early 207west5298 (O6, 2009)

Where the shares subject to exchange are transferred only to the transferee, the time of transfer of shares by another transferor.

Unless the transferred shares are transferred to a transferee, the time of transfer cannot be deemed as the time of transfer because only the shares of the transferee subject to the exchange were transferred to the transferor, and the actual shares of the transferor are transferred to be regarded as the time of transfer.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 741,540,360 on September 5, 2007 against the Plaintiff and the imposition of securities transaction tax of KRW 31,609,260 on October 1, 2007, respectively, shall be revoked.

1. Circumstances of the disposition;

A. On May 14, 2002, the Plaintiff, the representative director of the AAA (hereinafter referred to as “AA”) entered into an available exchange agreement (hereinafter referred to as “the exchange agreement of this case”) with the PCC, the representative director of the BB BBC Co., Ltd. (hereinafter referred to as “BB”) about 31,000 shares (hereinafter referred to as “the shares subject to transfer”) of the Plaintiff’s total outstanding shares (hereinafter referred to as “the shares subject to transfer of this case”) and 30,000 shares ( note 1,00,000 shares) holding by the PCC, to exchange 30,000 shares (hereinafter referred to as “the exchange agreement of this case”).

B. On July 26, 2002, JungCC changed the entry of (BB shares) BB shares 3,994 shares to the Plaintiff (BB shares 30,000 shares, but around July 15, 2002, 33,994 shares, 33,94 shares, which are 3% of the total shares issued by the above company, were subject to the instant exchange contract; hereinafter referred to as "stocks subject to the instant exchange") due to the increase of total shares issued by the above company due to capital increase by 1,133,140 shares.

C. However, as the Plaintiff did not transfer the shares subject to the above transfer to JungCC, on May 16, 2003, JungCC filed a lawsuit against the Plaintiff and (State)AA on May 16, 2003 against the Seoul District Court 2003Gahap36305.

D. On the other hand, on August 28, 2003, AAA was merged into DDD Entertainment Inc. (hereinafter referred to as "DDD"), the parent company, and the ratio of the share mergers was set at 1:20.2721. As a result, (State) AA shares 239,400 shares owned by the Plaintiff were delivered to PDD shares 4,853,141 shares. Accordingly, the shares subject to the transfer of this case that the Plaintiff is obligated to transfer to PCC pursuant to the share swap contract of this case were changed to DD shares 425,714 shares [State 70,00 shares x 3% x 20.271 shares x 2721] due to the said merger.

E. On September 6, 2003, after the filing of the lawsuit, the plaintiff and JungCC confirmed that the financial value of the obligation to be performed by the plaintiff in connection with the exchange contract of this case reaches approximately 12.8 billion won (=425,714 shares 】 30,250 won (as of September 5, 2003, the closing price of DDR shares). ① The plaintiff transferred the shares 33,994 shares BBB 33,94 shares the entry of which is changed from JungCC and then the plaintiff paid 3.5 billion won shares 2.8.5 billion won shares 280,92 shares 280,992 shares ; ③ immediately after the settlement of the agreement on the withdrawal of the shares, the plaintiff paid 3.5 billion shares 9 billion won shares to the plaintiff in cash.

F. On September 22, 2003, the trial division of the above lawsuit rendered a decision as a substitute for the conciliation to confirm that DD shares 280,992 shares were owned by the JungCC from May 14, 2002 and deliver them to JungCC. The above decision became final and conclusive around that time.

G. On the other hand, DDR changed its trade name on June 11, 2004 to EE Internet Co., Ltd. (hereinafter referred to as the “E Internet”).

H. However, following the first agreement of this case, the EE Internet (State)'s share price fell considerably, the Plaintiff's request to reduce the burden of paying a large amount of settlement, and on October 5, 2004, the Plaintiff and JungCC decided to lower the base amount of 8.5 billion won at the time of the first agreement of this case to 7.5 billion won, and its detailed payment method: (i) the Plaintiff confirmed that the ownership of the EE Internet (State) shares 425,714 shares, which are the subject of the original exchange contract of this case, was determined on September 17, 200 as the base amount of KRW 13,50 per share (5,747,139,000), and the appraisal price was determined on October 8, 204, the Plaintiff shall promptly dispose of the said shares to CC and implement the transfer procedure of this case to 7.5 billion won, and (ii) the Plaintiff shall pay the transfer price to 700,700,7108.7

I. On October 8, 2004, the Plaintiff paid 1,752,861,000 won for settlement of accounts on October 8, 2004. On the 19th of the same month, the Plaintiff implemented the transfer procedure for 425,714 shares of EE Internet (State).

(j) On October 19, 2004, the director of the Seoul Regional Tax Office notified the Defendant of taxation data to impose capital gains tax and securities transaction tax on the Plaintiff, on the ground that the transfer of EE Internet (owner) shares 425,714 (valueed KRW 5,747,139,00, hereinafter “instant shares”) was caused by the initial exchange contract, but the contents of the contract were continuously changed on October 5, 2004, and the transfer was finally confirmed on October 5, 2004.

(k) Accordingly, the Defendant imposed on the Plaintiff KRW 31,609,260 on September 1, 2007, and KRW 741,540,360 on September 5, 2007, respectively (hereinafter “each disposition of this case”).

Other. The Plaintiff filed an appeal on January 30, 2007, but the Tax Tribunal dismissed the appeal on June 26, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 16, Eul evidence 1 to 4 (including each number), the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

The plaintiff considers that a disposition to impose a transfer case is illegal for the following reasons:

1) Since the transfer transaction of the instant shares is a commercial transaction based on the premise of acquiring shares issued by BB under the instant exchange contract between the Plaintiff and JungCC on May 14, 2002, the transfer transaction of the instant shares and the transfer transaction of shares by BB should be deemed an exchange transaction, not an individual transfer transaction.

2) Article 98 of the Income Tax Act (amended by Act No. 7120 of Jan. 29, 2004; hereinafter the same) and Article 162(1) of the Enforcement Decree of the same Act provide that the time of transfer of assets shall be the date of liquidation of the price of the transferred assets in principle. For an exchange transaction, it shall be determined on the basis of the time when the acquisition of the property right to be transferred in return for exchange is completed. Pursuant to the exchange contract of this case, the Plaintiff shall be deemed to be the time of transfer of stocks according to the exchange contract of this case. On July 26, 2002, when the Plaintiff acquired the ownership of the shares (State)BB BB stocks from regularCC from regularCC. On the other hand, there was a dispute over the ownership of the shares of this case between the Plaintiff and regularCC regarding the tax liability to be effective, or the transfer date after October 15, 2004, which is the duration of protection deposit. Thus, the issue of this case shall not vary from the standard market price at the time of this case.

3) Even if the transfer date of the instant shares is deemed to be October 19, 2004, when the transfer date is deemed to be October 19, 2004, the transfer value was determined by the instant exchange contract as of May 14, 2002, and the transfer value was determined pursuant to the said exchange contract even at the time of determining the taxation on the transfer transaction of shares B B, the transfer value of the instant shares as of the date of the instant exchange contract should be determined.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

Article 8 (1) of the Income Tax Act provides that "transfer" means that an asset is actually transferred for price due to sale, exchange, investment in kind in a corporation, etc. regardless of its registration or enrollment. In calculating gains on transfer of the asset under Article 98, the time of transfer and the time of transfer shall be determined by Presidential Decree. Article 162 (1) of the Enforcement Decree of the same Act provides that "in principle, the time of transfer shall be the date of liquidation of the price of the relevant asset". In case where the date of settlement of the price is unclear exceptionally, the "transfer date" shall be the date of transfer, and in case where the transfer is made before the price is settled, the date of settlement of the price shall be the date of receipt of the register, etc. In light of the above provisions, "the date of liquidation of the price of the relevant asset" under Article 62 (1) of the Enforcement Decree of the same Act is premised on the fact that the relevant asset has been actually transferred (the date of imposition of capital gains tax on the exchange contract of this case, the date of transfer is delivered to the transferee.

However, as seen earlier, the Plaintiff refused to transfer the shares subject to the transfer of this case to regularCC even after the Plaintiff entered into the instant exchange agreement and the Plaintiff transferred the shares subject to the transfer of this case to the Plaintiff, and the Plaintiff filed a lawsuit seeking the transfer of the said shares, following the first agreement and the first agreement, following the amendment of the contents of the instant agreement, such as the first agreement and the mediation decision, and the settlement payment was made on October 8, 2004, and the transfer procedure for the instant shares was implemented on October 19, 200, so the instant shares subject to the transfer of this case was not transferred and transferred to regularCC, and the actual transfer of the shares to regularCC is the key shares of this case. The transfer period should be deemed October 19, 204, where the instant shares were transferred to regularCC.

In addition, since the exchange contract of this case was not implemented properly with respect to the shares subject to transfer of this case, since the contents of the contract were changed and delivered by evaluating the shares in this case as 5,747,139,000 won through litigation, agreement, mediation, etc., it is reasonable to view the transfer value of the shares in this case as the changed evaluation amount, even if it was based on the original exchange contract of this case.

Therefore, each of the dispositions of this case where the Defendant imposed capital gains tax, etc. on Oct. 19, 2004 by deeming the transfer value of the instant shares as the assessed amount, cannot be deemed to have been erroneous.

3. Conclusion

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