Daegu High Court 2012Nu790, 2012Nu806 (Consolidated)

Income earned by an individual by selling listed stocks shall be deemed capital gains other than business income.

Since private investors can easily sell shares continuously and repeatedly through computer programs, it is difficult to recognize the feasibility of stock sales only by continuous and repeated nature, and business income is generated by combining assets and labor, but income from stock sales is increased by stock holding value, so it falls under capital gains.

2012Du21956 Revocation of Disposition of Imposing capital gains tax

The United States of America

1.Tgu Head of tax office 2.Dong Daegu Head of tax office

Daegu High Court Decision 2012Nu790, 2012Nu806 decided September 7, 2012

December 12, 2013

All appeals are dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 94 (1) 3 (a) of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008; hereinafter the same) and Article 157 (4) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009; hereinafter the same) stipulate that where the total market price of stocks of a stock listed corporation owned by one shareholder and other shareholders as of the end of the business year immediately preceding the business year in which the date of the transfer of stocks belongs is at least OOO, the income generated by the transfer of such shareholder and other shareholders shall be subject to taxation of capital gains tax. Meanwhile, Article 19 (1) 10 of the former Income Tax Act provides that "income generated from finance and insurance business" shall be classified as one type of business income, and the court below rejected the Plaintiff's assertion that each of the listed stocks of this case transferred by the Plaintiff falls under Article 94 (1) 3 (1) 4) of the former Enforcement Decree.

In light of the above provisions and relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to capital gains tax objects

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.