Seocho 2010west 2064 (Law No. 16, 2010)

is recognized as a substantial shareholder only for a part of the transferred shares.

In light of the fact that only a part of the transfer price of stocks is deemed to have been paid by a third party, and that the business related to the transfer of stocks and the payment-related business are deemed to have been led by the third party, it is reasonable to deem that the disposal based on the premise that the entire person to whom the transfer profit belongs is illegal.

2010 old-gu 28130 Such revocation as to a request for rectification of capital gains tax

Gux

Head of Guro Tax Office

October 25, 2011

November 15, 2011

1. The part exceeding KRW 32,768,750 among the disposition rejecting a request for capital gains tax correction against the Plaintiff on February 3, 2010 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 20% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

On February 3, 2010, the Defendant revoked the disposition rejecting a request for revision of capital gains tax against the Plaintiff (the Plaintiff primarily sought revocation of the said disposition due to the cancellation of the transfer contract).

1. Details of the disposition;

A. On June 30, 2008, the Plaintiff owned 80,000 shares of XX (hereinafter referred to as “instant shares”) and transferred the instant shares to O (hereinafter referred to as “O”) on June 30, 2008.

B. On May 29, 2009, the Plaintiff reported the transfer income tax for the transfer of the instant shares to the Defendant in 2008 and did not pay the transfer income tax. Accordingly, the Defendant determined and notified the Plaintiff of the transfer income tax of KRW 219,943,850, including additional tax.

C. After that, on December 2, 2009, the Plaintiff requested the Defendant to correct the transfer income tax while the instant transfer contract was rescinded, but the Defendant rejected the said request for correction on February 3, 2010 (hereinafter “instant disposition”).

[Recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 5, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons. In other words, the plaintiff asserted that the disposition of this case was unlawful: (1) The plaintiff completed the transfer of the shares of this case under the transfer contract of this case in the name of O.

② The Plaintiff was not paid the remainder of the acquisition tax, in addition to the amount received from O on July 10, 2008, KRW 75,000,000, KRW 37,000 on August 7, 2008, and KRW 231,00,000 on May 29, 2009.

③ Around November 23, 2009, the Plaintiff expressed to theO a wish to cancel the instant transfer agreement on the grounds that it was not paid by theO.

④ Therefore, the instant transfer contract was rescinded due to the O’s nonperformance of obligations.

(2) Preliminary assertion

① The Plaintiff is a de facto shareholder only for 15% out of the shares of this case, and the remainder of 85% is trusted by leA, and the actual shareholder of the said 85% shares is leA.

② Therefore, regarding the transfer of the instant shares, the actual source of capital gains on the transfer of shares to 85% of the instant shares is not a leapA but the Plaintiff.

(b) Fact of recognition;

(1) The Plaintiff and leA (O) decided to establish a corporation on June 2007 and jointly conduct the joint business. The shares of the new corporation are first acquired by the Plaintiff at the rate of 15% and 85% by the leA, and thereafter the O agreed that all the shares of the new corporation will be acquired by the leA.

(2) In accordance with the above agreement, the Plaintiff and leapA established XX on July 30, 2007, and 12,000 out of the total issued shares of XX 80,00, equivalent to 15% of the rest of 85%, the Plaintiff accepted 45% (36,000 shares) in the name of KimB, and 40% (32,000 shares) in the name of apA, respectively, and the Plaintiff, with the consent of leA, was appointed as the representative director of Y and operated the PP.

(3) On February 12, 2008, in order for the Plaintiff to obtain a guarantee from the Korea Technology Credit Guarantee Fund, there is a need for the Plaintiff to raise the share holding ratio of the representative director. Accordingly, around February 12, 2008, the Plaintiff and the Plaintiff changed the shareholder name of the said 40% shares held by the Austria to the Plaintiff. ② During the preparation for the transfer of shares issued by XX to the O, the attorney KimB, who was in charge of legal advice of the OO, transferred the said 45% shares directly to the O on its shareholder registry. On June 4, 2008, the Plaintiff changed the shareholder name of the said 45% shares to the Plaintiff.

(4) On March 18, 2008, the Plaintiff drafted a memorandum of understanding (hereinafter referred to as “instant memorandum of understanding”) by promising the O to transfer shares issued and managed in XX. The main contents are as stated in attached Table 1(1). On the other hand, on March 26, 2008, the Plaintiff received KRW 500 million from OO and gave it to ChoD, who is an employee of OO.

(5) On June 30, 2008, the Plaintiff entered into the instant transfer contract with the purport of transferring the shares issued in XX and the right of management to theO. The main contents are as set out in attached Table 1 Section 2.

(6) After the instant transfer contract, the Plaintiff opened an account in the name of the Plaintiff on July 1, 2008 with the Plaintiff’s name on July 1, 2008, and opened the account and affixed the passbook and the seal to DaD. However, the O transferred the sum of KRW 2 billion to the said △△ account several times during the period from July 1, 2008 to August 8, 2008. According to the direction of MaA, MaD transferred the said account to the said △△△ account to the Plaintiff’s Industrial Bank of Korea on July 75, 2008, and KRW 30,000,000 from the said △△ account to the Plaintiff’s account on August 6, 2008, and deposited KRW 50,000 from the said account in cash around August 6, 208 to the Plaintiff’s account in accordance with the Plaintiff’s name.

(7) Thereafter, pursuant to the instant transfer contract, the Plaintiff changed the entry of the instant shares in the name of the Plaintiff on the register of shareholders under the name of the Plaintiff on the register of shareholders.

[Reasons for Recognition] The above evidence, Gap evidence Nos. 4 through 11, Eul evidence Nos. 6 through 10 (including each number), the purport of the whole pleadings

C. Determination

(1) As to the main argument

The evidence submitted by the plaintiff alone is insufficient to recognize that the transfer contract of this case was rescinded due to the transferee's non-performance of obligation, and there is no other evidence to acknowledge it. Thus, the plaintiff's primary argument is without merit.

(2) As to the conjunctive assertion

The following circumstances, which can be recognized by the above facts and the above evidence, (i) the plaintiff and leapA agreed to accept 15% of the shares in XX, and the remaining 85% of the shares in the name of leapA. Accordingly, the plaintiff initially held only 15% of the shares in this case and transferred the shares in the name of leB and OCC again to OO. The plaintiff was paid only the amount equivalent to 15% of the shares in this case's transfer price, and the remaining 85% of the shares in this case's transfer price was presumed to have been paid to leapA. (ii) The plaintiff and leapA proposed to receive the shares in this case's transfer from the time of establishment of x. (iii) The plaintiff and leapA planned to transfer the shares in this case's name to O for convenience, and accordingly transferred the shares in this case's name to 0% of the shares in this case's name, and it seems reasonable that 85% of the shares in this case's actual shares or 5% of the shares.

(3) Therefore, the Plaintiff is a person who is entitled to actual transfer profit only for 15% of the shares in this case. Thus, the instant disposition based on the premise that the Plaintiff is the person who is entitled to actual transfer profit of this case is unlawful.

(d) Justifiable capital gains tax;

The amount of the Plaintiff’s capital gains tax on 15% of the shares of this case is KRW 32,768,750 as shown in the attached Table 2.

3. Conclusion

Therefore, the part exceeding KRW 32,768,750 among the disposition of this case is unlawful. Thus, the plaintiff's claim is accepted within the above scope of recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.