The Defendant’s disposition of imposition of the capital gains tax for the year 2008 against the Plaintiff on January 4, 2010 that exceeds the OOO members shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. 4/5 of the total costs of the litigation shall be borne by the Plaintiff, and 1/5 by the Defendant, respectively.

The Defendant’s disposition of imposition of the capital gains tax of 2008 against the Plaintiff on January 4, 2010 is revoked.

In full view of the overall purport of the pleadings, the following facts are recognized in each entry into Gap 1, 2, 3, and 24, and Eul 2 through 12 (including household numbers):

[1]

A corporation BB(hereinafter referred to as a "foreign corporation") is a corporation for civil engineering work, and around March 2008, the issued stocks were 110,400,000 won at par value, and among them, the plaintiff, the representative director of which, the plaintiff, 110,400, and CCC 12,800, and D 12,800, and EE were 14,400, and 9,600 Won.

On March 31, 2008, the ○○ Plaintiff drafted a "contract for the transfer of a construction corporation" with GG on March 31, 2008.

The contents stated in the ○○ contract are that as the representative of the shareholder who was delegated by the Plaintiff by all of the shareholders of the non-party company, the non-party company transferred all 160,000 shares issued by the non-party company including the management rights (hereinafter referred to as the “instant shares”), to GG, and the △△ OOOOO on the date of the contract, and the balance of △△ OOOOOO on April 30, 2008 and the remaining △OOOOOOOO was settled and paid when the debt of the non-party company is additionally discovered.

[2]

After ○○, on May 26, 2008, the Plaintiff drawn up a "agreement" as of March 31, 2008 between the date of preparation with GG.

The content stated in the ○○ agreement is that the transfer and acquisition price of the non-party company 6 as the OOO of the non-party company, the △△ down payment OOOO of the △△ intermediate payment is paid on March 31, 2008, the OOOO of the △△△ intermediate payment is paid on May 26, 2008, and the rest of the intermediate payment OOO of the non-party company is submitted documents related to the stock transfer and change, and the OOO of the bank net debt OO of the △△△ company is received by GG and paid after the replacement of the executive officer of the non-party company.

Pursuant to the above agreement, around May 26, 2008, the Plaintiff transferred 110,400 shares of this case among 160,000 shares of this case to GG, HH and III.

[3]

On June 1, 2009, the Plaintiff reported the transfer income tax on the above 110 and 400 shares to the Defendant, and reported that the transfer value is an OO which is the par value per share, and that there is no transfer margin.

As a result of the tax investigation, the transfer value of 160,000 shares of this case is the OOO won, and among these remaining amounts, the transfer value of the shares of this case is recognized as being impossible to be paid, and the transfer value of the shares of this case is recognized as the 110,400 shares transferred by the plaintiff as the OOO won after deducting the transfer value of the shares of this case from the OOO Won (=(OOOE - 110,40 shares ± 160,00 shares).

According to ○○, on January 4, 2010, the Defendant imposed an OOO on the Plaintiff the transfer income tax of 2008 (hereinafter referred to as the “instant disposition”).

2. Transfer value:

A. The plaintiff's assertion

The Plaintiff agreed with GG to transfer 160,000 shares, including managerial rights, of this case, and agreed to assess the assets and liabilities of the non-party company as OOO members and to transfer net asset OO members as transfer proceeds. The transfer value of the shares of this case is OO members.

Nevertheless, in the instant disposition, the transfer value of the shares was recognized as an OOO, and thus, it is unlawful.

B. Determination

(1) Article 95(1) of the Income Tax Act provides that the total amount of capital gains shall be the transfer value, and Article 96(1) of the same Act provides that the transfer value of assets shall be the actual transaction value between the transferor and the transferee at the time of transfer of the assets, i.e., the actual transaction

The actual transaction price, which is the basis for the calculation of capital gains, is not a general market price that reflects the objective exchange value, but a real transaction price itself. Therefore, even if there is room for the stock transfer price to be higher than the actual market price because the stock transfer entails the transfer of company management rights, the price is not changed from the actual market price. Even if the stock transfer is a case involving the management right of the company, there is a possibility that a relatively high price formation would be higher compared to the case where it entails the management right of the company, so in the case of the former, it is difficult to view the transfer price as the general market price of the relevant stocks, and the price is not the price for the stock transfer (see Supreme Court Decision 88Nu12011, Jul. 11, 1989).

(2) According to the above facts, the plaintiff submitted the agreement made between the plaintiff and the non-party company on May 26, 2008, and the transfer and acquisition price of the non-party company 6 as OOOOOO, and the down payment OOOOOOOO of the △△ intermediate payments as of March 31, 2008, and the OOOOO of the △△ intermediate payments as of May 26, 2008, and when paying the rest part payments, the other part of the part payments as of May 26, 2008 presented documents related to the stock transfer and change, and the other part of the part payments are submitted, and the bank net debt OOO of the non-party company was accepted by GG and the remainder payment of the △△ OOOOOO after the replacement of executive officers

According to the above agreement, and the down payment, intermediate payments, debt acquisition and transfer payment of the non-party company, and the non-party company are composed of OO members, OO members, OOO members, OO members, and OO members. This is to deduct the debt amount from the transfer price.

As above, while accepting a debt, the debt amount is agreed to deduct the transferor from the transfer price, and the debt amount is not the assumption of obligation, but the transferee is not the obligor, and the transferee is not the obligor, and the transferee is not the obligor, but the transferee is not the obligor, and the transferee is not the obligor, and the transferee has the obligation to pay the balance by paying the balance after deducting the debt amount from the transfer price (see Supreme Court Decision 2006Da69479, 69486, September 21, 2007).

(3) If so, the transfer value, which is 160,000 shares of this case, including management rights, and the total income amount of capital gains, shall be OO, and this part of the plaintiff's assertion that the transfer value is OO, is OO, is without merit.

3. Inability to recover claims.

A. The plaintiff's assertion

In the agreement entered into with GG on May 26, 2008, the Plaintiff agreed to take over KRW OOOO of the non-party company's net debt obligations, but GG failed to comply with it, the Plaintiff paid OOOO won as a joint and several surety of the above bank's debt, but filed a lawsuit against the non-party company for indemnity, but repaid OO won due to compulsory execution based on the judgment, and there is no possibility of recovery. Therefore, the transfer of 160,000 shares of this case should be deducted from the amount of such OO won.

Nevertheless, the disposition of this case was unlawful since it did not deduct the above OO from the transfer value of the shares.

(b) Fact of recognition;

The following facts are recognized in full view of the results of Gap's 1, 5 through 9, 12, 14, 17, 18, 19, 20 through 30, and 13 and 14 (including household numbers), the court's permanent records in the first instance court, the Seocho-gu and the Ministry of Land, Transport and Maritime Affairs, and the Court's JJ in the first instance court's order to submit financial and taxation information to the Seocho-gu and the Ministry of Land, Transport and Maritime Affairs, as a whole

[1]

The above arrangement, prepared by the Plaintiff between GG on May 26, 2008, provides that the transfer and acquisition price of the non-party company 6 shall be OOOO, and the down payment OOOOOOO of the △△ OO of the △△ OO of the late payment, shall be paid on March 31, 2008, and the OOO of the △△ OO of the rest payment shall be paid on May 26, 2008, and the other part of the part payment shall be paid, and the documents related to the transfer and change of stocks shall be presented, and the OO of the bank debt obligations of the non-party company shall be accepted by GG and the remainder OOOO of the △△ company shall be paid after the replacement of executive officers

○GGG paid the down payment and the intermediate payment OOOO on May 26, 2008, and was appointed as the representative director of the non-party company on May 26, 2008, but did not pay the remainder, and did not pay the above bank obligations, and on August 11, 2008, the non-party company was insolvent.

As a joint and several surety for the above bank debt, the plaintiff paid 100,000,000 won and OOOOOO to the credit guarantee fund on December 26, 2008, and May 11, 2009, and paid OOOOO on November 19, 2008 and January 12, 2009, by subrogation of OOOOO and OOOOOOOO in the LL bank, and paid 791,538,359 won in total.

On the other hand, on September 2008, the plaintiff filed a lawsuit claiming a prior reimbursement with the non-party company as a joint guarantor for the debt of the non-party company against the non-party company as Seoul Western District Court 2008 Gohap12873. On April 23, 2009, the plaintiff was sentenced to the non-party company's payment to the plaintiff of the OOOO, and this judgment became final and conclusive as it is.

○ Based on the above final judgment, the Plaintiff applied for compulsory execution against the corporeal movables of the non-party company and received KRW 322,462,20 on August 11, 2009.

[2]

As of April 10, 2013, the OGG has reached the current tax amount in arrears in the OOO, and at the present KK, it is not confirmed that deposit claims or real estate possession is not confirmed.

According to the list of property submitted by GG in the procedure for specification of property requested by the Plaintiff, there is no property owned by GG.

○ Company was due to the bankruptcy on August 11, 2008 and closed on November 23, 2009, and on April 10, 2013, the tax amount in arrears reached the OOwon and the obligation for the loan is not confirmed by the deposit claim or real estate holding.

Although ○○ Company owns a vehicle, it has no particular value of property with a heavy vehicle.

[3]

○○On the other hand, the agreement entered into between the Plaintiff and GG on May 26, 2008, stating that “GG shall immediately present to the party liable for the debt with respect to the real estate provided as security, when the party liable for the debt with the net debt of the bank pays OOO to the Plaintiff after the payment to the Plaintiff.”

Around November 2005, prior to the preparation of the above agreement, ○○ Company borrowed OOO's level from the LL bank, and at the time MP was designated as the owner of the vessel for the guarantee of the above obligation, the registration of creation of the right to collateral security was completed in the name of the LL bank with regard to the land of common interest 132, etc.

As ○○M borrowed OOOO from the Plaintiff and failed to repay it, the registration of establishment of a collateral security was completed in the future in the bank, while the Plaintiff and GGG agreed to take over the above debt owed to the non-party company’s LL bank by GG, in the future, GGG received documents from LL bank to cancel the registration of establishment of the collateral security, and entered the same contents as seen above in the above agreement.

As ○○, the registration of creation of a collateral security made by MM in the future of LL bank was cancelled on January 12, 2009.

C. Determination

(1) The Income Tax Act, even if there is no income in reality, adopts the so-called principle of confirmation of right that is to calculate taxable income, and even if there is a claim that is the cause of income, if it is objectively apparent that the claim subject to income becomes impossible to recover due to the debtor's bankruptcy, etc. and that it becomes no possibility of realizing the future gain in the future, income tax on such economic gain shall lose its premise, and it shall not be imposed on such income as taxable income, but it shall be clearly stated that the person liable to pay tax has no income by asserting or proving such circumstance. In this case, the issue of whether it is impossible to recover the claim should be determined by an objective method of assessment based on social norms by taking into account the debtor's asset situation, payment ability, etc. (see, e.g., Supreme Court Decisions 2002Du1953, Oct. 11, 202; 2002Du195184, Oct. 15, 2002; 2004Du166714, Oct. 18, 2014).

(2) According to the facts found above, △△△△△△ was appointed as the representative director of the non-party company on May 26, 2008, and thereafter did not pay the remainder of OOOO. The defendant recognized the remainder of 160,000 transfer value of the shares of this case as OOOO, and disposed of the above transfer value after deducting OOOO from the above transfer value and deducting it from OOOO, and the plaintiff was ordered to accept the net debt OO of the non-party company as joint and several surety of the above bank debt of the non-party company, but the plaintiff did not pay the above OOO, and the △△△△△△△△ was paid the aggregate of OO's debt as joint and several surety of the above bank debt of the non-party company on or around August 11, 2009 through a suit for subrogation, but the non-party company was currently liable for a large amount of tax, and did not have any property.

Thus, it is objectively clear that the remaining OO members except the OO members repaid by the non-party company, and the future income is not feasible in the case of the non-party company, among the OO members of the transfer value of 160,000 shares of this case, and the OO members of the debt amount that △△△△ is to take over from among the OO members of the 160-00 shares of this case.

Therefore, in imposing transfer income tax on the Plaintiff, the transfer value of 160,000 shares of this case is calculated by deducting the remainder from OOO and OOOO.

The plaintiff asserts that the plaintiff, and the plaintiff's subrogation, shall deduct the remainder of the OOOO won other than the OOOO won repaid as above from the above OOO won.

As long as GGG agreed to take over the net debt OO of the non-party company with respect to the transfer of the instant shares, and when calculating the transfer value of the instant shares, it is calculated on the basis of the above OOO members, and the Plaintiff’s above assertion is reasonable to the extent that the Plaintiff excluded the OO members repaid by the non-party company, and the remainder is without merit.

(3) On the other hand, according to the facts found earlier, it was found that the registration of the establishment of a collateral security right was cancelled in the name of the LL bank for the purpose of securing the obligation of the non-party company to the LL bank, and that the registration of the establishment of the collateral security right was cancelled. This was completed in the future in the LL bank as MM borrowed OOO Won from the plaintiff but failed to repay it. The plaintiff and the plaintiff agreed to acquire the above obligation of the non-party company to pay the above KRW 500 million to the plaintiff in the future, while MG paid the above KRW 50 million to the plaintiff in the future, GG received the documents from LL bank to cancel the registration of the establishment of the collateral security right.

Therefore, the registration of the establishment of the above right to collateral security is about the OOwon borrowed from the Plaintiff by MM, and the Plaintiff and GG are separate from the transfer of the instant shares. Thus, even if the Plaintiff received payment from MM, it is not recognized that the Plaintiff received OOwon from the transfer of the instant shares.

4. Disposition of this case

According to these above, in imposing transfer income tax on the plaintiff, the transfer value of 160,000 shares of this case shall be the amount after deducting OOO and OOOOO won from OOOO. Accordingly, when calculating the amount to be borne by the plaintiff, it shall be OO as shown in the attached Form.

Therefore, the part of the instant disposition imposing capital gains tax on the Plaintiff by deducting the transfer value of the instant shares from the OOO's source is unlawful and thus, the part exceeding the OO's source is revoked.

5. Conclusion

Thus, the plaintiff's claim seeking the revocation of the disposition of this case is justified within the above scope of recognition, and the remaining claims are dismissed as without merit, and the judgment of the court of first instance is partially unfair.

Therefore, among the judgment of the court of first instance, the part against the plaintiff that revoked the above disposition is revoked, and the plaintiff's claim is accepted, and the remaining appeal of the plaintiff is dismissed as it is without merit, and it is so decided as per Disposition.