Cho High Court Decision 2010Du2949 ( October 31, 2011)

Pursuant to the financing agreement, a person who borrows new subscription fund shall be a beneficial shareholder, and the benefit from disposal of stocks shall accrue accordingly.

In the process of issuing capital increase with the third party allotment method, the funds investors or the third party designated by them are subsequently sold, and pursuant to the financing agreement, the lending of new capital subscription funds is deemed as beneficial shareholders. It is reasonable to deem that the profits from disposing of stocks have accrued accordingly.

2011 Gohap14531 Revocation of Corporate Tax Imposition Disposition, etc.

XX Co., Ltd

Head of Seocho Tax Office

March 30, 2012

April 20, 2012

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of KRW 00 of corporate tax for the business year 2005, KRW 000 of corporate tax for the business year 2006, KRW 000 for the business year 2005, KRW 000 for the business year 2005, and the notice of change of income amount for the business year 2006 shall be revoked, respectively.

1. Details of the disposition;

A. From August 25, 2009 to December 1, 2009, the director of the Seoul Regional Tax Office conducted an integrated investigation of corporate tax against the company XX (former trade name is the OO of the company; hereinafter referred to as the " XX") that is a KOSDAQ-listed corporation.

B. As a result of the above investigation, during the process of offering new shares worth KRW 477,600 per share of KRW 000 per share by a third party, △△△△△△△ (the representative of the △△; hereinafter referred to as the “△△△△△”) received an investment from each investor in the fund investor column in [Attachment 1] list of new shares subscription and disposal profit (hereinafter referred to as “list 11”) as stated in [Attachment 1] list of investors in [Attachment 1] list of financial investors in [Attachment 1], the fund of KRW 00 (hereinafter referred to as the “instant issue fund”) was used as new shares for 477,600 shares, and was sold in full from December 23, 2005 to 405,60 shares out of the above new shares as 600 shares (hereinafter referred to as “instant shares”) and was allocated in the name of the said investor or the third party designated by him, and sold from December 23, 2005 to 16.

C. On December 8, 2009, the director of the Seoul Regional Tax Office (hereinafter “Seoul Regional Tax Office”) notified the Defendant of the income of KRW 000 from the disposition of the instant shares ( =00 won -00 won, hereinafter “Disposition profit of this case”) to include the Plaintiff’s income in calculating the corporate tax base for each business year of 2005 and 2006.

D. Upon notification of the above taxation data, the Defendant imposed and notified the Plaintiff of KRW 000 of the corporate tax for the business year 2005 and KRW 000 of the corporate tax for the business year 2006, respectively.

E. In addition, the Defendant deemed that 000 won out of the instant disposition profits belongs to thisCC, the representative director of the Plaintiff, and accordingly, disposed of each of the 000 won (i.e., KRW 000 - KRW 000), the remainder of the 000 won (i.e., KRW 000) for 2006 for 2006. On April 6, 2010, the Defendant notified the Plaintiff of each change in the income amount.

F. On July 5, 2010, the Plaintiff appealed to each of the dispositions in paragraphs (d) and (e) above (hereinafter collectively referred to as "each of the dispositions in this case") and filed an appeal with the Tax Tribunal on July 5, 201, but the Tax Tribunal dismissed the said appeal on January 31, 201.

[Basis] Facts without dispute, Gap evidence 1 and 2-1, Gap evidence 3-1, Eul evidence 1 and 2-14, Eul evidence 1 through 14, Eul evidence 10-1 through 6, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) The primary argument

A person who raised the funds of this case, which are the new stocks subscription fund of this case, through LA, a bond company. A person who manages and disposes of the stocks of this case, who is not the Plaintiff, is Park DoD and EE (hereinafter referred to as " Park DoD, etc."), and also a person who managed and disposes of the stocks of this case, etc., all of the disposition profits of this case were reverted to Park DoD, etc. In accordance with a joint venture agreement concluded with Park DoD, etc., the Plaintiff was merely a person who participated as a guarantor at the time of raising the funds of this case. However, each disposition of this case on the premise that the disposition profit of this case was attributed to the Plaintiff or the representative director of the Plaintiff,

2) Preliminary assertion

Even if the Plaintiff is a beneficial shareholder of the instant shares, insofar as the Plaintiff entered into a joint agreement with ParkD, etc. to distribute profits from the funds invested through joint projects with ParkD, etc. to 50:50 after the deduction of expenses, 50% of the proceeds from the instant disposition belongs to ParkD, etc. Therefore, each of the instant dispositions based on the premise that the entire proceeds from the instant disposition accrue to the Plaintiff is unlawful.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

(c) Fact of recognition;

The following facts can be acknowledged in full view of the following facts: Gap evidence No. 9, Eul evidence No. 3 (a dispute between the parties, or the plaintiff's seal impression part, and the authenticity of the whole document is presumed to have been established due to the lack of dispute over the plaintiff's seal image part; the plaintiff alleged that this document was forged; however, there is no evidence to acknowledge it); Eul evidence No. 4-1 through 4; Eul evidence No. 5, No. 6; Eul evidence No. 10-1 through No. 6; and the purport

1) P on December 5, 2005, a board of directors was held to resolve to issue capital increase with 477,600 common shares issued in the way of third party allotment at KRW 000 per share for the purpose of raising operating funds.

2) In order to raise new stocks to be offered for capital increase with the above new stocks, if △△ is recruited by the fund investors on the condition that 4% of the investment amount is paid as a prior interest, the agreement to raise funds with the purport that the Plaintiff shall pay 3% of the investment amount raised as service fees to △△ in addition to the above interest (hereinafter referred to as the “agreement to raise funds”) was prepared in the name of △△△ and the Plaintiff on December 2005.

3) After December 8, 2005, △△△ entered into a separate investment agreement (hereinafter “instant investment agreement”) on the condition that 11 investors are recruited, including JungB, in accordance with the instant financing agreement, and the amount equivalent to 4% of the investment amount is paid to the said investors as interest, and 4% of the investment amount is given to the investors in order to secure the principal and interest of the investment.

4) △△△△, through the instant investment agreement, raised a total of KRW 000 from 11 investors, such as fixedB, with the subscription fund for new shares, was issued by the Plaintiff an amount equivalent to 7% of the subscription fund raised as service fees and interest under the instant financing agreement, and a cashier’s check equivalent to KRW 00 of the Plaintiff’s issuance as security, and issued the said cashier’s check to the said investors at an amount equivalent to 4% of the subscription fund for new shares raised as interest pursuant to the instant investment agreement, and issued the said cashier’s check to the said investors.

5) From December 23, 2005 to February 1, 2006, 11 investors, including Jeong, sold all of the issues of the instant case to 00 won from December 23, 2005 to February 1, 2006, and returned cashier’s checks equivalent to 000 won from the remaining sales price after deducting 00 won of the investment principal and 000 won provided as security to △△△.

6) The KimF, UG, and Kim HH, an employee of the △△△△, were issued a receipt stating the fact that the Plaintiff’s representative director of the instant disposition income directly transfers the entire amount of the instant disposition income to thisCC and received the difference in the sales account of the instant shares from thisCC, respectively, on December 23, 2005, and December 29, 2005; and on January 20, 2006, January 27, 2006; and on February 1, 5, 2006.

D. Determination

1) Judgment on the plaintiff's primary argument

In light of the following circumstances, it is reasonable to view that the instant disposition benefit was reverted to the Plaintiff, who is the beneficial shareholder of the instant shares, in light of the facts acknowledged earlier, Eul evidence Nos. 5, Eul evidence Nos. 10-1 through 6, and the purport of the entire pleadings. Thus, the Plaintiff’s primary assertion is without merit.

A) Inasmuch as the instant funds were used as the subscription fund for new stocks of the instant issue, a person who borrowed the instant funds from △△△ to the instant funds is a beneficial shareholder of the instant issue stocks, and the instant financing agreement was concluded in the name of the Plaintiff.

B) According to the instant funding agreement, if the capital increase is failed to be paid in KRW 000 due to a cause attributable to △△△, △△ shall pay KRW 000 as penalty to the Plaintiff, and if the capital increase is lost due to a cause attributable to the Plaintiff, the Plaintiff shall pay KRW 00 as penalty for the penalty to △△△ in the event that the said liability is not fulfilled due to a cause attributable to the Plaintiff. The person entitled to the penalty and the person obligated

C) The remaining amount after deducting KRW 000 of the investment principal from the sales price of the instant shares was returned in accordance with the instant financing agreement. A person directly receiving the remaining sales price after deducting the investment principal from △△ KimF, UG, and Kim H, who is an employee of △△△, also receives the Plaintiff’s representative director. The Plaintiff’s receipt issued by thisCC to △△△ is affixed with the Plaintiff’s representative director’s seal impression affixed.

D) As long as the Plaintiff directly received the instant disposition benefits from △△△△, the fact that the said disposition benefits substantially accrue to Park DoD, etc. must be proven by the Plaintiff, but the Plaintiff did not submit objective and specific evidence to support this.

2) Judgment on the plaintiff's conjunctive assertion

As shown in the plaintiff's assertion, although Gap evidence stated the above evidence Nos. 5 (Joint Business Agreement) but the above evidence Nos. 7 through 9 were stated in the following circumstances, i.e., "18, 205" in the column for the date of preparation of the above Joint Business Agreement, and "A" in the parties to the contract: YY representativeCC, Attorneys Lee K, and E: TT film Co., Ltd., Ltd., which had been already closed on June 30, 2005; 2) there were no objective evidence to verify the actual date of the above Joint Business Agreement; 3) there were no evidence to prove that the plaintiff's above Joint Business Agreement had been disposed of from August 25, 2009 to December 1, 2009.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.