Daegu District Court 201Guhap4222 (2012.03.07)

National Tax Service Review and Transfer 2011-0133 (2011.09)

Income earned by an individual by selling listed stocks shall be deemed capital gains other than business income.

Since private investors can easily sell shares continuously and repeatedly through computer programs, it is difficult to recognize the feasibility of stock sales only by continuous and repeated nature, and business income is generated by combining assets and labor, but income from stock sales is increased by stock holding value, so it falls under capital gains.

Article 94 of the Income Tax Act

2012Nu806 Revocation of Disposition of Imposing capital gains tax

The United States of America

Head of Seogu Tax Office and one other

Daegu District Court Decision 201Guhap4222 Decided March 7, 2012

August 17, 2012

September 7, 2012

1. The plaintiff's appeal is all dismissed.

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

The decision of the first instance court is revoked. The imposition of KRW 000 of the transfer income tax corresponding to the year 2007 against the plaintiff on February 12, 201 by the head of the Dong Daegu Tax Office and the imposition of KRW 000 of the transfer income tax corresponding to the year 2006 by the head of Seogu Tax Office against the plaintiff on October 1, 2011 shall be revoked (the plaintiff shall be revoked on October 31, 201) (the second application for the second amendment (extension) of the purport of the claim made on October 31, 201 and the date on which the imposition of the transfer income tax corresponding to the year 2006 is stated on September 27, 2011, but it seems that

1. Details of the disposition;

A. As of December 31, 2005, the Plaintiff purchased and sold shares from around 2005, and (i) as of December 31, 2005, the holding price of BB stock companies,CC, D Electronic Co., Ltd. (hereinafter collectively referred to as "B"), "CC," and "D Electronic Co., Ltd. (hereinafter referred to as "D Electronic Co., Ltd.") exceeds 00 won, respectively, and falls under the E Securities Co., Ltd. (hereinafter referred to as "E Securities") from January 1, 2006 to 9, Article 94 (1) 3 (a) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter referred to as the "former Income Tax Act"), Article 157 (4) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter referred to as "E Securities Co. 306.

B. The Defendants imposed capital gains tax on the Plaintiff in 2006 and 2007 as follows.

C. (1) On July 21, 2010, the Plaintiff filed a request with the Tax Tribunal for the imposition of capital gains tax for the year 2006 on April 23, 2010 on the details of the said imposition disposition: (2) the Plaintiff’s request was rejected on April 26, 2011; (2) on May 4, 2011, the details of the imposition disposition under the said paragraph (b) (3) the increase or decrease of capital gains tax for the year 2006 (100 won) and (5) the amount of capital gains tax for the year 2007 (200 won) and the amount of capital gains tax for the year 207 (200 won). The Commissioner of the National Tax Service filed a request for the imposition of capital gains tax for the reduction of the amount of capital gains tax for the year 207 (200 won) and the amount of capital gains tax for the remaining tax for the year 201.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 4, 9, 14, 15 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 3, 4, 7, and 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff continued to sell shares for the purpose of profit and the occurrence of business income is irrelevant to the authorization and registration requirements of relevant Acts and subordinate statutes, the Plaintiff constitutes an industrial activity that invests in financial assets with funds other than the issuance of securities and trust funds (personal assets, bonds, bills, and other debt assets) in the Korea Standard Industrial Classification Table (other investment institutions). Therefore, the instant disposition that imposes capital gains tax is unlawful even though the income from the transfer of the Plaintiff’s shares constitutes business income generated from financial business under Article 19(1)10 of the former Income Tax Act, not from capital gains tax, notwithstanding that it constitutes business income from financial business under Article 19(1)10 of the former Income Tax Act.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

(1) According to Article 94 (1) 3 of the former Income Tax Act and Article 157 (4) 2 of the former Enforcement Decree of the Income Tax Act, among income accruing from the transfer of stocks, (1) among stocks of stock listed corporations or KOSDAQ listed corporations under the Securities and Exchange Act, the business year immediately preceding

(1) As of the end of this year, if the company holds not less than 3/100 (not less than 5/100 of the total amount of shares of the corporation) of 10 billion won (not less than 5 billion won in case of shares of the corporation listed on the course or venture business) the total market value of shares of the corporation is 10 billion won (not less than 5 billion won in case of shares of the corporation listed on the course or venture business), the income accruing from the transfer of shares of the corporation by the shareholders, etc., (2) the income accruing from the transfer of shares of the corporation listed on the securities market or KOSDAQ-listed corporation through transactions at the securities market or KOSDAQ-listed corporation, and (3) the income accruing from the transfer of shares of the corporation listed on the stock market or KOSDAQ-listed corporation shall not be considered as capital gains. According to Article 19(1)10 of the former Income Tax Act, Article 29 of the former Enforcement Decree of the Securities and Exchange Act provides that the scope of shares of the corporation's business shall be included in the Korea Standard Industrial Classification(208) and new shares(3).

(2) In the instant case, considering the overall purport of the pleadings as to Gap evidence Nos. 1, 6, 7, and 10 through 13, the plaintiff collected the purport of the entire pleadings, and the plaintiff made a decision based on professional knowledge on December 25, 2005, such as raising funds, collecting information, analyzing items, and selecting items. The plaintiff made a purchase and sale of shares using his own stock investment account, and agreed to distribute profits and losses arising from stock investment to 5:5. The plaintiff purchased and sold approximately KRW 000 stocks, etc. from around 206 to around 2009 through about 19,600 as cumulative standards.

(3) However, considering the following circumstances, since the Plaintiff’s stock trading act cannot be deemed to constitute a stock trading business under the former Industrial Classification of Korea’s Associate Industries Act (65939), there is no reason for the Plaintiff’s note that global income tax should be imposed, rather than capital gains tax, on the premise that it falls under such case.

① Under the pros and cons theory, taxation on the gains from transfer of listed stocks was adopted for the purpose of imposing taxation on the transfer of stocks where stockholders and persons in a special relationship with them own more than a certain size of stocks or more than a certain size of the market price of stocks owned. Even if listed stocks are included in the subject of taxation at once, at the beginning of the enactment of the above provision, it can be said that there is the legislative intent to gradually expand the scope of business income when the capital market is developed in a sound manner (see, e.g., Supreme Court Decision 2004HunBa32, Feb. 23, 2006; Supreme Court Decision 2004HunBa63, Jun. 102, 104; Supreme Court Decision 2005HunBa104, Oct. 105, 105). Therefore, if an individual’s income tax is included in the subject of taxation at once, it does not meet the requirements for the transfer of stocks in consideration of repeated and repeated trading period, length of trading, and feasibility.

(2) may be eligible.

② In light of the provisions, such as Article 19 of the former Income Tax Act and Article 29 of the former Enforcement Decree of the Income Tax Act, which provides for the scope of business income, and the contents of the legal text, the above provisions apply to the business income not listed in the above provisions specifically stating individual private business income. Thus, even if the requirements for business feasibility such as profit and continuity are acknowledged, it shall not be taxed. On the other hand, as seen earlier, the former Korea Standard Industrial Classification, K. K. finance and insurance (65-67)-capital invested institutions (6593), and other investment institutions (65939), the former Korea Standard Industrial Classification, as other investment institutions, include industrial activities that invest in financial assets from funds other than the issuance of securities and trust funds (including personal assets, bonds, bills and debt assets, etc.). However, since the institution is established for a certain role and purpose in the social life, it is difficult for the Plaintiff and the Plaintiff to have continued to sell and purchase securities and make it difficult for the Plaintiff to be subject to the same business as the former Securities and Exchange Act.

(3) The net profit and loss of the annual transfer of stocks, etc. is added up, such as foreign legislation cases.

Even if the method to pay income tax on such income can contribute more to realizing taxation corresponding to the tax-bearing capacity, the issue of whether to introduce such income is a matter of tax policy or legislative policy to be determined in consideration of various circumstances, such as sound development of the capital market and protection of small-sum investors.

(4) Inasmuch as an individual investor is able to engage in another business and make it easy for him/her to trade stocks continuously and repeatedly through a computer program, it is difficult to recognize the feasibility of the trade of stocks solely with continuity and repetition.

⑤ According to the agreement between the Plaintiff and the LL, the Plaintiff raised funds and traded shares using its own stock investment account in accordance with the agreement of the LL, and such a trading method is similar to an individual investor’s trading using the securities investment advisory company.

(6) Ordinary business income is generated by combining assets and labor, while capital gains are generated by increasing the value of assets for a fixed period of time. Since the Plaintiff’s labor was less than contributed to stock trading, the Plaintiff’s income falls under cases where the value of stocks increases by stock holding.

3. Conclusion

Therefore, the judgment of the first instance, which dismissed the plaintiff's claim of this case, is just and there is no ground for appeal by the plaintiff, and all of the appeals are dismissed as per Disposition