주식의 양도로 인한 소득은 사업소득으로 볼 수 없음[국승]
Income from the transfer of stocks shall not be deemed business income.
Transfer income shall not be regarded as business income in light of the fact that the transfer income is income generated by the increase in the value of assets.
The contents of the decision shall be the same as attached.
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The director of the tax office.
1. The plaintiff's claim is dismissed.
2. The plaintiff shall bear the litigation costs.
The Defendant’s imposition disposition of KRW 246,258,210 against the Plaintiff on October 14, 2008 shall be revoked.
1. Circumstances of the disposition;
A. In 2006, the Plaintiff transferred 531,265 shares in ○○○ Company, a KOSDAQ-listed corporation (284,608 shares owned on December 31, 2005 + 246,657 shares purchased from January 31, 2006 to August 2006; hereinafter “instant shares”). Accordingly, 661,000,000 shares transfer margin.
B. On October 14, 2008, pursuant to Article 94(1)3 of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006; hereinafter the same), the Defendant issued the instant disposition imposing capital gains tax of 246,258,210 won on the Plaintiff regarding the transfer of the said shares.
[Ground of recognition] Facts without dispute, Eul's entry in the evidence No. 1-3, the purport of the whole pleadings
2. Whether the disposition is proper; and
A. The plaintiff's principal
The Plaintiff’s transfer of the instant shares constitutes a business activity conducted continuously and repeatedly for the purpose of profit under its own risk and calculation. Accordingly, the Plaintiff constitutes “financial business”-other invested institutions under the Korea Standard Industrial Classification Table, and the income from the transfer of the instant shares constitutes business income under Article 19(1)10 of the former Income Tax Act, not income subject to capital gains tax.
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
(1) According to the Korean Standard Industrial Classification Table (No. 6) under the above relevant laws and regulations, financial business refers to the industrial activities of raising funds other than insurance or pension purposes, re-distribution, supply, and mediation of such funds, and other investment institutions include industrial activities that invest funds other than securities issued and trust funds (personal assets, bonds, bills, and other debt assets) in financial assets.
According to the health class, Gap evidence No. 2, Eul evidence No. 3-1, No. 3-2, Eul evidence No. 1-3, and Eul evidence No. 1-5 on this case, the plaintiff is recognized to have purchased and transferred the shares of this case repeatedly (597, 45.6 billion won) on several occasions in 2006, but it is difficult to view that the transfer of shares of this case constitutes "financial business (stock trade)-other invested institutions" under the Standard Industrial Classification.
(2) Furthermore, in light of the following: (a) Income from the transfer of shares constitutes capital gains; (b) the former Income Tax Act imposes capital gains tax only for specific cases such as transfer of shares, not for all stocks subject to capital gains tax; (c) the former Income Tax Act imposes capital gains tax on the transfer of shares; (d) the former Income Tax Act, in principle, imposes capital gains tax on the total of income; but (d) the non-business income is classified and taxed separately; and (e) the non-business income is generated by the combination of assets and labor; or (e) the income from the transfer of shares that satisfies the requirements of Article 94(1)3 of the former Income Tax Act is generated by the increase of value due to the holding, it is reasonable
(3) Therefore, the Plaintiff’s assertion is without merit, and the Defendant’s disposition of this case is lawful.
3.In conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.