Future Ep Partners Private Equity Fund (Law Firm LLC, Attorneys Shin Jae-soo et al., Counsel for the defendant-appellant)

The director of the tax office

December 8, 2015

Seoul Administrative Court Decision 2014Guhap74503 decided June 25, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked, and the defendant revoked the disposition rejecting correction of KRW 2,300,522,190 against the plaintiff on June 5, 2011.

1. Details of the disposition;

The reason why this Court is to be used is as stated in the judgment of the court of first instance 1. Thus, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The primary argument

The Plaintiff asserts that the transfer price of the instant shares is calculated on the basis of 18,000 won per share to be paid from KRF pursuant to the instant secondary sales contract, and that the Plaintiff was paid the amount of credit exceeding the sale price of the instant shares from the gold industry (hereinafter the corresponding Plaintiff’s claim against the gold industry is an agreed bond under a special agreement separate from the instant secondary sales contract. The actual nature of the Plaintiff’s claim is either to compensate for the difference arising from the exercise of the right to claim joint sale under an agreement between the shareholders of the instant case, or to compensate for the difference arising from the exercise of the right to claim joint sale under an agreement between the shareholders of the instant case, or to return the principal and interest on loans to the compensation agreement amount or gold industry arising from the nonperformance of the instant first sales contract, and is irrelevant to the transfer of the instant shares, and thus, the tax base for the transfer price of the instant shares shall be KRW 18,000 per share.

2) Preliminary assertion

The Plaintiff, even if the workout claim of this case is included in the cost of transferring the shares of this case, the claim of this case was agreed to comply with the debt adjustment scheme set forth in the plan for the normalization of the gold industry from the beginning. However, the Financial Industry Council of Creditor Council of Home Affairs claimed that the amount of 87.7% (12,827 won per share) out of the workout claim of this case would be 2.564 shares of gold industry, and the remaining 12.3% per share (1,799 won per share) would be converted into 2.564 shares of this case, and the remaining 12.3% per share (1,799 won per share) would be decided later as to whether to convert into investment. Accordingly, the tax base of the securities transaction tax on the transfer of the shares of this case would be 18,000 won per share of the shares of this case, which the Plaintiff would be paid from KSB PEF, and that the market price of gold industry should be 9,761 won (250 won per share 29,5099.5 days

B. Relevant statutes

The reason why this Court is used is as stated in the reasoning of the judgment of the court of first instance 2. B., and therefore, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

C. Determination

1) Judgment on the plaintiff's primary assertion

A) The meaning of “transfer value of share certificates” as the basis for calculating securities transaction tax

The term “transfer value of share certificates”, which is the basis of the computation of securities transaction tax, is not a general market price that reflects the objective exchange value, but an actual amount agreed upon at the time of transaction (see, e.g., Supreme Court Decision 2008Du21614, Jul. 28, 201). Furthermore, when the ownership of share certificates is transferred at a cost, the securities transaction tax is the distribution tax imposed by itself as recognized as the ability to pay taxes; Article 2(3) of the Securities Transaction Tax Act provides that the ownership is transferred at a cost due to contractual or legal causes; Article 5(1) and (2) of the Securities Transaction Tax Act provides that the time of transfer of share certificates, etc. shall be determined by the Presidential Decree, and Article 2(1) and (2) of the Enforcement Decree of the Securities Transaction Tax Act provides that the time of settlement of share certificates, etc. or the time of transfer of share certificates, etc. shall be determined by the Presidential Decree in light of the motive and purport of transfer of share certificates, etc. (including transfer of share certificates) or transfer thereof).

In the end, if a third party, other than a transferee of share certificates, has agreed to partially bear the price for the transfer of share certificates at the time of transaction of share certificates, the price for the transfer of share certificates to be paid by the transferee as well as the price for the transfer of share certificates to be paid by the third party shall be included in the “transfer price

B) Whether the workout claim of this case is included in the transfer value of the instant shares

(1) The following facts or circumstances are acknowledged in addition to the purport of the aforementioned facts-finding and the evidence duly admitted.

(A) The first sales contract of this case was concluded between the gold industry by exercising the right of choice for sale under the contract between the shareholders of this case and the gold industry with the base price of 32,626 won per share. Considering that the financial situation of the gold industry has deteriorated, it seems that the Plaintiff could not withdraw the exercise of the right of option for sale of the shares of this case even though the Plaintiff could not withdraw the exercise of the right of option for sale of the shares of this case, which is merely 5% of the purchase price bonds under the first sales contract of this case in return for the transfer of shares.

(B) The Plaintiff agreed to receive KRW 18,00 from KRF for the sale price of the instant shares, and to follow the debt readjustment scheme set forth in the plan for the normalization of the gold industry with respect to the remaining amount of credit exceeding the amount recovered from sale price of the instant shares. According to the resolution of the resolution of the instant sale option, the Plaintiff’s resolution of the resolution of the instant sale option is to preserve the Plaintiff’s entire amount on the premise that the Plaintiff has a sales right claim of KRW 32,626 per share, “the exercise price of the sale option” under the first sale contract. In addition, the resolution of the instant sale option provides that “the revocation of the exercise of the sale option” is stipulated in the resolution of the instant sale option, but the agreement for the implementation of the management normalization plan is concluded with KRF, namely, on the condition that the transfer price of the instant shares would be settled by the Plaintiff’s 126th of the instant sales option, which is the exercise price of the right to select the instant shares, rather than by the Plaintiff 126th of the instant sales option.

(C) Articles 2 and 3 of the Special Act on the Settlement of Stocks, which were prepared at the time of the second sale contract, set forth the above 1.1 and 3. Of the instant proposal to resolve the sale option, Article 8(1) repeats the above contents. Article 5 provides that the sales price per share of the instant shares shall be KRW 18,000,000 ( KRW 18,000,000), which is the price per share stated in the consent. Such contents agreed to transfer the instant shares to KRW 18,000 regardless of the proposal to resolve the sale option, and the Plaintiff would not be included in the second sale contract if it had an intention to receive only the amount calculated on the basis of KRW 18,00 per share in return for the transfer of the instant shares. In full view of the content of the instant second sale contract and the instant proposal to resolve the sale option, the Plaintiff’s agreement between the Plaintiff and the Korea Development Bank and the Korea Development Bank for the second sale of the instant shares, which was concluded between the Plaintiff and the Korea Development Bank for the second sale.

(D) The Plaintiff’s payment of the sales price calculated on the basis of KRW 32,626 per share of the instant shares from the gold industry, and some of the amount of the said sales price is paid from KRF and the remainder is the stocks and money of the gold industry from the gold industry, which is the debtor, under the first sales contract of this case, and the economic effect is the same. The Plaintiff agreed to the resolution of the instant sales option in order to enjoy the same economic effect as when the Plaintiff exercised the right to choose the sale of the instant shares, participated in the resolution of the creditors’ resolution on the reorganization of claims, etc. of the gold industry, and concluded the second sales contract of this case.

(E) Meanwhile, the Plaintiff asserts that the workout program claim of this case is not related to the transfer of stocks of this case, since the difference arising from the exercise of the right to claim a joint sale under an agreement between the shareholders of this case is compensated for, or the damages agreed upon due to the nonperformance of the obligation of the first sale contract of this case, or the principal and interest of the loan to the gold industry is returned.

According to the evidence and evidence belief as mentioned above and Gap evidence No. 16, if the gold industry intends to sell shares to any third party other than the plaintiff and its related party during the period of restriction on transfer of gold, and the sale of shares becomes the largest shareholder of the Treatment Construction as a result of the agreement, the investor has the joint right to demand the sale of all or part of the shares owned by investors in the gold industry under the same sale condition. However, if the sale price is below the amount corresponding to the base price calculated by the initial exercise of the right to demand sale (Article 7(2)), if the sale price is less than the amount corresponding to the base price calculated by the initial exercise of the right to demand sale, it is recognized that the gold industry would have agreed to pay the difference immediately to investors (Article 7(2). It is difficult to view that the gold industry actually sold 10 shares out of the KDB PE, which was merely the first sale of shares to meet the requirements of the right to demand sale of the shares in this case, as well as that it is acknowledged that the sale of the shares in this case would have been in effect.

(F) As a private equity fund established by the Korea Development Bank, which is the principal creditor bank of gold Asian or affiliate companies for the debt readjustment of the gold industry, the Korea Development Bank and the Korea Development Bank have economic interests with respect to the normalization of the gold industry and the recovery of claims by creditor financial institutions. Therefore, the same cannot be assessed in cases where the instant shares are transferred to a third party who has no interest in the securities market, etc., and it is not reasonable to interpret and assess the instant secondary sales contract concluded with the Korea Development Bank in comparison with the gold industry.

(2) As such, if the Plaintiff was to receive only KRW 18,00 per share in return for the transfer of the instant shares, it would have been deemed that the Plaintiff did not withdraw the exercise of the sale option. Accordingly, the resolution of the instant sale option appears to have changed only the subject of the payment of the purchase price and the transferee of the instant shares by guaranteeing the entire amount of the purchase price claim under the instant first sale contract as is. The instant secondary sale contract simply is interpreted to have been concluded to specifically implement the resolution of the instant sale option rather than simply transferring the instant shares to KRB PEF at KRW 18,00,00. The Plaintiff’s assertion that the Plaintiff could not enjoy the same economic effect as exercising the sale option of the instant shares with respect to the gold industry according to the process of the conclusion of the instant second sale contract and the conclusion of the instant second sale contract, and thus, the Plaintiff should not be deemed to have received the sale option of the instant shares from 200 won per share, excluding the purchase price of the instant shares from 260 won per share, 200 won and 160 won per share.

2) Judgment on the plaintiff's conjunctive assertion

The “transfer value of stock certificates”, which is the basis for calculating securities transaction tax, is not a general market price that reflects the objective exchange value, but a real amount agreed upon at the time of the transaction, as seen earlier. Therefore, in the case of a simple exchange transaction, the actual transfer value cannot be confirmed. However, barring any special circumstance to deem that the transaction is a value exchange based on the monetary value of the object of exchange, and that it is not a provisional exchange, the transfer value can be confirmed if the transaction entails the procedure of settlement of the difference between one value among the objects of exchange, such as the appraisal value or market value, and the other value based on such objective monetary value. Therefore, in calculating the transaction tax base of the transferred stocks even where stocks issued by another company were delivered with cash with the price of stock transfer, the actual transfer value of the transferred stocks should be examined first, and the tax base should not be calculated by summing up the market value at the time of the acquisition of the stocks received in cash and the stocks received in exchange (see, e.g., Supreme Court Decisions 208Du5650, Jul. 28, 2018).

In this case, as seen earlier, the Plaintiff agreed to receive “the remaining amount of credit exceeding the amount to be recovered from the sale and purchase price of processed construction stocks out of the exercise price of the sale option” from the gold industry according to the resolution of the first sale contract and the resolution of the sale option. At the time of the transfer of the instant shares, the “sale option price” amounting to KRW 32,626 per share, which is the base price for sale according to the exercise of the instant sale option, and the “amount to be recovered from the sale and purchase price of treated construction stocks” amounting to KRW 18,00 per share, which is to be paid from KRF pursuant to the second sale and purchase contract of this case as seen earlier. Accordingly, the remaining amount of credit was determined as KRW 14,626 per share, which is the difference at the time of the transfer of the instant shares. Accordingly, the Plaintiff agreed to be paid the gold Industry as part of the price of the instant shares, which constitutes the tax base under the main sentence of Article 7(1)2(a) of the Securities Transaction Tax Act.

The Defendant asserts that the tax base of the instant shares should be calculated on the basis of the market price of the shares in the gold industry among the transfer price of the instant shares from the gold industry. However, the Plaintiff’s order to divide the said KRW 14,626 into principal and interest with respect to the said KRW 14,626 within the resolution of the instant sale option by dividing the transfer price of the instant shares into the said KRW 14,626 and to follow the debt adjustment scheme set forth in the gold industry’s management normalization plan for the gold industry is merely a determination of the method of payment by stipulating the amount to be paid from the gold industry out of the transfer price of the instant shares as the said KRW 14,626. According to the evidence evidence No. 9, the Plaintiff’s management normalization plan taken place as of March 25, 2010 on the premise that the Plaintiff had the right to receive KRW 14,626 per share of the instant shares with respect to the gold industry, and the remaining KRW 1564,179,26,27.

Ultimately, the tax base of securities transaction tax on the transfer of stocks of this case shall be calculated by multiplying the total of 18,000 won per share and the remaining credit amount by 14,626 won per share under the main sentence of Article 7(1)2(a) of the Securities Transaction Tax Act, i.e., the number of stocks owned by the Plaintiff at 32,626 won per share, which is the standard price for sale by the exercise of the right to choose the sale of this case. The disposition of this case was made by these methods.

Therefore, the plaintiff's above assertion on a different premise is without merit.

3. Conclusion

Therefore, the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jan Jin-hun (Presiding Judge)