early 2010west 3750

transaction value nearest to the appraisal base date of the transferred shares shall be considered as transaction example

In consideration of the transaction value of the stocks transferred between non-specially related persons within three months before or after the base date of appraisal, the disposition that calculated and taxed at the market price at the time of transfer of stocks by considering the transaction example value between unspecified persons who do not have any special relationship most adjacent to the base date

Articles 98 and 100 of the Income Tax Act, Articles 60 and 63 of the Inheritance and Gift Tax Act

2012Gudan273 Revocation of Disposition of Imposing capital gains tax

LAA

The Director of Gangnam District Office

October 4, 2013

November 15, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On August 6, 2010, the judgment that the part of the imposition of the capital gains tax imposed by the defendant against the plaintiff on August 6, 2010 is revoked.

1. Details of the disposition;

A. The Plaintiff acquired and held an overseas convertible bonds issued by BBB Co., Ltd. (hereinafter “BB”) located in OO-Gu OO-dong OO-dong 864-1. After converting 94,800 common shares on August 3, 2005 to 94,800 common shares, on September 28, 2005, the Plaintiff transferred 15,800 shares out of 15,800 shares to NAD, NO, 5,130 shares on the same day, to NAD, respectively, but did not report and pay capital gains tax (hereinafter “B shares transferred to NA and NAD”).

B. As a result of the investigation of capital gains tax and gift tax with respect to the Plaintiff, the director of Central Regional Tax Office deemed that the burden of capital gains tax was reduced unfairly by transferring at low prices to TradeCC and NoDD, a person with a special relationship, notwithstanding the fact that the market price per share of the stock at issue, which is non-listed stocks, was OOO, was reduced unfairly. Accordingly, on August 6, 2010 on the premise that the transfer value of the stock at issue is an OOO for each share, the Defendant issued the instant disposition that decided and notified the Plaintiff of capital gains tax for 2005, under the premise that the transfer value of the stock at issue

C. On October 29, 2010, the Plaintiff filed an appeal with the Tax Tribunal, but was dismissed on October 6, 201.

Facts without any dispute, Gap 1, 2, and Eul 1, the purport of the whole pleadings, and the purport of the whole pleadings.

2. The plaintiff's assertion

The burden of assertion and burden of proof on the market price, which is the standard for the application of the avoidance of wrongful calculation, is against the tax authority claiming the denial of wrongful calculation. The defendant assessed the market price of the stocks held on September 26, 2005 between the non-party Park E and EF as the case of sale and purchase of the stocks held on September 26, 2005 and assessed the transfer income tax on the plaintiff. However, Park E and EF cannot be said to be an unspecified free transaction among the title trustee of the representative director of BB, and there are other cases where the market price of the stocks in question is much lower than the market price of the stocks held on the part of the non-party Park E and EF, so it is insufficient to prove that the market price of the stocks in question is the cause of OOO. Accordingly, the defendant's disposition in this case based on this premise is unlawful.

3. Whether the disposition is lawful;

A. Relevant statutes

It is as shown in the attached Form.

B. Determination

According to the relevant provisions of the former Enforcement Decree of the Income Tax Act and the former Enforcement Decree of the Income Tax Act, where a resident transfers an asset at a price lower than the market price to a related party at a price, "market price" referred to in this context refers to a price which is generally deemed to be established when transactions are conducted freely between many and unspecified persons pursuant to Article 60 of the former Inheritance Tax and Gift Tax Act and Article 49 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and includes the transaction price if there is a transaction fact within three months before and after the market price is assessed. In addition, the tax authority claiming the denial of wrongful calculation.

In full view of the following circumstances, the Defendant’s decision on transfer margin by deeming the market price at the time of transfer of the instant shares as an OOOO per share as the market price at the time of transfer of the instant shares as the market price as the OOOO for each market price.

① The cases of trading BB stocks, which are shown in the data collected in this case for three months before and after September 28, 2005, are as follows.

② Of the indication of the transferor, the peripheralGG is the BB representative, and the title trustee of Han H, Kim II, Lee J, Park J, LeeE, LeeF, and HK is the YG and the YL (type of the peripheralGG), KimM is the person with a special relationship of the peripheralG, and the NaN is the executive officer of BB. Accordingly, the value of the Plaintiff’s sales immediately before the transfer of the pertinent shares, except for the title trustee or a person with a special relationship, is the value of the Plaintiff’s sales immediately before the transfer of the pertinent shares, as of August 9, 2005.

③ BB’s subscription to new shares on July 11, 2005 and subscription to new shares on August 3, 2005 to significantly improve the company’s financial status. Accordingly, it appears that the price of shares was lower from August 1, 2005 to October 1, 2005, immediately after the implementation thereof, and thereafter, the stock issued in this case was transferred to the above market price increase period after about two months after the implementation of the subscription to new shares and subscription to new shares.

④ 소외 주식회사 PP상사는 BBB 주식 4,954주를 2005. 6. 20.에 양도한 것과 관련하여 서초세무서장을 상대로 이 법원 2011구합7229호 법인세등 부과처분 및 소득금액변동통지 취소청구 소송을 제기하였는데, 이 소송에서 주식회사 PP상사가 BBB 주식을 양도할 당시 1주당 시가를 OOOO원이 아니라 OOOO원으로 보아 법인세액 및 상여소득금액 및 증권거래세액을 감경하는 것으로 조정권고 되었으나, 이는 PP상사의 주식 양도 시기가 BBB의 유상증자 및 전환사채 전환 이전에 이루어졌고, 서초세무서장이 매매사례로 삼은 거래는 원고(최AA)가 박QQ에게 2005. 6. 3. 1주당 OOOO원에 양도한 거래로 주식양수인인 박QQ이 재매매예약완결권을 유보 하고, 이를 행사할 경우 양도인인 원고(최AA)의 대금지급의무의 이행을 담보하기 위해 원고(최AA) 소유의 부동산에 대하여 박QQ 앞으로 근저당권을 설정하는 내용의 이면계약을 포함하고 있어 제3자 간에 일반적으로 거래된 가액에 해당한다고 보기 어려운 점 등을 감안하여 산정된 것으로, 위 조정권고의 전제가 된 1주당 OOOO원을 이 사건 쟁점주식의 매매사례 가액으로 보는 것은 적당하지 않다.

⑤ The Plaintiff asserted that the transfer of shares 1,500 shares in the name of Han H on August 5, 2005 and shares 2,010 shares in the name of Kim II on August 12, 2005 to Park R is a pre-payment of shares from Park RR, and that the issuance of shares is not an OO of the market price per share, such as OOOO and OOOOO won around July 2005. Accordingly, the Plaintiff’s transfer of shares owned by Park RR that the share price per share is nothing more than an OO won, considering the time of transfer or the relationship with the LL, etc., it is not appropriate for the market price to calculate the market price.

transferor

Transfer Date

Number of Stocks

Unit price (unit price)

Jinay

1

50

February 17, 2005

73

OOO

Park S-S Acquisition

2

March 16, 2005

449

OOO

3

ParkS

March 25, 2005

1,100

OOO

4

Park RR

April 20, 2005

927

OOO

5

ParkS

April 20, 2005

927

OOO

6

July 8, 2005

1,700

OOO

New shares issued on July 11, 2005, and the conversion of convertible bonds on August 3, 2005

7

August 5, 2005

1,500

OOO

Transfer to Park R

8

August 8, 2005

15,300

OOO

Transfer to KimM (Special Relations of the YG)

9

August 9, 2005

13,000

OOO

Transfer to JJ

10

August 9, 2005

5,000

OOO

Transfer to N

11

NewT

August 9, 2005

2,022

OOO

12

BU

August 9, 2005

1,600

OOO

13

August 22, 2005

5,573

OOO

Related Parties to the YGG

14

September 29, 2005

5,000

OOO

W Transfer to W industry

15

September 26, 2005

600

OOO

Transfer to FF

September 28, 2005

15,800

OOO

September 28, 2005

5,130

OOO

16

ParkV

October 10, 2005

700

OOO

17

ParkS

October 20, 2005

73

OOO

18

ParkS

October 20, 2005

271

OOO

19

Park RR

October 20, 2005

73

OOO

20

Park RR

October 20, 2005

271

OOO

21

Park RR

October 26, 2005

200

OOO

22

Park RR

October 26, 2005

60

OOO

23

ParkS

October 26, 2005

200

OOO

24

ParkS

October 26, 2005

660

OOO

25

Park RR

October 31, 2005

400

OOO

26

ParkS

October 31, 2005

400

OOO

27

W Industry

November 2, 2005

1,600

OOO

28

December 5, 2005

600

OOO

【Transfer to △△△

29

Park RR

December 12, 2005

169

OOO

30

Park RR

December 12, 2005

1,100

OOO

31

Park RR

December 12, 2005

1,740

OOO

32

December 12, 2005

500

OOO

Transfer to Kim▽▽;

33

XX Kim

December 12, 2005

200

OOO

34

Y

December 12, 2005

100

OOO

35

ParkS

December 12, 2005

169

OOO

36

ParkS

December 12, 2005

1,100

OOO

37

ZZ

December 20, 2005

335

OOO

38

Seoul High Court Decision 20

December 23, 2005

200

OOO

39

December 26, 2005

1,000

OOO

*The xGG (8,9) representative director of BB, the xL shall be the form of the xG.

* H(2)(7), Kim II(6), Lee J(10), Park J(15), Lee F(28,39), and YK(32) are the title trustee of the KL and the title trustee of the KG.

** NaN(14) is an officer of BB, and KimM(13) is an affiliated person of the KG.

The transaction*9 and 10 shall be the agreed price and title trust transaction made on March 4, 2005.

4. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.