The early 2014Gu3214

The disposition imposing capital gains tax is legitimate because it seems that the stock has been returned due to redemption but it does not fall under the inevitable reasons of the law.

Although the transferred shares have been returned after the original return of capital gains tax, the effect of return cannot be affected unless the cause for return is unavoidable under the provisions of the Act, and the request for repurchase is made in the absence of special circumstances as a result of examining the various circumstances of repurchase claimed by the claimant, and the initial disposition is legitimate.

Article 88 of the Income Tax Act

2015Guhap2050 Revocation of Disposition rejecting capital gains tax rectification

AA

Head of the Gu Tax Office

October 20, 2015

November 17, 2015

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the Plaintiff

Cheong-gu Office

Defendant’s correction of KRW 487,250,00,00 for the transfer income tax of April 8, 2014 for the Plaintiff for the year 2012

The rejection disposition shall be revoked.

1. Details of the disposition;

A. On May 11, 2012, the Plaintiff entered into a share purchase contract to transfer 200,000 shares of a non-listed corporation BB (hereinafter “instant shares”) owned by the Plaintiff to a total of 5 billion won (hereinafter “instant contract”). On June 4, 2012, the Plaintiff reported and paid KRW 487,250,000 transfer income tax for the instant shares transfer in relation to the instant shares transfer.

B. On March 20, 2014, the Plaintiff filed a claim for correction to the effect that, in a case where the instant shares are not listed on the Stock Exchange, the purchaser was included in the instant contract, and that the purchaser returned all the purchase price of the instant shares to the purchaser on the grounds that the said condition was not fulfilled.

C. On April 8, 2014, the Defendant notified the Plaintiff of the refusal of the Plaintiff’s request for correction (hereinafter “instant disposition”) on the ground that even if the Plaintiff re-purchases the instant shares pursuant to the special agreement for repurchase after transferring them, it cannot be deemed that the sales contract did not have any effect from the beginning.

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on June 16, 2014, but was dismissed on December 3, 2014.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The substance of a repurchase agreement included in the instant contract constitutes a reservation of the right to cancel the contract, and thus, the instant contract was terminated due to the buyer’s exercise of the right to cancel the contract and retroactively lost its effect. Therefore, the Plaintiff cannot be deemed to have been subject to substantial economic benefits from the transfer of the instant shares. Therefore, the instant transfer of shares cannot be deemed to constitute “transfer of assets” under Article 88 of the Income Tax Act. Nevertheless, the instant disposition rejecting the Plaintiff’s request for correction of capital

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) The main contents of the instant contract are as follows.

Article 2. Sales and Purchase of Stocks

(1) In accordance with the terms and conditions of this Agreement, the buyer shall purchase the shares from the seller at the time of the termination of the transaction.

The seller shall sell the shares to the buyer: Provided, That in cases where a part of the seller is unable to sell shares at the time of the closure of transaction, the buyer may choose not to purchase all the shares subject to purchase.

Article 4 Conclusion of Transactions

(1) The termination of the principal transaction scheduled under this Agreement (hereinafter referred to as “the termination of transaction”) shall be May 11, 2012 (hereinafter referred to as “the termination of transaction”).

10 days). A notice shall be given.

(2) The buyer receives the sales amount payable pursuant to Article 2(2) on the date of the closing of transaction.

by remitting the amount to a bank account designated in writing prior to the date of such termination to the seller.

company shall immediately complete the transfer procedure and the change of the register of shareholders, and the following matters:

The seller and the interested party shall deliver the relevant documents to the purchaser, and the seller and the interested party shall

necessary procedures can be conducted.

1. A written confirmation of non-issuance of stock certificates or certificates;

2. Register of shareholders;

3. Other matters necessary for lawful and effective acceptance of shares specified in the present contract, which are required by the buyer.

data requested by the Commission

Article 9 Special Terms and Conditions (hereinafter referred to as "special terms and conditions of this case")

(1) The shares of a company by the end of 2013 are not listed on the Stock Exchange (KOSPI or KOSDA Q) market.

In cases of the purchase of stocks, the purchaser may request an interested party to repurchase the stocks: Provided, That the purchaser and the purchaser may request the purchase.

The period may be extended by the end of 2014 by agreement between interested persons. In the case of redemption:

Interested persons shall be calculated as 10% of the annual welfare from the date the principal and transaction is closed to the date of redemption.

Any interested person shall pay an amount including interest. The interested person shall exercise the appraisal rights from the buyer.

The repurchase amount of the stocks shall be paid to the purchaser within 30 days from the date of receipt;

Where an interested person fails to pay the purchase price to the purchaser within the payment deadline, the following day.

For the purchase price from the date of actual payment to the date of actual payment, delayed compensation for the interest rate of 19% per annum;

shall be paid in addition to the gold.

2) The Plaintiff received each purchase price from the purchaser pursuant to the instant contract, and completed the transfer procedure for the instant shares to the purchaser.

3) Around December 2013, the purchaser sent a written request for repurchase of shares to the Plaintiff on the grounds that the instant shares were not listed on the Stock Exchange. Accordingly, on January 3, 2014, the Plaintiff returned the purchase price plus interest to the purchaser, and completed the transfer procedure in the name of the Plaintiff on the instant shares.

D. Determination

1) According to Article 45-2(2)5 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014); Article 25-2 subparag. 2 of the Enforcement Decree of the Framework Act on National Taxes, a person who has filed a return on a tax base by the statutory due date of return; or a person who has received the determination of the tax base and amount of national taxes, may request a determination or correction within two months from the date on which he/she becomes aware that the contract related to the effect of transaction or act, etc., which served as the basis for calculating the tax base and amount of tax, is cancelled by the exercise of the right of rescission; or is cancelled or cancelled due to inevitable reasons that occurred after the formation of the pertinent contract. In addition, according to Article 88(1) of the Income Tax Act, the term "transfer" means that an asset is actually transferred at the price due to sale, exchange

2) Transfer income tax is imposed on the premise that the transfer of assets and income accrued therefrom are subject to taxation. If a sales contract is rescinded, the sales contract becomes null and void and the transfer of assets cannot be deemed to exist (see, e.g., Supreme Court Decision 92Nu944, Dec. 22, 1992). Even if redemption under a repurchase agreement takes place after the transfer of assets based on a valid sales contract, this constitutes a new sale and purchase, and thus, cannot affect the transfer of assets under the initial sales contract, which already meet the taxation requirements. Therefore, if the transferor of stocks agreed to guarantee the recovery of investment and investment profits while transferring stocks to a transferee, but has fulfilled the obligation to pay investment and investment profits by repurchaseing stocks with the amount calculated by adding the profits agreed at the initial transfer price after the transfer of stocks as the purchase price, such repurchase cannot be deemed a performance of duty due to the cancellation of the initial sales contract or the fulfillment of the terms of termination, etc., and thus, constitutes a separate transaction of investment revenues, such as the agreed payment of capital gains tax, etc., and thus, it cannot be deemed null and void (see, 20.).

3) In light of the above legal principles, if the Plaintiff received full payment from the purchaser and completed the transfer procedure in the name of the purchaser of the instant stocks, the transfer transaction of the instant stocks can be deemed final and conclusive. ② The Plaintiff appears to have entered into the instant contract for the purpose of corporate disclosure convenience, and it is reasonable to deem that the terms of the instant special agreement have the nature of recovering the purchaser’s investment amount and guaranteeing a specific investment return. ③ The interest rate from the transaction date stipulated in the instant special agreement to the repurchase date exceeds 10% per annum per annum under the Civil Act. In light of the following circumstances, it is difficult to conclude that the repurchase in the instant case is simply a performance of duty to restore the Plaintiff’s stocks according to the rescission of the sales contract or the fulfillment of the terms of the termination of the contract, and thus, it is reasonable to deem that the Plaintiff’s repurchase of the instant stocks from the purchaser constitutes a separate transaction under the instant contract, and that the instant special agreement does not have any effect on the transfer of stocks, which is a requirement for the transfer of the instant stocks.

Therefore, the plaintiff's assertion, which is premised on the occurrence of a ground for ex post facto correction under the laws and regulations related to the Framework Act on National Taxes

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.