Daejeon District Court 2010Guhap4638 ( October 20, 2011)

National Tax Service Review Corporation 2010-0040 (2010.30)

In order to avoid taxation, it seems that the stock retirement for the reduction of capital has been conducted, so it cannot be deemed that it has been acquired for the purpose of stock retirement.

"It does not seem that there is any legal obstacle to the acquisition of treasury shares for the purpose of stock retirement, but rather does not take any measure, such as the procedure for the reduction of capital after acquiring treasury shares, in order to avoid taxation taxation by receiving prior notice from the Defendant, it cannot be deemed that the acquisition constitutes a case of acquiring treasury shares for stock retirement (the content of the judgment)

2011Nu1571 Revocation of Disposition of Corporate Tax Imposition

XX Co., Ltd

Daejeon Head of the District Tax Office

Daejeon District Court Decision 2010Guhap4638 Decided July 20, 201

October 20, 2011

December 1, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The disposition of imposition of KRW 16,797,661, which the Defendant rendered to the Plaintiff on April 12, 2010, shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Circumstances of the disposition, relevant Acts and subordinate statutes, and plaintiff's assertion;

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the reasoning is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Determination as to whether treasury stocks are acquired for the purpose of stock retirement

(a) Relevant legal principles;

1) In principle, the Commercial Act prohibits the acquisition of a company’s own shares on its own account from uniformly preventing various harm, such as undermining the interests of the company, shareholders, and creditors, impairing the principle of shareholder equality, and causing unfair corporate control by the representative director, etc., on the grounds that the acquisition of a company’s own shares may endanger the company’s capital foundation. As such, the Commercial Act uniformly prohibits the acquisition of a company’s own shares for a general preventive purpose, except where the company permits the acquisition of a company’s own shares explicitly in accordance with Articles 341, 341-2, 342-2

In the case of acquiring a company’s own shares on another’s account, even in the case where the acquisition of a company’s own shares is exceptionally permitted, and in other cases, even if there are unavoidable circumstances in order to avoid serious damage that may arise to the company, shareholders, and creditors, etc., the acquisition of a company’s own shares is not allowed, and it is naturally null and void to acquire a company’s own shares in violation of the prohibition provisions as seen above (see Supreme Court Decision 2001Da44109, May 16, 2003).

2) According to the provisions of the Commercial Act, in cases where the retirement of shares is carried out equally with respect to all shares out of distributable profits pursuant to the provisions of the articles of incorporation (proviso of Article 343(1)), in cases where profits are available by a special resolution of the regular general shareholders’ meeting (Article 342-2), and in cases where redemption of redeemable shares is made pursuant to the provisions of capital reduction (Article 345(1) main text of Article 343(1). Thus, even in cases where redemption is made with respect to company’s capital stock, a shareholder who retires shares pursuant to the provisions of the provisions of the Commercial Act without impairing creditors’ interests is subject to strict procedures for capital reduction and without impairing the creditors’ interests is not treated unfairly. As such, since there is no risk that even if a company acquires its own shares as prior procedures for the retirement of shares, the Commercial Act permits the company to temporarily acquire its own shares for the retirement of shares (Article 341 subparag. 1). 342).

3) Meanwhile, the reduction of capital under the Commercial Act is comprised of ① A company’s capital reduction is in excess of the current size of its business, ② a purpose to return it to its shareholders; ② an anticipated dissolution and a simple liquidation procedure; ③ a purpose to reduce the shares of shareholders of the company to be extinguished; ④ a purpose to reduce the shares of the shareholders of the company to be extinguished; or ④ a company having deficit in its capital is intended to access its net property. The method of capital reduction requires a special resolution of the general shareholders’ meeting (Article 438) under the Commercial Act; a special resolution of the general shareholders’ meeting (Article 439(2) and 232(2) under the Commercial Act; a creditor protection procedure (Article 343(2)); a public announcement and notification for the submission of share certificates (Articles 317(4) and 183).

(b) Fact of recognition;

① From around 2006 to around 2007, the Plaintiff was making efforts to list the company on the KOSDAQ. While the Plaintiff’s representative director is promoting to list the opportunity to list the company on the KOSDAQ in order to attract investment to the Plaintiff, the Plaintiff’s listing of the company on the KOSDAQ, the Plaintiff’s listing of the company would have a lot of interest due to the increase of the share price, and the trusted company, etc. solicited the Plaintiff to make an investment. P, 6,000 shares issued by the Plaintiff, KimB, KimB, 5,000 shares, 3,00 shares issued by the Plaintiff, 21,000 shares totaling KRW 75,00 won per share, and 75,500,000 won per share.

② However, the Plaintiff’s plan for listing on the KOSDAQ was zero percent, and even around April 2008, the Plaintiff’s representative director demanded the Plaintiff’s return of the investment amount. Accordingly, on the Plaintiff’s account, on September 9, 2008 and October 14, 2008, the Plaintiff’s representative director Jung returned the total amount of the investment amount by acquiring the Plaintiff’s shares totaling 21,000 shares issued at the initial sale price (hereinafter “instant shares”).

③ The Plaintiff held each of the board of directors on August 29, 2008 and October 1, 2008 in order to acquire the instant shares from XX, etc. stated that the minutes of each of the board of directors at the time stated that “the Plaintiff shall acquire the instant shares for the purpose of re-sale or stock offering,” and the vindication submitted at the Defendant’s request on November 5, 2009 stated that “the Plaintiff shall acquire the instant shares from XX, etc. for the purpose of re-sale or stock retirement at the request of the shareholder, and shall undertake further sale or stock retirement.”

④ There is no circumstance to deem that the Plaintiff had, at the time of acquiring the instant shares, the purpose of stock retirement for capital reduction, namely, the purpose of returning the company’s excessive capital to shareholders, the purpose of simple dissolution or merger procedures, and the purpose of making the company’s capital with deficit coincide with its net property.

⑤ On November 5, 2009, the Defendant demanded the Plaintiff to submit explanatory materials regarding the acquisition of the instant shares, and notified the pre-announcement of taxation on March 10, 2010 (No. 1-2). After completing the purchase of the instant shares, the Plaintiff did not take any measure, such as re-sale of the instant shares or retirement of shares, until the Defendant requested the submission of explanatory materials and notified the pre-announcement of taxation as above.

④ On March 8, 2010, the Plaintiff received a request from the Defendant to submit explanatory materials as to the acquisition of the instant shares, and acquired total of 1,500 shares from YangF, JeonG, Lee H, and YoonK, which is a minor shareholder on March 8, 2010. On April 5, 2010, immediately before the instant disposition, the Plaintiff issued a notice of convening a general meeting of shareholders to resolve the capital reduction, and decided to reduce the capital by holding a temporary general meeting on April 20, 2010, and registered the capital reduction in the Plaintiff’s corporate register on June 4, 2010.

[Reasons for Recognition: Facts without dispute; Evidence Nos. 1, 2, 9 of Evidence Nos. 2 and 7; Evidence Nos. 10-1, 2, 10-2; Evidence Nos. 1-2, 5, 6, and 2 of Evidence Nos. 1-2, 5, 6, and 2; Evidence No. GamM of the first instance trial, and the purport of the whole pleadings;

C. Determination

1) In light of the above facts, the representative director Jeong-A invested in the Plaintiff by purchasing the Plaintiff’s shares in XX et al., and attracting investment by gathering that many benefits would arise if the Plaintiff’s KOSDAQ is listed on the KOSDAQ market, and upon receiving a request for the return of the investment amount, the Plaintiff’s share was acquired on the company’s account in order to collect the shares, and does not seem to have acquired the instant shares for the purpose of stock retirement.

"2) As to this, the Plaintiff asserts that the acquisition of shares of this case is appropriate for acquiring the shares of this case for the purpose of stock retirement, in light of these circumstances, since the Plaintiff’s acquisition of shares by acquiring shares from minority shareholders on March 2010 and then retired shares at the time of the completion of the acquisition of shares after the completion of the acquisition of the shares of this case, the costs and time takes a lot of time when the Plaintiff’s acquisition of shares takes place. Accordingly, the Plaintiff’s acquisition of shares by acquiring shares from minority shareholders on September 9, 2008 and October 14, 2008 after acquiring the shares of this case on March 8, 2010, it cannot be seen that there was any legal obstacle to the requirement of 1 year and 6 months for the acquisition of shares from minority shareholders on March 8, 2010 after acquiring shares of this case. Accordingly, the Plaintiff did not seek to submit a new notice of tax reduction by 10 years after acquiring shares from the Defendant’s acquisition of shares of this case.

3) If so, it cannot be deemed that the Plaintiff’s acquisition of the instant shares constitutes an acquisition of treasury shares for the purpose of stock retirement. Therefore, the Plaintiff’s assertion is without merit without further examining the remainder of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, it shall be revoked and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.