In the case of a sale, if the payment is paid in full or if the payment is deemed to have been paid in full by social norms, the requirements for taxation of capital gains tax are satisfied.

The disposition of imposition of capital gains tax and securities transaction tax of this case cannot be deemed to have been taken over since the price benefits cannot be deemed to have been paid in full, so the disposition of imposition of capital gains tax of this case is unlawful.

Article 162 (1) of the former Enforcement Decree of the Income Tax Act / [Time of Transfer or Acquisition]

2016Guhap58048 Revocation of Disposition of Imposing capital gains tax, etc.

1. AA;

1. BB director of the tax office;

July 21, 2017

August 18, 2017

1. Each disposition of imposition of capital gains tax of KRW 2,594,076,30 (including additional taxes) and securities transaction tax of KRW 136,556,00 (including additional taxes) that the Defendant rendered to the Plaintiff on June 10, 2015 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On August 4, 2009, the Plaintiff established CCC (hereinafter “CCC”) (hereinafter “E”) on March 29, 2013, and owned 140,000 shares (hereinafter “instant shares”) under the name of EE, FF, and GG (hereinafter “E”) after offering new shares on September 4, 2009.

B. On February 1, 2010, under the premise that the Plaintiff transferred the instant shares and the management right of the non-party company to HHH (hereinafter “HH”) at KRW 14 billion, the Defendant rendered each decision and notification on June 10, 2015 to the Plaintiff of KRW 2,594,076,300, and securities transaction tax of KRW 136,556,000 (including additional tax for non-declaration and non-payment for arrears) for February 2010 (hereinafter “instant disposition of imposition of capital gains tax”; and “Disposition of imposition of securities transaction tax of this case”).

C. The Plaintiff dissatisfied with each of the above dispositions and filed an appeal with the Tax Tribunal on August 12, 2015, but was dismissed on December 28, 2015.

Facts without dispute over the basis of recognition, Gap evidence 1, 11, 12, Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The stock transaction of this case is conditional trading on condition of concluding a lease contract for second calendars, settling accounts according to the area, and changing the business type of 100 stores. Of the total purchase price of 16 billion won, the Plaintiff’s money was merely 12 billion won, and the remaining 4 billion won should be settled based on the number and size of stores secured by the non-party company. Since the settlement of accounts is not yet finalized and settled due to the failure to complete the settlement of accounts, the transfer time has not yet arrived since the transfer price was not realized as the Plaintiff’s final income.

2) In addition, since the Plaintiff’s transfer price of the instant shares is not 14 billion won but 12 billion won, the said imposition disposition is unlawful in that it considered 14 billion won as the transfer price.

3) The Plaintiff did not make a report by determining that the time of transfer has not arrived, and the Plaintiff did not prepare false documents for the purpose of filing the tax return or used false documents for the purpose of filing the tax return. Therefore, it is unlawful to impose penalty tax by applying the additional tax rate of 40% on the premise that the Plaintiff committed fraud or other unlawful acts.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the disposition of transfer income tax of this case is lawful

According to Article 88(1) of the former Income Tax Act (amended by Act No. 10408, Dec. 27, 2010; hereinafter the same), the term "transfer" means a case where an asset is actually transferred for price. Article 98 of the former Income Tax Act and Article 162(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22580, Dec. 30, 2010; hereinafter the same shall apply) are merely a legal fiction of the time of transfer or acquisition in calculating gains from transfer. Thus, in the case of sale, it can be deemed that there is a transfer meeting the taxation requirements of capital gains tax only if the price is paid in full or if the price is deemed to have been paid in full or if the price remains to have been actually paid in full under the generally accepted social norms. Determination of whether the price remains to the extent of payment, the remaining amount of payment, the ratio occupied by the entire price, and circumstances surrounding the remaining payment (see, e.g., Supreme Court Decision 2008Nu1684.

Therefore, in order for the Plaintiff to be subject to the disposition of transfer income tax of this case on February 1, 2010 on the ground that he transferred the management right to the shares of this case and the non-party company to HH in KRW 14 billion, the acquisition price of the shares of this case and the management right of this case must be recognized as having been paid in full, and if this is not so, even if the transferee exercised the rights as a shareholder in real course of management of the non-party company, it cannot be said that the above shares and the management right of this case were transferred solely on such facts. However, considering the following facts, the Plaintiff’s acquisition price of the shares of this case and the management right of this case shall not be acknowledged as having been paid in full, even if he exercised the rights as a shareholder in real course of management of the non-party company in the transferee, it cannot be said that the above shares and the management right of this case were transferred. However, the following facts can be acknowledged in full view of the purport of each of the statements, Eul, 21, 224, 27, 38, and 34.

A) On September 28, 2009, the non-party company participated in the procedure of selecting a developer for the complex development of subway rental facilities conducted by the JJ and was selected as the eligible first-class negotiation for the second two calendars 2 and 3 lines stores. On October 23, 2009, the non-party company was selected as the eligible first-class negotiation for the 70 subway lines of the JJ on December 17, 2009, and entered into a contract with the JJ on December 17, 2009.

(B) On January 28, 2010, the Plaintiff agreed to transfer the Plaintiff’s shares and the management rights of the non-party company to HHH in KRW 16 billion. On the same day, the Plaintiff received down payment of KRW 2 billion and received KRW 2 billion from HHH in the second calendar 2 and 3, and paid in full at the time of non-sale.” On February 1, 2010, HH prepared a deposit certificate stating that “HH in the name of the transferor, including the down payment of KRW 14 billion, paid in KRW 12 billion, and paid in KRW 2 billion in the balance to the Plaintiff at the time of confirmation of the contract for the second business right, and that “H will not be refunded in the name of the transferor and 200,000,000 won,” and “H will not be refunded in the name of the transferor and 201,000,0000,000 won, including the down payment,” and “H will not be returned to the Plaintiff. 21.”

Stock and Management Right Transfer Agreement

On January 28, 2010, the EE, GG, FF (hereinafter referred to as “transferor”) and KKK Co., Ltd. (hereinafter referred to as “Assignee”) enter into a contract for acquisition of shares and management rights of the above Company (hereinafter referred to as “this contract”) with the EE, GG, FF (hereinafter referred to as “transferor”) as a shareholder of the CCC (hereinafter referred to as “CCC”).

Article 1 [Purpose of Contract]

The purpose of this contract is to prevent future disputes between transferor and transferee by determining all matters related to the acquisition of shares issued by the company and the management right of the company.

Article 2 (Scope of Acquisition)

1. The Company is proceeding with the rental business for at least 1-4-70 subway lines and the lease business for at least 2-2-line lines and 3-line groups, and the assignee shall accept the foregoing business entity operated by the Company.

2. The transferor should be able to enter into this Agreement with the JJ in a lease-based lease-based lease-based lease-based lease-based lease-based lease-based lease-based lease-based lease-based lease-based lease-based agreement.

Article 3 (Price of Transfer Price)

1. The transferee shall pay the transferor a sum of 100 million won (Won 1,00,000,000) to the transferor in consideration of the total acquisition of the management rights of the stocks and company (hereinafter referred to as “acquisition price”);

2. A transferee may request the transferor to adjust the price of the transfer to the transferee, if the transferor is found to have any matter inconsistent with the truth or omission of the financial statements and data of the company provided by the transferor, or any circumstance or cause that significantly unfavorable to the company's corporate value is discovered;

3. If the assignee, in accordance with paragraph 2, requests an adjustment of the price of the assignee, the transferor and transferee will enter into negotiations on the price adjustment in accordance with the principle of good faith, and the price agreed upon thereby will also be the final acquisition price.

Article 4 (Matters Subject to Prior Consultation and Additional Payment of Price for Taking over)

The transferor agrees with the Company to modify the following terms of the lease agreement entered into with the JJJ and provides all understanding and convenience to the Company:

- Expansion of the lease area for subway 1 to 4 lines between December 2009 and the JJJ 70 square meters between 70 and 100 square meters between 501.89 square meters;

- Expansion of categories of business in respect of 70 subway lines from 1 to 4 of December 2009, which were concluded by the JJJ between December 200 and 10 lines;

Article 5 (Payment of Price for Transfer and Transfer of Title)

1. The assignee shall pay the full sum of KRW 1,000,000 (Won 1,000,000,000) in full, at the time of the conclusion of this Agreement and at the time of the acquisition of the transaction.

2. The transferor shall, at the same time, complete the transfer of a title to all the 140,000 shares of common shares issued by the company in the name of the transferee: Provided, That the transferor shall immediately provide the transferee with the name of the transferee in the former part after being notarized by the register of shareholders in the name of the transferee.

3. To deliver a letter of resignation to all executives and employees of the company: Provided, That all executives and employees, including the representative director of the existing company, shall be registered at the time the transferee so wishes;

d. The transferor shall transfer or deliver to the transferee all the data, such as corporate identification cards, corporate identification cards, and financial accounts (including corporate cards) related to the management of the company at the same time with the payment of the amount under paragraph 1 above.

(hereinafter Omission)

J. H. H. H. H. H.

(A) (State): (A)CCC: the representative director and shareholder EE, shareholder LL, FF

(B) HahHH: MM of the representative director

(A) OOOO: N by the representative director

‘A' and ‘B' are to prepare this Convention in order to faithfully implement the contract.

Article 1

Of the total amounts, the JJJ 1 to 4 shall be one hundred billion won (Won 10,000,000,000).

Article 2

II 2 and 3. The amount of the combination is 6,000,000 won (Won 6,00,000).

Article 3

Of the Section II of the above Article II project rights, the value of the two lines project rights and the three lines project rights shall be distributed to 25%, 3 lines 75%.

Article 4

(1) During the contract process with a II Complex, two lines shall be calculated based on the standard 367 square meters (884 square meters) and shall be calculated and refunded in comparison with the ordinary number of two in the amount of two in the event that the contract is made for a flat waterway, whichever is reduced: Provided, That the increase or decrease in 20 percent in two lines shall be mutually recognized.

(2) A three-line vessel business right shall be 396 square meters (131 square meters) and the limit of increase or decrease in the number of three-line vessels shall be 10 percent. A three-line vessel business right shall be refunded after settling accounts in accordance with the application of the distribution rate prescribed in Article 3 (2) to the number of parallel lines reduced.

3. A shall return the full amount of 20 3 lines when the JJ and the contract is known.

Article 6 (Violation of Contract)

(1) Under the present contract, 100 retail items are Handphones and malicious services, but the J-J-related items should be changed into women's goods (cosmetics, women's eggs, and musical instruments).

(2) The entrances at present shall be open to 50% open or slots by 80%.

③ 제6조의 계약사항 ①, ②가 위반될 경우 병의 담보로 (주)OOOO의 복합개발장소 임대차사업 집단상가 PPPP역, QQQQQ역 운영권전체(보증금, 시설비포함)를 을에게 넘기기로 한다.

Article 7 (Penalties)

Even if one of the provisions of Articles 1 through 6 is violated, Eul shall claim damages against Gap.

(hereinafter Omission)

D) In addition, on February 1, 2010, the Plaintiff prepared a written confirmation of complete payment (hereinafter referred to as “written confirmation of complete payment”) with the purport that the Plaintiff received KRW 10 billion on February 1, 2010 and confirmed that the Plaintiff received full payment of the purchase price and all purchase price of stocks of the company other than the Plaintiff’s “HH” to HH, and issued a corporate identification card, corporate account passbook, corporate account passbook, corporate card, etc. to the Plaintiff on the same day. The Plaintiff, who actually led the instant transaction at the transferee’s side, prepared a loan certificate (hereinafter referred to as “the loan certificate”).

E) From March 19, 2010, the Plaintiff and EE obtained a certificate of content from HH HH to demand the performance of the change of the type of business originally agreed upon or the return of the entire price. On April 16, 2010, HHH stated that “HH paid 12 billion won in total as the price for acquisition of the instant shares and management rights,” and that “HH paid 12 billion won in total from the prosecutor’s survey of the Plaintiff on May 4, 2015.” In addition, RR made a statement on February 1, 2010 that “1 billion won in total from the prosecutor’s survey of the Plaintiff and 7 billion won in total from the prosecutor’s survey of the Plaintiff and made a statement on February 16, 2010 that “HH acquired the instant shares and management rights,” the Plaintiff’s letter of delegation and 12 billion won in total from the prosecutor’s office’s letter of delegation and 2.7 billion won in total.”

F) On April 19, 2010, the representative director and the intra-company director EE, internal directors GG, and auditor FF, who were existing officers of the non-party company, retired from all offices on April 19, 2010, and the new directors and auditors were appointed by the transferee on the same day. On July 5, 2011, the non-party company completed the transfer registration procedure for the instant shares in the name of HHHH, and on April 1, 2013, the tax authority submitted to the tax authority the statement on January 28, 2010, 56,000 shares of the non-party company from EE and FF, and 28,000 shares of the non-party company from GG to the non-party company, and the statement on the changes in shares and equity shares and the statement on the transfer of shares.

G) On January 27, 2010, upon receipt of the request from the SS to acquire the stocks and management rights of the non-party company, the RR received KRW 2 billion for the purpose of intermediate payment on February 1, 2010, and KRW 12 billion for the intermediate payment on February 1, 2010, and embezzled by arbitrarily using the remaining KRW 2 billion for the Plaintiff out of the above KRW 14 billion as the facts charged in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) (Embezzlement). On February 17, 2016, the first instance court was prosecuted with the Seoul Central District Court. On February 17, 2016, the first instance court rejected the Plaintiff’s assertion that the RR would have paid KRW 14 billion to the Plaintiff and borrowed KRW 2 billion from the said fact charged, and sentenced the RR to imprisonment with prison labor for two years (Seoul Central District Court Decision 2014Da11400, supra).

H) Meanwhile, the Plaintiff decided to transfer to R 16 billion won the entire shares and management rights of the non-party company to R 16 billion won, and 11.3 billion won has occurred after obtaining gains from transfer on February 1, 2010, and since the real management rights have been transferred by means of transferring all corporate cards, corporate cards, and passbooks and preparing a written confirmation of payment for the whole proceeds, it is difficult for the Plaintiff to report the capital gains tax and securities transaction tax on the above income by May 31, 2010. However, it is difficult for the Seoul High Court to conclude that the Plaintiff was not guilty of the total amount of KRW 1.0 billion in the contract of this case and the sales contract for shares by the false title trustee, and that the Plaintiff was not guilty of the total amount of KRW 1.0 billion in the total amount of KRW 2 billion in the shares of the non-party company to R 12 billion in the shares of the title trustee, and that the Plaintiff was not guilty of the capital gains tax and securities transaction tax by means of fraud and cash exchange over several occasions.

In full view of the above facts, it is insufficient to recognize that the Plaintiff’s statement of the written confirmation of the completion of the instant case alone is insufficient to recognize that the Plaintiff renounced the balance of KRW 2 billion paid at the time of confirmation of the second business right among the total price of KRW 16 billion agreed upon in compensation for the shares and management rights of the instant case, and contrary to this, there is no other evidence to recognize that there is no other evidence. Accordingly, the price for the shares and management rights of the instant case shall be deemed 1.6 billion, unless there is any evidence to acknowledge that the Plaintiff was paid the remainder of KRW 2 billion during 20 billion, the price for the shares and management rights of the instant case shall be deemed as KRW 1.6 billion, regardless of whether the intermediate payment of KRW 12 billion was liquidated, and thus, it cannot be deemed that the shares and management rights of the instant case have been transferred to the Plaintiff. Accordingly, the disposition of imposition of the capital gains tax of this case imposed on the Plaintiff in 2010 is unlawful.

2) Whether the imposition of the securities transaction tax of this case is lawful

Article 1 of the former Securities Transaction Tax Act (amended by Act No. 10401, Dec. 27, 2010; hereinafter the same) provides that "transfer of share certificates, etc. shall be subject to securities transaction tax." Article 2 (3) of the same Act provides that "transfer of share certificates, etc. means transfer of ownership at a cost due to contractual or legal grounds." Article 5 of the former Securities Transaction Tax Act and Article 2 (3) of the former Enforcement Decree of the Securities Transaction Tax Act (amended by Presidential Decree No. 24697, Aug. 27, 2013) provide that "when the time of transfer of share certificates, etc. becomes final and conclusive and the time of transfer of share certificates, etc. is delivered or received in full": Provided, That where the right is transferred before receiving the price for share certificates, etc. or the right is transferred at a cost, the right is transferred.

In this case, the Defendant imposed the securities transaction tax of this case on the premise that the Plaintiff was fully paid the transfer price of stocks on February 1, 2010, but the Plaintiff was not paid at least two billion won out of the transfer price of stocks of this case as seen earlier. Thus, the disposition imposing the securities transaction tax of this case is also unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.