Seoul Administrative Court 2010Nu642 ( October 14, 2010)

Cho High Court Decision 2009Du3864 ( October 27, 2010)

Income from the transfer of stocks shall not be deemed business income.

In light of the fact that capital gains are income generated from the increase in value due to the holding of assets, stocks shall not be deemed business income, and stocks shall not be deemed business income, and stocks shall not be deemed losses incurred from stock transactions which are not subject to taxation and shall not be deemed

2010Nu38617 Revocation of Disposition of Imposing capital gains tax

IsaA

○ Head of tax office

Seoul Administrative Court Decision 2010Gudan642 decided October 14, 2010

June 17, 201

July 15, 201

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 246,258,210 on October 14, 2008 by the defendant against the plaintiff on October 14, 2008 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s decision is that the reasoning for this Court’s new argument in the Plaintiff’s trial is as stated in the reasoning of the judgment in the first instance, except for the portion to be determined additionally as follows.

2. Additional determination

A. The plaintiff's assertion

Even if the transfer of the instant shares is considered as capital gains, the transfer losses arising from the stock transaction, which is not subject to taxation under the nature of capital gains and the substance over form principle, should be considered as losses and added up (the plaintiff withdraws his objection at the lower court, but asserts again in the trial).

B. Determination

The aggregate of deficits is reasonable to be carried out by the method of deducting transfer loss from the transfer income amount under the conditions as prescribed by the Income Tax Act (where the transfer of a specific asset is not subject to taxation from the beginning, and the transfer income tax cannot be imposed on the profit accrued from such transfer, it is fair to not recognize the loss as the loss even for the loss incurred from such transfer). As alleged by the plaintiff, the loss incurred from stock transaction which is not subject to taxation can not be recognized as the transfer loss. The plaintiff's above assertion is without merit without any further need.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.