early 2014,046

The actual transaction amount is not the original contract amount stipulated in the contract but the amount actually received after the settlement as above.

In calculating gains on transfer, which is the tax base of capital gains tax, the actual transaction value refers to the amount of actual agreement not to reflect the objective exchange value, but to the actual transaction price itself or at the time of the transaction.

Article 96 of the Income Tax Act

Seoul Administrative Court 2014Gudan53691

○○ ○ 1

○ Head of tax office

December 24, 2014

February 4, 2015

1. The following shall be revoked in the disposition imposing capital gains tax for the year 201, which the Defendant rendered to the Plaintiffs on November 1, 2013:

① Of the disposition imposing KRW 00,000,000 on Plaintiff ○○○, the part exceeding KRW 00,000,000.

② Of the disposition imposing KRW 00,000,000 on Plaintiff ○○○○, the part exceeding KRW 00,000,000.

2. The plaintiffs' remaining claims are dismissed.

3. Of the costs of lawsuit, 60% is borne by the Plaintiffs, and the remainder is borne by the Defendant.

Cheong-gu Office

The Defendant’s imposition of KRW 00,00,000 (including additional tax; hereinafter the same shall apply) for the transfer income tax of KRW 00,000 for the year 201 on November 1, 2013, and the imposition of KRW 00,000 for the transfer income tax of KRW 00,000 for the year 201, respectively, shall be revoked.

1. Details of the disposition;

A. On May 31, 2005, the Plaintiffs acquired 13,000 shares (hereinafter “instant shares”) of the entire shares of the non-listed ○○○○○ Co., Ltd. (hereinafter “non-listed ○○○○○○ Co., Ltd.”) (hereinafter “non-listed ○○○ Co., Ltd.”) from ○○○○ and two (hereinafter “former”) and transferred the instant shares (hereinafter “the assignee”) to ○○○ and one other (hereinafter “the instant shares”) on March 15, 201.

B. On May 31, 2011, the Plaintiffs calculated a total of KRW 3,766,80,000, and the transfer value of the shares in this case as stated in the Plaintiffs’ declarations under the following Table 1 to the Defendant, and filed a return on the tax base of transfer in Mus, by calculating the total of KRW 3,410,000,000.

C. However, as a result of the examination by the transferor prior to the shares of this case, the Defendant

The Do value (i.e., the acquisition value of the plaintiffs) was determined as KRW 2,846,600,000 in total, and accordingly, on November 1, 2013, the transfer income tax for the year 201 (Plaintiff ○○○○○○○00,000, KRW 000, and KRW 00,000) that was calculated by correcting the acquisition value as stated in the Defendant’s correction statement as stated in the attached Table 1, was each corrected and notified (hereinafter “instant disposition”).

Facts without dispute over the basis of recognition, Gap 1, 2, Eul 1 to 3 (including each number; hereinafter the same shall apply), each entry

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

Since the instant disposition was erroneous in calculating the acquisition value and the transfer value as follows, it shall be revoked in an unlawful manner.

1) As to acquisition value

① The Plaintiffs determined the price of the instant shares as KRW 3,766,80,000 between the former transferor and the former transferor. However, the Plaintiffs agreed to settle the obligations, etc. of the non-party company that the former transferor is obligated to be responsible for, and accordingly, paid KRW 2,846,60,000. The Defendant: (a) deemed the amount after the said settlement as acquisition value; (b) the instant disposition was made by deeming the amount as the acquisition value; (c) the actual transaction price, which serves as the basis for calculating capital gains, ought to be deemed as KRW 3,766,80,000 agreed upon by the parties to the transaction. The said settlement agreement is merely a separate provision on the method

② Even if the acquisition value of the instant shares is KRW 2,846,60,000 after the settlement of accounts, the Plaintiffs jointly operated the transferor and the non-party company from May 31, 2005 to May 1, 2005, and used KRW 333,420,331 (20 million deposited in the non-party company’s account + the amount paid in cash by the Plaintiff ○○○○○, etc. as retirement allowances, etc. on June 9, 2005) as part of the balance, so the Plaintiffs should be deemed as the acquisition value.

2) As to the transfer value

③ On March 15, 2011, the Plaintiffs entered into a contract to transfer the instant shares to the assignee KRW 3,410,000,000,00, and received KRW 3,152,032,121 ( KRW 3,410,00,00-257,967,879) from the acquisition limit amount under the said contract. Accordingly, the transfer income tax should be calculated by deeming the transfer value of the instant shares as KRW 3,152,032,121, which is the amount after the said settlement.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

In full view of the aforementioned evidence, evidence Nos. 3 through 10, evidence Nos. 4 through 6, and the overall purport of the pleading, the following facts can be acknowledged.

1) On May 9, 2005, the plaintiffs entered into a "motor vehicle transport license and agreement on the acquisition of the same stocks with the former owner", and set the purchase price at KRW 3,766,80,000. Article 3 provides that "the transferee shall pay the transferor the balance amount of KRW 2,766,80,000 to pay the transferor on June 30, 2005, but the transferor agrees to deduct all the unpaid taxes and public charges or the installment payments for the motor vehicle, all the liabilities arising from the transferor's name, all the outstanding checks and promissory notes, and all the employees and employees including drivers, etc. from the balance."

2) Accordingly, the Plaintiffs paid KRW 2,846,60,000 to the transfer price of the instant shares after settling all the obligations agreed upon to the transferor as above.

3) On February 5, 2011, Plaintiff ○○○○○○○○ entered into a contract for transfer and acquisition of a corporation (hereinafter “instant transfer contract”) with the instant shares and Nonparty Company’s business property, such as taxi business license number, and taxi for business use, to transfer all of the transfer proceeds of KRW 3,410,000. At the time, the transfer proceeds were paid KRW 340,100,000 on the date of the contract, and the intermediate payment was paid KRW 1.7 billion on February 28, 2011, and the intermediate payment was paid KRW 1.369,000,000 on March 15, 2011.

4) However, on January 28, 201, 201, the transfer contract transfer date of the non-party company was not paid continuous service allowance, and the transferee ○○○ filed a complaint with the Plaintiff ○○○ on January 28, 201, which was the transfer date of the transfer contract of this case. The transferee, on March 16, 2011, suspended the payment of KRW 90,469,90 for continuous service allowance claimed by the complainant on March 16, 2011, which was the day following the remainder payment date, and then, written each of the following contents (the subsequent agreement is re-determined to the amount of KRW 93.6 million; hereinafter referred to as “each of the instant statements”).

【Written Evidence of this case】

"At least 90,469,90 won per day, a driver's continuous service allowance account in the part where there is a difference in opinion on the transfer and acquisition of ○○○○○○, shall be returned in cash, i.e., when the next three years (the three years (the statute of limitations), and even when this period is within, the amount shall be returned individually, i.e., when the confirmation on the existence of wage claim is brought."

On November 22, 2011, the complainants under investigation at the Seoul ○ District Prosecutors’ Office (hereinafter “Seoul ○○ District Prosecutors’ Office”) received 7 million won from the Plaintiff and revoked the Plaintiff’s complaint. Accordingly, the Plaintiff filed a lawsuit against the transferee ○○○○○ seeking payment of the settlement amount based on each of the instant agreements. On October 17, 2013, the Plaintiff received the judgment that “the Defendant would pay the Plaintiff KRW 93,600,000 and damages for delay,” and the judgment became final and conclusive.

5) Meanwhile, the Plaintiffs settled claims, such as the advance payment of liability insurance, retirement allowances, etc., which the Plaintiffs had paid in relation to the instant transfer contract with the transferee (Evidence A 4-2). As a result, the Plaintiffs received KRW 81,261,465 in total, and KRW 339,229,344 in total (including KRW 90,469,000 in total), which offsets the amount of continuous service allowance payable by the employees as seen earlier, from the balance of the instant transfer contract. As a result, the Plaintiffs received KRW 3,152,032,121 ( KRW 3,410,00-257,967,879 in total) from the transferee as the transfer price of the instant shares.

D. Determination

1) Relevant legal principles

According to Articles 94(1)3 and 96(1) of the Income Tax Act, the transfer income tax shall be imposed on the transfer income tax calculated on the basis of the actual transaction value between the transferor and transferee at the time of the transfer of the assets (hereinafter referred to as the “actual transaction value”).

Here, "The actual transaction price, which is the basis for calculating capital gains tax" refers to the amount of actual transaction price, not the market price that reflects the objective exchange value, but the actual transaction price itself or at the time of the transaction (see Supreme Court Decision 2009Du19465, Oct. 10, 201).

2) Determination of actual transaction price

In light of the above legal principles, the Plaintiffs agreed to set the sales price on the contract when acquiring or transferring the instant shares, but at the same time, agreed to confirm the bonds and debts that have been confirmed later and to settle the balance in the balance, and received the acquisition price from the balance by deducting the remainder from the balance after offsetting the bonds and debts that have been actually confirmed. As such, the actual transaction price of the instant shares is not the original contract price stated in the contract, but the actual amount received after the settlement as above.

3) Acquisition value of the instant shares

A) Therefore, in calculating the transfer income tax from the transfer of the instant shares, it is reasonable to view the Plaintiffs’ acquisition value as KRW 2,846,600,000 that was paid to the actual transferor. Unlike this, the Plaintiffs’ assertion that the contract price should be considered as acquisition value under the initial contract is groundless.

B) Furthermore, according to the records of evidence Nos. 3 and 1 of the above, with respect to the amount for which the plaintiffs claimed that they were additionally invested while jointly running the transferor and the non-party company between May 31, 2005 and May 31, 2005, both parties determined the transfer base date as May 31, 2005, and agreed to receive transportation revenue of the non-party company from that date. In light of these circumstances, in light of these circumstances, the amount which the plaintiffs invested in the non-party company after the above base date is merely an operating expense for managing the company, and there is no ground to recognize it as the acquisition price (i.e., acquisition price) paid to the non-party company to the former transferor. Accordingly, the plaintiffs' assertion

4) The transfer value of the instant shares

As seen earlier, while transferring the instant shares to the transferee, the Plaintiffs indicated KRW 3,410,00,00 as KRW 3,50,000 on the contract amount. However, the Plaintiffs received KRW 3,152,032,121 after deducting KRW 257,967,879, which subsequently settled claims and debts, and subsequently, received KRW 3,152,032,121 from the balance after deducting the amount of continuous service allowances ( KRW 90,479,00,00 on the 2 settlement statement of evidence A) to the employees. As such, it is reasonable to include the amount of money for this item in the said settlement statement of accounts in the transfer value. Therefore, the Plaintiffs’ share transfer value should be deemed to be the sum of KRW 3,242,501,121 ( KRW 3,410,00,000-257,967,90,90,00).

(v)the calculation of a reasonable amount of tax;

The legitimate tax amount in the case of determining the acquisition value and transfer value of the shares of this case as above is as follows (see, e.g., the documents submitted by the defendant). Therefore, the part of the disposition of this case against the plaintiffs in excess is unlawful.

① Plaintiff ○○○○: Acquisition value of KRW 0,000,000,000, transfer value of KRW 0,000,000,000, and tax amount of KRW 00,00,000.

② Plaintiff ○○○○: Acquisition value of KRW 0,000,000,000, transfer value of KRW 0,000,000,000, and tax amount of KRW 00,000,000

4. Conclusion

Ultimately, the plaintiffs' claims of this case are justified within the scope of each recognition above. It is so decided as per Disposition.