Article 20 (Non-Inclusion of Losses from Capital Transactions in Corporate Tax Act

The costs of appeal are assessed against the Plaintiff.

[Seoul High Court Decision 2007Nu27501, May 15, 2008]

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of appeal

The same shall apply to the order.

This court's reasoning is the same as the reasoning for the judgment of the court of first instance, except for addition, deletion, or modification as follows. Thus, this court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

A. On the 2nd judgment of the court of first instance, "each conclusion has been made" of the 11th judgment, followed by adding "(the total number of shares that the plaintiff company decided to grant to her leap○○, etc. reaches 1,811,680 shares)."

(b) The reasons for the judgment of the court of first instance shall be deleted from the part of paragraphs (c) (2) through (6) of Article 2, and the following additions to the part of paragraph (c) (1) of Article 2:

“(2) Whether the instant compensation is subject to non-deductible losses as the disposal of surplus funds.

(A) Scope of expenses to be included in deductible expenses

Article 19(1) of the former Corporate Tax Act provides that deductible expenses shall be deductible expenses incurred from transactions that reduce the net assets of a corporation (Article 19(1) of the former Corporate Tax Act) and personnel expenses, such as remuneration for executives and employees and bonuses, shall be included in such deductible expenses (Article 19 subparag. 3 of the former Enforcement Decree of the Corporate Tax Act); Provided, That in principle, disposal of surplus (or disposal of profits, hereinafter referred to as "disposal of surplus") shall not be included in deductible expenses (see Article 19(1) and Article 20 subparag. 1 of the former Corporate Tax Act, and Article 43(1) of the Enforcement Decree of the same Act). The disposal of surplus is related to the distribution or distribution of profits to stockholders or investors, and thus does not constitute deductible

The following Corporate Tax Act, even if piece rates paid through the employee stock ownership association as treasury stocks, piece rates paid in connection with the exercise of stock options given to employees by a start-up corporation, etc., and performance-based bonuses paid according to the pre-determined performance distribution plan (see the proviso of Article 20 subparagraph 1 of the Corporate Tax Act and each subparagraph of Article 20 (1) of the Enforcement Decree of the same Act) are included in deductible expenses (see, e.g., the proviso of Article 20 subparagraph 1 of the Corporate Tax Act). This can be deemed as a policy recognized to the effect that the company, in a transparent

(B) The nature of "the benefit from the exercise of the right to choose the purchase of the Difference compensation type"

(1) In light of the purpose of the Commercial Act which provides that a company may grant stock options to its executives and employees, or its contents, etc., the profits that it gains by exercising the stock options (the difference between the market price and the exercising price of the new stocks) are generated through capital transactions, and thus, can be deemed as losses to the existing shareholders or companies (the existing shareholders would not exercise the stock options if they would be deemed as losses that would result in the failure of exercising the stock options recognized under the Commercial Act by exercising the stock options, and the existing shareholders would be deemed as having paid the difference between the acquisition price of the new stocks and the exercising price of the stock options by exercising the stock options. (3) In light of the purport of the Commercial Act which provides that the employees would be able to give the stock options to its executives and employees, the difference between the acquisition price of the new stocks and the exercising price of the stock options by exercising the stock options shall be deemed as losses that would be exceptionally included in the calculation of losses.

(C) Whether the instant compensation was included in deductible expenses

(4) In light of the purport of the Plaintiff’s Articles of incorporation and 10-3(6) of the Stock Exchange Act, the Plaintiff’s provision that the compensation amount for the instant stock option would not vary from the date of exercising the stock option to the date of exercising the stock option (Article 10-3(6) of the Plaintiff’s Articles of incorporation (Evidence 5) and the agreement that the compensation amount would not vary from the date of exercising the stock option to the date of exercising the stock option, and that the Plaintiff would not be deemed to have paid the compensation amount for the instant stock option to the officers and employees for approximately 4% of the total issued stocks, and that the Plaintiff would not have paid the compensation amount for the instant stock option at the time of exercising the stock option (Article 10-3(6) of the Plaintiff’s articles of incorporation and the agreement that the compensation amount would not change from the date of exercising the stock option to the date of exercising the stock option to the extent that the Plaintiff would not have actually paid the compensation amount for the instant stock option to the extent that the Plaintiff would not have actually paid the compensation amount to the above KRW 5.

(3) Sub-determination

Therefore, the instant disposition rejecting the Plaintiff’s claim for correction that the instant compensation would not be included in the deductible expenses is lawful.

2. Conclusion

Therefore, the plaintiff's claim is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, so it is revoked by the defendant's appeal and dismissed the plaintiff's claim. It is so decided as per Disposition.