Suwon District Court-2014-Gu Partnership-5330 (2015.04.01)

In preparing the final agreement, the transfer value of the shares is not substantially different by re-determination.

Since the transfer price of the instant shares was determined as KRW 1 billion in the preparation of the final agreement, it is unlawful to refuse a claim for correction on the premise that the transfer price of the instant shares is KRW 4.6 billion, since the actual transaction price of the instant shares is KRW 1 billion.6 billion.

2015Nu40295 Revocation of Disposition rejecting capital gains tax rectification

O

OO Head of the tax office

April 1, 2015

November 17, 2015

December 15, 2015

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition rejecting to rectify capital gains tax against the Plaintiff on September 17, 2013 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Judgment as described in paragraphs 1 and 2.

1. Details of the disposition;

The reason why this court is used in this part is as stated in Paragraph 1. of Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except for the reason that "co-○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on

2. Whether the instant disposition is lawful

A. The purport of the plaintiff's assertion

In addition to a share transfer agreement, the Plaintiff and ○○○○○○○○ entered into an agreement on June 4, 2012 (Evidence A No. 8) and entered into an agreement to reinstate when d○○○○○○ was delisting on July 19, 2012. Upon delisting on July 19, 2012, the Plaintiff and d○○○○○○○○○○○ was set up a final agreement (Evidence A No. 10) on July 20, 2012, and set the transfer price of the instant shares as KRW 1 billion, the actual transaction price of the instant shares is KRW 1 billion. Therefore, the instant disposition that rejected an application for rectification on the premise that the transfer price of the instant shares is KRW 4.6 billion is unlawful.

B. Relevant statutes

The reason why this Court is used in this part is as stated in Section 2.B. of the judgment of the court of first instance, and therefore, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

C. Facts of recognition

1) On May 31, 2012, the Korea Exchange decided that ○○○○○○○○ was the object of de-listing, and the representative director of d○○○○○○○○○○○○ concluded a stock transfer agreement with the Plaintiff on June 4, 2012 with the content of KRW 4.6 billion (hereinafter “instant stock transfer agreement”) and separately drafted the following agreement (hereinafter “the first agreement”).

Secretary of the United States of America

In entering into a contract for acquisition of shares of the Plaintiff (hereinafter referred to as the “transferor”) and the director of the ○○○○○○○○○○○○○○○○○ (hereinafter referred to as the “transferee”) (hereinafter referred to as the “Assignor”), the Parties mutually agree that this agreement shall be applied in preference to this agreement:

- - sound;

1. After the conclusion of this contract, the transferor presented to the transferee the verification data on the basis of March 31, 2012, the transferor and transferee conducted a stock value assessment from the ○○○○○○○○○○ as of December 31, 201, and the purchase price shall be KRW 4.6 billion.

2. As regards the delivery of share certificates to ○○○○ and U.S. corporations, the transferor and the transferee will take the following measures:

2-1 The transferee shall pay one billion won out of the purchase price at the time this contract is concluded.

2-2 The transferor shall deliver to the transferee the share certificates of ○○○ immediately after receiving KRW 1 billion.

2-3 The transferor will receive 3.6 billion won out of the purchase price from the third party's shares or CB, etc. issued by the transferee company.

2-4 The transferee shall, in order to guarantee the payment by the protected acceptance certificate or CB issued in accordance with the third party allocation method, pay the down payment, immediately after paying the down payment, and until the issuance of the CB certificate or CB certificate, the transferor shall have the number of shares equivalent to 3.6 billion won at the market price as to the shares issued in the Exchange-listed shares

It shall be ○○○ in the designated law firm, and when the security deposit account certificate or CB is issued, the transferee shall receive immediate refund of the shares set forth in ○○○ (the shares issued with capital increase issued by a third party shall be 1 year security deposit, and when the security deposit account certificate is issued in the name of the transferor, the share certificate shall be completed).

3. The transferor and the transferee shall immediately return to the transferee, in accordance with this Agreement and the Agreement, unless the transferee is subject to the improvement period as a KOSDAQ-registered company even though the transferee paid cash, stocks, or CB. The original return means the transferor’s return to the transferor of the shares, stocks, or CB received from the transferee and the transferee’s return to the transferor the share of ○○○○ company received from the transferor.

2) On June 8, 2012, pursuant to the instant stock transfer agreement and the initial agreement, the Plaintiff and D○○○○○○ drafted a written confirmation of E-○○ (Evidence A No. 11) with the law firm Han-dong, as follows.

1. The ○○○○○○ shall keep 2,400,000 actual share certificates of the issuance of the ○○○○○○○○○○ (hereinafter referred to as “share certificates”) to one law firm.

2. The Korea-style Law Firm shall keep the share certificates until it provides a third party with a certificate of 3.6 billion won of protection (no specified number of shares) of the Plaintiff, which is scheduled to be a policeman by d○○○○○○○ on July 2012.

3. When a ○○○○○ provides the Plaintiff with a certificate of 3.6 billion won, the stock certificates shall be immediately refunded to ○○○○○○○○. Therefore, when a ○○○○○○ does not provide the Plaintiff with a certificate of 3.6 billion won as stated in paragraph (2), the ○○○○○○○ does not return the stock certificates to ○○○○○○○○○○○.

3) On June 26, 2012, the Plaintiff and D○○○○○○ drafted an additional agreement (Evidence A No. 9) with the following content.

Additional Agreements

On June 4, 2012, the Plaintiff (hereinafter referred to as the “transferor”) entered into a share acquisition agreement (hereinafter referred to as the “this agreement”) with the ○○○○○○○○○○○○○○○○ (hereinafter referred to as the “O○○○○○○”) and entered into a written agreement on June 4, 2012, and conducted an on-site inspection on the ○○○○○○○○○ on the basis of the transferor’s statement, but as a result of the actual inspection, there was a difference between the matters stated by the transferor as a result of the actual inspection, thereby preparing an additional agreement following the present agreement and the first agreement, and the additional agreement shall take precedence over the contract and the first agreement.

1. The sales amount shall be adjusted from 4.6 billion won to 3.7 billion won, and the down payment shall be one billion won and the remainder shall be adjusted to 2.7 billion won.

3. In the event that a d○○○○ is finally delistinged, the transferor shall immediately return the funds that the transferee invested to the transferee, without any condition as to the amount of the base payment out of the purchase price, and the transferor and the ○○○○○○ is jointly and severally refunded to the transferee without any condition as to the funds that the transferee invested to the ○○○○○○○○○○○○○.

4) Meanwhile, the main contents disclosed by ○○○○○○ to the electronic publication system are as follows.

Date

Details

June 5, 2012

A decision to acquire from the plaintiff 4.6 billion won the shares of ○○○○○○○○○○○○○○○ shares (100% shares) of 64,000 shares (10% shares)

Date of delivery of share certificates: June 4, 2012

A down payment schedule: A down payment of KRW 1 billion on June 4, 2012, and the balance of KRW 3.6 billion on June 9, 2012.

June 11, 2012

Determination on Capital Subscription

· Ordinary Shares 7,200,000 per share (the par value and issue value per share of KRW 500, total of KRW 3.6 billion)

method: A third party allocation certificate;

Persons subject to allocation of third party: Plaintiffs (the full amount of 7,200,000 weeks) (the number of protected deposits for one year);

· Payment Date: June 27, 2012

The scheduled date of issuance of new and new shares: July 11, 2012.

June 13, 201

Determination of Merger

A surviving company after a merger: D○○○○, and a extinguished company after a merger: ○○○○○

· merger contract date: June 12, 2012

· Merger Date: August 21, 2012

June 27, 2012

Report on Termination of Merger, etc.

On June 4, 2012, the date of entering into a underwriting agreement:

The date of delivery of sovereignty: June 4, 2012

The schedule for the payment of down payment: 1 billion won of down payment: 3.6.4 June 2012; and 3.6 billion won of the remainder.

June 9, 2012

- On June 9, 2012, the remainder of KRW 3.6 billion was unpaid to the Plaintiff, and on June 11, 2012, the Plaintiff’s claim 3.6 billion won was paid as shares and allocated to the Plaintiff new shares at D○○○○○○ (7.2 million shares) on June 27, 2012. The subscription and payment are completed on June 27, 2012.

5) On July 19, 2012, when the de-listing of d○○○○ was decided, the Plaintiff and d○○○○○○ constituted a final agreement (Evidence A No. 10) with the following content on July 20, 2012.

Final Agreements

On June 4, 2012, the Plaintiff (hereinafter referred to as the “transferor”) and the d○○○○○○○○○○○ (hereinafter referred to as the “transferee”) concluded the share acquisition agreement (hereinafter referred to as the “this agreement”) on June 4, 2012, and entered into an additional agreement on June 26, 2012, on the basis of the transferor’s statement, the Plaintiff’s actual inspection on the ○○○○○○○○○○○○○○ on the ground of the transferor’s statement, but as the result of the actual inspection differs from the matters stated by the transferor, the contract and the agreement were followed by the additional agreement, and the final agreement was prepared. This final agreement shall take precedence over the contract and the agreement, and the additional agreement.

- - Foods

1. The transferor and transferee shall pay the purchase price by adjusting the following agreement:

(1) The purchase price shall be adjusted from 3.7 billion won to 1. billion won.

(2) The transferor confirms that one billion won of the down payment already paid is fully paid in full.

(3) The transferor shall waive all rights to the shares issued to the transferor and shall vest in all rights to the transferee.

(4) Paragraphs (3) and (5) of the agreement and additional agreements shall be deleted.

6) On March 18, 2013, for the purpose of collecting the amount in arrears of capital gains tax, etc., the Defendant seized the real securities of 7.2 million won of the Plaintiff’s d○○○○○ stocks under the Plaintiff’s name, which was under custody in the Korea Securities Depository for one year, and is currently under custody after the expiration of the period of safekeeping.

[Reasons for Recognition] Gap evidence Nos. 6 through 11, Eul evidence Nos. 1 and 2 (including numbers), the purport of the whole pleadings

D. Determination

In light of the following circumstances, it is reasonable to view that the Plaintiff and D○○○○○○○, when preparing the final agreement, did not gain any benefit other than the above amount, according to re-determination by reducing the transfer value of the instant shares in KRW 1 billion. Therefore, the Plaintiff’s assertion is with merit.

① The Plaintiff and the ○○○○○○○○○○○○○○○○○ does not constitute a specially related person, and thus, it is difficult to view that each other’s interests coincide. ② The Plaintiff entered into the instant share transfer agreement with the Plaintiff with a view to evading the delisting of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and entered into an initial agreement to prepare for a case of delisting the said agreement, and, on July 19, 2012, entered into the final agreement on July 20, 2012. ③ Although there was an additional agreement to reduce the transfer value of the instant shares at KRW 3.7 billion on June 26, 2012, it is difficult to view the content of the publication as a whole, in view of the fact that the said agreement had already been concluded to be disposed of in lieu of the balance of 3.6 billion won in the instant share transfer agreement, the Plaintiff had to be immediately reinstated the said agreement.

3. Conclusion

Therefore, since the disposition of this case is unlawful, the plaintiff's claim seeking its revocation is accepted, and since the judgment of the court of first instance is unfair with different conclusions, it is so decided as per Disposition by accepting the plaintiff's appeal and to revoke all of the judgment of the court of first instance and the disposition of this case.