The time of transfer under the Income Tax Act shall be when the transfer price is settled regardless of whether or not ownership transfer under the Securities Transaction Tax Act and the Commercial Act.

The time of transfer under the Income Tax Act is when the transfer price is settled regardless of ownership transfer under the Securities Transaction Tax Act and the Commercial Act, and it cannot be deemed that the transfer price was returned immediately after the payment of the purchase price.

Article 98 of the Income Tax Act: Time of Transfer or Acquisition

2017Guhap89919 Revocation of imposition of capital gains tax

○ ○

○ Head of tax office

October 25, 2018

November 29, 2018

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 1,030,501,890 (including additional tax) for the Plaintiff on November 1, 2016 shall be revoked.

1. Details of the disposition;

가. 인도네시아 현지 법인 XXXX(이하 'XX회사'라 한다)는 인도네시아에서 광업권자와 석탄채굴관리협약계약에 따른 조광권을 기초로 석탄자원을 채굴・판매하는 법인이다. 원고는 XX회사의 대표자 겸 지분 70%를 소유한 대주주로서, 2009. 12.경 주식회사 AA(이하 'AA'이라 한다)과 사이에 원고의 XX회사 지분 25%(이하 '이 사건 주식'이라 한다)를 62억 5,000만 원에 매도하기로 하는 지분양수도 계약(이하 '이 사건 양도계약'이라 한다)을 체결하였다.

B. On November 1, 2016, the Defendant decided and notified the Plaintiff of the transfer income tax of KRW 1,030,501,80 (including additional tax of KRW 479,401,890) on the ground that the Plaintiff transferred the instant shares and did not report the transfer income tax (hereinafter “instant disposition”).

C. The Plaintiff filed an appeal against the instant disposition, but the Tax Tribunal dismissed it on September 29, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 6, 8, 9, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The amount of shares to be transferred under the instant transfer contract is not determined as 25% or 55%, and since the conditions set forth in the instant transfer contract are not fulfilled, it cannot be deemed that the instant shares were transferred.

2) On December 28, 2009, the Plaintiff received KRW 6.25 billion of the transfer price of the instant shares on December 28, 2009, and did not yet receive the transfer price of KRW 4.5 billion by returning it to the representative director BB, etc. AA’s representative director. Since the transfer price of the instant shares was not yet settled, and there was no transfer of ownership for the instant shares, it cannot be deemed that the transfer date under the Income Tax Act has arrived.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) AA, as a software developer and seller, intended to purchase the instant shares from the Plaintiff while seeking a new business area of overseas resources development, due to low sales performance and sustained loss, and sought funds for acquiring the instant shares through capital increase with capital increase in which the bond company participated.

2) On November 19, 2009, AA decided to provide capital increase in the amount of 22 billion won through the resolution of the board of directors. On December 4, 2009, the Plaintiff entered into a contract with A (representative director BB at the time of representative director BB at the time) on acquisition of shares transfer of the instant shares in the amount of 6.25 billion won, and A issued and delivered to the Plaintiff corporate bonds equivalent to the above acquisition price on December 10, 2009. A drafted again as of December 28, 2009 a contract with the same content that changes the terms of payment under the above contract into cash payment (this case’s transfer contract), and the main content are as follows.

Article 1 (Purpose of Contract)

The purpose of this Agreement is to confirm the rights and obligations arising between the plaintiff and AA in acquiring the same share of the company, which the plaintiff holds 70% of the shares of XX companies that mine and sell coal resources based on the mining concessions under the YYYY (hereinafter referred to as "mining concession agreement") and the coal mining management cooperation agreement (hereinafter referred to as "mining concession agreement"), the mining right holder of 197 hectares of the mining area area of the Indonesia located in the Indonesia area.

Article 2 (Performance of this Agreement)

1. The Plaintiff shall transfer the following shares pursuant to this Agreement, and AA shall acquire the shares from the Plaintiff:

(1) Shares to be transferred: 25% of the total shares of the company;

(b) Purchase price: 6,250,000 won (6,250,000,000)

(c) Method of payment: Cash;

§ 3.(Prepayment and Establishment of Security)

In the event that coal production for the mine is not conducted within 120 days from the date of conclusion of the contract, the plaintiff shall transfer to AA 25% of the share in the contract and 30% of the shares of the plaintiff.

Article 8 (Conditions Precedent to Termination)

This Agreement shall be subject to the following conditions:

1. In connection with the conclusion and performance of this Agreement, the authorization and permission of the Indonesian Government, consent of third parties, etc. that the Company should obtain legally and contractually, was terminated.

2. By January 5, 2010, the Plaintiff shall submit a business plan including the expected sales size of the Company A (hereinafter referred to as “the main business plan”) to the Plaintiff, and thereafter, the Plaintiff shall submit to the AA relevant data that the expected sales size on the instant business plan meets at least twice in order to ensure the continuity of the business. AA may request a company to conduct an actual inspection to verify the scale of sales, and the Plaintiff shall actively cooperate in the AA’s actual inspection work.

3. Even if the enforcement of the New Indonesia Mining Act by December 31, 2009, the Plaintiff should ensure that a company does not have any legal impediment in performing its business activities under the mining concession agreement with the mining right holder of the coal mine in this case.

3) 원고는 2009. 12. 28. 이 사건 주식의 양도대금인 62억 5,000만 원 전액을 AA으로부터 자신의 계좌로 입금 받고 이전에 지급받은 회사채를 소각하였으며, 같은 날 □□은행 ■■지점에서 위 62억 5,000만 원 중 45억 원을 다시 수표로 인출한 다음, 그 중 22억 2,000만 원을 사채업자들에게 지급할 수수료 명목으로 CCC, BBB에게 지급하였고, 나머지 22억 8,000만 원은 BBB에게 지급하였다. 원고는 위 22억 2,000만 원에 대하여 CCC으로부터 영수증을, 22억 8,000만 원에 대하여 BBB으로부터 차용증을 각 건네받았다.

4) The audit report on the financial statements of AA from the business year 2009 to the business year 2012, which was disclosed to the electronic disclosure system of the Financial Supervisory Service, is publicly announced that A had acquired the instant shares in KRW 6.25 billion.

5) 이 사건 주식 양도 및 유상증자와 관련하여, 원고, BBB을 포함한 9인이 횡령 등 혐의로 고발되었고, 그중 이 사건 주식 양도대금과 관련된 아래와 같은 요지의 공소사실에 대하여 제1심은 2011. 8. 25. 제1항에 대하여 유죄, 제2항에 대하여 무죄를 선고하였으나[서울중앙지방법원 2010고합XXXX, XXXX(병합), XXXX(병합), 1711(병합)], 항소심은 2012. 1. 12. 아래와 같은 판단 근거1)등을 이유로 제1, 2항 모두 무죄를 선고하였고(서울고등법원 2011노XXXX), 위 판결은 2012. 7. 12. 상고기각으로 확정되었다(대법원 2012도XXXX). CCC은 이 법정에 증인으로 출석하여 위 형사사건의 제1심 법정에서 사실대로 진술하였다고 증언하면서 아래 판단 근거에서 언급되는 말과 같은 취지의 증언을 하였다.

○ Summary of facts charged

1. On December 28, 2009, Defendant BB accounted for the amount of KRW 6.25 billion from the Plaintiff to be paid to the Plaintiff. However, among the subscription money for new shares, the payment of KRW 6.25 billion from the amount of KRW 6.25 billion from the amount of KRW 6.2 billion from the Plaintiff to the Plaintiff is merely the role of an intermediary for the payment of KRW 4.5 billion from the amount of capital increase to the bond company in accordance with the plan for Defendant BB and CCC (i.e., the payment of KRW 2.25 billion from the amount of KRW 2.8 billion from the amount of capital increase to the bond company; and (ii) the payment of KRW 2.5 billion from the amount of KRW 6.2 billion from the date of payment to the Plaintiff (i.e., the amount of KRW 2.2 billion from the date of payment to the Plaintiff; and (iii) the actual amount of KRW 2.5 billion from the date of payment to the Plaintiff (i.e., the amount of KRW 2., KRW 3.2.2.2 million.

Nevertheless, on December 29, 2009, Defendant BB submitted to the Financial Services Commission a report on material facts with false description or representation of the material facts by submitting a report on the decision to acquire stocks and investment certificates to the effect that Defendant B paid to the Plaintiff KRW 6.25 billion in cash under the pretext of the purchase price of shares in XX companies.

2. 피고인 BBB은 2009. 12. 28. 서울 강남구 역삼동 소재 AA의 사무실에서 유상증자 계획에 따라 AA 계좌에 입금된 유상증자금 202억 원을 AA을 위해 업무상 보관 중, 피고인 GGG은 AA의 유상증자에 참여한 피고인 DDD 등 사채업자들을 위해 증자 수수료조로 증자금의 10%를 증자금 중에서 교부해달라고 피고인 CCC, BBB에게 요구하고, 이에 따라 피고인 BBB, CCC, EEE, FFF, GGG, DDD 사이에 순차로 이루어진 약정(증자에 참여한 사채업자들에게 증자 수수료조로 사채조달 증자금의 10%를 지급)에 의해, 피고인 BBB은 위 유상증자금 중 62억 5,000만 원을 피고인 원고의 XX회사 지분 25%의 매수대금조로 피고인 원고의 계좌로 입금시킨 후, 피고인 원고는 같은 날 □□은행 ■■지점에서 위와 같은 약정에 따라 22억 2,000만 원을 피고인 CCC에게 교부하고, 피고인 CCC은 같은 날 위 22억 2,000만 원 중 사채로 조달된 유상증자금 177억 원의 약 10%인 18억 원을 피고인 DDD 운영의 HH의 직원인 피고인 FFF에게 교부(나머지 4억 2,000만 원은 피고인 CCC 자신이 중간에서 임의로 가져가 사용함)하고, 피고인 FFF은 위 18억 원을 피고인 DDD에게 교부하였다.

Accordingly, Defendant CCC, BB, Plaintiff, EE, F, GG, and DD conspired in sequence, and embezzled a total of KRW 220 million out of the capital increase of AA.

○ Grounds for determination

1. For the following reasons, Defendant BB and the Plaintiff are merely 4 billion won and paid as part of the actual agreed price of KRW 6.25 billion under the transfer contract of this case, and it cannot be readily concluded that Defendant BB paid as part of the 6.25 billion, which was the purchase price under the transfer contract of this case by the Plaintiff, and it was actually a fund of KRW 2.22 billion, which was delivered to the bond company, and did not have been attributed to the Plaintiff. Moreover, as to the 2.28 billion won, which was paid as the supply cost, Defendant BB paid as the purchase price of KRW 2.28 billion, insofar as the Plaintiff received the loan from Defendant BB, since it was merely a loan of KRW 2.28 billion, which was paid as the purchase price from Defendant BB, since this part was merely a mere fact that Defendant BB paid the purchase price of KRW 6.25 million,000,000,000 from the material fact report submitted by the Prosecutor, and there is no evidence to acknowledge otherwise that Defendant BB paid it to the Plaintiff.

① The Plaintiff was assessed as approximately KRW 30.5 billion by the second accounting firm to transfer the shares of XX company to Defendant B, and offered them to Defendant B. Nevertheless, Defendant BB entered into a contract to acquire KRW 6.25 billion following the result of the evaluation that Defendant BB had a value of KRW 26.8 billion as a result of the evaluation of the second accounting firm, which is less than the value of KRW 26.5 billion. The amount of KRW 6.25 billion assessed by the J accounting firm is less than KRW 26.5 billion. Thus, if Defendant BB and the Plaintiff are understood to make a partial payment of the purchase price, it is difficult to obtain that Defendant BB did not need to receive a new value assessment, and that it was determined as the purchase price that was lower than the assessed value that was lower than the assessed value due to additional appraisal.

② Unlike KRW 2.28 billion in the name of the Plaintiff’s 4.5 billion in the purchase price paid to Defendant BB or CCC (the cost to be used for stabilizing the stock price for recovering investment funds by bond business entities), loan certificates were not prepared for bond business entities. Defendant CCC recognized the Plaintiff’s cCC’s 2.22 billion in the purchase price as to the portion of the fee at the time of the refund of the purchase price, but it stated to the effect that “the time was delayed by raising an objection to the method of collecting the loan amount of KRW 2.28 billion in the purchase price,” and according to the recording and CD submitted by Defendant BB and the fact that “the Plaintiff did not have to do so for the sake of stabilizing the stock price of KRW 2.2 billion in the purchase price,” the Plaintiff could not be deemed to have received some of the Plaintiff’s 4.2 billion in the purchase price from the Plaintiff’s 4.2 billion in the process of securing the Plaintiff’s 4.2 billion in the purchase price.

2. As seen earlier, Defendant BB and the Plaintiff are merely 4 billion won, and the amount of KRW 6.25 billion, which is the purchase price under the transfer contract of this case, was paid by the Plaintiff to the Plaintiff, and the fee of KRW 2.22 billion, which was paid by the Plaintiff to the bond company, cannot be readily concluded that the Plaintiff does not actually belong to the Plaintiff out of the said amount (in 4.5 billion, the Defendant’s payment of the purchase price, 2.28 billion, under the name of Defendant BB, the loan certificate of KRW 2.2 billion, which was written in the name of the bond company as to the 2.2 billion in the name of the loan for the 4.2 billion in the name of the loan for the 2.2 billion in the name of the bond company, was not written, and thus, it is difficult to conclude that the Plaintiff paid the purchase price to the Plaintiff with the fee of KRW 2.2 billion,200,000,000,000 from the loan company.

[Reasons for Recognition] The facts without dispute, Gap's 1 to 11, 13 evidence, Eul's 3 to 14 (including each number), the witness's testimony, and the purport of the whole pleadings

D. Determination

1) Determination on the first argument

As seen earlier, Articles 1 and 2(1) of the instant transfer contract clearly specify the shares to be transferred under Article 2(1) as 25% of the total shares of XX company. The content of Article 3 of the instant transfer contract asserted by the Plaintiff on the ground that the shares to be transferred are not yet finalized is merely a transfer of 30% of the Plaintiff’s shares, without any condition, if coal production is not conducted within 120 days from the date of the contract. Thus, this is merely an agreement to transfer the shares free of charge upon the formation of a specific condition, separate from the transfer of the shares of this case. Therefore, it is reasonable to deem that the subject matter of the instant transfer was specified as the shares of this case at the time of the conclusion of

In addition, as seen earlier, Article 8 of the transfer contract of this case provides for the conditions prior to the conclusion of the contract, but the content is merely that the plaintiff submits a business plan to A or cooperate with AA's request for due diligence, and it does not change the time of transfer of stocks of this case depending on whether the transfer of stocks of this case is performed or not, and there is no circumstance to see that there was a dispute over the establishment and confirmation of the transfer contract of this case since the above is a problem, and therefore, the transfer contract of this case is deemed to have been implemented effectively. The plaintiff's argument in this part is without merit.

2) Judgment on the second argument

A) The Plaintiff asserts to the effect that the time of transfer should be determined by taking into account the transfer of ownership under the Income Tax Act, taking into account whether to transfer shares under the Securities Transaction Tax Act and the Commercial Act. However, the income taxation requirement is determined depending on whether the independent taxation requirement under the tax law was met, and Article 88 of the former Income Tax Act (amended by Act No. 9763, Jun. 9, 2009; hereinafter the same) defines “transfer of assets as “transfer of assets at a cost” regardless of the registration or enrollment of the assets, such as sale, exchange, investment in kind in a corporation, etc. regardless of the registration or enrollment of the assets, and Article 98 of the former Income Tax Act provides that the time of transfer and the time of transfer shall be determined by the Presidential Decree in calculating his/her own gains on transfer. Article 162(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter the same) provides that “the date of transfer or transfer is registered before the date.

B) The following circumstances acknowledged by the above facts are as follows: ① the Plaintiff received 6.25 billion won, the entire transfer price under the transfer contract of this case, in its account; ② the Plaintiff returned corporate bonds equivalent to the purchase price received from AA around December 10, 2009, and paid 4.5 billion won to CCC and BB, etc. as check again; ③ during the process, the Plaintiff received receipts from CCC for KRW 2.22 billion; ④ in relation to the loan of KRW 2.28 billion, the Plaintiff received a loan from BB; ④ in relation to the loan of this case, it is reasonable to conclude that the Plaintiff did not have paid 2.2 billion won as the purchase price to the Plaintiff, or that the Plaintiff paid 2.5 billion won as the transfer price to B under the contract of this case, based on the evidence duly adopted and examined by this court; or that the Plaintiff paid 2.2.5 billion won as the transfer price to B, the Plaintiff’s transfer price of this case’s 2.5 billion won as the transfer price to B.

Therefore, deeming that the transfer price under the transfer contract of this case was liquidated on December 28, 2009, there is no error of law that erroneously determined the transfer time of the instant disposition by deeming the transfer price as the transfer time under the Income Tax Act on the stocks of this case.

3) Sub-decisions

Therefore, this case’s transfer contract, the subject matter of which is 25% of the shares of XX company, was concluded and confirmed valid, and its payment was made on December 28, 2009, and the disposition of this case, which was made by deducting 2.28 billion won paid as fees to the bondholder except for loans to BB out of 6.25 billion won of the transfer price of the instant shares, from the transfer price of the instant 6.25 billion won, is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

1) Only the basis for determining whether the Plaintiff received the instant transfer proceeds is indicated.