Cho High Court Decision 201No3307 ( December 30, 2011)

It is illegal that there is no evidence that a share is transferred without permission and it is invalid because it does not go through legitimate pre-trial procedure.

Although the shares are alleged to be null and void because they are transferred without permission, the shareholders of the issuing corporation are deemed to have managed all the corporation and shares as representative directors, so there is no evidence that the disposition of capital gains tax on the transfer of shares is null and void as a matter of course without due process.

2012Gudan8093 8093 Nullification, etc. of the imposition of capital gains tax

HongA et al.

Head of Sejong District Tax Office et al.

December 18, 2012

January 30, 2013

1. Each of the plaintiffs' primary claims is dismissed.

2. Each of the plaintiffs' preliminary claims is dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

In the first place, the Defendants confirmed that each disposition listed in the separate sheet against the Plaintiffs is invalid. In the second place, each of the above dispositions shall be revoked.

1. Details of the disposition;

A. The plaintiffs are shareholders of the BBP Co., Ltd. (hereinafter referred to as the "BP"), and the plaintiff HongA held 5,420 shares of the non-party company, and the plaintiff KimCC held 2,00 shares of the non-party company (hereinafter referred to as the "the shares of this case"), respectively.

B. On June 23, 2009, the Plaintiffs transferred the instant shares to HongD, and reported the transfer income tax and securities transaction tax with the transfer value at KRW 000 per share.

C. However, the Defendant calculated the transfer value of the instant shares at KRW 000 per share calculated according to the supplementary evaluation method under the Inheritance Tax and Gift Tax Act according to Article 101 (Calculation Report) of the Income Tax Act among the related parties, and determined and notified the transfer income tax for the year 2009 as stated in the separate list No. 4(hereinafter “instant disposition”).

[Ground of Recognition] The facts without dispute, Gap evidence 3 to 5, and Eul evidence 1 to 3 (including each number), and the whole purport of the pleading

2. As to the main claim

A. The plaintiffs' assertion

The plaintiffs, and the mother of the plaintiff HongA, and the non-party fluor of the plaintiff KimCC, transferred the shares of this case to RedD (AE) at will without the delegation of the plaintiffs, and the transfer of the shares of this case is null and void. Accordingly, the disposition of this case, which was made before the transfer of the shares of this case was lawful and effective, is void as a matter of course.

B. Determination

In an administrative litigation that claims the invalidity of an administrative disposition as a matter of course and seeks the invalidity of the administrative disposition, the plaintiff is liable to assert and prove that the administrative disposition is null and void. According to the health class in this case, and the statements in the evidence Nos. 1 and 2, the plaintiffs filed a lawsuit to nullify the purchase and sale of the shares in this case against HongD as Seoul Central District Court 201No. 243040, and the plaintiffs won the judgment (a judgment made by the confession) on December 5, 2011. On the other hand, the above evidence and witness testimony are as follows, and the non-party company is a representative director, and the total number of shares of the non-party company is 16,400, and all of its shareholders are 16,000, and the non-party company is composed of the related parties (the plaintiffs, Dodle and EE), and the non-party company is practically operating the non-party company's stocks, and there is no evidence and evidence that all of the plaintiffs, including the plaintiffs's shares, were found to be managed and managed.

3. As to the conjunctive claim

A. The parties' assertion

The plaintiffs, and the E, who voluntarily transferred the shares of this case, asserts that the disposition of this case under the premise that the plaintiffs were transferred, should be illegal, and that the disposition of this case should be revoked. Accordingly, the defendant, and the plaintiffs filed a petition for trial after the lapse of the appeal period, and the lawsuit of this case is unlawful.

B. Determination

According to Articles 61 and 66 of the Framework Act on National Taxes, a request for a trial on a disposition under tax-related Acts shall be filed within 90 days from the date on which the disposition is known, and the lawsuit brought without such legitimate procedure is unlawful. According to the health unit in this case, and the evidence above, a written request for a trial on the plaintiff HongA was received by KimO on May 26, 201, and on September 7, 201, when 104 days have passed from the receipt of the written request for a trial on December 6, 2010, and the written request for a trial on September 7, 201 after 275 days have passed from the receipt of the written request for a trial. Accordingly, the plaintiffs filed a request for a trial on September 7, 201, respectively.

4. Conclusion

Then, the plaintiffs' primary claims are dismissed, and the conjunctive claims are dismissed, and they are decided as ordered.