Cho Jae-2012-Seoul Government-3610 ( November 13, 2012)

If a sales contract is invalid or revoked from the beginning or later, the capital gains tax disposition is unlawful.

If the transferor cancels a sales contract or fulfills the conditions of rescission because the transferee failed to perform his/her obligation to pay the remainder, the disposition imposing capital gains tax is unlawful on the grounds that the transfer of assets, which is a taxation requirement of the capital gains tax, cannot be

Article 94 of the Income Tax Act: Scope of Transfer Income

2013Guhap53127 Revocation of Disposition of Imposition of Capital Gains Tax and Securities Transaction Tax

KimA

O Head of tax office

September 26, 2014

October 28, 2014

1. The Defendant’s imposition disposition of the capital gains tax of May 1, 2012 against the Plaintiff and the securities transaction tax of May 9, 2012 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, a KOSDAQ-listed corporation BB technology (hereinafter referred to as “BB technology”) issued bonds with warrant of OOOOO, and CCC bank (hereinafter referred to as “CCC bank”) acquired the total amount of the above bonds with warrant.

B. As examined below, the existing shareholders of BB technology held 3080,000 shares with the preemptive right of 28 million shares from the CCC bank to OOO(OOO). NE held 1680,000 shares, 1820,000 shares, 1680,000 shares, 280,0000 shares, the Plaintiff’s 280,000 shares, 70,000 shares, 840,000 shares, 84,000 shares, 9520,00 shares, respectively.

C. As examined below, Kim J agreed to obtain the preemptive right to BB technology from the existing shareholders of BB, under the name of another person, from NoD, Park E, JeonF, Plaintiff, and JungG (hereinafter “B technology shareholders”), “NoD, Park E, Jeon F, Plaintiff, and JungG” (hereinafter “the transferor of this case”) was transferred to Kim J around July 9, 2009 and August 2009 the preemptive right to BB technology to KRW 10.8 million per share (hereinafter “the preemptive right transfer agreement between the transferor and Kim JJ”).

D. On the other hand, on May 31, 2010, the Plaintiff reported and paid the transfer income tax for the year 2009 on the ground that the Plaintiff’s 1.4 million share of the preemptive right to BB technology to Kim K and Cho L (Gim KK 700,000 shares, Cho LL 700,000 shares) to Kim K and Cho L, and the transfer value OOO on the other hand, on July 30, 2009, the Plaintiff transferred the remainder of 1.4 million shares to KimM as the transfer of OOO and transfer value OOO for each share to KimM.

E. From May 9, 2011, until December 31, 2011, the director of the Seoul Regional Tax Office (hereinafter “Seoul Regional Tax Office”) confirmed that the transferor, including the Plaintiff, transferred the preemptive right to new stocks to the OO members per share, and notified the Defendant of such data. Accordingly, the Defendant deemed that the Plaintiff transferred the said preemptive right to the OO members, and notified the Plaintiff of the correction and notification of the OO members of the securities transaction tax for the year 2009 and the OO members of the securities transaction tax for the year 2009 on May 9, 2012. Meanwhile, on the other hand, around October 2013, the Defendant revised the OO members to reduce the 2009 from the OO members of the securities transaction tax and the securities transaction tax for the year 2009 became the OO members (hereinafter collectively referred to as the “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 and the Plaintiff’s appeal.

[Ground of recognition] Facts without dispute, Gap evidence 1 and 2, Gap evidence 4-1, 2, Eul evidence 1, 2, 3, and 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the transferor, including the Plaintiff, rescinded the transfer contract with Kim J on the ground of fraud as well as the cancellation of the contract on the acquisition of preemptive rights by reason of nonperformance, the contract of this case also became retroactively null and void. Accordingly, the disposition of this case on the premise that the transfer of preemptive rights was an income accrued to the Plaintiff is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Transfer of BB preemptive right to new technology by Nowon II, etc.

(가) BB기술은 2008. 7. 9.경 CCC은행에 원금 총액 OOOO원, 이자 연 7%의 제6회차 신주인수권부사채를 발행하였는데, 위 신주인수권부사채에 부여된 신주인수권(사채권과 별도로 양도할 수 있도록 분리하여 발행된 것으로 이하 '이 사건 신주인수권'이라 하고, 편의상 '신주 〇주를 발행받을 수 있는 신주인수권'을 '신주인수권 O주'라는 방식으로 표시한다)은 행사비율이 70%, 행사가액은 주당 OOOO원, 행사기간은 2009. 7. 9.부터 2011. 6. 9.까지였다.

(B) As the exercising price per share of the instant preemptive right has been adjusted to OOO on January 9, 2009, the number of shares available for exercising the preemptive right became 28 million won. The existing shareholders of BB technology held 3080,000 shares by transfer from the CCC bank to OOO (OOO). It held 1680,000 shares, 1820,000 shares, 1680,000 shares, 2880,000 shares, 280,000 shares, 70,000 shares, 840,000 shares, 280,000 shares, 280,000 shares, 280,000 shares, 70,000 shares, 84,000 shares, 9520,00 shares, respectively.

(C) On July 9, 2009, the time when the preemptive right of this case was exercised, the previous shareholders of the Dao and BB were to sell some of the preemptive right of this case and realize profits therefrom, and to convert some of them into new shares and hold them as shares. During that process, Kim J was introduced as a person who has considerable financial ability through KimN and is able to provide financial support to BB technology projects.

(D) On July 2009, Kim J tried to realize sales gains at an appropriate time after converting 1,8480,000 shares to new shares by taking over 2.8 million shares held by shareholders of BB technology, excluding 9520,000 shares of the preemptive rights held by Nowon II, and converting 1,8480,00 shares to new shares.

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

(가) 김JJ는 BB기술의 주주들로부터 강PP, 노QQ, 김RR 등 차명주주(이하 '김JJ 측'이라 한다) 명의로 신주인수권을 양수하기로 하고 필요자금을 사채로 조달하였는데,노II과 BB기술 부회장인 이SS이 2009. 7. 9. 김JJ의 위 사채에 관하여 연대보증을 하였다.

(B) On July 9, 2009, the transferor of this case, among the shareholders of BB, except Kim H and NoII, entered into the instant transfer agreement with Kim J on the acquisition of the rights as follows and transferred the preemptive rights held by each of the parties to Kim J to Kim J.

Preemptive Rights Transfer Agreement (Written on July 9, 2009)

Article 1 (Limit on Transfer of Preemptive Rights)

(1) On the date of conclusion of this contract, the transferor shall transfer the preemptive rights (8,680,000 shares) corresponding to the OOO of the 6th bonds with warrants with BB technology and the 6th bonds with warrants, and the transferee shall take over the same over.

(2) A transferee shall transfer the preemptive rights (9,100,000 shares) equivalent to the total face value of BB technology 6th bonds with warrants until August 25, 2009 and another transferee shall take over the rights by transfer.

Article 2 (Price for Transfer)

(1) A transferee shall pay to a transferor the amount of gold OO as the price for acquisition by transfer of the preemptive right (hereinafter referred to as "price for acquisition by transfer") in accordance with the following schedule:

1. For the first acquisition of new stocks, 8,680,000 shares/ October 30, 2009: OOOCO;

transferor

The face value of face value

Number of Preemptives

RoD

OOOE

3,080,000 Shares

Park E

OOOE

1,820,000 Shares

FF

OOOE

1,680,000 Shares

OOOE

1,400,000 Shares

[G]

OOOE

700,000 Shares

Consolidateds

OOOE

8,680,000 Shares

2. For the second acquisition of new stocks, 9,100,000 shares/it on December 30, 2009: OOOwon;

transferor

The face value of face value

Number of Preemptives

R Kim R

OOOE

8,400,000 Shares

OOOE

700,000 Shares

Consolidateds

OOOE

9,100,000 Shares

(2) Unlike the acquisition price referred to in paragraph (1) of this Article, a gold exchange member under the Guarantee of Joint and Several Loans for Consumption (Added 1) dated July 9, 2009 shall pay the full amount that the transferee has raised with the funds raised by the transferee under his/her responsibility in order to exercise the right of preemptive right acquired under this contract by the transferee.

Article 3 (Transfer of Preemptive Rights to New Shares)

This case is to deliver to the transferee the full amount of the face value of the warrant certificates as of the date of this contract, and to transfer the ownership from this day. In addition, the transfer of the ownership of the warrant certificates corresponding to the face value of the warrant certificates as well as the detailed matters to be acquired shall be subject to separate consultation between the transferee and the transferor.

(iii)Exercise of u300 Preemptive rights and transfer of certificates;

(A) Conversion of the primary preemptive right;

1) On July 9, 2009, Kim J procured OOO as a bond and paid OOOOOO as the conversion price to the preemptive right of 8.68 million shares, and on July 20, 2009, the share price was converted to 8.688 million shares under the name of Kim JJ on July 20, 2009, and the remaining OOOO was paid to the transferor of this case as part of the transfer price for the above 8.68 million shares.

2) On July 9, 2009, Nowon II borrowed OOO from the transferor in this case and paid 9240,000 shares out of 9520,000 shares as the conversion price for the new shares in its own name. The new shares were converted to 924,00 shares in its own name.

(B) Conversion of the second preemptive right;

1) On August 2009, Kim J paid the acquisition price of KRW OOO to the Plaintiff, one of the instant transferor, and additionally acquired the preemptive right of KRW 1.4 million (the remainder excluded from the first acquisition price). On August 19, 2009, OOOOO was paid as the conversion price for the said preemptive right to KRW 1.4 million on the same day, and the new shares were converted under the name of Kim JJ on the same day.

2) 노II도 2009. 8.경 원고로부터 OOOO원을 빌려 자신이 보유한 나머지 신주인수권 28만 주에 대한 전환대금으로 납부ᅵ하여 2009. 8. 19. 자신 명의로 신주 28만 주가 전환되었다.

(C) Results of conversion of preemptive rights

According to the aforementioned 18 million new shares conversion, the share certificates of 19.6 million shares, excluding the share certificates of 8.4 million shares held by Kim H, among the shares of 28 million shares, were respectively converted into the share certificates of 10.6 million shares in the name of KimJ and No. II. The KimJ kept all the share certificates of 19.6 million shares converted into new shares in its office.

(D) Ultimately, around July 9, 2009 and August 2009, the instant transferor transferred 10,0080,000 won of the instant preemptive right (i.e., KRW 8680,000 + KRW 1.4 million) to the KimJ, but KimJ did not pay only the amount of the remainder of the acquisition to the instant transferor as the acquisition price of the new shares (i.e., the acquisition price of the acquisition price of the new shares (i., KRW 00,000 + KRW 1.4 million). Accordingly, the acquisition price received by each of the instant transferor was paid by NowonD to the instant transferor, but the Plaintiff and the Plaintiff did not pay the remainder of acquisition price.

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

(A) On August 21, 2009, the instant transferor entered into the instant transfer agreement with the Kim J on August 21, 2009, with the following amendments to the instant transfer agreement.

A change in the acquisition level of a preemptive right and a sales contract ( August 21, 2009)

The contract for the change of the acquisition of the preemptive right(hereinafter referred to as "this contract") is a contract to amend the terms of the contract for the transfer of the preemptive right(hereinafter referred to as "transfer contract") entered into between the transferor and the transferee(DD, GaE, FF, KimA, GG, and Kim J) on July 9, 2009.

Through this contract, the transferee Kim J (hereinafter referred to as the "B") shall delegate the rights and obligations of the transferor under the previous contract to SS (hereinafter referred to as "A") and modify the terms and conditions of the contract as follows, and the transferee Kim J (hereinafter referred to as "B")

:

1. One of the transferor under the previous contract shall be excluded from the parties to the contract. Therefore, the right to the share of the acquisition by transfer of the Kim R shall be excluded from the entire acquisition by transfer;

2. In addition to this modified contract, “B” will provide BB common share of BB (600,000) owned as security to KimJ as a shortage in the exercise of the warranty in the name of KimR, provided that the shares will be sold at the last time, and prior to the disposal, SS will be exchanged mainly with 6 million common share in another’s name, or 6 million common share in the possession of KimR under paragraph 3. If 6 million shares are not exchanged by the Kim JJ by the time of sale, SS will sell 6 million common share in the name of Kim JJ-owned No. 6 million shares and sell MO as the sale right of 6 million shares. To this end, Kim J will pay EX to EX as the sale right of 6 million shares.

- Down payment: OOOOO personnel on August 21, 2009

- Balance: GeumOOOO on September 18, 2009

3."A" will not exercise or sell preemptive rights until March 1, 2010 with respect to the preemptive rights of 8,400,000 shares held by Kim R until March 1, 2010, and will not sell 6 million shares exchanged in the name of No. II.

4. The transfer of preemptive rights on July 9, 2009 also derived from the offer of BB technology as security for the performance of the contract (3,240,000 shares) shall be deemed to have been transferred to BB technology common right upon breach of paragraph 3 above to BB technology common right.

6. The amount and method of payment shall be to be paid after all the shares have been sold in the future, and the amount and method thereof shall be determined separately in good faith and sincerity in accordance with the market situation, which shall be the priority of payment from the contingent remuneration of KimT.

(B) In addition, on August 21, 2009, Nowon II entered into an additional contract with Kim J on the following terms:

A separate contract shall be drawn up on the basis of a change in the acquisition limit of a preemptive right on August 21, 2009 and a sales contract as follows:

1. Name of the company concerned: BB technology;

2. Quantity of stocks: 6 million shares;

3.No II shall offer the said shares as security to cover 6 million Won under a contract signed by August 21, 200 and pay OOJ for that shortage. However, in the event that it is not possible to cover the shortage finally due to the responsibility of "A", "B" shall dispose of the said shares, and in this case the above OOJ shall substitute for the purchase price.

(5) Payment of the purchase price by Kim J

"NoII and ES, under the above 8.21.21 and the above 8.21. A receipt that contains a total of OOO on August 21, 2009 from KimJ to OOO on September 18, 2009 under the above 8.21. A receipt that contains a total of OOOO on September 18, 2009, including OOOOOO on September 18, 2009, "the above amount" was changed to the acquisition of the preemptive rights ( July 09) and the acquisition of the preemptive rights and the transfer of the preemptive rights ( July 29, 2009) and a sales and purchase contract (the 21. 08. 21. 09) and the additional contract for the said contract (the 21. 008. 21. 009)."

(A) As above, KimJ sold 640,000 shares of the new shares converted under the name of Kim J on November 2, 2009, 6,460,901 shares from November 2, 2009 to November 13, 2009, and 869,550 shares from November 27, 2009 to December 4, 2009.

(B) On November 20, 2009, KimJ borrowed OO's loan from the ICU, and offered ICU as security 6 million out of 9.52 million old shares in its possession to the ICU. The ICU sold all the above new shares from November 27, 2009 to December 18, 2009 under the direction of KimJ.

(C) On December 16, 2009, Kim J returned 3,240,00 other new shares in the name of Noh II, which were kept on and around December 16, 2009, to Noh II.

(7) The price of BB technology stock

BB Technology owners recorded OO on January 9, 2009, OOO on July 9, 2009, and OOOO on August 21, 2009, and recorded OOO on October 26, 2009, and thereafter recorded OOO on October 30, 2009, OOOO on November 30, 2009, OOOO on November 20, 2009, OOOO on November 20, 209, OOOO on November 27, 2009, OOO on November 27, 2009, and OOO on December 16, 2009, OO again recorded on October 15, 2015.

(8) Progress of the relevant lawsuit

(A) On August 12, 201, 201, Kim Jong-J was sentenced to a four-year imprisonment with prison labor for a crime that, as a security for the KimJ’s KimJ’s shareholders’ fulfillment of the obligation to transfer BB stocks under the name of the victim, he/she kept 6 million Won of BB stocks under the name of the victim II before the due date ( March 1, 2010). On November 20, 2009, he/she was granted a loan of OB capital from the DuU as a security against the above victim’s shares 6 million capital stock under the above victim’s name, and provided NAU with 6 million capital stock under the above victim’s name to the NAU as embezzlement. (Seoul District Court Decision 2010Da1743, Jun. 1, 2010), and all appeals were dismissed, but both appeals were dismissed (Seoul District Court Decision 2010Da1743, Jun. 1, 2013).

(B) On May 31, 2012, NoD, one of the transferors of the instant case, filed a lawsuit against Kim J against the Seoul Central District Court 2010Gahap75919, seeking payment of the purchase price of preemptive rights and compensation for delay thereof, and received a favorable judgment from the said court, and the said judgment became final and conclusive.

(C) Meanwhile, even if GimJ did not intend to pay the acquisition price of the preemptive right in accordance with the contract even if it received the preemptive right from the transferor in this case, it was prosecuted as charged (Seoul Western District Court 2012Da501, Seoul Western District Court 201), on the ground that it cannot be readily concluded that it entered into the instant acquisition contract under the intention of Kim J to acquire the preemptive right in this case, even though it did not intend to pay the acquisition price of the preemptive right in accordance with the contract from the beginning, it was acquitted on January 16, 2014 by deceiving the transferor in this case, and the prosecutor appealeded, but the judgment of innocence was dismissed, and the judgment of acquittal became final and conclusive as it was.

(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 the Kim J of the purport that the instant transfer agreement was revoked on the ground of the fraud by the content certification, and the said content certification reached Kim J on April 11, 2013.

(B) In addition, around August 1, 2013, the transferor of the instant case, including the Plaintiff, notified the KimJ of the cancellation of the instant transfer agreement on the ground of the non-performance of obligation due to the payment due to the payment due to the KimJ’s receipt of the transfer price. However, the said content certification was not reached the KimJ.

"(C) On September 2, 2014, the transferor of this case, including the plaintiff, notified the KimJ of the cancellation of the contract, stating that "In addition, on September 2, 2014, the GimJ did not pay the transfer price of the preemptive right to new stocks to the transferor of this case, and that it paid the transfer price of the preemptive right to new stocks in the related litigation. If the refusal of performance is recognized, the transfer contract of this case shall be cancelled without the arrival of the content certification, 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 above period is not recognized, the contract shall be automatically cancelled at the time of default." The above content certification reached KimJ on September 3, 2014, and the above content certification reached Kim JJ, and the court did not pay the transfer price to the transferor of this case by September 10, 2014, as the whole number No. 30, No. 97, and No. 17, and No.

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 capital gains (Article 4(1)3) that accrue from the transfer of an asset. As such, capital gains tax is imposed on income from the transfer of an asset. 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 an object of taxation of capital gains tax (see, e.g., Supreme Court en banc Decision 2010Du23644, Jul. 21, 201). Therefore, even if the transferor had completed the registration of ownership transfer in the future while concluding a sales contract for real estate, 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 income becomes subject to taxation of capital gains tax.

In light of the above legal principles, the transferor, including the plaintiff, transferred the right to new stocks to KimJ on July 9, 2009 and around August 2009, the total amount of KRW 100,000 per share of the preemptive right to new stocks to the plaintiff KimJ, but the transferor, including the plaintiff, did not receive KRW 00,000 per share of KRW 10,000,000, and the other transferor, including the plaintiff, did not receive KRW 00,000 from KimJ on September 2, 2014. The plaintiff's notification of payment of the transfer price to KimJ within 7 days from the date of arrival of the content of the contract, and the plaintiff's notification of cancellation of contract due to the expiration of the above period, and the plaintiff's declaration of intention to transfer the right to new stocks to KimJ on the premise that the contract of this case was not automatically cancelled due to the plaintiff's transfer of the right to new stocks to the plaintiff, as well as the transfer price of this case.

3. Conclusion

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