2012west 3613 ( November 13, 2012)

If a sales contract is not effective due to cancellation, etc., it shall not be subject to capital gains tax.

The transfer income tax is imposed on income from the transfer of assets, and if the sales contract is void due to the cancellation of the sales contract, etc., the sales price received by the transferor shall be returned to the transferee in principle, and thus cannot be subject to the transfer income tax, and even if the transferor acquires a claim for damages arising therefrom, it cannot be deemed as income from the transfer

Article 94 of the former Income Tax Act / [Scope of Transfer Income]

2013Guhap53073 Revocation of Disposition of Imposing capital gains tax and securities transaction tax

Ma-○

○ Head of tax office

September 26, 2014

October 28, 2014

1. On May 1, 2012, the imposition of the capital gains tax by the Defendant against the Plaintiff ○○○○, ○○○○, and ○○○○○○, and the securities transaction tax, is revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On July 9, 2008, 2008, ○○ Technology Co., Ltd., a KOSDAQ-listed corporation (hereinafter referred to as “○○ Technology”) issued bonds with warrant worth KRW 00 billion in order to raise funds for new construction of a private house, and ○○ Savings Bank (hereinafter referred to as “○○ Savings Bank”) took over the above bonds with warrant in full.

B. As examined below, the existing shareholders of the ○○ Technology acquired the preemptive right of ○○○○○○○○○○○○○○○○○ from the ○ Savings Bank and owned the ○○○○○○○○○○○○○○, ParkB’s ○○○○○, JeonCC’s ○○○○○○○, KimD’s ○○○○○, the Plaintiff’s ○○○○○○○, the previous representative director KimE, and the ○○○○○○○○○○○○○, the present representative director KimE, and the ○○○○○○○○○○○○○○○○, the present representative director KimE, respectively.

C. As examined below, KimG agreed to receive the preemptive right to ○○ Technology from the existing shareholders of ○○ Technology under the name of another person. Of the shareholders of ○○ Technology, Nowon-G transferred to KimG the preemptive right to ○○ Technology to ○○○○○○○○○○○○○○○○○ (hereinafter “instant transfer agreement”). On July 9, 2009, around August 2009 and August 2009, 2009, ○○○○○○○○○○○○○○ (hereinafter “instant transfer agreement”). The transfer of the preemptive right between the transferor and KimG, hereinafter “instant transfer agreement”).

D. The Plaintiff did not report and pay the transfer income tax on the transfer of the above preemptive right to the Defendant.

E. The director of the Seoul Regional Tax Office’s office’s share transfer of ○○ Technology from September 30, 201 to December 31, 2011

As a result of the same investigation, the transferor, including the plaintiff, of this case, assigned the preemptive right to ○○○○○○○ per share (in the case of the plaintiff, the transfer value ○○○○, ○○○, and ○○○○○○) and notified the defendant of the same data. Accordingly, the defendant corrected and notified the plaintiff of the transfer income tax for 209, ○○○○, ○○, ○○○, and Securities Transaction Tax, ○○○, and ○○○○, and ○○○○○, upon imposing the transfer income tax and the securities transaction tax (hereinafter referred to as “instant disposition”).

F. The Plaintiff dissatisfied with the instant disposition and filed an appeal on July 27, 2012, but the Tax Tribunal dismissed the Plaintiff’s appeal on November 13, 2012.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 3, Eul evidence Nos. 1 and 2, and the whole pleadings

chapter 6

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the transferor, including the Plaintiff, rescinded the contract on the acquisition of preemptive rights with KimG on the ground of fraud as well as the cancellation of the contract on the acquisition of preemptive rights due to nonperformance, the contract on the acquisition of preemptive rights became retroactively null and void. Therefore, the disposition of this case on the premise that the transfer of preemptive rights had accrued income to the Plaintiff is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Acquisition of ○○ technological preemptive right such as the FlaF

(A) On July 9, 2008, ○ Technology issued ○○○○ billion in total amount of principal and 7% per annum to the ○○ Savings Bank. Around July 9, 2008, ○○ Technology issued the 6th bonds with warrants with interest, and ○○ bonds with warrants (which was issued separately to transfer the bonds separately from the bonds with warrants; hereinafter “instant preemptive rights”) and “the preemptive rights to be issued with new stocks for convenience” are “the preemptive rights to be issued with ○○ stocks.”

State is indicated by the “State” method as an event rate of 00%, the event price was 00 won per week, and the exercise period was from July 9, 2009 to June 9, 201.

(B) As the exercising price per share of the instant preemptive right was adjusted to ○○○○○ on the ground of the decline in the market on January 9, 2009, the number of shares available for exercising the preemptive right became ○○○○○○○○○○○. Existing shareholders of ○○ Technology acquired the preemptive right from ○○○○○○○○○○○○○○○○○○○○○○○○○○, ParkB○○○○, ○○○○○○○, ○○○○○○, and KimD, and the Plaintiff owned the share by ○○○○○○○○○○○, the former representative director KimE, and the current representative director ○○○○○○○○○○○○○○○○○○○○, the former representative director KimD, respectively.

(C) On July 9, 2009, the time when the preemptive right of this case was exercised, the Dao and the existing shareholders of ○ Technology intended to sell part of the preemptive right of this case, realize profits by converting them into new shares, and hold some of them as shares. In the process, Kim H was introduced as a person who has considerable financial ability through Kim H and is able to provide funds to the ○○ Technology Project.

(D) On July 2009, KimG intended to realize sales gains at an appropriate time after converting 1,8480,000 shares of ○○ Technology into new shares by taking over 1,8480,000 shares, excluding 9.520,00 shares of preemptive rights owned by the LaborF among the preemptive rights held by shareholders of ○○ Technology.

(2) Conclusion, etc. of a contract for acquisition of preemptive rights on July 9, 2009

(A) The KimG decided to acquire the preemptive right from shareholders of ○○ Technology in the name of the borrowed-name shareholders, including strong Section II, LaborJJ, KimK, etc. (hereinafter “GG side”), and raised the necessary funds as necessary bonds. On July 9, 2009, the LaborF and LL, the Vice-Chairperson of ○○ Technology, were joint and several sureties with respect to the above bonds of KimG.

(B) On July 9, 2009, the instant transferor, a shareholder of ○○ Technology, other than KimE and LaborF, entered into the instant acquisition agreement with KimG, and transferred the preemptive right owned by each of the following to KimG.

(3) Exercise of preemptive rights and acquisition of share certificates;

(A) Conversion of the primary preemptive right;

1) On July 9, 2009, KimGG procured a bond of KRW 00 billion and paid KRW 00 billion as the conversion price for the preemptive right ○○○○○○○○○○○○○○○○○○○○○○, among them, as the bonds, and on July 20, 2009, the new shares was converted into KRW 000,000 under the name of KimG, and the remaining KRW 00,000,000 was paid to the transferor of this case as a partial transfer price for the above preemptive right ○○○○○○○○.

2) On July 9, 2009, NF lent ○○○○○,00,000 won from the transferor of the instant case, and paid as the conversion price to the ○○,00,000,000 won of the preemptive right owned by it, out of ○○,000,000, out of its possession.

7. 20. New shares were converted to 000,000 shares in its own name.

(B) Conversion of the second preemptive right;

1) On August 2009, KimGG paid the acquisition price of KRW 00 billion to KimD, one of the transferors of this case, and additionally acquired the preemptive right of KRW 000,000 (the remainder excluded from the agreed portion) by paying the acquisition price of KRW 00,000,000,000,000,000 won on August 19, 2009, paid the conversion price to the above 00,000,000 won as the purchase price for the above 0,000 shares was converted to the new shares price in the name of KimG on the same day.

2) On August 19, 2009, the FF also lent KRW 000,000 from KimD to pay the remainder of the preemptive rights held by it as the conversion price to 00,000,000, and was converted into 00,000 shares of new shares in its own name on August 19, 2009.

(C) Results of conversion of preemptive rights

According to the aforementioned 1 and 2 new shares conversion, the share certificates of the above 00,000,000 excluding the 00,000,000 shares owned by KimE among the weeks of the above 1 and 200, were transferred to 00,000,000 in the name of KimG, 000,000 in the name of KimG, and 00,000 in the name of KimG, and KimG kept all the share certificates of the above 0,000,00

(D) The acquisition price received by the transferor of this case

Ultimately, on July 9, 2009 and August 2009, the instant transferor transferred the instant preemptive right to KimG to ○○○○○○○○○○○○ only (i.e., KRW ○○○○○○○ + KRW ○○○○○○○○○○○○○○ KRW + KRW ○○ billion) each week, in totaling KRW ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ + KRW ○○○ billion). However, KimG transferred the instant transferor’s preemptive right to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ + KRW ○○○○○○○○○○○○○○○○○○○○○○○ KRW) and did not pay the remainder of acquisition amount. Accordingly, the acquisition amount received by the transferor was KRW ○○○○○○○○○○○.

(4) Change of acquisition by transfer of preemptive rights on August 21, 2009 and conclusion of a sales contract, etc.

(A) The instant transferor entered into the instant transfer agreement with KimG on August 21, 2009 through L, with respect to the instant transfer agreement, as follows.

(B) In addition, on August 21, 2009, the FF entered into an additional contract with KimG on the following terms:

(5) Payment of the price for the transfer of KimG

The LaborF and LL received total of KRW 00 billion from KimG on August 21, 2009 and KRW 00 billion on September 18, 2009 in accordance with the above 8.21 and the above 8.21 under the revised contract and the additional contract, and on September 18, 2009, "the above amount shall be the total amount of KRW 00 billion" on September 18, 2009, the acquisition of the preemptive rights and the change in the acquisition of the preemptive rights and the sale and purchase of the preemptive rights (as of July 09), and the additional contract (as of August 21, 2009) on the above contract and the additional contract (as of August 21, 2009).

(6) The disposal of shares of KimG

(A) As above, KimG sold ○○○○, which was the new shares converted under the name of KimG as above, prior to November 2, 2009, to November 13, 2009, from November 2, 2009, to November 13, 2009, and from November 27, 2009 to December 4, 2009.

(B) On November 20, 2009, Kim GG borrowed KRW 00 billion from rightM, and offered ○0,000,000 shares out of the new shares in the name of LaborF in its custody to rightM as collateral. The rightM sold all the above new shares from November 27, 2009 to December 18, 2009, in accordance with the direction of KimGG.

(C) On December 16, 2009, KimG returned to the LaborF the remainder of new shares in the name of the LaborFF, which was kept on or around December 16, 2009.

(7) The share price of ○○ Technology

On January 9, 2009, the share price of ○ Technology continued to drop to ○○○○○ on July 9, 2009, ○○○○ on August 21, 2009, and on August 21, 2009, recorded ○○○ on October 26, 2009, and thereafter recorded ○○○○ on October 30, 2009, ○○○○ on November 30, 2009, ○○○○ on November 20, 2009, ○○○○ on November 20, 200, and ○○ on November 27, 2009, after recording ○○○ on December 16, 2009, ○○○ on January 5, 2010.

(8) Progress of the relevant lawsuit

(A) and u300 GG from the ○○ District Court on August 12, 201, 201, “GG” took out a loan of KRW 00 million from rightM on November 20, 209, and embezzled the amount equivalent to KRW 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,00,00).

(B) On May 31, 2012, Nowon-A, one of the transferors of the instant case, filed a lawsuit against KimG seeking payment of the purchase price of preemptive rights ○○○○○○○○○○○○○○○○○○, and damages for delay thereof, against which the said court rendered a favorable judgment, and the said judgment became final and conclusive.

(C) On the other hand, although GG had not had the intention to pay the acquisition price of the preemptive right in accordance with the contract from the beginning even if it had been transferred the preemptive right from the transferor of this case, Kim GG had deceiving the transferor of this case to pay the acquisition price of the preemptive right in accordance with the contract, it was prosecuted as the charge that "the market price was paid only KRW 00 million as the acquisition price of the preemptive right to the transferor of this case, and received 00,000,000 won as the market price," but the ○○ District Court cannot be concluded to have concluded the acquisition contract of this case under the intention of acquiring the preemptive right in this case, even though Kim GG did not have the intention or ability to pay the acquisition price from the beginning of the beginning of the ○○ District Court (○○○ District Court 2012 Mahap00,000) and the prosecutor appealed appealed, but it was dismissed, and the judgment of innocence became final and conclusive as is.

(9) Cancellation, etc. of the instant contract for acquisition of the instant acquisition right by transfer, etc.

(A) On April 9, 2013, the instant transferor, including the Plaintiff, notified KimG of the fact that the instant transfer agreement was revoked on the ground of the fraud by content certification, and the said content certification reached KimG on April 11, 2013.

(B) In addition, around August 1, 2013, the instant transferor, including the Plaintiff, notified KimG of the termination of the instant transfer agreement on the ground of the nonperformance of obligation due to the payment of the acquisition price of KimG’s transfer price, by the content certification. However, the content certification was not delivered to KimG.

(C) In addition, on September 2, 2014, the transferor, including the plaintiff, expressed his/her intent to refuse performance by asserting that "GG had not paid KRW 00 million out of the transfer price of preemptive rights to the transferor of this case, and that all the transfer price of preemptive rights was paid in the related lawsuit. If the refusal of performance is recognized, the transfer contract of this case shall be cancelled without a separate performance notice, and if the refusal of performance is not recognized, the transfer contract of this case shall be notified within seven days after the arrival of the content certification, and if the refusal of performance is not recognized, the contract shall be automatically cancelled at the time of default." This notification of termination of contract was sent to GG on September 3, 2014, and the content certification was reached to Kim GG, and Kim GG did not pay the remainder of the transfer price to the transferor of this case by September 10, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 6, 7, 8, 9, 10, and Eul evidence No. 4

(including branch numbers), the purport of the whole pleading

D. Determination

Article 4(1) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009) provides that a resident’s income shall be classified into global income, retirement income, and transfer income, and thus, “income accrued from the transfer of assets” (Article 3). As such, capital gains tax is imposed on income from the transfer of assets. Thus, even if a sales contract appears to have been transferred by a sales contract, if a sales contract becomes null and void from the beginning or later cancelled, the sales contract received by the transferor should be returned to the transferee in principle, and thus, it shall not be deemed as a taxable object of capital gains tax (see, e.g., Supreme Court en banc Decision 2010Du23644, Jul. 21, 201). Therefore, even if the transferor had concluded a sales contract for real estate and completed the registration of ownership transfer in the future, it cannot be deemed that the transferor’s income becomes retroactively null and void and void, and thus, it cannot be deemed that the transferor’s acquisition of real estate becomes 384.

In light of the above legal principles, the transferor including the plaintiff et al. transferred the right to new stocks to Kim GG on July 9, 2009 and August 2009 at KRW 00 million per share, but only received KRW 00 million from KimGG and did not receive the remainder of KRW 000 million. The transferor including the plaintiff et al. did not lawfully demand payment of the purchase price to KimGGG within seven days from the date of arrival of the content of the contract, and the plaintiff et al. notified the transferor to the effect that "the contract is automatically cancelled due to the expiration of the above period." The plaintiff et al. cannot be seen as being subject to the cancellation of the contract's cancellation of the contract's transfer contract's transfer contract's transfer right's transfer right's transfer right's transfer right's transfer right's transfer right's transfer right's transfer right's transfer right's transfer right's cancellation of contract's transfer right's transfer right's transfer right's transfer right's transfer right's transfer right's transfer right'.

Therefore, the disposition of this case, based on the premise that the transfer of the preemptive right of this case caused income to the Plaintiff, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.