Plaintiff (Attorney Park Jong-soo et al., Counsel for the plaintiff-appellant)

Head of Daegu Metropolitan City Month;

April 13, 2007

Daegu District Court Decision 2006Guhap899 Decided October 11, 2006

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s imposition of acquisition tax of KRW 15,469,270 as of August 12, 2005 against the Plaintiff and the imposition of KRW 1,320,300 as of August 17, 2005 and the imposition of acquisition tax of KRW 412,380 as of August 17, 2005 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

【Ground of recognition】 The fact that there is no dispute, Gap's 1, 2, and 3-1, 2, 4, and 5's evidence, and the purport of the whole pleadings

A. Nonparty 1, a non-party 2, who is a non-party 2 corporation (the trade name before the change: omitted; hereinafter “non-party 2 corporation”) located in (the non-party 1) donated the entire shares to the Plaintiff, which is the wife on September 18, 2004, among the non-party 2 (the non-party 2 company) holding 70% of the total issued shares.

B. In accordance with Article 105(6) of the former Local Tax Act (amended by Act No. 7843, Dec. 31, 2005) on the ground that the Plaintiff acquired the above shares from Nonparty 1 and became an oligopolistic shareholder of Nonparty 2, the Defendant issued the instant disposition imposing and notifying the Plaintiff of acquisition tax (real estate) KRW 15,469,270; KRW 1,320,300; KRW 1,320,300; and KRW 412,380, acquisition tax (automobile) on the 17th of the same month.

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

(A) The Plaintiff, as Nonparty 1’s wife, who is Nonparty 2’s oligopolistic shareholder, constitutes a specially related person as stipulated in Article 6 of the Enforcement Decree of the Local Tax Act, and the donation of the above shares from the Plaintiff is merely an internal share transfer among oligopolistic shareholders, and there is no change in the overall oligopolistic shareholder’s shareholding ratio. Thus, the share transfer between oligopolistic shareholders whose shareholding ratio does not increase is not subject to deemed acquisition tax as stipulated in Article 105(

(B) Only the name on the register of shareholders was the Plaintiff, and in fact, Nonparty 1, her husband, operates the non-party 2 company, and the Plaintiff is not involved in the management of the above company, and it is difficult to deem that the Plaintiff actually acquired the shares.

(2) The defendant's assertion

(A) The Plaintiff is required to own at least one share of Nonparty 2’s shares, and the transfer of shares between oligopolistic shareholders is required. The Plaintiff’s acquisition of shares without all ownership of the said company’s shares does not constitute the internal transfer of shares among oligopolistic shareholders. The Plaintiff is subject to the imposition of the deemed acquisition tax which is obviously deemed to have been based on the literal interpretation of Article 105(6) of the Local Tax Act.

(B) The term “acquisition of a corporation’s stocks” under Article 105(6) of the former Local Tax Act includes all cases of acquisition of stocks in the form of transfer of ownership, regardless of whether actual ownership is acquired, so it cannot be deemed that it is a formal oligopolistic shareholder and cannot be subject to taxation.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination on whether a person is subject to deemed acquisition tax

(1) Article 105(6) of the former Local Tax Act provides that the acquisition tax shall be imposed by deeming that a shareholder who is not an oligopolistic shareholder has acquired the corporation’s property for the first time due to the acquisition of stocks or capital increase, etc. of another shareholder shall be deemed to have been acquired at the time of the first acquisition of the corporation’s property, and as such, it is the same as holding the corporation’s property in substance because the oligopolistic shareholder has a position to arbitrarily dispose of, manage, and operate the corporation. Thus, the tax base requirement is that: (i) Article 22 of the Local Tax Act provides that if the total number of stocks of all shareholders falling under a special relationship with a particular shareholder is 51/10 or more of the total number of stocks issued by the corporation concerned, all shareholders shall be deemed to be oligopolistic shareholders; and (ii) Article 78 of the Enforcement Decree of the Local Tax Act provides that where a shareholder who is not an oligopolistic shareholder becomes an oligopolistic shareholder for the first time due to the increase in the number of stocks held by the existing oligopolistic shareholder, the oligopolistic shareholder shall

In light of the above legislative intent and relevant provisions, the imposition of acquisition tax on an oligopolistic shareholder is not based on the increase in stocks or shares of one of the oligopolistic shareholders, but on the increase in the total ratio of stocks or shares owned by all of the oligopolistic shareholders based on a specific shareholder as a group of oligopolistic shareholders, acquisition tax is imposed on the increased portion. Thus, the transfer of stocks or shares between oligopolistic shareholders does not constitute the obligation to pay deemed acquisition tax under Article 105 (6) of the Local Tax Act, insofar as the total shares or shares are not increased.

(2) In addition, even if a person who is not a shareholder of the relevant corporation has a special relationship with the existing oligopolistic shareholder but is included in the oligopolistic shareholder group by acquiring new shares from the existing oligopolistic shareholder, if there is no change in the total shareholding ratio of the oligopolistic shareholder, this also does not change only to some of the members of the entire shareholders who correspond to the oligopolistic shareholder, and since there is no change in the overall shareholding ratio of the members of the oligopolistic shareholder, it shall not be deemed that the new person added to the oligopolistic shareholder members cannot be viewed as the oligopolistic shareholder first at the time of the acquisition of the shares, and thus, the liability to pay deemed acquisition tax does not exist (see Supreme Court Decisions 2002Du1144 decided Feb. 27, 2004; 200Du1144 decided Feb. 27, 200; 10% shares of the related parties A and 74% shares acquired by the corporation A at the time of capital increase of the company B, the tax office deemed acquisition tax to A, and whether the issue is the same as this case.

[Reference]

(3) According to the above facts, the plaintiff and the non-party 1 are married with a special relationship under Article 6 subparagraph 5 of the Enforcement Decree of the Local Tax Act. The plaintiff and the non-party 1, as a couple, donate all of the shares of the non-party 2 owned by the non-party 1 to the plaintiff and the non-party 1 who newly became an oligopolistic shareholder, and there is no change in the holding ratio since the ratio of the non-party 1's shares of the plaintiff and the non-party 1, who became a new oligopolistic shareholder, are still 70%

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is just and therefore the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges Kim Su-sung (Presiding Judge)