2014west 1796 ( November 27, 2014)

Since the stock transaction of this case constitutes a transfer transaction, the taxation of capital gains tax determined based on actual transaction price is legitimate.

Only if shareholders deposited the acquisition price into a corporate account that is not the plaintiff, they cannot be readily concluded that the remainder exceeding 0,000 won is a loan to a corporation that is not the acquisition price, and the instant disposition that is determined based on the actual transaction price as a transfer transaction rather than capital increase.

Article 88 (Definition of Transfer) of Income Tax Act

Article 96 of the Income Tax Act

2015Gudan52350 Revocation of Disposition of Imposing capital gains tax

United StatesA

○ Head of tax office

January 27, 2016

March 30, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 00,00,000 for transfer income tax for the year 2009 against the Plaintiff on January 1, 2014, each disposition of KRW 00,000 for transfer income tax for the year 2010, and KRW 0,000 for transfer income tax for the year 2011 is revoked.

1. Details of the disposition;

A. The Plaintiff is the representative director of ○○○○○ (hereinafter referred to as “○○○○”) who is engaged in the manufacture and wholesale of medical devices, wholesale and retail business.

B. ○○○ was offered five times from May 2009 to October 2010, and the Plaintiff and Gim○ received shares from the above capital increase to KRW 5,000 per share, and the details thereof are as follows:

The number of shares acquired by the Plaintiff, the number of shares acquired by the Plaintiff,

1. Paid-in capital increase 3000 shares 300 shares June 15, 2009

Second, 200 shares issued on August 15, 2009 200 shares

3. Paid-in capital increase 2200 shares October 15, 2009 2200 shares

4. Paid-in capital increase 2800 shares 2800 shares February 4, 2010

5th Paid-in capital increase with 600 shares October 22, 2010 1500 shares 1500 shares

C. From 2009 to 2011, the Plaintiff had 9,208 shares out of 14,500 shares that were acquired as above subscribed as above subscribed to KRW 90,00 per share, KRW 110,000 per share, or KRW 150,00 per share, and all of the subscription price of the said shareholders was paid in the corporate account of ○○○○○.

D. On September 1, 2013, the Defendant investigated the process of issuing new shares of ○○○○○, and subsequently transferred 14,500 shares from ○○○○○○’s offering of new shares to shareholders during the period from 2009 to 2011, and the amount paid by shareholders, etc. to ○○○○, etc. to the shareholders, etc. was identified as Plaintiff’s income on January 1, 2014, and imposed upon Plaintiff KRW 00,000,000, aggregate amount of KRW 00,000,000, and KRW 00,000,000, total amount of KRW 00,000, total amount of KRW 00,000, total amount of KRW 000,000, total amount of KRW 000,000,000, total amount of capital gains tax reverted to 200,000, total of KRW 000,000.

E. On March 24, 2014, the Plaintiff dissatisfied with the above disposition and filed a tax appeal on March 27, 2014. On November 27, 2014, the Tax Tribunal rendered a decision that the Plaintiff transferred 50 shares to ○○○○○ on August 27, 201 to ○○○○○○ on the ground that the Plaintiff transferred 50 shares to ○○○○○○○○○○○ on August 27, 201, and that the Plaintiff transferred the shares to ○○○○○○○○○ on March 14, 2011, the tax base and tax amount were corrected by rectifying the transfer value per share of 10,00 shares as KRW 1

F. According to the above decision of the Tax Tribunal, the Defendant decided to reduce the transfer income tax of 2009 to KRW 00,000,000 for the Plaintiff, and corrected the transfer income tax of 201 to KRW 0,000 (the portion of the remaining tax amount in the disposition of January 1, 2014, namely, the transfer income tax of 00,000,000 for the transfer income tax of 209 and the transfer income tax of 0,000,000 for the transfer income tax of 2010 for the transfer income tax of 200,000 for the year 201).

[Ground of recognition] Facts without dispute, Gap 2, 9, 14 evidence, Eul 1 and 8 evidence (including provisional number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) ○○○○’s offering of new shares with respect to concerns over the absence of shareholders to participate in capital increase.

The shareholders renounced the preemptive right to new shares and, instead, assigned the shares to the shareholders, who are the representative director, and if the shareholders have a financial capacity, they would transfer the shares allocated to the shareholders in the future of the plaintiff. Accordingly, the plaintiff was allocated new shares in KRW 5,000, and the shareholders thereafter purchased shares in KRW 5,000, and thereafter, the remaining amount excluding KRW 5,000, which is the plaintiff's acquisition price, would be repaid if the loan to the ○○○ business would be activated later. The transfer income tax imposed on the transfer of shares by a corporation, which is not a stock-listed corporation, is premised on the transferor's income from the transfer of shares. Since the plaintiff sold the shares acquired in KRW 5,00,000, and thus, the disposition of this case is unlawful as it violates Article 94 of the Income Tax Act

(2) In addition, since transfer income is premised on the enhancement of the market price, from 2009 to 2011, it cannot be said that it is a capital sericultural corporation whose sales had been conducted, and thus, it is unlawful to impose transfer income tax.

B. Determination on the first argument

From May 2009 to October 2010, the Plaintiff acquired 14,500 shares per share of 5,000 shares from ○○○○○’s capital increase with new shares, and transferred 9,208 shares (hereinafter “instant shares”) to shareholders for KRW 90,00 per share, KRW 110,000 per share, or KRW 150,00 per share, as seen earlier.

The Plaintiff’s remaining proceeds, excluding KRW 5,000,000, out of the purchase price of the shares of this case, shall be

As ○○○○○○○○ shareholders’ claim for loans to the effect that the amount exceeded KRW 5,00 per share was 10,000,000,000,000 won was 15,000 won and 150,000 won was 10,000 won and 20,000 won were 5,00 won and more than 5,000 won were 1,00 won and more than 5,00 won were 1,00 won and more than 5,00 won were 5,00 won were 1,00 won and more than 0,000 won were 5,00 won were 1,00 won and more than 5,00 won were 5,00 won were 1,00 won and more than 0,000 won were 5,00 won were 1,00 won and more than 5,00 won were 1,00 won were 2,05,00.

Although the Plaintiff had priority to allocating new shares due to difficulties in the process of capital increase, etc.

Even if the Plaintiff used the new shares allocated to the shareholders for operating expenses of ○○○○○○ through the process of acquiring shares through several months, the Plaintiff’s capital increase procedure was completed by obtaining new shares. The substance in the substance over form principle refers to a legal substance, not an economic substance, but a legal substance. At the same time, the Plaintiff selects the form of transfer after obtaining new shares in order to secure the equity ratio of ○○○○○○○○, and at the same time, exercises substantial control and management rights over the acquisition and disposal of the shares in this case, and the use of the transfer margin, so long as the Plaintiff exercised substantial control and management rights over the acquisition and disposal of the shares in this case, all the transfer proceeds of the shares in this case shall be deemed to have accrued to the Plaintiff, and the actual benefits from the use of the transfer proceeds shall not be deemed to have been accrued to ○○○○.

Therefore, this part of the plaintiff's assertion is without merit.

C. Judgment on the second argument

According to the provisions of Article 96 (2) of the Income Tax Act, any transfer income accruing from stock transfer.

In calculating the tax, the transfer value shall be the actual transaction value between the transferor and the transferee at the time of transfer of the asset. Furthermore, the actual transfer value which is the basis for calculating the transfer income tax means the value received by the transferor at the time of transaction as the price received in return for the transfer of the asset, which is objectively recognized by the sales contract and other documentary evidence, and it does not refer to the value based on the objective exchange value at the time of transfer.

After acquiring the shares of 5,00 won through a transfer from 200 to 2011, the Plaintiff transferred the shares of 0,000 won per share to the shareholders of 0,000 won, 110,000 won or 150,000 won per share, and the Defendant issued the instant disposition based on the premise of the transfer value as seen earlier. Thus, the Defendant did not have any error in the disposition of this case calculated based on the actual transaction value between the transferor and the transferee, even though it cannot be said that ○○ is a capital-oriented corporation whose sales were conducted by ○○○ as of 209 to 2011, such as the Plaintiff’s assertion.

Therefore, this part of the plaintiff's assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.