resolution of the board of directors on July 6, 201.

B. The Defendant: (a) deemed the Plaintiff’s amount of treasury stocks acquired as a provisional payment irrelevant to his/her business; (b) excluded the interest paid thereon from deductible expenses; and (c) revised and notified the Plaintiff’s corporate tax of KRW 6,926,100 for the year 2005 as corporate tax; (b) KRW 9,342,00 for the year 206 as of March 2, 201; (c) KRW 6,812,570 for the year 207 as corporate tax; and (d) KRW 35,423,620 for the year 209 as of April 1, 201, respectively.

C. On June 30, 2013, the Plaintiff filed a revised request for reduction of corporate tax amounting to 30,68,800 (a recognized interest amounting to 52,184,662 won and interest paid to 35,68,180 won and losses related to inclusion in gross income) and corporate tax amounting to 18,946,960 won (a recognized interest amounting to 52,216,000 won and interest paid to 38,672,389 won and losses related to inclusion in gross income) for each revised return and payment, and on August 12, 2013, the Plaintiff filed a revised request for reduction of corporate tax amount to the Defendant on August 12, 2013 [the Defendant’s acquisition of its own stocks does not correspond to cases permitted by law, and thus, the amount of acquisition related to the above revised request for reduction of corporate tax amount to 160 won and dividend income amount to 2016% of the dividend income (hereinafter referred to as “instant dividend income”).

라. 원고가 이에 불복하여 2013. 11. 15. 조세심판원에 심판청구를 하였고, 2014. 3.26. 조세심판원으로부터 ��원고가 주식회사 SS로부터 취득한 자기주식 50주의 취득금액 246,093,750원만을 업무무관 가지급금에서 제외하여 과세표준과 세액을경정하고 나머지 심판청구는 기각한다.��라는 내용의 결정을 받았다.

E. Accordingly, the Defendant corrected corporate tax for the year 201, which was imposed as of November 6, 2013 according to the purport of the decision of the Tax Tribunal on April 8, 2014, to KRW 11,157,516, and refunded KRW 1,313,384, which is the difference between the previous amount imposed, to the Plaintiff.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 3, Eul evidence 2 to 5, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The Plaintiff acquired the Plaintiff’s own shares from the shareholders, such as MD, as it constitutes “when it is necessary to achieve its purpose in executing the company’s rights” under Article 341 subparag. 3 of the former Commercial Act (amended by Act No. 10600, Apr. 14, 201; hereinafter the same), and thus, it cannot be said that such acquisition of the Plaintiff’s own shares is null and void. Accordingly, the instant rejection disposition based on the premise that the Plaintiff’s acquisition of the Plaintiff’s own shares becomes null and void is unlawful.

2) The Plaintiff’s acquisition and retirement of the Plaintiff’s own shares are for recovering the sales claim against the relevant shareholders. In such a case, deeming the difference between the acquisition value and the disposal value of the retired shares as income from constructive dividend and imposing the Plaintiff the obligation to withhold dividend income tax in excess of the obligee’s exercise of rights and free economic activities. The instant disposition is unconstitutional and unfair in violation of Articles 11 and 23 of the Constitution.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant refusal disposition is lawful

Under the premise that the acquisition of the Plaintiff’s own shares is null and void, the Defendant rejected a disposition of reduction or correction of the Plaintiff’s own shares by deeming them as unrelated to its business, and the acquisition of the Plaintiff’s own shares on its own account is null and void. Since a stock company’s acquisition of its own shares on its own account is likely to endanger the company’s capital foundation, undermine the principle of equality of shareholders, and cause various harm to the company’s representative director, etc., the Commercial Act uniformly prohibits the acquisition of its own shares from a general preventive purpose, and specifically specifies cases where the acquisition of the company’s own shares is exceptionally permissible, and thus, the company’s acquisition of its own shares is not allowed without consideration or for another person’s own shares at the time of 20th of the acquisition of the company’s own shares at the time of 30th of the company’s acquisition of the company’s own shares at the time of 30th of the company’s acquisition of the company’s own shares at the time of 30th of the company’s execution of its own shares.

MD 등으로부터 자기주식을 취득하기에 앞서 미수금의 회수를 위해 강제집행절차등 다른 구제수단을 강구하였다고 볼 만한 정황이 전혀 없는 점, ② LL나 KK, 주식회사 SS의 당좌거래가 정지된 것은 원고가 그들로부터 자기주식을 취득한 때로부터 한참이 지난 2010년 말경부터 2011년경 사이인 점, ③ 주식회사 MD 및 KK, LL와의 일부 주식매매계약의 경우 그 매매계약서에 원고가 매매대금을 현실로 지급하겠다는 취지가 기재되어 있어 원고가 진정 대물변제의 방법(또는 매매대금을 미지급 매출채권으로 상계하는 방법)으로 주식을 취득한 것이 맞는지 의문이 가는 점, ④ 원고 스스로��주식회사 MD의 경우 원고의 운영과 관련하여 다른 주주와 견해차이를 보이다가 원고에게 탈퇴와 함께 설립 시 출자한 자신의 지분을 매입해 줄 것을 요청하였고, 원고가 위 요청을 수용하였다.��라고 자인하기도 한 점 등을 종합하여 보면, 원고의 자기주식취득이 구 상법 제341조 제1호에서 허용한 '회사의 권리를 실행함에 있어 그 목적을 달성하기 위하여 필요한 때'에 해당한다고 보기는 어렵다. 따라서 원고의 자기주식취득은 무효라고 봄이 상당하고 이와 다른 전제에 선 원고의 이 부분 주장은 이유 없다.

2) Whether the instant disposition is lawful

The instant disposition is based on Article 16(1)1 of the Corporate Tax Act and Article 17(2)1 of the Income Tax Act. The premise that the Plaintiff’s acquisition of treasury stocks from MD, etc. was conducted as part of the procedures for capital reduction, not assets transaction. However, whether the sale of treasury stocks constitutes transfer of stocks which are assets transaction, or the retirement of stocks or the refund of capital which are capital transactions, should be determined on the basis of the substance of the transaction and the intent of the parties concerned. However, under the substance over form principle, not only depends on the content or form of the relevant contract, the entire process of the transaction should be determined on the basis of the parties’ intent, such as the process of concluding the contract, the method of determining the price, and the progress of the transaction (see, e.g., Supreme Court Decision 2013Du1843, May 24, 2013). In short, the Plaintiff’s acquisition of treasury stocks from MD 10 to the date of acquisition of treasury stocks from MD 201.

Therefore, the first defendant's disposition of this case is unlawful on different premise, and the plaintiff's main text of this part is justified in conclusion.

3. Conclusion

Thus, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.