Seocho 2010west 1423 (Law No. 108, 2011)

The acquisition date of listed stocks acquired through an exchange of the transfer value of unlisted stocks in a comprehensive share swap is legitimate.

Where an unlisted corporation and a listed corporation make an all-inclusive share swap on the basis of the appraised value under the Securities and Exchange Act, it is reasonable to deem that the transfer value of unlisted stocks transferred by the stockholders of the unlisted corporation according to the share swap contract is calculated on the basis of the closing price of the acquisition date of the listed

Article 96 of the Income Tax Act

2011Gudan29871 Revocation of Disposition of Imposing capital gains tax

IsaA

head of Sung Dong Tax Office

April 10, 2012

May 2, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 000 on February 5, 2010 against the Plaintiff on February 5, 2010 is revoked.

1. Details of the disposition;

A. On April 13, 2001, the Plaintiff owned 34,000 shares of BBB (BB shares 13.93% of the shares, and hereinafter referred to as “the shares in this case”) of BB andCC industry (hereinafter referred to as “CC industry”) on April 13, 2001, and was allocated a comprehensive share exchange agreement between BB and BB (the face value is 00 won) on May 21, 2003, upon entering into the share exchange agreement between BB shares (the face value is 00 won) and 16.86, and hereinafter referred to as “BB shares exchange agreement”).

B. On February 5, 2010, the Defendant calculated the transfer value of the instant shares to the Plaintiff, and calculated the transfer value as KRW 000 ( KRW 000 x 34,000 x 16.38 x 16.38) calculated on the basis of the closing price on May 21, 2003 of theCC industry’s shares, and calculated the transfer margin as KRW 000, and determined and notified the transfer income tax of KRW 00 for the year 2003 (hereinafter “instant disposition”).

[Ground of Recognition] The non-contentious facts, Gap evidence 1, 2 (including each number), and Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff, at the time of the conclusion of the share swap contract, did not specify the specific appraised value or transfer value of individual shares at the time of the conclusion of the share swap contract, and the shares of theCC industry allocated by the Plaintiff were not traded for two years from the date of the exchange due to the period of obligation to receive protection, and as the date theCC industry was abolished on or around April 2005 prior to the expiration of the said period of obligation to receive protection, the Plaintiff suffered only losses without obtaining any profit. Accordingly, the instant disposition imposing capital gains tax by calculating the transfer value of the shares of theCC industry on the basis of the closing price of May 21, 2003, even though the Plaintiff did not have obtained any profit from the transfer of the shares of this case.

(b) Fact of recognition;

(1) BBB, an unlisted corporation, entered into the instant stock exchange agreement with theCC industry on February 24, 2003, and BBB to be a wholly owned subsidiary and a wholly owning parent company.

(2) In entering into the instant stock exchange contract,CC industry and BBB determined the exchange ratio with the content of 16.38 shares of theCC industry per share, based on the amount of discount adjusted by taking into account the market price formed on the KOSDAQ market based on the appraised value under Article 36-12(1) of the former Enforcement Rule of the Securities and Exchange Act (amended by Ordinance of the Prime Minister No. 304 of Mar. 10, 2003) and the appraised value under Articles 5, 6, and 7 of the Enforcement Rule of the Regulations on Issuance and Public Disclosure of Securities and Exchange (amended by Ordinance of the Prime Minister No. 304 of Mar. 10, 2003).

(3) The Plaintiff transferred the instant shares on May 21, 2003 in accordance with the instant stock exchange contract, and received the allocation of 56,920 shares for theCC industry, and on June 10, 2003, the value per share of the instant shares on June 10, 2003 (i.e., the closing price of May 21, 2003 x 16.38) reported a securities transaction tax, but did not report the transfer income tax.

(4) On the other hand, other shareholders of BBB, except the Plaintiff, assessed the value per share of BBB stocks at KRW 000, and reported capital gains tax.

[Reasons for Recognition] The above evidence, Eul's evidence 3 (including paper numbers), and the whole purport of the pleading

C. Determination

In calculating transfer margin, which is the tax base of capital gains tax, the actual transaction price refers to the actual amount as agreed upon for the payment itself or at the time of the transaction, not to reflect the objective exchange value. Therefore, if the transaction subject to capital gains tax is a simple exchange, it is impossible to verify the actual transaction price, but if the exchange is a value exchange based on the basis of the market price appraisal for the object, such as accompanied by the settlement procedure for the difference of the appraisal price, it is possible to verify the actual transaction price. In this case, the gold value of the object acquired through the exchange and the cash paid are the actual transfer price for the object so transferred (see, e.g., Supreme Court Decision 2009Du19465, Feb. 10, 201; 209Du19465, Feb. 3, 201). The Plaintiff’s 20-type stock exchange industry and the 20-class stock exchange industry, which is the non-listed BBBBB and the 25-class stock exchange industry, calculated based on the 16B stock exchange rate, and 3rd 2, as the above.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.