Whether the application of acquisition value of listed stocks by transfer is justifiable

Where the time of acquisition or transfer of listed stocks is obvious, transfer income tax shall be determined on the basis of the actual transaction price at the time of acquisition or transfer, and where it is unclear, transfer income tax shall be determined according to the first in first in

1. The Defendant’s imposition disposition of KRW 606,155,640 against the Plaintiff on May 6, 2004, exceeding KRW 447,285,618, among the imposition disposition of KRW 447,285,618, and the imposition disposition of KRW 903,579,435, which reverts to the year 2003, exceeds KRW 312,660,674, respectively.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit are divided into two parts, one of which is to be borne by the plaintiff, and the remainder by the defendant respectively.

The Defendant’s imposition of capital gains tax of KRW 606,155,640 for the year 2002 against the Plaintiff on May 6, 2004 and capital gains tax of KRW 903,579,435 for the year 2003 shall be revoked.

1. Imposition of capital gains tax;

A. As of December 31, 2001, the Defendant owned 39,032 common shares of ○ Electronic Co., Ltd. (hereinafter referred to as “○○ Electronic Co., Ltd.”) and 1,408 common shares (total market price of 11,049,736,000) with her mother Kim○ as of December 31, 2001, and owned 47,032 common shares and 1,408 common shares (total market price of 14,979,248,000) with her mother Kim○○ as of December 31, 2001, the Defendant did not transfer her tax base and tax amount to 14,032 common shares as of December 31, 202 and 14,979,248,000 won (hereinafter referred to as “Act”) and did not report her ownership of shares to her major shareholders in capital gains tax under Article 157(4)3(a) of the Enforcement Decree.

B. In the process, on the ground that it is impossible to confirm the details of transactions before January 15, 1998, the Defendant: (a) determined the acquisition value converted from the first acquired assets to the first transferred assets (hereinafter “first in first out method”) pursuant to Article 98 of the Act; and (b) Article 162(5) of the Enforcement Decree of the Act, based on Article 98 of the Act providing that the first acquired assets shall be seen as the first transferred assets (hereinafter “first in first out method”); and (c) ○○ Electronic Common Shares transferred to the Plaintiff in 2002 to the Plaintiff in 203; (b) 4,034 shares transferred to the ○○○ Electronic Common Shares on January 15, 1998; (c) on the basis of Article 114(5) of the Act; and Article 176-2(2) and (3) of the Enforcement Decree of the Act, based on the acquisition value of the remaining ○○ Electronic Shares transferred in 2003; and (c) disposition to the Plaintiff for 3636,504.6.56.

Facts with no basis for recognition, Gap's evidence Nos. 1 through 3, Eul's evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The party's assertion

피고는, 이 사건 처분은 관계법령에 따른 것이어서 적법하다고 주장함에 대하여 원고는, 원고가 1998. 1. 15. 이전의 특정시점에 ○○전자 보통주 23,970주와 우선주 1,402주 합계 25,372주를 취득한 것이 분명한 이상 법 시행령 제162조 제5항이 적용될 여지가 없고, 따라서 원고가 2002. 2. 18. 양도한 보통주 8,000주는 2000. 10. 20. 취득한 것이고, 2003.7.7. 양도한 2,200주는 1999. 2. 24.과 같은 해 7. 7. 두차례 걸쳐 유상증자를 통하여 취득한 보통주 3,342주 중 일부이며, 2003.7.30.과 같은 달 31. 두 차례에 걸쳐 양도한 보통주 10,000주는 2002. 3. 18. 취득한 것이므로, 긔 취득 당시의 실지거래가액을 기준으로 양도소득세를 결정하여야 함에도 불구하고, 피고가 법 시행령 162조 제5항을 적용하여 2002년과 2003년에 양도한 ○○전자 보통주 12,043주는 1998. 1. 15. ○○투자증권 ○○지점에 입고된 주식 중에 먼저 양도된 것으로 보고 그 시점의 기준시가로 환산한 가액으로 하여 한 이 사건 부과처분은 위법하다고 주장한다.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) From around 1988, the Plaintiff opened an account for consignment to sell and purchase ○○ Securities at the ○○○○ Branch, and acquired and held 23,970 common shares and 1,402 common shares. As a result of the closure of ○○ Securities, the Plaintiff’s business was transferred to ○○ Securities, and the said 25,372 shares owned by the Plaintiff were also transferred to ○○○○○ Branch on January 15, 1998.

(2) On October 20, 200, the Plaintiff purchased (the average of KRW 126,37 per share, below KRW 3,87,450) common shares of KRW 8,000 per share (the average of KRW 126,337 per share), and transferred on February 18, 2002 KRW 2,792,00,000 per share (average of KRW 349,000 per share) (the transfer cost of KRW 11,168,000 per share), and on July 7, 2003, the purchase period of KRW 2,200 per share was not clear, but the purchase period of KRW 387,00 per share is not clear.

(3) In addition, on March 18, 2002, the Plaintiff purchased (on average of 334,200 won per share) 3,342,00,000 common shares (on average of 334,200 won per share) and transferred (on average of 418,000 won per share) on July 30, 2003 to KRW 1,254,000 (on average of 418,500 won per share), and transferred (on average of 418,000 won per transfer cost), to 2,951,50,500,000 won per share (on average of 421,642 won per share).

(In accordance with the basis for recognition, each description of evidence Nos. 6 through 9, the fact-finding results on ○○WC Branch Director of this Court, the witness’s testimony, and the purport of the whole pleadings.

D. Determination

(1) According to Articles 96 and 97 of the former Income Tax Act (amended by Act No. 7006 of Dec. 30, 2003), the transfer value of stocks of a stock listed corporation under the Securities Transaction Tax Act shall be calculated based on the actual transaction value at the time of transfer of the relevant stocks. In calculating gains from transfer, the acquisition value among the necessary expenses to be deducted shall be calculated based on the actual transaction value at the time of transfer of the relevant stocks and the transfer income tax amount shall be determined based on the actual transaction value at the time of transfer of the relevant stocks. If the time of acquisition or transfer of stocks is unclear, the transfer income

In light of the above facts, the period of acquisition and transfer of 8,00 shares transferred by the plaintiff on February 18, 2002 and 10,000 shares transferred on July 30, 200 and July 31, 200 of the same month shall be clearly determined on the basis of the actual transaction price at the time of acquisition and transfer, and on each transaction of the above shares, the transfer income tax shall be determined on the basis of the actual transaction price at the time of acquisition and transfer. As such, among each disposition of each case, the part of taxation without based on the actual transaction price for each of the above shares is unlawful.

Furthermore, the Plaintiff asserts that the transfer income tax should be determined on the basis of the actual transaction price since the acquisition time of 2,200 common shares transferred on July 7, 2003 is clear, but there is no evidence sufficient to recognize it. Therefore, the Plaintiff’s assertion on this part is not acceptable.

(2) The due amount of tax

If the plaintiff's transfer income tax for the year 2002 and the year 2003 is calculated again, the transfer income tax for the year 2002 shall be 447,285,618, and the transfer income tax for the year 2003 shall be 312,60,674 as stated in the attached Table of Calculation of Tax Amount.

3. Conclusion

If so, the part of the defendant's claim for the cancellation of the part exceeding KRW 447,285,618 out of the transfer income tax of 606,15,640 won for the year 2002, and exceeding KRW 312,660,674 out of the transfer income tax of 203, 903,579,435 won for the transfer income tax of 2003 is justified, and the remaining claim is dismissed as it is without merit.