Future Eyp Partners Private Equity Fund (Law Firm LLC, Attorneys Choi Choi-soo et al., Counsel for the defendant-appellant)

The director of the tax office

May 21, 2015

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition rejecting correction of KRW 2,300,522,190 for the first quarter against the Plaintiff on June 5, 2014 is revoked.

1. Details of the disposition;

(a) Acquisition of treating and construction shares of gold industry stock companies and the plaintiff;

1) On November 15, 2006, the gold-free Industry Co., Ltd. (hereinafter referred to as the “gold-free Industry”) and five companies in gold Asia or in the department, including Gold-si Co., Ltd., and Asian and Aviation Co., Ltd., constituted a consortium (hereinafter referred to as the “Treatment Construction”) with investors including the Plaintiff (hereinafter referred to as “financial investors”), and entered into a contract with financial investors for acquiring the shares of Daewoo Construction (hereinafter referred to as the “instant agreement”).

2) The financial investors under the contract between the shareholders of the instant case held the option of sale to purchase the gold industry at the base price calculated on the basis of the guaranteed return rate if, within three years, treatment construction’s share price did not reach a certain return rate (9% per annum) within three years.

3) on December 15, 2006, gold Asian or consortium acquired 24,665,611 shares of Daewoo Construction (which constitute approximately 72% of the total number of shares issued) from the Joint Sale Council composed of nine institutions, including the Korea Asset Management Corporation, in KRW 26,262 per share.

B. The Plaintiff’s exercise of an option to sell the gold industry

1) When financial investors are able to exercise the right of choice of sale under the contract between the shareholders of this case, they reached an agreement with the gold industry on December 14, 2009, which includes the content that “in the event of a notification of the convening of the creditor financial institutions’ joint management proceeding or the creditor banks’ joint management proceeding for creditor banks under the Corporate Restructuring Promotion Act, investors shall be deemed to have exercised the right of choice to sell this case to the gold industry on the day immediately before such notification is given.”

2) On December 30, 2009, the gold industry filed an application for a joint management proceeding with the creditor financial institutions, and the convening of the creditor financial institutions council to determine whether to commence the joint management proceeding with respect to the gold industry was notified to the financial investors on the same day. Accordingly, on December 29, 2009, the Plaintiff was deemed to exercise the option of sale under Article 8 of the Agreement between the shareholders as of December 29, 2009, and the sales contract for the shares subject to the option of sale was concluded between the Plaintiff and the gold industry pursuant to Article 8(3) of the Agreement between the shareholders of this case (hereinafter “the instant primary sales contract”).

3) The sales value of shares of Daewoo Construction was calculated as at the time of exercising the option of sale based on the instant contract between the shareholders, and was calculated as at KRW 32,626 per share by subtracting the dividend received by the Plaintiff during the calculation from the amount calculated by adding an annual interest of KRW 9% per annum to KRW 26,262 per share purchased by the Plaintiff.

C. The Plaintiff’s revocation of the Plaintiff’s option

1) On March 3, 2010, Korea Development Bank, the principal creditor bank of goldho Asian or its affiliates, presented to the Plaintiff a proposal to resolve the instant sales choice (hereinafter “instant proposal”) with the following content.

3. Financial investors withdraw the exercise of the right to choose sale (Provided, That this withdrawal is conditional upon the conclusion of the agreement for the implementation of the management normalization plan between the gold industry and the creditor financial council). The sale of this case’s shares is made by means of the exercise of the joint sale claim as stipulated in Article 7 of the Agreement between the shareholders of this case. 2. The financial investors can arbitrarily dispose of the processed construction shares if the sale of the processed construction shares to the KB PEF is not made until December 31, 2010. The portion collected from the principal and interest on the remaining credit amount in excess of the amount to be recovered from the processed construction shares out of the exercise price of the right to choose sale (the portion recovered by the financial investors after December 2, 2006).

2) On March 23, 2010, the Plaintiff consented to the resolution on the resolution of the above sale option and withdrawn the exercise of the sale option. On March 25, 2010, the Financial Industry Council of Creditor Council of creditor Financial Institutions adopted a resolution on the conversion of investment by assessing the stocks of gold industry to KRW 5,000 per share of KRW 87.7% (one share of KRW 12,827) out of the remaining bonds of KRW 14,626 per share on March 25, 2010, and the remaining 12.3% per share of KRW 12.3% (one share of KRW 1,799) was deferred, but thereafter, decided to determine

(d) Contract for the sale of treatment construction stocks between the Plaintiff and the KDB Ship Limited Liability Company;

1) On December 13, 2010, the Plaintiff sold 22,297,974 shares of treatment construction (hereinafter “instant shares”) to KDB PEF for KRW 18,000 per share (hereinafter “instant secondary sales contract”).

2) On January 6, 201, the Plaintiff received the sales price and delivered the instant shares to KRF.

E. Return and payment of the Plaintiff’s securities transaction tax

The Plaintiff calculated, reported, and paid the amount of securities transaction tax for the first quarter of 201 with the transfer value of the instant shares at KRW 18,000 per share, which was the first quarter of 201. On April 1, 2014, the Plaintiff determined the amount of securities transaction tax at KRW 32,626 per share with the transfer value at KRW 32,626 per share, and revised and paid the securities transaction tax for the first quarter of 201.

F. On April 14, 2014, the Plaintiff filed a claim for correction with the Defendant for a refund of KRW 2,300,522,190 (i.e., securities transaction tax amount at the time when the transfer value of the instant shares is KRW 32,626 per share - KRW 4,307,339,850 at the time when the transfer value of the instant shares is KRW 18,00 per share (2,006,817,660 at the time when the transfer value of the instant shares is KRW 18,00 per share). However, the Defendant decided to refuse the Plaintiff’s request for correction on June 5, 2014, and notified the Plaintiff thereof (hereinafter “instant disposition”).

G. On June 25, 2014, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal, but was dismissed on September 16, 2014.

[Ground of recognition] Facts without dispute, Gap's statements, Gap's evidence Nos. 1 through 6, 8, 9, 11, and 12, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant primary sales contract was rescinded by the Plaintiff’s withdrawal of the exercise of the right to choose sale pursuant to Article 8(4) of the instant contract between the shareholders, and thereafter, the Plaintiff calculated the transfer value of the instant shares based on KRW 18,000 per share pursuant to the instant secondary sales contract, and transferred the said shares to KRF.

In other words, on December 9, 2010, the gold industry decided to sell part of the KRF’s shares of treatment construction and waive the status as the largest shareholder of treatment construction, and sold 10 shares of treatment construction to 18,000 won per share, which constitutes grounds for joint sale claim under Article 7(2) of the Agreement between the shareholders of this case, and the Plaintiff also filed a claim for sale of the shares of this case to KRF for sale at KRW 18,000 per share, the same as the gold industry, by exercising the right to claim joint sale under the said Agreement. According to the latter part of Article 7(2) of the Agreement between the shareholders of this case, the gold industry is not obligated to pay the difference between the standard price for sale and the purchase price received by financial investors, and thus, the Plaintiff is also obligated to pay the difference between the purchase price and the sale price received by the financial investors of this case’s shares to 10,000 won per share, and the Plaintiff is also obligated to pay the difference between the Plaintiff’s claim for sale under the agreement.

2) Even if the workout claim of this case cannot be deemed to have occurred based on the Plaintiff’s exercise of the right to jointly sell and the latter part of Article 7(2) of the Agreement between the shareholders of this case, the instant secondary sales contract was concluded between the Plaintiff and KDB, while considering the fact that the gold industry bears only an obligation to pay to the Plaintiff the amount of money equivalent to the amount of the claim of the workout claim of this case without any consideration, the instant workout claim of this case should be deemed to have been based on a conditional gift contract separately concluded between the Plaintiff and the gold industry on the condition that the instant secondary sales contract was established.

3) Ultimately, the workout claim of this case is a separate claim that is entirely different from the purchase price claim under the instant secondary sales contract from the underlying contract, the parties, and legal nature, and the Plaintiff cannot be deemed to have transferred the instant shares to 32,626 won per share. Therefore, the tax base for calculating the securities transaction tax on the transfer of the instant shares is 18,000 won per share. Accordingly, the instant disposition rejecting the Plaintiff’s request for correction on a different premise is unlawful.

B. Relevant statutes

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

(c) Markets:

1) The term “transfer value of share certificates”, which is the basis for calculating the securities transaction tax, is not a general market price that reflects the objective exchange value, but an actual amount agreed upon as a price at the time of transaction (see, e.g., Supreme Court Decision 2008Du21614, Jul. 28, 201). Furthermore, considering the fact that Article 2(3) of the Securities Transaction Tax Act provides that the ownership is transferred at a cost due to contractual or legal cause, and that the securities transaction tax is a distribution tax imposed upon the transfer of share certificates as deemed a taxable capacity, the “transfer value of share certificates” includes all matters that can be deemed as a consideration for the transfer of share certificates. In determining the scope, the determination should be made by taking into account the motive and background leading up to the agreement on the transfer price of share certificates, the relationship between the parties involved in the agreement, genuine intent,

Therefore, if a third party, other than the transferee of share certificates at the time of transaction of share certificates, agrees to bear part of the consideration for transfer of share certificates, not only the consideration paid to the transferor but also the payment made by the third party for transfer of share certificates shall be included in the "transfer value of share certificates"

2) Based on the above legal principles, the Plaintiff agreed to the amount calculated on the basis of KRW 32,626 per share, the base price for the transfer of the instant shares, which is the sale price at the time of the instant secondary sales contract between KRF and the gold industry, based on the following circumstances or facts revealed by adding up the whole purport of the arguments and the aforementioned evidence. However, the Plaintiff agreed to the amount calculated on the basis of KRW 18,000 per share from KRF, the transferee of the instant shares, based on the amount calculated on KRW 18,626 per share, and the amount calculated on the basis of the amount calculated on the basis of KRW 14,626 per share from the gold industry. As alleged by the Plaintiff, the price for the transfer of the instant shares shall not be calculated on the basis of KRW 18,00 per share price under the instant secondary sales contract concluded between the Plaintiff and KRF.

A) Considering that the financial situation of the gold industry aggravations, it seems that the Plaintiff did not withdraw the exercise of the right to choose sales of the instant shares even when the Plaintiff was able to receive only KRW 18,000 per share, which is only 55% of the sales price claim under the instant first sales contract, for the instant shares.

B) According to the resolution on the resolution of the instant sales option, since the portion calculated on the basis of KRW 18,000 per share of the purchase price bonds under the instant first sales contract is paid to the Plaintiff as the purchase price, and the portion calculated on the basis of KRW 14,626 per share is dealt with according to the management normalization plan as determined by the Financial Supervisory Commission of the Gold Industry, the resolution of the instant sales option is interpreted to guarantee the Plaintiff the entire amount of the purchase price claim calculated on the basis of KRW 32,626 per share pursuant to the instant first sales contract. The resolution of the resolution of the resolution of the instant sales option was partially embodied by the Financial Supervisory Commission of the Gold Industry, including the Plaintiff, on March 25, 2010, by adopting a resolution on the re-resolution of the claim equivalent to KRW 14,626 per share.

C) Articles 2 and 3 of the Special Act on the Sales of Stocks, which were prepared at the time of the instant secondary sales contract, provide that the contents set forth in Articles 1.1 and 3 of the instant sales contract shall be set forth, and Article 8 (1) shall be repeatedly set forth in the “matters with the seller’s undertaking.” Article 5 provides that the sales price per share of the instant shares shall be KRW 18,000,000 ( KRW 18,000) per share as stated in the written consent. Such content appears not to be included in the instant secondary sales contract if the Plaintiff had the intent to receive only the amount calculated on the basis of KRW 18,00 per share in return for the transfer of the instant shares. In full view of the above contents, the instant secondary sales contract is effective between the Plaintiff and the Korea Development Bank established by the Plaintiff on March 23, 2010 for the purpose of resolving the options concluded between the Plaintiff and the Korea Development Bank, which is the Korea Development Bank’s principal creditor bank.

D) The Plaintiff’s receipt of the sales price calculated on the basis of KRW 32,626 per share of the instant shares from the gold industry, and some of the amount equivalent to the said sales price is paid from KRF and the remainder is the stocks and money of the gold industry from the gold industry, which is the debtor under the first sales contract of this case, is the same as the economic effect of receiving the payment from the debtor. The Plaintiff consented to the resolution of the instant sales option in order to enjoy the same economic effect as the case where the Plaintiff exercised the sales option instead of withdrawing the exercise of the sales option of the instant shares, and participated in the resolution of the creditor financial council of creditor financial institutions on the gold industry and concluded the second sales contract of this case.

E) According to Articles 7 and 8(1)(a) and (b) of the instant agreement between stockholders, the gold industry cannot dispose of all or part of the processed construction stocks, without a prior written consent from financial investors, to a third party other than gold affiliate, from the date of termination of the sales contract between the Kuho Asian, consortium and the Korea Asset Management Corporation, etc. from the date of the termination of the contract between the stockholders of this case and the financial investors. In a case where the gold industry seeks to sell stocks to a third party other than a specially related party under the Securities and Exchange Act with prior consent of financial investors during the said period, and thereby becomes unable to maintain the status of the largest shareholder due to the sale (hereinafter “reasons for the joint sale request”), the financial investors have the right to claim that all or part of the processed construction stocks held in the gold industry be sold on the same sale condition (hereinafter “joint sale claim”) and the amount of the difference between the price of the stocks subject to joint sale claim and the price of the stocks subject to joint sale claim is determined as the standard price equivalent to the price of the sale sale claim.

The Plaintiff asserted that the workout claim of this case occurred due to the duty to pay the difference arising from the exercise of the joint purchase right under Article 7(2) of the contract between the shareholders of this case, and that it is irrelevant to the second sale contract of this case. However, according to the evidence evidence No. 16, the gold industry is acknowledged to have sold 10 share out of the processed Construction shares to the KRF on December 9, 2010, and it cannot be deemed that the ground for the joint sale claim occurred in light of the number and timing of the sold shares, etc., and therefore, the workout claim of this case does not occur pursuant to the latter part of Article 7(2) of the contract between the shareholders of this case. Rather, since the Plaintiff’s claim for the purchase price and the Plaintiff’s claim for the KRF were all based on the resolution of the right to choose the sale of this case, it cannot be deemed that the two claims are different.

F) As a private equity fund established by the Korea Development Bank, which is the principal creditor bank of gold Asian or its affiliate companies for the debt readjustment of the gold industry, it should be deemed that the gold industry and the Korea Development Bank should have an economic interest in terms of the normalization of gold industry and the recovery of claims by creditor financial institutions. Therefore, it is unreasonable to interpret and evaluate the instant secondary sales contract concluded with the Korea Development Bank in comparison with the gold industry. Therefore, it cannot be assessed equally in cases where the instant shares transfer transaction with the Korea Development Bank and the securities market, etc. transfer to a third party without any interest in the instant shares transfer transaction with the Korea Development Bank, etc.

3) Furthermore, the Plaintiff transferred the instant shares to KRF through an over-the-counter transaction, not by the method prescribed in each item of Article 3 subparag. 1 of the Securities Transaction Tax Act, such as transfer within the securities market. Since the transfer value of the instant shares is a specific amount of KRW 32,626 per share, so that the transfer value of the instant shares can be known, the tax base of the securities transaction tax on the instant shares shall be calculated by multiplying the number of Plaintiff’s shares by 32,626 won per share of the processed construction shares pursuant to the main sentence of Article 7(1)2(a) of the Securities Transaction Tax Act.

Therefore, this case does not constitute a correction ground under Article 45-2(1)1 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014); thus, it does not constitute “where the tax base and tax amount recorded in the tax base return exceeds the tax base and tax amount to be reported under the Securities Transaction Tax Act,” and thus, the Plaintiff’s request for correction is without merit, and the Defendant’s disposition rejecting this request

3. Conclusion

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

[Attachment Omission of Related Acts]

Judges Kim Jong-Gyeong (Presiding Justice)