Suwon District Court-2016-Gu Partnership-70476 (Law No. 29, 2017)

Methods of calculating the market price of unlisted stocks to calculate the benefits from exercising stock options;

Since the criteria for calculating the market price of unlisted stocks to calculate the benefits from the exercise of stock options are not separately prescribed, the market price of unlisted stocks can be calculated pursuant to Article 60 of the former Inheritance Tax and Gift Tax Act, which provides for such criteria, and if the market price is unclear, the market price can be calculated according to the supplementary method.

Article 20 of the Income Tax Act

2017Nu70498 Revocation of Disposition of Tax Withholding

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○ Head of tax office

Suwon District Court Decision 2016Guhap70476 Decided 29, 2017

2018.01.23

2018.027

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. On March 16, 2016, the part of the imposition of tax on earned income (including additional tax) for the year 2012 owed to the Plaintiff and the imposition of tax on corporate tax of KRW 41,39,050 (additional tax) for the business year 2012, which exceeds KRW 851,480, shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for the judgment of the court in this case shall be

In addition to the part of the judgment of the court of first instance, it is cited by Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ The first instance court's judgment 4 pages 1 of the first instance court's judgment 'unfairly'.

○ The first instance court's judgment 4th 7th 7th '2012.15th '201' is regarded as '5th 15th '2012'.

Since the judgment of the first instance court is only 5 '4 -', the following shall be added.

(2) The instant provision of the former Venture Business Act differs from the former Income Tax Act that provides predictability to stock options in exercising the difference-type stock option and aims at imposing taxes on the earned income as it is to prevent the excessive cash spending by venture business, and thus, it is difficult to view the instant provision as a special provision that preferentially applies to the Income Tax Act.

○ The following shall be added at least 5 6 pages of the judgment of the first instance court:

Meanwhile, the Plaintiff asserts that Article 11-3 (1) 2 of the former Enforcement Decree of the Venture Business Act applies only to the case under Article 11-3 (1) 1 of the former Enforcement Decree of the said Act (the method of giving the difference between the exercising price of stock option and the market price as cash or treasury stocks) and that Article 11-3 (1) 1 of the said Enforcement Decree (the method of issuing new stocks or granting treasury stocks at the exercising price of stock option) does not apply to the case under Article 11-3 (1) 1 of the former Enforcement Decree of the said Venture Business Act, notwithstanding the exercise of the same stock option, the event under Article 11-3 (1) 1 of the former Enforcement Decree of the said Act and Article 11-3 (1) 2 of the said Enforcement Decree of the said Act results in unreasonable result that the exercising profit different from each other in the case under Article 11-3 (1) 1 of the said Enforcement Decree of the said Venture Business Act. However, the Plaintiff’s assertion that Article 11-3 (1) of the said Enforcement Decree of the said Act does not apply solely on the grounds.

○ The following shall be added to 7th written judgment of the first instance court, 's 12th day and 's 12th day and later':

(2) As alleged by the Plaintiff, the Plaintiff’s assertion that the agreement on the prohibition of transfer between the company and the shareholder is valid, even if such agreement is deemed valid, it is deemed that the agreement takes effect only between the parties to the contract, and as long as it does not externally take the method of public disclosure to a third party, the transferee of the shares, who is a third party, can not oppose it. As such, the conclusion does not change since the first and second shares are entitled to transfer)

○ The judgment of the first instance court shall be from 7th to 5th, and shall be made in the following manner:

Article 20 (3) of the former Income Tax Act and Article 38 (1) 17 of the former Enforcement Decree of the Income Tax Act provide that "the profits (referring to the difference between the market price and the actual purchase price at the time a stock option is exercised, and the stock includes preemptive rights) that an officer or employee of a corporation exercises the stock option granted from the corporation during the period of his/her work at the corporation, etc. shall be earned income. As to the calculation of such earned income, Article 24 (2) of the former Income Tax Act provides that the income amount shall be calculated on the basis of the price at the time of the transaction when he/she imports other than money, and Article 51 (5) 5 of the former Enforcement Decree of the Income Tax Act, Article 38 (1) 17 of the former Enforcement Decree of the Income Tax Act (

Article 22-2 provides that the market price of unlisted stocks shall be calculated by applying mutatis mutandis Article 89 of the former Enforcement Decree of the Corporate Tax Act in calculating the amount of non-listed stocks. In full view of these provisions, the method of calculating the market price of the non-listed stocks is similar to the transaction in the situation where Article 89 of the former Enforcement Decree of the Corporate Tax Act applies mutatis mutandis. "Where there is a price generally traded between a corporation and a third party who is not a related party or a related party, other than a related party," the price shall be considered as the market price, and where the market price of the non

○ The 8th written judgment of the first instance court was added to the 54th "Article 54".

○ At the bottom of the 8th judgment of the first instance, the following shall be added:

On the other hand, the Plaintiff alleged that the transaction case at May 4, 2012 was a transaction for investment purpose by a large number of fund companies for the purpose of investment, and that the transaction price is not an objective exchange value. However, even if the purchaser purchased the above shares for investment purpose, the expectation of future profits constitutes an element that affects the formation of the value of assets at the same time as one of the purchaser's motive for purchase. Thus, it is insufficient to recognize that the above transaction case alone does not properly reflect the general and normal exchange value, and there is no other evidence to acknowledge it. Thus, the Plaintiff's above assertion is without merit.

○ 10 to 13 parallels (B, 3) on the judgment of the first instance court (10 to 10 parallels) are as follows:

② Article 22-2 of the former Enforcement Decree of the Income Tax Act provides that "Article 89 of the former Enforcement Decree of the Corporate Tax Act shall apply mutatis mutandis." The above provision of the former Income Tax Act and its Enforcement Decree shall be deemed to apply mutatis mutandis to the calculation of exercising profit of stock options corresponding to earned income. On the other hand, Article 89 of the former Enforcement Decree of the Corporate Tax Act provides that the transaction value between a corporation and a related party shall not be recognized as being excessively higher or lower than the value of assets formed ordinarily through ordinary transactions due to close relationships between the parties, and thus, the transaction value between the corporation and the related party shall not be recognized as being higher or lower than the value of assets formed normally through ordinary transactions. In light of the different purpose of the two provisions, in applying Article 22-2 of the former Enforcement Decree of the Corporate Tax Act mutatis mutandis, even if the transaction value between the corporation and the related party objectively reflects the general and normal exchange value in light of the general and normal exchange value, it is reasonable to interpret as above, which accords with the purport of the Supreme Court precedent.

③ On May 15, 2013, the Plaintiff acquired shares from the shareholders of the Plaintiff at KRW 10,500,000, the transaction price of the Plaintiff’s shares is the Plaintiff’s transaction with its shareholders, and Article 89(1) of the former Enforcement Decree of the Corporate Tax Act does not correspond to the language and text. However, as seen earlier, the transaction price of the Plaintiff’s shares, which is the transaction price, does not amount to 10,50,000 won per other transaction amount, or does not appear to have any big difference. In determining the acquisition price, the Plaintiff’s aforementioned transaction price can be deemed to reflects the general and normal exchange value from a third party who has assessed the value of the Plaintiff’s own shares for the purpose of acquiring the shares.

④ Meanwhile, the Plaintiff asserted that the value of the Plaintiff’s shares was assessed by BB, and that the amount per share is KRW 4,409 as of December 31, 201, KRW 5,756 as of September 30, 201, KRW 7,040 as of September 30, 201, and KRW 7,040 as of September 30, 201, and that the said amount should be recognized as the transaction value. However, the said amount is only limited to the transaction value, not to the transaction value, but also to the “evaluation amount,” and it cannot be said that the said appraised amount should be applied preferentially to the transaction example of May 6, 2012.

2. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed as it is without merit.