National High Court Decision 1995Du1648 ( October 15, 1996)

Transfer

Dismissal

The disposition agency recognizes that the actual transaction value of the stocks reported by the claimant is not denied KRW 9,000 per share and KRW 5,000 per share, and only the constructive acquisition time differs. As such, the disposition agency has no errors in calculating the transfer margin after calculating the acquisition value by applying the wholesale inflation rate from the time of acquisition to December 31, 76, for each acquisition of the stocks at issue.

Article 23 of the Income Tax Act / [Scope of Transfer Income] Article 44 of the Enforcement Decree of the Income Tax Act

I dismiss the appeal.

1. Summary of the original disposition;

The claimant transferred 41,440 shares of the Dongdaemun-gu Seoul Metropolitan Government OOOO(hereinafter referred to as "OOOO corporation") other than the claim owned by the claimant (hereinafter referred to as "OOOO") to 92.4.30 shares (the face value per share 5,00 won; hereinafter referred to as "OO shares") and made a preliminary return on the gains from the transfer of the assets according to the actual transaction price 92.5.30

The disposition agency, based on the notification of taxation data according to the audit records of a regional tax office of the main office of Seodaemun tax office, recognized the actual acquisition value of outstanding stocks of 5,000 won and the actual transfer value of 9,000 won, but in the case of acquisition value, the stock of the issue falls under the assets under Article 23 (1) 5 of the Income Tax Act, so it calculated gains on transfer by reporting the fictitious acquisition date as January 1, 77 pursuant to Article 9 (amended by Presidential Decree No. 7458 of December 31, 74) of Addenda of the Enforcement Decree of the same Act (amended by Presidential Decree No. 7458 of Dec. 31, 77), and notified the applicant of January 16, 195 that gains on transfer

On March 11, 95, the claimant appealed against it and filed an appeal on June 13, 95.

2. Opinion of the applicant and the Commissioner of the National Tax Service;

(a) Request;

The claimant, while engaging in a construction business after acquiring the outstanding shares 73.12.31, transferred the shares 92.4.30 to a business depression, and reported the transfer income tax to the head of 92.5.30 to the head of Mapo Tax Office, but the disposal agency partially denied the constructive acquisition value, thereby imposing the transfer income tax. The claimant's claim that the acquisition value of the outstanding shares should be revoked since the acquisition value should be calculated by applying the wholesale inflation rate of 113.4% from December 31 to December 31, 85 under Article 6 of the Addenda of 13194 amended by Presidential Decree No. 13194, Dec. 31, 190 as non-listed shares falling under Article 23 (1) 4 of the Income Tax Act (amended by Presidential Decree No. 13194, Dec. 31, 73.19 to December 31, 85.

(b) Opinions of the Commissioner of the National Tax Service;

Although the claimant asserts that the transfer of the outstanding shares constitutes the transfer of unlisted shares, it is confirmed that all the shares issued by the non-indicted corporation are owned by the claimant and the person in a special relationship with the claimant, and since the transfer of all the shares is confirmed, the shares issued by the non-indicted 5 of Article 23 (1) of the Income Tax Act constitutes other assets under Article 23 (1) 5 of the Income Tax Act. In this case, the acquisition value of the shares should be calculated in accordance with Article 9 of the Addenda of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 7458, Dec. 31, 88). Therefore, the disposition of this case

3. Hearing and determination

A. The instant petition for a trial is a dispute as to whether the pertinent shares fall under the assets under Article 23 (1) 4 of the Income Tax Act, or the assets under subparagraph 5 of the same Article.

(b) Article 23 (1) of the Income Tax Act provides that "the income accruing from transfer income shall be the income falling under any of the following subparagraphs which is not listed on the Korea Stock Exchange, which is prescribed by the Presidential Decree," subparagraph 4 of the same Article provides that "the income accruing from the transfer of stocks or equity shares not listed on the Korea Stock Exchange," subparagraph 5 of the same Article provides that "other assets prescribed by the Presidential Decree (hereinafter referred to as "other assets") other than those as referred to in subparagraphs 1 through 4, and Article 44 (6) of the Enforcement Decree of the same Act provides that "stocks or equity shares not listed on the Korea Stock Exchange and not listed on the Korea Stock Exchange as of the transfer date and are not listed on the Korea Stock Exchange as of the date of such transfer shall be deemed to be "the total amount of stocks or equity shares not listed on the Korea Stock Exchange" and Article 44-2 (1) 5 of the Enforcement Decree of the same Act provides that "other stocks or equity shares of a corporation falling under subparagraph 1, 4 or 5 of the following (hereinafter referred to as "other stocks or 10)" and the following shareholders or investors":

(a) The corporation whose total amount of the asset value under Article 23 (1) 1 and 2 of the Act is fifty percent or more of the total amount of the assets of the corporation concerned; and

(B) The corporation’s total amount of shares, etc. owned by one shareholder and other shareholders is not less than 50/100 of the total amount of shares, etc. of the corporation.

C. Examining factual relations, the claimant asserts that the disposition agency should calculate the acquisition price by applying wholesale inflation rate from the date of acquisition to December 31, 85 from the date of acquisition under Article 6 of Addenda of Enforcement Decree of the Income Tax Act (Presidential Decree No. 13194, Dec. 31, 90; Presidential Decree No. 13194, Dec. 31, 190; Presidential Decree No. 13194, Dec. 31, 2005; however, the claimant asserts that the disposition agency should calculate the acquisition price by applying wholesale price inflation rate from the date

First, the shareholding ratio of one shareholder and a person with a special relationship is 50/100 or more as follows;

41,44046.05OO-type 24,06026.73OO-type 7,007.78OO-type 8,509.4OO-O-O 4,404.89OO-type 4003,403.78O-type 1, 2003.78O-type 1, 2001, 33.90,000.0

Second, according to the holding assets held by a corporation other than the claim, since the land amounting to 1,546,052,00 won and the building amounting to 23,494,080 won and the total assets amounting to 2,166,008,099 won and the total assets amounting to 50/100 or more of the total assets amount, among the total assets amounting to 2,16,00 won

Third, in light of the fact that one shareholder and other shareholders have transferred 50/100 or more of the total amount of shares of a corporation outside the claim by transferring all shares held by the claimant upon the transfer of the shares at issue;

The key shares are the other assets (specific shares) of Article 23 (1) 5 of the Income Tax Act.

D. Thus, Article 23 (4) 1 and Article 45 (1) 1 (a) of the Income Tax Act and Article 170 (4) 3 of the Enforcement Decree of the same Act provide that assets under Article 23 (1) 5 of the same Act shall be based on the standard market price, and where the actual transaction price at the time of acquisition or transfer can be confirmed by documentary evidence submitted at the time of preliminary return of gains on transfer of assets or final return on tax base, the actual transaction price at the time of transfer shall be determined based on the actual transaction price. In December 31, 74, Article 9 of Addenda of the Enforcement Decree of the same Act (Presidential Decree No. 7458, Aug. 31, 77; Presidential Decree No. 12564, Dec. 31, 199; Presidential Decree No. 12564) provides that the disposal agency shall calculate the acquisition price from the date of acquisition to December 31, 196 on the date of actual acquisition (where the price is higher than the standard market price).

D. Accordingly, this case’s petition is without merit, and it is so decided as per Disposition in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes.