Seoul Administrative Court 2012Guhap53073 ( October 28, 2014)

If a sales contract is not effective due to cancellation, etc., it shall not be subject to capital gains tax.

The transfer income tax is imposed on income from the transfer of assets, and if the sales contract is void due to the cancellation of the sales contract, etc., the sales price received by the transferor shall be returned to the transferee in principle, and thus cannot be subject to the transfer income tax, and even if the transferor acquires a claim for damages arising therefrom, it cannot be deemed as income from the transfer

(The same as the judgment of the court of first instance) The contents of the judgment are as attached.

Article 94 of the former Income Tax Act

2014-Nu-7008 Disposition of Revocation of Transfer Income Tax and Securities Transaction Tax Imposition

The AA

Head of Nowon Tax Office

Seoul Administrative Court Decision 2013Guhap53073 decided October 28, 2014

April 8, 2015

May 6, 2015

1. The defendant's appeal is dismissed.

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

1. Purport of claim

Transfer Income Tax**,**,510 won and Securities Transaction Tax against the Plaintiff on May 1, 2012

*,**,240 won shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court's explanation concerning this case is that "1,08,000 note 1,080,000 note 2 of the judgment of the court of first instance" is "1,00,000 note 1,000 note 2 of the judgment of the court of first instance", and "payment 2 of the 14th page 2 of the judgment" is deleted, and the reasoning for the judgment of the court of first instance is the same as that for the judgment of the court of first instance, except for addition of the judgment of the new argument made by the defendant in the court of first instance under Paragraph 2 below, since it is in accordance with Article 8 (2) of the Administrative Litigation Act

A. The defendant's assertion

The securities transaction tax is a kind of distribution tax that takes advantage of the original share certificates or shares (hereinafter referred to as "share certificates, etc.") and recognizes and imposes a tax-bearing capacity. Since the transferor does not take advantage of the benefits that can be obtained by the disposal of share certificates, etc., but imposes the transfer of share certificates, etc. on the transferee itself, the transaction tax should be imposed as a matter of course on the preemptive right of this case for which the consideration has already been paid as a consideration for the transfer of ownership, and it cannot be said that the disposition of imposition of securities transaction tax was unlawful on the ground that the transfer of share certificates, etc. was merely a circumstance after the

(b) Related statutes;

2. Where share certificates, etc. are transferred to a foreign market (limited to a market prescribed by Presidential Decree; hereafter the same shall apply in this Article) which is similar to the securities market under Article 9 (13) 1 of the Financial Investment Services and Capital Markets Act and the KOSDAQ under subparagraph 2 of the same paragraph;

3. Where the Korea Exchange that has assumed the obligation pursuant to subparagraph 3 of Article 377 of the Financial Investment Services and Capital Markets Act transfers share certificates, etc.;

Article 2 (Definitions)

(3) For the purpose of this Act, the term "transfer" means that the ownership is transferred at a cost due to contractual or legal causes.

(4) Stocks prior to the issuance of stock certificates, rights arising from underwriting of stocks, preemptive rights and investment certificates issued by a corporation established by special Acts shall be deemed stock certificates in the application of this Act.

(1) In applying this Act, the time of transfer of share certificates, etc. shall be the time when the relevant transaction becomes final and conclusive.

(2) Matters necessary for confirmation of transactions under paragraph (1) shall be prescribed by Presidential Decree.

(1) Enforcement Decree of the former Securities Transaction Tax Act (amended by Presidential Decree No. 24364, Feb. 15, 2013)

Article 2 (Time of Transfer) The time when the transaction of share certificates, etc. pursuant to Article 5 (2) of the Act becomes final and conclusive shall be as follows:

1. With respect to the share certificates transacted on the securities market (hereinafter referred to as the "securities market") or the KOSDAQ market (hereinafter referred to as the " KOSDAQ market"), when the transfer value thereof is settled; 2. In cases where a financial investment business entity trades, sells or purchases, sells or arranges the trade of, or receives the payment in full, when the relevant share certificates, etc. are settled or received in full; 3. In cases other than those under subparagraphs 1 and 2, when the relevant share certificates, etc. are delivered or received in full: Provided, That if the right is transferred before the delivery of such share certificates, etc. or the payment is received in full, the relevant right shall be transferred;

Article 1 of the former Securities Transaction Tax Act (amended by Act No. 10401, Dec. 27, 2010) provides that securities transaction tax shall be imposed on the transfer of stock certificates, etc., and Article 2 (3) of the same Act provides that the transfer of stock certificates, etc. shall be made at a cost due to contractual or legal causes.

Since it is stipulated that the ownership of share certificates, etc. should be transferred at a cost in order to become a "transfer of share certificates, etc." subject to securities transaction tax.

However, in concluding a sales contract for share certificates, etc., if the transferee had changed the name of the share certificates, etc. in advance, or the new shares were converted into the transferee's name based on the share certificates, etc., but the transferee rescinded the sales contract or fulfilled the conditions of rescission due to failure to perform the remaining payment obligation, etc., the above sales contract becomes retroactively null and void and thus the transfer of ownership is not carried out. Even if the transferor acquired the claim for damages arising therefrom due to the failure to restore to original state in the future of the transferor, it cannot be deemed that the transfer of share certificates, etc. was made in consideration of the transfer price of the above share certificates, etc., and the same applies even if the transfer price was partially paid prior to the rescission of the contract.

Therefore, the plaintiff's claim of this case shall be accepted for the reasons, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.