Cho-2014 Middle-1555 (Law No. 18, 2015)

The disposition of this case rejecting the claim for correction by determining the amount received by the plaintiffs by deeming the transfer margin of the shares of this case as a bonus is legitimate.

Despite the form of transaction made by the plaintiff et al. and corporations, it is reasonable that the plaintiffs received the amount as bonus in accordance with the principle of substantial taxation by deeming "the dispute amount" as a premium for the right to sell in this case according to its substance.

Article 14 (Real Taxation)

2015-Gu Partnership-67572 Revocation of Disposition of Refusal to Change Transfer Income Tax

AA and 1

o Head of the tax office

oly, 2016.28

208.23

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

The defendant's rejection disposition of income tax correction as stated in the attached Form against the plaintiffs on July 7, 2014 shall be revoked.

1. Details of the disposition;

A. On September 21, 2009, the plaintiffs, BB, and CCC entered into a contract with the Korea Land Corporation (the Korea Land Corporation and the Korea Land Corporation were newly established on October 1, 2009; hereinafter referred to as the "Korea Land and Housing Corporation") to jointly sell OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O (hereinafter referred to as the "the land in this case") and paid the down payment KRW 00 million to the Korea Land and Housing Corporation.

B. The Plaintiffs, CCC, and DD (hereinafter “Plaintiff, etc.”) jointly established EE Co., Ltd. (hereinafter “EE”) on December 17, 2009, when DD entered a joint purchaser of the instant land on behalf of BB, the Plaintiffs, CCC, and DD (hereinafter “Plaintiff, etc.”) jointly established EE Co., Ltd. (total number of generated stocks: OO and total amount of capital:OO:OO personnel), and the Plaintiff, etc. divided the shares of EE by the ratio of AA 43%, Plaintiff GG 25%, CCC 20%, and DD 12%.

On December 18, 2009, the Plaintiff et al. transferred to EE the status of purchaser of the instant land, including the right to purchase the instant land (hereinafter referred to as “right to sell the instant land”).

C. On January 8, 2010, the Plaintiff et al. and EE concluded a "land sale right and a contract for transfer and acquisition of stocks" with the effect that all of the EE shares held by the Plaintiff et al. are transferred to the FF (hereinafter referred to as "FF") of OO billion (hereinafter referred to as "EE capital") and the EE's sales right in this case to the sum of OO00 billion won.

D. On April 7, 2010, the Plaintiff, etc. and FF changed the transfer price of EE stocks from OO00 billion won to OO00 billion won. The Plaintiff, etc. received the above OO00 million won from FF over the period between April 7, 2010 and May 28, 2010.

E. The FF entered into a contract on the succession of rights and duties with the EE on May 28, 2010 and with the EE on the instant land, under which the FF would succeed to all rights and obligations under the sales contract with the EE on the instant land, paid the remainder of the purchase price of the instant land, and completed the registration of ownership transfer in the FF future.

F. From August 13, 2013 to September 16, 2013, the Commissioner of the National Tax Service: (a) as a result of conducting a tax investigation on the Plaintiff, etc. with respect to EE; and (b) as a premium on the instant sales right, deeming that “the disputed amount” falls under the assets transfer income of EE, the OO billion won is included in the gross income of EE for 2010 business year; (c) among them, the KRW 4.3 billion received by Plaintiff AA; (d) the O billion amount received by Plaintiff GG as the bonus to the Plaintiffs; (d) the KRW 2 billion received by CCC; and (e) the O billion amount received by DDD as the dividends to CCC and DD; and (e) notified the Plaintiffs of the change in the amount of income on January 7, 2014.

G. On March 31, 2014, the Plaintiffs were dissatisfied with a revised return and payment of the comprehensive income tax for the year 2010 following the notice of change in the amount of income. On May 12, 2014, the Plaintiffs dissatisfied with the Defendant’s disposal of part of the “the dispute amount” as bonus against the Plaintiffs. The Plaintiffs revised the tax base and tax amount of global income tax for the year 2010 by reducing or revising the tax base and tax amount of global income tax, and demanded the Defendant to reduce the tax amount to be paid by Plaintiff AA from the OO members to the OO members and the tax amount to be paid by Plaintiff GG from the OO members as in the initial return. However, the Defendant dismissed it (hereinafter “instant disposition”) on July 7, 2014.

H. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 25, 2014, and was dismissed on May 18, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 7, 9 through 13, Eul evidence 2, 3 and 6 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiff, etc. entered into a contract with the FF to transfer EE’s shares to the FF in the KRW O00,000, and the EE received KRW 00,000,000 from the FF, and the Plaintiff, etc. received KRW 00,000,000 from the FF. Each of the above contracts is valid as an independent contract, and the Plaintiff, etc. did not have any purpose of tax avoidance. As long as the transfer contract by the Plaintiff, etc. cannot be deemed null and void as the most unfair act of the share transfer contract, the validity of the said share transfer contract cannot be denied by applying the principle of substantial taxation under Article 14 of the Framework Act on National Taxes, not an individual and specific denial provision. Accordingly, the “value of dispute” falls under the share transfer price of the EE, and thus, the instant disposition is unlawful, based on the premise that the said amount falls under the asset transfer income of the EE.

B. Determination

1) Article 14(1) of the Framework Act on National Taxes provides that if the ownership of income, profit, property, act or transaction subject to taxation is nominal and there is a separate person to whom it actually belongs, the person to whom it actually belongs shall be liable for tax payment and the tax law shall apply. Article 14(2) of the same Act provides that the provisions on the calculation of tax base under the tax law shall apply according to the substance regardless of the name or form of income, profit

2) The following facts do not conflict between the parties, or evidence A through 7, 9 through 13, and B

Any statement of evidence Nos. 1, 4, and 6 may be recognized by adding to the whole purport of the pleading.

① On February 28, 2001, FF had been promoting the project to jointly develop the said land and the instant land and to newly build and sell officetels on the ground, together with III Co., Ltd. (hereinafter referred to as “III”), which purchased O-O-O-O-O-O-O-O-type size adjacent to the instant land from the Land and Housing Corporation. FF and III participated in the instant land under the supervision of the Land and Housing Corporation, but not FF and III, Plaintiff AA et al. were awarded the instant land in the said bidding procedure.

② The FF entered into a “land sale right and a “transfer/acquisition contract” with the Plaintiff, etc. and EE on January 8, 2010 to purchase the instant land, as follows.

m. Land purchase right, stock transfer, and acquisition contract

○ The transferor of land ownership: EE (hereinafter referred to as “A”);

Stock transferor: transferee of the Plaintiff et al. (hereinafter referred to as “B”): FF (hereinafter referred to as “F”);

A, B, and C enter into a contract with the following to transfer and acquire the sales right of this case and the entire shares issued by Gap (hereinafter referred to as "transfer and acquisition object") in good faith.

Article 1 (Indication of Transfer and Acquisition)

1) Land sale right

Transfer, Transfer, and Transfer Price

The security deposit for land sale contract and theO billion won

Gap's issued OO00 million won

Transfer, Total Transfer Price, OO00 million won

Location: OO-dong O-O in Sungnam-si, Sungnam-si

Supply : Central commercial site (business, cultural facility)

Proper use: General service facilities

Area: OOm2

Land Category:

2) Stocks

Total issued OOO

The par value per share OO

A total par value of OO

Article 2 (Payment for Transfer and Acquisition)

* Equity capital of EE is separate from the amount of transfer or acquisition

Article 3 (Time to Pay Transfer and Acquisition Price)

1) Byung shall pay the transfer and acquisition price by means of:

2) The proceeds of transfer or acquisition pursuant to paragraph 1 above shall not be in accordance with the ratio of proceeds of transfer or acquisition as set out in section 2.

Sector shall be divided, and shares shall be divided in proportion to the ratio of shares of each owner.

③ EE has the risk of cancelling a sales contract for the instant land between the Korea Land and the Korea Housing Corporation pursuant to Article 19-2 of the Housing Site Development Promotion Act and Article 13-3 of the Enforcement Decree of the same Act when receiving a premium exceeding the KRW 00 million, which is the down payment originally paid in the course of transferring the instant right to sell.

④ On April 7, 2010, the Plaintiff, etc., EE, and FF prepared a "stock transfer/acquisition contract" between EE and FF for the transfer/acquisition price of the instant land subject to the transfer of the ownership of the instant land and between EE and FF, and between the Plaintiff, etc. and FF, for the transfer of the ownership of the instant land, the “stock transfer/acquisition price causing OO00 million won” as the subject of the transfer of the ownership of the instant land and the “stock transfer/acquisition contract” as the subject of the transfer of the ownership of the instant land, and the FF reported the transaction contract to the head of a branch office based on the sale and purchase contract of the said land, and obtained consent from the Korea Land and Housing Corporation to succeed to all rights and obligations of EE under the sales contract of the instant land.

⑤ The amount of corporate tax returned from 2009 to 2011 is KRW 0,00, and there was no balance in the corporate account of the EE until the transfer of the shares as above, and the EE did not own any property other than the sales right of this case.

(6) On May 31, 2010, EE changed its trade name to HH, Inc., and was dissolved on December 21, 201 by a resolution of a general meeting of shareholders.

3) The following circumstances are acknowledged based on the evidence as seen earlier.

In full view of the above, it is reasonable to view that the transfer and acquisition price of the sale right of this case by the Plaintiff, etc. and EE and FF entered into a contract for the transfer and acquisition of the instant sale right and EE stocks and included the "in the purchase price of EE stocks" in the sale and acquisition price of EE stocks is merely the appearance made to avoid restrictions on the resale of housing sites under the Housing Site Development Promotion Act or to avoid the corporate tax of EE, and the "in substance the dispute amount" is the transfer and acquisition price of the sale right of this case, and it is reasonable to view that the transfer and acquisition price of the sale right of this case was attributed to EE, the transferor.

① Since FF intended to develop the instant land and its adjacent land and to newly build and sell officetels, FF actually acquired the instant sales right by FF was not the EE shares.

② In fact, even after FF acquired EE’s stocks, it did not carry out particular business through EE, and EE was dissolved in 201.

③ On January 8, 2010, the Plaintiff et al. and EE concluded a “land purchase right and a “land purchase right and a contract for transfer and acquisition of stocks” with FF on January 8, 2010, set the transfer and acquisition price as KRW 00 billion, 'EE issued stocks', 'O0 billion, 'EE issued stocks', and 'O0 billion, 'EE issued stocks' as the total amount of capital of EE separately from the transfer and acquisition price, and pay the total amount of the down payment, intermediate payment, and balance based on the said transfer and acquisition price.

④ After April 7, 2010, the transferor was prepared as EE on April 7, 2010 by dividing the transferor into the Plaintiff, etc. and EE, the transfer subject to EE’s shares and the sale right of this case, and the “land sale contract” and “stock transfer/acquisition contract” divided into the sale right of this case. However, it appears to have been prepared formally in order to obtain consent to the transfer of sale right by avoiding the risk of cancellation of the sale contract of this case from the land

⑤ EE shall be deemed to have been calculated by reflecting the value of the instant right to sell, as it did not have any particular assets on hand, and there was no human and physical facilities to implement the project except for the Plaintiff, etc.

6) Since the EE is simultaneously a transaction in which the Plaintiff, etc. transfers the EE’s shares to the FF and the transfer of the EE’s shares to the FF, it is reasonable to assess the value of the EE’s shares on the premise that the EE’s ownership should be separated from the assets of the EE through separate transactions. In such a case, it is difficult to deem the EE’s shares without any particular assets or business to have any value. The FF’s purchase of the shares by paying the price of not less than O00 million won from the Plaintiff, etc. is not an economic rationality, and there is no reason to believe that the FF would have made such payment and purchase of the shares of the EE. Therefore, it is reasonable to view that the Plaintiff, etc. and the FF as the price for the transfer of the EE’s shares excluding the amount equivalent to O00 billion won of the capital of the EE’s O00 billion won from the transfer of the purchase right of this case.

7) In the event that the Plaintiff et al. transferred only the EE’s stocks to FF capital, the Plaintiff received the payment of the said transfer price from FF and received the payment of KRW 00 million for the unpaid purchase price for the transfer of the instant purchase right from EE; thus, the Plaintiff et al. asserted that it does not constitute an act of tax avoidance since the same effect as the case of entering into a contract by dividing the stock transfer contract and the sale right transfer contract into the sale right transfer contract, and thus, it does not constitute an act of tax avoidance. However, in light of the developments leading up to the conclusion of the contract as seen earlier between EE and FF, the Plaintiff et al. and the Plaintiff et al., did not conclude the transfer and acquisition contract only for the EE’s stocks without

8) The Plaintiff et al. reported and paid only capital gains tax on the transfer of the EE’s stocks through such transaction form, and the EE does not bear corporate tax on the issue amount, and the amount exceeds three billion won even in the case of calculating only corporate tax on the issue amount.

4) Therefore, notwithstanding the form of transaction taken by the Plaintiff, etc., EE, and FF, the instant disposition is legitimate on the premise that it is legitimate to dispose of the amount received by the Plaintiffs as a bonus, among the “instant dispute amount” as the asset transfer income of EE in accordance with the substance over form principle, deeming “the dispute amount” as a premium according to the substance over form principle.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so ordered as per Disposition.

shall be ruled.