Seoul Administrative Court 2012Gudan8093 ( October 30, 2013)

Cho High Court Decision 201No3307 ( December 30, 2011)

It is illegal that there is no evidence that a share is transferred without permission and it is invalid because it does not go through legitimate pre-trial procedure.

(1) Although the court of first instance asserts that the transfer of shares is null and void due to the transfer of shares without permission, a shareholder of a corporation may be deemed to have managed all the corporation and shares as a representative director, since there is no evidence to acknowledge that the transfer income tax on the transfer of shares is null and void as a matter of course and without permission by all related parties.

2013Nu8952 Invalidity, etc. of a disposition of imposition of capital gains tax

1. The HongA 2. GimB

1. Class B: Head of the tax office; and

Seoul Administrative Court Decision 2012Gudan8093 decided January 30, 2013

August 28, 2013

October 16, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance court is revoked. The defendants confirm that each disposition listed in the separate sheet against the plaintiffs in the separate sheet (the plaintiff sought confirmation of invalidity of each of the above dispositions in the first instance court, and sought revocation of each of the above dispositions in preliminary case, but this court withdrawn the preliminary claim (see, e.g., the plaintiffs' prepares on June 25, 2013, which contain the purport thereof)).

1. cite the judgment of the first instance;

The reasoning of this court’s judgment is to add the judgment on the plaintiffs’ assertion as to the corresponding part of the judgment of the court of first instance (the corresponding part of the main claim). The corresponding part shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of

2. Additional determination

A. Summary of the plaintiffs' assertion

In light of the fact that the instant shares are arbitrarily transferred by leCC without the delegation of the Plaintiffs, and that the transfer procedure for the instant shares has been implemented in the future of the Plaintiffs as a restitution based on the judgment to nullify the invalidity thereof, etc., the instant disposition by the Defendants, which had been limited to this despite the absence of taxation requirements with respect to the transfer of the instant shares, constitutes an inevitable invalidation.

B. Determination

1) If objective circumstances exist that make it possible to misunderstanding that a certain legal relation or fact which is not subject to taxation is subject to taxation, and thus, it can only be clarified whether it is subject to taxation, even if the defect is serious, it cannot be deemed apparent even if it is apparent that it is necessary to accurately investigate the facts (see, e.g., Supreme Court Decision 96Nu12634, Jun. 26, 1998). Thus, the taxation disposition that misleads the fact subject to taxation cannot be deemed as void as a matter of course (see, e.g

2) We examine the instant case in light of the aforementioned legal principles. Considering the various circumstances in the first instance trial, and the fact that the transfer value of the instant shares was reported as an OOO per share in the Plaintiffs’ names, and that HongD appears to have taken over the instant shares under the specifications of changes in stocks, etc., it is reasonable to deem that the Defendants were in an objective and external manner to deem that there exist the Plaintiffs as the transferor of the instant shares. Furthermore, even if the Plaintiffs were to pay taxes, it appears that the Defendants could only be identified only through a fact-finding investigation. Ultimately, the circumstance and evidence of the Plaintiffs’ internal taxes cannot be deemed as having serious and apparent defects in the instant disposition. The Plaintiffs’ assertion cannot be accepted.

3. Conclusion

The judgment of the first instance is justifiable. All appeals filed by the plaintiffs are dismissed.