Seocho 2011west 3060

The P corporation located in the Raban invested by the Plaintiff cannot be deemed as the subject of the act by the Plaintiff as the Do governor.

P corporation is a corporation established pursuant to the relevant laws and regulations of Malaysia, and has been engaged in activities as an independent legal and economic entity for more than ten years under the real name of transactions such as acquisition of stocks, loan contracts, opening of accounts, remittance, etc., and a foreign corporation has performed various obligations under the domestic tax law, etc., it cannot be deemed that the Plaintiff, as a shareholder, is a mere conduit, is not the subject of action.

2012Guhap10680 global income, disposition, etc.

Lee Dong-A et al.

The Director of Gangnam District Office

November 30, 2012

February 8, 2013

1. The defendant on July 1, 2010

A. The imposition of each global income tax of KRW 000 as of the year 2008 and KRW 000 as of the year 2009 against the Plaintiff A, and the imposition of each global income tax of KRW 00 as of the year 200

B. Each global income tax disposition of KRW 00, KRW 00 for year 2005, KRW 000 for year 2006, KRW 000 for year 2007, and KRW 000 for year 2008, and KRW 000 for year 2009, and imposition of capital gains tax of KRW 000 for year 200, and KRW 000 for year 200 for year 2008.

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

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff, as a permanent resident of Singapore, worked as the representative director of the CCC (hereinafter referred to as "CCC") who is a domestic corporation operating hotel Internet and VOD services, etc. from April 1995 to December 200, and from May 1999 to May 200, the plaintiff worked as the operating general manager (COO and CCC (hereinafter referred to as "CCC representative director") of CCC headquarters located in the Republic of Korea, a U.S. corporation, the parent company, and (2) from May 2000 to December 2007, the plaintiff worked as the general manager of CCC headquarters (hereinafter referred to as "ACC representative director") in the Republic of Korea (hereinafter referred to as "ACC representative director") who has acquired the business and assets comprehensively, and the plaintiff is working as the resident of CCC and the domestic corporation from May 200 to December 208 (hereinafter referred to as "ACC representative director").

B. CCC, established in Malaysia for investment, management, etc. on May 2000, has 83% shares in Malaysia and 17% shares in Malaysia, respectively.

C. The director of the Seoul Regional Tax Office conducted an integrated investigation of the corporate tax on the CCC operating the hotel Internet and VOD service, and notified the taxation data to the director of the Seoul Regional Tax Office at taxation level with respect to the facts identified as follows, and the director of the regional tax office at taxation at the regional tax office at the regional tax office at the regional tax office at the regional tax office at the regional tax office, and accordingly, the CCC established in the Lane, which is a tax avoidance area, was merely a subsidiary company with no economic substance, and thus was deemed to have been out of the company equivalent to the amount included in the CCC’s earnings, and accordingly disposed of the income as each bonus, and notified the changes in the income amount.

(Omission of Contents of Notice)

라. 피고는 서울지방국세청장으로부터CCCC에 대한 조사내용을 통보받아 CCCㅔ 발생한 아래와 같은 소득을 원고들의 소득으로 간주하여 2010. 7. 14. 원고들에게 아래와 같이 양도소득세와 종합소득세 부과처분 (이하 ' 이 사건 각 처분')을 하였다.

(Contents omitted)

E. On August 11, 201, the Plaintiffs were dissatisfied with each of the instant dispositions and filed a request for a trial with the Tax Tribunal on August 11, 201, but were not notified of the decision of the Tax Tribunal within the period of 90 days, and filed the instant lawsuit.

[Based on Recognition] The non-contentious facts, Gap evidence 1 through 4, evidence 13, and Eul evidence 1 (including family numbers, hereinafter the same shall apply) through 3, and the purport of the whole pleadings

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

A. The plaintiffs' assertion

1) The Defendant, through each of the instant dispositions, deemed that various incomes earned by CCC were reverted to the Plaintiffs on the premise that CCC is not a substantive entity, but CCC is an independent trading entity, and it cannot be deemed that CCC’s income was reverted to the Plaintiffs.

2) The Plaintiff cannot be deemed as a resident under the domestic tax law pursuant to Article 1(1)1 of the Income Tax Act, Articles 2(2) and 4 of the Enforcement Decree thereof, and even if the status of the resident of both Korea and Singapore is competition because the resident falls under the resident requirements under the domestic tax law, the status of the resident of the Republic of Korea and Singapore is priority in accordance with Article 4(2) of the Korea and Singapore Tax Treaty, and the status of the resident of Singapore. Accordingly, the Plaintiff cannot be deemed as a resident.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) At around April 200, the Plaintiffs received the opinion of the domestic legal office of Malaysia, which is an investment holding company, on May 2, 200, to the effect that, “Malaysia, there is no duty to report on tax, there is no possibility of local taxation, and there is a relatively low burden on the disclosure of financial movement or the duty to report, so it is possible to reduce efficient management and cost.” At the time of its establishment, the Plaintiffs established CCC, which is an investment holding company, on May 2, 200. At the time of its establishment, the amount of capital is USD 00, and the stockholders were composed of thisA, B, D, and EE industry.

2) CCC purchased non-performing loans issued by CCC on December 2, 2000 and became the largest shareholder of CCC through financial restructuring to convert this into equity investment. Since Plaintiff Aapap CCC acquired the above CCC and control, it acquired the permanent resident registration of Singapore around April 2006, when Plaintiff Aap CCC had been working as the representative director of CCC and transferred to Singapore with his family around December 2002. The resident registration was cancelled in Korea around August 2008. The number of days of stay in Korea of Plaintiff AapA is as set forth below.

(number of days of stay in Korea omitted)

3)CC provided articles of incorporation, these photographs, lists of shareholders, bank accounts, etc., and provided CCC. with long-term loans to CCC, with long-term loans to CCC, and with OO-issuance convertible bonds issued and stocks acquired, and with other financial investors in the course of negotiations, with stock acquisition, loan contracts, and account opening, remittance, etc. in its own name.

4) Meanwhile, as a nominal company with no special physical facilities or employees, where there is no person with whom the FF LINKD in Hong Kong is acting on behalf of all relevant business, and the preparation of financial statements and audit reports is not mandatory due to the characteristics of the region inside the inside the territory of the Republic of Korea. While the Plaintiff B intended to make from the account of the CCC to make from time to time deposit and withdrawal from its own account, the Plaintiff B prepared and managed a ledger attached to the details of cash withdrawal separately from individual money.

[Based on Recognition] The non-contentious facts, Gap 3 through 5, and 18, and 25 through 34, and Eul 4 through 6, and the purport of the whole pleadings

D. Determination

1) Whether the CCC is a conduit

A) Article 14(1) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same) provides that "where the ownership of income, profit, property, act or transaction, which is the object of the spectrum, is nominal, and there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable for tax payment." Paragraph (2) provides that "The provisions on the calculation of tax base in tax-related Acts shall apply to the substance of income, profit, property, act or transaction, regardless of the name or form of the transaction." The principle of substantial taxation declared is the practical principle for realizing the principle of human life, etc. under the Constitution, which is distinguishable from the substance of the taxation-related legal relationship, and is applied to the legal relationship that differs from the substance of the taxation-free taxation without the no taxation without the law in order to ensure the stability and stability of the taxation-related legal relationship between the owner and the person to whom it belongs, regardless of the form or appearance of the taxation-free taxation without the law.

B) Therefore, the nominal owner of the shares or equity shares is not capable of controlling and managing the shares or equity shares, and the person who controls and manages them separately through the corner of control over the nominal owner, and the disparity between the name and the substance arises from the title that would avoid the application of the tax law provisions, and the shares or equity shares in question should be considered to have been reverted to the person who controls and manages the interest rate, and the person who is liable for tax payment (see, e.g., Supreme Court Decision 2008Du8499, Jan. 19, 2012). In addition, whether the shares or equity shares in question are acquired, the source and disposal process of the funds, the ability of the nominal owner, and the control relationship with the former, should be comprehensively taken into account, and in particular, whether the nominal owner lacks the ability to carry out its independent business purpose, and whether the actual calculation and activities are all carried out by the latter, and whether the difference between the type and substance is at least one of the core issues of the transaction options, including the tax avoidance sheet.

C) In full view of the following circumstances recognized as above and the evidence and the purport of the entire pleadings, it cannot be deemed that the CCC is a shareholder of the Plaintiffs, who is a mere conduit.

1. The CCC has been working as an independent legal and economic E system for more than 10 years while explaining all transactions, such as stock acquisition, loan contracts, opening of accounts, transfer, etc., as seen earlier, and as a foreign corporation, it has fulfilled various obligations under the domestic tax laws (see evidence A to 39 through 44).

② Although CCC was aware of the fact that it borrowed and appropriated USD 000 out of USD 000 from CCC at the time of the purchase of shares from MPT following the spread of the key call option, there is no evidence that the Plaintiff AA and B made personal processing of the calculation and execution of the pertinent funds according to their respective shares ratio and the CCC had functioned solely as the Do Governor. Moreover, there is no evidence to deem that CCC leaked leaked income from the Plaintiffs through dividends, etc. Therefore, it is difficult to deem that the Plaintiffs, as a personal agent, did not have any independent economic interest as the nominal principal agent.

"Third, the CCC was established for the purpose of acquiring the control over the CCC, and the 83% stocks of the CCC were owned by the Plaintiff who was not a domestic resident from 2000 to 2007 and was not obligated to pay the income tax in addition to the domestic source income, and the CCC's activities in a foreign country are irrelevant to the issue transaction, and there is no intention to dispute over the tax avoidance in Korea." Therefore, the issue transaction is not considered primarily for the purpose of tax avoidance."

2) Sub-committee

As long as the CCC cannot be viewed as a conduit, and it is not necessary to decide whether the plaintiff is a resident, the plaintiffs' assertion has been made. Accordingly, each of the dispositions in this case is unlawful.

3. Conclusion

Then, the plaintiffs' claims are all reasonable, and they are accepted, and they are decided as per Disposition.