Loyal Patent Co., Ltd. (LLC, Attorneys Lee In-hee et al., Counsel for the plaintiff-appellant)

Head of Ansan Tax Office

October 12, 2012

Suwon District Court Decision 201Guhap6630 Decided March 29, 2012

1. The plaintiff's appeal is dismissed.

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

The decision of the court of first instance shall be revoked. The defendant's imposition disposition of KRW 24,080,060 for the plaintiff on August 2, 2010, corporate tax of KRW 25,114,380 for the year 2005, corporate tax of KRW 32,810,930 for the year 206, corporate tax of KRW 32,810,930 for the year 207, corporate tax of KRW 34,246,210 for the year 2008, and corporate tax of KRW 23,359,280 for the year 209 shall be revoked.

1. Details of the disposition;

A. On April 1, 1997, the Plaintiff is a company established for the purpose of manufacturing gold-type and automation equipment for automobiles. On May 6, 2004, the Plaintiff held a temporary general meeting of shareholders on May 6, 2004 and decided to retire the said shares at the time of the termination of the purchase of Nonparty 1’s shares by purchasing the total amount of KRW 1.6 billion from May 2004 to “2009 to 2017, where the human treatment tea/GM treatment beneficiary certificates are cashed” (e.g., in 209 to 2017).

B. Accordingly, the Plaintiff purchased 29,181 shares of the Plaintiff’s 33,350 shares issued by Nonparty 1 (hereinafter “instant shares”) from Nonparty 1 to KRW 1,000,005,872 (hereinafter “instant shares”).

On May 31, 2004, the acquisition value per share of the number of stocks acquired on the date of stock acquisition contained in the main sentence (won) shall be 6,253,250,005,87247,976 April 14, 2006; 6,2532,00,000,000 31,985 February 21, 2008; 169 10,000,000,00023,987 April 30, 2008; 8,3720,000,000,000, 23,989 total 29,181,00,000,005,0572

C. On the other hand, the director of the Central Regional Tax Office found that the plaintiff acquired and held the shares as above, and that the plaintiff's acquisition of the shares of this case to the defendant was invalid transaction because it did not meet the requirements for acquiring the shares of this case under Article 341 of the Commercial Act, and ordered the non-party 1, a related party, as the plaintiff's shareholder, to pay the share price of this case to the non-party 1, a related party, to include the recognized interest and amount in the calculation of earnings and to non-Inclusion of the interest related to the share price of this case

D. Accordingly, the Defendant determined that the share price of this case constitutes a provisional payment unrelated to business, and determined that the amount of interest paid in relation to the share price of this case was included in the calculation of the amount of the interest recognized as the non-business income. The interest paid in relation to the share price of this case was excluded from the calculation of losses, and on August 2, 2010, the Plaintiff corrected and notified the amount of corporate tax of 24,080,060 won, corporate tax of 205, corporate tax of 35,114,380, corporate tax of 2006, corporate tax of 32,810,930, corporate tax of 207, corporate tax of 34,246,210, corporate tax of 208, corporate tax of 209, and corporate tax of 23,359,280, corporate

F. On October 21, 2010, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but the Tax Tribunal dismissed the said appeal on March 10, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Gap evidence 4, 6, Eul evidence 1 to 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the following points, the share price of this case was paid as a legitimate purchase price, and the defendant's disposition of this case on the premise that the share price of this case that the plaintiff paid to the non-party 1 constitutes a provisional payment unrelated to the business shall be revoked as unlawful.

1) The Plaintiff acquired the instant shares, one of its own shares, in order to retire the said shares upon the Plaintiff’s retirement from office. This constitutes an exception to the prohibition of acquiring the instant shares under Article 341 subparag. 1 or 341-2(1) of the Commercial Act (amended by Act No. 10281, May 14, 2010; hereinafter the same).

2) Even if the acquisition of the instant shares is null and void under the Commercial Act, it cannot be deemed as a provisional payment irrelevant to the business under the substance over form principle.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether it constitutes the acquisition of treasury stocks for the retirement of stocks

A) In principle, the Commercial Act prohibits the acquisition of a company’s own shares on its own account from uniformly preventing various harm, such as undermining the interests of the company, shareholders, and creditors, undermining the interests of the company, undermining the principle of equality of shareholders, undermining the principle of equality of shareholders, and undermining the control of an unfair company by the representative director, etc., and thus, in exceptional cases where the acquisition of a company’s own shares is allowed, it shall be exceptionally allowed in cases where the acquisition of a company’s own shares is exceptionally classified and explicitly stated in Articles 341, 341-2, and 342-2 of the Commercial Act, or the Securities and Exchange Act, etc., except where the acquisition of a company’s own shares is allowed in cases where the company gratuitously acquires a company’s own shares or where it is not possible to harm the interests of shareholders, etc., such as where the company acquires a company’s own shares on its own account or where it acquires a company’s own shares on another’s account. In other cases, the acquisition of a company’s own shares in violation of the prohibition provision is null and void (see Supreme Court Decision 2016Da4.

B) According to the provisions of the Commercial Act, where the retirement of shares is carried out equally for all shares out of distributable profits pursuant to the provisions of the articles of incorporation (proviso of Article 343(1) of the Commercial Act), where profits are available by a special resolution of the regular general meeting of shareholders (Article 342-2 of the Commercial Act), and where redemption of redeemable shares is made in accordance with the provisions of capital reduction (Article 345(1) main text of the Commercial Act). Thus, even where a company’s capital is paid-in retirement, a shareholder who retires shares in accordance with the principle of the equality of shareholders without impairing creditors’ interests is subject to strict capital reduction procedures, and thus, a shareholder who retires shares is not treated unfairly. Thus, even if a company acquires shares in the preceding procedure for the retirement of shares, there is no risk of harm thereby even if it acquires shares in the preceding procedure for the retirement of shares (Article 341 subparag. 1 of the Commercial Act), the Commercial Act permits the company to temporarily acquire shares for the retirement of shares (Article 342(1)4) of the Commercial Act).

On the other hand, capital reduction under the Commercial Act is ① in excess of the current capital in the business size of the company, and thus, is made for the purpose to return it to the shareholders, ② the anticipated dissolution and the liquidation procedures to be simple, ③ the purpose to reduce the shares of shareholders of the extinguished company, ④ the purpose to reduce the shares of the shareholders of the extinguished company, ④ the purpose to gain access to the net property of the company having deficit in capital, etc. by means of capital reduction. There is a special resolution of the general meeting of shareholders under the Commercial Act (Article 438), creditor protection procedure (Articles 439(2) and 232(2)), and notification and notification for the submission of share certificates (Articles 343(2) and 440).

C) Examining the following circumstances, in light of the above legal principles and the contents of the above provisions, comprehensively taking into account the evidence as seen above and the overall purport of Gap evidence Nos. 7 through 16 (including each number), the Plaintiff’s acquisition of the instant shares cannot be deemed as a case where one acquires treasury shares to retire shares as stipulated in Article 341 subparag. 1 of the Commercial Act, and there are no other materials to deem that the Plaintiff’s acquisition of the instant shares constitutes an acquisition of treasury shares exceptionally permissible under the Commercial Act or the Securities and Exchange Act. Therefore, it is reasonable to deem that the Plaintiff’s acquisition of the instant shares is null and void as it violates the prohibition of acquiring treasury shares, and the Plaintiff’s assertion on this different premise

(1) At the time of the Plaintiff’s acquisition of the instant shares, there is no circumstance to deem that the purpose of the Plaintiff’s stock retirement for capital reduction, i.e., the purpose of returning the company’s excessive capital to the shareholders, the purpose of the dissolution or merger procedure, the purpose of causing loss to coincide with the company’s net property. On the other hand, as seen in the Plaintiff’s status, Nonparty 1 recommended Nonparty 2 to acquire the instant shares on the ground of the Plaintiff’s aggravation of management, aggravation of the relationship with Nonparty 2, the representative director of the Plaintiff, and real estate investment, etc., but the Plaintiff acquired the instant shares due to Nonparty 2’s economic situation, and thus, it is difficult to view that the purpose of acquisition of the instant shares is the purpose of stock retirement for capital reduction.

(2) The acquisition of the instant shares appears to have been made only for the Plaintiff’s shares issued by Nonparty 1 upon Nonparty 1’s request for the sale of the Plaintiff’s shares. This would in fact result in the refund of investment to Nonparty 1, who is a specific shareholder, and it would endanger the Plaintiff’s capital foundation, thereby impairing the interests of the Plaintiff, shareholders, and creditors, impairing the principle of shareholder equality, and causing unfair corporate control by the Plaintiff’s representative director, etc. In addition, it is determined that Nonparty 1 appears to have attended a temporary general meeting of shareholders at the time of the resolution for the acquisition of the instant shares at the time of the resolution for the acquisition of the instant shares, and it appears that Nonparty 1 would have exercised 3% voting rights as the Plaintiff’s audit capacity. Moreover, even after the acquisition of the instant shares, it appears that it still remains maintaining the Plaintiff’s status as the three-party shareholders.

(3) From May 31, 2004 to April 30, 208, the Plaintiff purchased KRW 29,181,00,005,872 of the Plaintiff’s issued shares in four occasions from Nonparty 1 to April 30, 2008, and did not take all procedures for stock retirement for the reduction of capital for about four years long, and for eight years long. However, on February 17, 2012, when the instant lawsuit is pending (at least 18 months after the instant disposition was issued), the Plaintiff did not hold a temporary general meeting and completed a special resolution for the retirement of the instant shares for the purpose of reduction of capital, and subsequently registered the reduction of capital (the date the first instance judgment was pronounced after the instant judgment was rendered). This is reasonable to deem that the procedure for stock retirement was conducted to avoid the instant disposition in a formal manner.

2) Whether the retired director has taken over the shares

A) As asserted by the Plaintiff, Article 341-2(1) of the Commercial Act provides that “When acquiring shares of a retired director, auditor, or employee by transfer, he/she may acquire his/her own shares on his/her own account within the extent not exceeding 10/her total number of shares issued and outstanding.”

B) However, on February 19, 2004, Nonparty 1 resigned from the Plaintiff’s director and was appointed to the Plaintiff’s auditor on the same day. On May 6, 2004 when the acquisition of the instant shares was resolved, Nonparty 1 appeared at a temporary general meeting of shareholders on May 6, 2004, and exercised 3% voting rights as the Plaintiff’s auditor’s qualifications. By April 29, 2006, Nonparty 1 maintained the Plaintiff’s auditor’s status by April 29, 2006. At present, Nonparty 1 appears to maintain the Plaintiff’s status as the three shareholders holding 4,169 shares issued by the Plaintiff (4.48% shares). In light of the above, Nonparty 1’s assertion on this part based on the premise that Nonparty 1 retired from the status of the Plaintiff’s director, auditor or employee on February 9, 2004

3) Whether the share price of this case constitutes a provisional payment unrelated to business

A) Article 28 of the Corporate Tax Act and Article 53 of the Enforcement Decree of the same Act include not only purely meaningful loans, but also loans corresponding to the nature of claims, such as indemnity bonds (see Supreme Court Decision 2005Du1558, Oct. 26, 2006). If a sales contract becomes null and void from the beginning or is cancelled later, etc., the sales price received by the transferor should be returned to the transferee in principle, and thus, it cannot be deemed as taxable subject to capital gains tax by deeming the transferor’s income as the transferor’s income (see Supreme Court Decision 2010Du25152, Aug. 25, 201). Thus, when determining whether the purchase price of shares paid by the same corporation for the acquisition of treasury stocks falls under a business non-business amount under Article 28(1)4 (b) of the Corporate Tax Act, if the acquisition of treasury stocks is in principle void, the sale price of shares should be determined based on the premise that the acquisition price of the shares is not paid in principle.

B) As seen earlier, Nonparty 1 constitutes a shareholder of the Plaintiff, and it is reasonable to deem that the Plaintiff’s acquisition of the instant shares is null and void as an act of acquiring shares in violation of the prohibition on acquisition of the instant shares. As such, the share price paid by the Plaintiff to Nonparty 1 is not paid for the acquisition of the instant shares, but paid without any legal cause, and thus, the Plaintiff is obligated to recover the instant shares from Nonparty 1 immediately. Nevertheless, the Plaintiff asserted the validity of the acquisition of the instant shares and voluntarily avoided or renounces the collection without any justifiable reason (as seen earlier, it is reasonable to deem that the Plaintiff was formally subject to a special resolution for the retirement of the instant shares and registered change of capital reduction for the purpose of avoiding the instant disposition). Accordingly, the share price should be deemed as the provisional payment that the Plaintiff paid to Nonparty 1, a related party, regardless of its business. Accordingly, the Plaintiff’s assertion on this part is without merit.

4) Sub-determination

Ultimately, the share price paid by the Plaintiff to Nonparty 1, a person with a special relationship, falls under the provisional payment paid without relation to the business, and based on this, the tax base and tax amount of each corporate tax in the year 2005 through 2009 against the Plaintiff from the calculation of the recognized interest rate based on the calculation of the gross income and the inclusion of the interest paid in deductible expenses are the same as the corporate tax base and tax amount that are the premise of the disposition of the instant case.

3. Conclusion

If so, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is just in conclusion. The plaintiff's appeal is dismissed due to the lack of reason.

[Attachment Form 5]

Judges Kim Jong-chul (Presiding Judge)