Seoul Administrative Court 201Gudan5769 ( October 27, 2011)

Cho High Court Decision 2010Du3170 ( December 06, 2010)

The acquisition value in the contract is recognized as actual acquisition value.

Even if it is difficult to see that the purchase price of shares was forged in light of the form and content of the sales contract, and even if the purchase price of shares was not paid properly, it is a matter of default that occurred after the contract, and it is difficult to see that the acquisition price in the contract is changed by itself, and thus

Article 97 of the Income Tax Act

2011Nu37512 Revocation of disposition of imposing capital gains tax

Park XX

Samsung Head of Samsung Tax Office

Seoul Administrative Court Decision 2011Gudan5769 decided September 27, 2011

April 4, 2012

May 2, 2012

1. The defendant's appeal is dismissed.

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

3 The decision of the court of first instance is revised on July 7, 2010 as " July 1, 2010."

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2006 against the Plaintiff on July 1, 2010 is revoked.

2 Purport of appeal

The part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

1. Details of disposition;

A. On December 30, 2002, the Plaintiff acquired 1,500 shares (the face value of 000 won; hereinafter referred to as “the shares of this case”) from the EndA Co., Ltd. (hereinafter referred to as “xx”), and transferred 1,000 shares out of the shares of this case to KimB around March 20, 206, and transferred 00 won per share to KimB. The remaining 500 shares were calculated as 00 won per share and exchanged with OB shares of this case.

B. The Defendant calculated gains on transfer by deeming the transfer value of the instant shares as KRW 000 and the acquisition value as KRW 000, and determined and notified the Plaintiff of July 1, 2010, the transfer income tax of KRW 000 reverted to the Plaintiff in 2006 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 8, 10 evidence, Eul evidence 1 and 2 (including each natural disaster; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

As to the Plaintiff’s assertion that the Plaintiff acquired the instant shares at KRW 000 (50,000 per share), the Defendant alleged that the acquisition value is only KRW 000 (5,00 per share). Therefore, the issue is whether the acquisition value of the instant shares is visible or not.

In full view of the purport of the arguments stated in Gap evidence 1 through 7 and 9, the plaintiff intended to purchase shares 4,500 shares from Y 30 on December 30, 2002 with introduction of NaCC, a vice president, etc., and to purchase shares 500 shares from Y 4,500 shares, among them, 4,500 shares related contract (Evidence A 3-1) states that the purchase price of shares will be paid in three times each, and 500 shares related contract (Evidence A 3-2) states that 500 shares will be paid in 00 won (it is difficult to view that it was forged in light of its form and content). After that, the plaintiff decided to purchase 1,500 shares out of 00 shares from 00 shares, and the remaining 3,500 shares were sold to 300 shares that the plaintiff did not sell 500 shares to 200 shares in this case.

In full view of the details and contents of the instant stock-related contract, and the process of implementing the said contract, the Plaintiff acquired the instant shares at KRW 000 per share (or KRW 000 per share), as alleged by the Defendant (it is a matter of default that occurred after the contract, even if the price of the instant shares was not paid properly as alleged by the Defendant, and it is difficult to view that the acquisition value per share differs from the contract itself). On the contrary, the Defendant’s calculation of gains on transfer by deeming the acquisition value of the instant shares as KRW

Furthermore, the legitimate capital gains tax calculated by deeming the acquisition value of the instant shares as KRW 000 is KRW 000,000, as shown in the attached Table of Calculation. Thus, the instant disposition is lawful within the reasonable scope of tax, and the exceeding portion is unlawful.

The argument is justified within the scope of the above recognition.

3. Conclusion

"If so, the judgment of the court of first instance which partially accepted the plaintiff's claim is justifiable. The defendant's appeal is dismissed. However, since " July 7, 2010," the judgment of the court of first instance is erroneous, " July 1, 2010," it is corrected.