Suwon District Court 201Guhap1895 ( October 26, 2011)

early 2010 Heavy357 ( December 31, 2010)

The profits distributed by a third party corporation through the acquisition of new shares are included in gross income by an individual who is an existing shareholder and renounces the preemptive right.

In case where an individual who is the existing shareholder of a newly issued corporation has given up the preemptive right and a third party corporation other than the existing shareholder of the newly issued corporation has taken over the new shares, the benefits that are distributed by several new shares due to such new shares acquisition shall be included in the gross income of two or more new shares

2011Nu2149 Revocation of the imposition of corporate tax

XX Stock Company

Head of the Suwon Tax Office and one other

Suwon District Court Decision 201Guhap1895 Decided May 26, 2011

May 15, 2012

July 6, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claims against the defendants are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On July 1, 2010, the head of the Suwon Tax Office shall revoke the disposition of imposition of KRW 000 of the corporate tax belonging to the business year of 2006 against the plaintiff.

On July 1, 2010, the head of the tax office of the Dong-gu shall revoke the disposition of imposition of KRW 000 of the corporate tax for the business year belonging to the plaintiff.

2. Purport of appeal

The same shall apply to the order.

Ⅰ. Imposition of corporate tax;

The following facts are acknowledged in full view of the overall purport of the arguments in Gap evidence 1-2, 5, 6, 2-2, 5, 6, 3-1, 2, and 1-5.

[1]

On October 6, 2005, the board of directors of XX Co., Ltd. (hereinafter referred to as " XX") held and decided to issue new shares of 70,000 won per share to increase its capital, and the old shareholders waived their preemptive rights to new shares of 00 won, and the OO, which was recruited by the general public, made a decision that "the new shares of 70,000 won per share

ParkA was holding all the shares issued in XX at the time of the resolution of the first instance, but ParkA and O (O) of the said corporation had a special relationship under Article 88(1) of the Enforcement Decree of the Corporate Tax Act.

On October 6, 2005, the OO paid the full subscription price.

[2]

On the other hand, on July 6, 2006, the board of directors of theO decided to increase the new shares of 180,000 won per share by issuing 000 won per share, and "YY Co., Ltd., which had been recruited in the general public by giving up the right of subscription."

At the time of the 0th resolution, HB held all the shares issued by the O, but the YB and the Y Co., Ltd. (Plaintiffs in this case) had a special relationship under Article 88(2) of the Enforcement Decree of the Corporate Tax Act.

0 The plaintiff paid the full subscription price on July 6, 2006, which was the date of payment of the above new shares.

[3]

After O209, the Plaintiff merged O on June 1, 2009.

On July 1, 2010, the director of the U.S. government office issued a disposition imposing KRW 000 of the corporate tax for the fiscal year 2005 to the Plaintiff that merged OO with respect to the acquisition of new shares 70,000 shares issued in XX.

The reasons for the 0th imposition are that the above interest is an industry of O's gross income in accordance with Article 11 subparagraph 93 of the Enforcement Decree of the Corporate Tax Act and Article 88 (1) subparagraph 8 (b)4 of the Corporate Tax Act, since the value of 00 won per share of the value of O paid by O falls short of 00 won per share after the increase of capital and the amount of 00 won per share of the value of 00 won is distributed by ParkA, a person with a special relationship.

On the other hand, on July 1, 2010, the head of the Suwon Tax Office imposed a disposition imposing KRW 000 on the Plaintiff regarding the acquisition of new shares 180,000 shares of OO issued by the Plaintiff and KRW 00 of the corporate tax for the business year 2006.

The reasons for the imposition of 00 won per share of the value of 5,00 won paid by the Plaintiff fall short of 00 won per share of the appraised value after the capital increase, and 000 won per share of the value of 00 won was distributed by the HB, a person with a special relationship, pursuant to Article 11 subparagraph 9 and Article 88 (1) 8 (b)(5) of the Enforcement Decree of the Corporate Tax Act, the above interest was included in the Plaintiff’s gross income.

0. On September 1, 2010, the plaintiff filed a request with the Tax Tribunal for a trial on each of the above dispositions (hereinafter referred to as the "instant dispositions") but all of such requests were dismissed on December 31, 2010.

II. The argument and Judgment

The plaintiff asserts that the disposition of this case was unlawful and sought its revocation. The plaintiff's argument is examined as follows.

1. Relevant statutes;

(a) Gross income;

(1) Article 15(1) of the Corporate Tax Act, which was in force at the time of theO’s acceptance of new shares issued XX and at the time of the Plaintiff’s acceptance of new shares issued by theO, provides that “The amount of profit shall be the amount of profit generated from transactions that increase the net assets of the pertinent corporation, except as otherwise provided for in this Act, such as payment of capital or financing and other transactions.”

Article 15 (3) of the above Corporate Tax Act provides that "the matters that need to be included in the scope and classification of the profits under paragraph (1) above shall be prescribed by Presidential Decree", and Article 11 of the Enforcement Decree of the Corporate Tax Act provides that "the profits under Article 15 (1) of the Corporate Tax Act shall be as follows except as otherwise provided in the above Act and the Enforcement Decree of the above Act," and Article 11 (9) of the above Act provides that "the profits received by distribution from a specially related person due to capital transactions under each item of Article 8 (1) 8 of the Enforcement Decree of the Corporate Tax Act."

(2) On the other hand, Article 18 subparagraph 1 of the Corporate Tax Act provides for "the evaluation marginal profit from assets" as one of the items not included in the corporation's gross income.

(b) Wrongful calculation;

(1) Article 88(1) of the Enforcement Decree of the Corporate Tax Act, which was in force at the time of theO’s acquisition of new shares XX issuance, provides that "if a corporation, such as a shareholder, distributes profits to other shareholders, etc., who are a specially related party, due to capital transactions falling under any of the following items, it shall be deemed that the tax burden has been unjustly reduced under Article 52(1) of the Corporate Tax Act" (Article 88(1)8, and Article 88(1)8(b) of the Corporate Tax Act provides that "if a corporation, such as a shareholder, etc., distributes profits to the other shareholders, etc., who are a specially related party, it shall be excluded from the case of waiver of all or part of the right to receive new shares allocated (excluding the case where the waived new shares are allocated by the recruitment method under Article 2(3)10) of the Securities and Exchange Act) or acquires new shares at a price higher than the market price" (Article 1

(2) After that, Articles 88(1) and 88(1)8 of the Enforcement Decree of the Corporate Tax Act, which had been in force at the time the Plaintiff acquired new stocks issued by theO, prescribed as above. Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act amended that the right to assign and take over new stocks (including convertible bonds, bonds with warrant, exchangeable bonds, etc.; hereafter the same shall apply in this item) or to acquire new stocks at a price higher than the market price (excluding cases where the waived new stocks are allotted by the public offering method in accordance with Article 2(3)12 of the Securities and Exchange Act) in the transaction to increase the capital (including the amount of investment) of the corporation.

2. Capital transactions and stockholders;

A. The plaintiff's assertion

(1) Article 11 subparagraph 9-14 of the Enforcement Decree of the Corporate Tax Act, as one of the profits earned by a corporation’s gross income, provides for a “profit received by distribution from a specially related person due to capital transactions under the provisions of each item of Article 88(1)8 of the Enforcement Decree of the Corporate Tax Act.”

Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act provides that a shareholder who is a corporation shall give up the preemptive right to new shares and distribute profits from ‘capital transactions' to ‘other shareholders'.15)

However, AO's acceptance of new shares in XX issuance, or the Plaintiff's acceptance of new shares in O's issuance, does not fall under "capital transactions" because of purchase of more than one O and the Plaintiff's purchase of investment assets, and profits from such acceptance fall under "gains from the evaluation of assets", and the shareholders of O are not all 'B', and the shareholders of O are not all 'B', and O was not 'the shareholders of TPP' that issued new shares. On the other hand, at the time of the acquisition of the new shares, the O was not 'the shareholders of TRS contact that issued the new shares, and the O was not 'the shareholders of O that issued the new shares.'

Therefore, the profits earned by theO through acceptance of new shares XX or the profits earned by the Plaintiff from acceptance of new shares issued by theO do not fall under Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act, and such profits cannot be included in the gross income of theO or the Plaintiff pursuant to Article 11 subparag. 9 of the Enforcement Decree of the Corporate Tax Act. Accordingly, the instant disposition based on the inclusion of the gross income is unlawful.

(2) Article 15(1) of the Corporate Tax Act provides that “The amount of profit shall be the amount of the profit issued by the transaction which increases the net assets of the corporation, except as provided for in this Act and capital or financing.”

As above, the profits provided by Article 88(1)8(b)(b) of the Enforcement Decree of the Corporate Tax Act cannot be deemed to have increased net assets as they are merely for the calculation purpose and nominal interests, and it cannot be deemed to have been realized as well as to have been considerably mature and finalized in the realization of the rights to generate income.

However, Article 11 subparagraph 9 of the Enforcement Decree of the Corporate Tax Act provides that such profits shall be included in the gross income of a corporation. This is null and void as it unfairly expands the scope of taxable income without delegation under Article 15 (1) of the Corporate Tax Act. Therefore, the disposition of this case, which included the gross income in the calculation of earnings under Article 11 subparagraph 9 of the Enforcement Decree of the Corporate Tax

B. Determination

[1]

(1) Article 88(1) of the Enforcement Decree of the Corporate Tax Act is a provision on the calculation of wrongful acts by a corporation. As seen earlier, Article 88(1)8 of the A8(1)8 of the A and Article 88(1)8(b) of the same Act provides for the case where a corporation, such as a stockholder, etc., distributes profits to another stockholder, etc., who is a specially related person, and Article 88(1)8(b) of the same Act provides for the case where the corporation

In the case of Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act as above, the parties concerned are corporations that issue new shares and increase capital (hereinafter referred to as "new shares issuing corporation"), shareholders of the new shares issuing corporation (hereinafter referred to as "existing shareholders") who give up the preemptive rights, and shareholders who are corporations that give up the preemptive rights (hereinafter referred to as "existing shareholders corporation"), and those who pay the acquisition price of new shares by accepting forfeited shares whose preemptive rights have been abandoned (hereinafter referred to as "new shares underwriter").

On the other hand, Article 15 (1) 18 of the Corporate Tax Act excludes "payment of capital or investment" from the income of a corporation as mentioned above, and "payment and refund of capital or investment" arising between a corporation and an investor are "capital transactions."

Therefore, in the case of Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act, if the capital transaction between the newly issued corporation and the underwriter of new shares occurs, and the above subscription price falls short of the appraised value after the capital increase in the process of the capital transaction of such newly issued corporation, the profits equivalent to the difference between the above subscription price of new shares and the appraised value after the capital increase should be distributed by the existing stockholders corporation that has waived the preemptive right to new shares.

(2) If so, the profit provided under Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act is the profit distributed by the existing stockholding corporation to the underwriter of new shares by mediating that the capital transaction between the issuing corporation and the underwriter of new shares takes place, which is the payment of the acquisition price of new shares. Such profit does not constitute the capital transaction of the underwriter of new shares, but does not constitute the capital transaction of the existing stockholding corporation.

(3) The share swap is a gratuitous transfer of assets made in the form of shares by mediating the capital transaction of the company issuing new shares. Since shares are assets that can be assessed at a certain point of time, if the increase in quantity or value is done by mediating capital transaction, it may be considered as the basis of taxation, and as long as the share transfer by mediating the capital transaction was made, it shall be deemed that the income has accrued, and it shall be subject to taxation.

On the other hand, Article 18 (1) 19 of the Corporate Tax Act excludes "profit from evaluation of assets" from the corporation's gross income. Such profit from evaluation of assets is the difference between the market price and the book value which appears when the market price exceeds the book value by evaluating the assets held by the corporation as the market price.

Therefore, the profits under Article 88 (1) 8 (b) (b) of the Enforcement Decree of the Corporate Tax Act cannot be deemed as having increased net assets because they are merely calculated and nominal interests, as alleged by the plaintiff, or cannot be deemed as having been realized or as having become a mature and finalized to the extent that the right to generate income is considerably high in its feasibility, and it cannot be deemed as gains from the evaluation of assets, as alleged by the plaintiff.

(4) If so, Article 11 subparagraph 9 of the Enforcement Decree of the Corporate Tax Act provides that the profits provided for in Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act shall be included in the corporation's gross income, and it shall not be deemed null and void as it unfairly expands the scope of taxable income without delegation under Article 15 (1) of the Corporate Tax Act. Therefore, the plaintiff's assertion on

[2]

(1) Article 11 subparag. 9 of the Enforcement Decree of the Corporate Tax Act, as one of the profits derived from a corporation’s gross income, provides for a “profit received by distribution from a specially related person through capital transactions pursuant to the provisions of each item of Article 88(1)8 of the Enforcement Decree of the Corporate Tax Act” and provides that the profits provided for in Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act shall be the profits of a corporation.

However, as seen earlier, the benefit provided for in Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act is the profit distributed by the existing stockholding corporation to the underwriter of new shares by mediating that the capital transaction between the issuing corporation and the underwriter of new shares takes place, such as the payment of the acquisition price of new shares, and such profit does not constitute the capital transaction of the underwriter of new shares.

Thus, Article 11 subparagraph 9 of the Enforcement Decree of the Corporate Tax Act provides that the profits provided for in Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act shall be defined as the profits of a corporation with the profits of the newly issued corporation and the underwriter of new stocks by mediating the occurrence of the capital transaction between the newly issued corporation and the underwriter of new stocks, which is the payment of the acquisition price of new stocks, shall not be a case where an underwriter of new stocks receives profits from the existing stockholding corporation, as alleged by the plaintiff. Accordingly, the plaintiff's assertion on this issue is without merit.

(2) As seen earlier, the benefit portion provided for in Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act is to be distributed by the existing shareholder corporation of the newly issued company through the waiver of preemptive rights to new shares.

However, according to the above, the above profit is equivalent to the difference between the new acceptance price and the appraised value after the increase of the capital, and such profit is the gratuitous transfer of assets made in the form of shares by mediating the capital transaction of the newly issued corporation.

Therefore, the profit sharing under Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act does not vary in the nature of profit sharing depending on whether the existing shareholder of the newly issued corporation is a corporation or an individual, so long as the existing shareholder of the newly issued corporation renounces preemptive rights, the profit sharing itself does not change in the nature of profit sharing depending on whether the new shareholder is a corporation or an individual, and it does not change in the nature of profit sharing depending on whether the new shareholder is an existing shareholder of the newly issued corporation or a third party.

(3) Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act provides that the existing shareholder corporation of the newly issued corporation waives the preemptive right and distributes profits to the purchaser of new shares as seen earlier. Since such provision concerns wrongful calculation by a corporation, the entity that renounces the preemptive right shall be defined as the shareholder of the corporation (existing shareholder corporation).

On the other hand, Article 11 subparagraph 9 of the Enforcement Decree of the Corporate Tax Act, as one of the profits derived from legal interests as seen earlier, stipulated the profits distributed by a person with a special relationship through capital transactions under the provisions of each item of Article 88 (1) 8 of the Enforcement Decree of the Corporate Tax Act. This provision stipulates the profits to be included in the "gains of a corporation", so the subject to which the profits are included in the "gains of a corporation" shall be "corporation."

As above, Article 11 subparagraph 9 of the Enforcement Decree of the Corporate Tax Act provides for a corporation's profits as the corporation's gross income and Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act concerning the calculation of wrongful acts by corporations provides for a provision citing the profits of Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act provides that "the person who distributes profits shall be deemed to have issued the income equivalent to the difference between the market price and the market price, while the person who distributes profits shall be deemed to have still

However, as seen earlier, the profit sharing under Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act does not vary in the nature of profit sharing depending on whether the existing shareholder of the newly issued corporation is a corporation or an individual, as long as the existing shareholder of the newly issued corporation renounces preemptive rights, the profit sharing itself does not change in the nature of profit sharing depending on whether the new shareholder is a corporation or an individual.

Therefore, Article 11 subparagraph 9 of the Enforcement Decree of the Corporate Tax Act is one of the profits earned by a corporation as a profit from capital transactions under the provisions of each item of Article 88 (1) 8 of the Enforcement Decree of the Corporate Tax Act, and it is stipulated that "existing shareholders of a newly issued corporation" who give up the preemptive right and distribute profits to subscribers of new shares who are corporations. Thus, it is not a provision that "existing shareholders of a newly issued corporation (existing shareholders corporation)" who give up the preemptive right shall not be a case where the existing shareholders of a newly issued corporation (existing shareholders corporation) give up the preemptive right. Accordingly, the plaintiff's assertion about this is without merit.

(4) Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act provides that all or part of the right to receive new stocks (excluding the case where the waived new stocks are allotted by the public offering method under Article 2(3) of the Securities and Exchange Act) or the case where new stocks are bought at a price higher than the market price.

Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act provides for cases where forfeited stocks are forfeited and such forfeited stocks are allocated by means of public offering under the Securities and Exchange Act, thereby prescribing cases where forfeited stocks are acquired by a third party other than existing shareholders of the company issuing forfeited stocks.

In addition, according to the above, the profit sharing under Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act does not vary in the nature of the profit sharing, as long as the existing shareholders of the newly issued corporation waives their preemptive rights, whether the new shares underwriter is the existing shareholders of the newly issued corporation or a third party.

Therefore, Article 11 subparagraph 9 of the Enforcement Decree of the Corporate Tax Act provides that "other existing shareholders or other third parties by waiver of preemptive rights of existing shareholders of the newly issued corporation shall give up preemptive rights," which stipulates that "other existing shareholders of the newly issued corporation or the third parties acquire forfeited stocks" under Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act shall not provide for the case where other existing shareholders of the newly issued corporation accept forfeited stocks, as alleged by the plaintiff. Therefore, the plaintiff's assertion on this issue is without merit.

3. Waiver of preemptive rights;

A. The plaintiff's assertion

Article 88 (1) 8 (b) of the Enforcement Decree of the Corporate Tax Act only stipulates that the existing shareholders have renounced their preemptive rights, and does not stipulate that the new shares are distributed directly to a third party by the newly issued corporation.

However, the existing shareholders ParkA and OB of the company issuing new shares, which are a company issuing new shares, did not waive their preemptive rights, and O accepted new shares in XX, or the Plaintiff’s acceptance of new shares of OO was in accordance with the method in which the aforementioned company issuing new shares directly allocates new shares to third parties, other than the existing shareholders.

Therefore, since the profits earned by theO through acceptance of new shares XX or the profits earned by the Plaintiff from acceptance of new shares issued by theO do not constitute all the profits stipulated in Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act, such profits cannot be included in the gross income of theO or the Plaintiff pursuant to Article 11(9) of the Enforcement Decree of the Corporate Tax Act, the instant disposition based on the inclusion of the gross income is unlawful.

B. Determination

(1) Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act only provides for the waiver of all or part of the right to receive new stocks, but does not provide for cases where a person who is not a shareholder of the relevant corporation directly receives new stocks from the relevant corporation pursuant to Article 418(2)20 of the Commercial Act. Thus, even if a company receives profits by acquiring new stocks of the relevant corporation at low price from an existing shareholder of the relevant corporation, such profits may not constitute gross income under Article 11 subparag. 9-21 of the Enforcement Decree of the Corporate Tax Act (see Supreme Court Decision 2011Du29779, Mar. 29, 2012).

(2) However, the following facts are acknowledged in full view of the descriptions of evidence Nos. 1-2, 5, 6, and 2-2, 5, 6, and 3-1, 2, and 1-5 of the evidence Nos. 1-2, 5, 6, and 3-1, 3-2, and 1-5 of the argument

[1]

As seen above, the board of directors held on October 6, 2005, and decided that "OO, a company that has been recruited in the general public, gives up preemptive rights and gives up preemptive rights" (Evidence A No. 2-1).

Article 9(1) of the articles of incorporation of the 0th company that issued new shares at the time of the resolution of the 0th company’s board of directors provides that the company has the right to receive new shares in proportion to the number of shares held by the existing shareholders at the time of issuance of the new shares, and Paragraph 2(7) of the same Article provides that the company may directly allocate the new shares to investors other than the existing shareholders for long-term development, advancement of new business, expansion of business objectives or urgent financing of funds, and Paragraph 3 of the same Article provides that the method of disposal shall be determined by the resolution of the board of directors

At the time of the 0th resolution of the board of directors, ParkA was holding all the shares issued in XX, and ParkA also attended the board of directors as representative director of XX and approved the above resolution.

[2]

As seen above, on July 6, 2006, the board of directors of theO held on July 6, 2006, "Y Co., Ltd. (Plaintiffs of this case) that all the old shareholders have renounced their right of acceptance and recruited in the general public." (Evidence A 1-1).

At the time of the resolution of the 0th board of directors, the articles of incorporation of the O, a corporation issuing new shares, did not stipulate the allocation of new shares to a third party other than the existing shareholders (No. 3-2).

At the time of the 0th resolution of the board of directors, HB held all the shares of the OO, and HB attended the above board of directors as the representative director of O and approved the above resolution.

(3) According to the above facts, the board of directors of the company issuing new shares, which made a resolution that "the former shareholders waive their preemptive rights and that "OO, which was recruited by the general public, shall take over the new shares," clearly stated that the existing shareholders renounced their preemptive rights, and that the method of handling the existing shareholders' waiver of their preemptive rights shall be determined by the resolution of the board of directors. The above resolution of the board of directors is consistent with the articles of incorporation

In addition, according to the above facts, the board of directors of the OO, which is a new stock-listed corporation, adopted a resolution that "YY corporation shall give up the right to receive new shares and publicly recruited YY corporation shall take over the new shares," and it is clear that the existing shareholders have given up the right to acquire new shares, and the articles of incorporation of theO do not stipulate that the existing shareholders have given up the right to acquire new shares to a third party other than the existing shareholders, so long as the existing shareholders have not given up the right

Furthermore, according to the records of this case, the Plaintiff asserted in the complaint of this case that ParkA and ParkB renounced the subscription of new shares at the time of the resolution of each of the above board of directors, and that ParkA and ParkB did not make any specific argument as to the waiver of such preemptive rights in the first instance trial, and that it was the method of directly allocating new shares to third parties other than the existing shareholders, as seen earlier.

(4) Meanwhile, the Commercial Act, which was in force at the time of the resolution of each of the above board of directors, stipulates that a stock company shall notify the holders of preemptive rights of the class and number of shares with such preemptive rights, and that if it fails to make an offer to underwrite shares by a specified date, it shall lose its rights; and that if it fails to make an offer to underwrite shares by the specified date, the holder of preemptive rights shall lose its rights (Article 419.22).

However, as seen earlier at the time of the resolution of each board of directors, so long as ParkA, as its representative director, has attended the board of directors and agreed to the resolution that "OO, which has been recruited by the general public by waiver of preemptive rights, will take place", and that YB, as its representative director, attended the board of directors and consented to the resolution that "YY corporation, which has been recruited by the general public by waiver of preemptive rights by the former shareholders, shall take place as its representative director," it is obvious that ParkA and YB, who is the existing shareholders, have expressed their intent to waive preemptive rights, and such intent has been delivered to XX and OO. Therefore, it shall be deemed that ParkA and YB have existed itself as the waiver of preemptive rights to new shares.

(5) In full view of the foregoing, the acceptance of new shares by O and the Plaintiff, as stated in the above resolution of each board of directors, is accepted in accordance with the waiver of the preemptive rights of ParkA and MaB, an existing shareholder, and as alleged by the Plaintiff, they do not follow the direct allocation of new shares to a third party, other than the existing shareholder. Accordingly, the Plaintiff’s assertion on this issue is without merit.

4. Sub-committee:

Thus, in case where an individual who is the existing shareholder of a new shares issuance corporation gives up the preemptive right and a third party corporation other than the existing shareholder of the new shares issuance corporation takes over the new shares, the profits distributed by the new shares acquisition corporation shall be included in the gross income of one or more corporations which are new shares pursuant to Article 11 subparagraph 9 and Article 88 (1) subparagraph 8 (b) (23) of the Enforcement Decree of the Corporate Tax Act.

In addition, it is recognized that the acceptance of new shares by the corporation OO and the Plaintiff is in accordance with the waiver of the preemptive rights of Ga and laB, the existing shareholders of XX and OO.

Therefore, since OO and the Plaintiff’s profits received by the above new shares as above are deemed to be included in the gross income of O and the Plaintiff pursuant to Article 11 subparag. 9 and Article 88(1)8(b) of the Enforcement Decree of the Corporate Tax Act, the instant disposition based on such inclusion in the gross income is lawful.

III. Conclusion

Therefore, the plaintiff's claim against the defendants seeking the revocation of the disposition of this case shall be dismissed in its entirety as it is without merit, and the judgment of the court of first instance shall be revoked as it is unfair in its conclusion. The plaintiff's claim against the defendants shall be dismissed in its entirety. It is so decided as per Disposition.