Examination Income 2008-0168 ( December 26, 2008)

Whether the person to whom the disposition of income belongs is wrong

Since the amount received was paid by subrogation for a loan claim, it is not subject to income disposal for the plaintiff.

The contents of the decision shall be the same as attached.

1. The Defendant’s disposition of imposing global income tax of KRW 641,558,540 against the Plaintiff on July 8, 2008 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1.Basics

A. Nonparty BB Co., Ltd. (hereinafter “BB”) is a legal entity established on October 16, 200 for the purpose of alternative energy technology development project, etc., and Nonparty KimA was substantially controlled as a major shareholder of that legal entity from the time of its establishment to October 2005.

나. 원고와 김AA은 2003.8.11.함께 소외 CCC 주식회사(이하 'CCC'이라 한다)를 설립하여 BBB가 보유ㆍ개발하고 있었던 특허기술과 관련된 거래를 담당하도록 하였다. 원고는 동 회사에 자금을 출자하였고, 김AA은 BBB의 특허기술을 출자하였으며, 지분은 원고가50%, 김AA 측이 50%(김AA의 처 김♤♤30%, 김AA의 자 김△△20%)를 각 보유하기로 하였다.

C. Around September 2005, BB transferred the above patent technology and real estate to △ Engineering Co., Ltd. (hereinafter “△ Engineering”), and △ Engineering Co., Ltd. paid 2 billion won out of the transfer price of KRW 12.3 billion to the Plaintiff (2 billion, KRW 5 billion, and KRW 12.2 billion to the Plaintiff.

D. The defendant judged that the 1.5 billion won of the above transfer price received by the plaintiff would be attributed to BB, and that the amount was out of the company to the plaintiff, and disposed of it as other income of the plaintiff. In addition, the defendant imposed 641,558,540 won of global income tax in July 8, 2008 upon the plaintiff according to the above disposition of income in July 8, 2008 (hereinafter "the disposition in this case").

[Grounds for Recognition] Facts without any dispute, Gap's 1,7,8, Eul's 1 and 6, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

B B B B B B transfer between the Plaintiff and CCC, the Plaintiff and CCC lent a total of KRW 1.6 billion to BB, a major shareholder, and the key amount paid by △ Engineering to the Plaintiff was the amount of subrogated payment for the above loan claim. Therefore, the amount cannot be included in the gross income of BB, and thus is not subject to the disposition of income. Accordingly, the instant disposition based on the premise that the amount is subject to the disposition of income is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(i)whether the Plaintiff and the CCC have claims against KimA or BB

가)원고의 이 부분 주장에 부합하는 증거들을 살펴본다. 김AA은 인증서(갑 제58호증)및 이 법정에의 증언을 통해 "①원고는 2004.2.5.소외 안▽▽, 신▷▷, 함DD으로부터 BBB의 주식 약 50%를 양수하기로 하고 이들에게 계약금 1억 5천만 원을 지급하였는데, 이후 이 주식양도 계약이 이행되지 아니함에 따라 김AA이 원고에게 이를 배상하여 주기로 약정하였으며, 김AA은 2003.6.경부터 2004.7.경까지 특허권 개발을 위한 설비자금 등의 명목으로 원고로부터 7억 5천만 원을 차용하였다. ②김AA은 2003.8.경부터 2004.3.경까지 BBB 직원들의 급여 지급을 위해 CCC로부터 약 10회에 걸쳐 약 1억 5천만 원을 차용하였다. ③BBB는 2003.9.경부터 2004.3.경까지 CCC로부터 약32회에 걸쳐 운영비 약 1억 5천만 원을 차용하였다.

④ In order to prevent BB’s transfer plant and research institute from holding the auction procedure, on or before February 2004, the Gimcheon Factory and research institute stated that “A borrowed approximately KRW 4.5 million from the Plaintiff.” Moreover, the evidence No. 4 was that KimA borrowed KRW 900,000 from the Plaintiff to the date of July 2004. The evidence No. 5-1,2, and No. 6 sent to the Plaintiff on January 20, 205, and that each of the above loans was sent from KRW 10 to KRW 35,50,000,000 from KRW 30,000,000,000 to KRW 30,000,000 from June 3, 2005, and KRW 30,000,000 from KRW 30,000,000 to KRW 30,000,000,000,000.

B) If the GimA borrowed money from the Plaintiff as stated in its statement, and the △ Engineering subrogated the claim, the KimA shall pay the income tax as seen below as follows. Thus, the statement of KimA, which is disadvantageous to it, appears to be reliable, and in light of the fact that the CCC paid the money to BB and KimA, there is specific evidence such as the withdrawal money and the passbook deposit certificate, etc., the Plaintiff lent approximately KRW 1.35 million to the KimA, and the CCC lent approximately KRW 1.5 million to the BB and KimA, respectively, according to the evidence examined in the above A.

ii)as to the reversion of the dispute amount:

(a)A evidence Nos. 58, B’s evidence Nos. 4, and testimony by KimA, the Plaintiff and △ Engineering Representative Director Park Jong-dae, on August 11, 2005, prepared a letter of understanding that the Plaintiff, 1.3 billion won, the Plaintiff, and CCC, on behalf of the Plaintiff, subrogated to KimA, and at the same time, waives all claims against KimA and intellectual property rights to the Plaintiff. At the time BB transferred the patent technology to △ Engineering, it can be recognized that the exclusive licensee of the technology under the Patent Register was CCC at the time of transfer of the patent technology.

B) As seen earlier, with respect to the Plaintiff KimA, CCC had each claim against KimA and BB, and since the exclusive licensee of patent technology that BB agreed to transfer was CCC, it seems that it was necessary to pay the said claim by the Plaintiff and CCC in order for CCC to waive the above patent technology right. The issue amount is determined as follows: KimA’s obligation to the Plaintiff and CCC and the BB’s subrogation for the obligation to BBCC.

(c) If so, the portion on which KimA made a substitute payment for the obligation of the KimA is attributed to KimA, so it should be disposed of to the KimA, and the remainder of the portion on which the BB made a substitute payment for the obligation is not leaked, so it shall not be subject to disposal of income. Therefore, the instant disposition that was based on the premise that the key amount was disposed of to the Plaintiff is illegal.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.