early 2014west0304

The case holding that it constitutes a security for transfer, other than payment in kind, on the ground that there is no content such as the termination of claims and obligations under a golf membership transfer agreement.

The judgment that it constitutes a security for transfer on the ground that a golf membership agreement prepared by changing the entry of a golf membership into a change of entry, the fact that the Plaintiff is to bear the acquisition tax on golf membership, the fact that there is no content that claims and obligations are terminated by the entry into a change of entry, the fact that the market price of golf membership reaches three times the principal amount of obligations and goes against the transaction practices and the empirical rules, and

Article 15 (Scope of Gross Income)

Article 70 (Business Year of Interest Income, etc.)

2015Guhap72726 Revocation of Disposition of Imposing corporate tax, etc.

○○ Corporation, Inc.

ㅇㅇ세무서장

March 18, 2016

April 8, 2016

1. The Defendant’s imposition of KRW 2,00,000,000 and penalty tax of KRW 900,000 for the business year 2012 against the Plaintiff on September 2, 2013 shall be 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. The Plaintiff is a corporation established on July 1, 2003 for the purpose of manufacturing, selling, etc. software.

B. On July 1, 2010, the Plaintiff entered into an agreement to lend KRW 6 billion to a corporation Eul (hereinafter referred to as "BO corporation") (hereinafter referred to as "the interest rate of 12% per annum, and October 31, 2010) and an agreement to additionally lend KRW 1 billion to the ○ corporation on September 1, 2010 (the interest rate of 12% per annum, and October 31, 2010 on the maturity date) with each of the above agreements to lend KRW 1 billion to the ○ corporation (hereinafter referred to as "BO corporation"), and the ○ corporation provided the Plaintiff with 200 GGCC golf membership (hereinafter referred to as "the instant golf membership").

C. On March 1, 2011, the Plaintiff, who was not paid the principal and interest from the ○○ Corporation, prepared a written consent for the transfer and disposal of collateral with the Plaintiff’s creditor and Byung ○ Corporation Co., Ltd. (hereinafter “Sick ○ Corporation”) as well as the following contents:

The plaintiff agrees to transfer or dispose of all or part of the rights and obligations of the security to a third party by virtue of the instant golf membership transfer contract between the plaintiff and Eul corporation. The plaintiff shall recognize the transfer or disposal of the above security, and shall cooperate as necessary for the transfer, disposal, effective and lawful execution.

D. On April 1, 2012, the Plaintiff drafted a written agreement with ○○ Corporation as follows:

As of the date of this contract, “B” corporation, as of July 1, 2010 and September 1, 2010, did not pay to the Plaintiff totaling KRW 7 billion and interest of the principal borrowed on July 1, 2010 and September 1, 2010. The Plaintiff provided the instant golf membership as security to the Plaintiff. The Plaintiff wishes to transfer the instant golf membership under the name of the Plaintiff, which was provided as security by the Plaintiff as part of the collection of the claim by

Article 1 (Matters Agreed upon)

① By October 1, 2013, ○○○ Corporation shall have the Plaintiff repay all outstanding principal and interest accrued therefrom (hereinafter referred to as “payment deadline”) to the Plaintiff.

② The Plaintiff shall transfer the instant golf membership in the name of the Plaintiff, which is being provided as security to ○○ corporation, to the Plaintiff, and the full amount of taxes imposed on the transfer of title shall be borne by the ○ corporation. However, in consideration of the financial situation of ○ corporation as of the date of this contract, the Plaintiff shall pay acquisition tax related to the transfer of membership in advance, and the acquisition tax that the Plaintiff paid in advance shall be paid

③ The Plaintiff grants the right to receive the call option (hereinafter referred to as “ call option”) to the membership for which the transfer of ownership is completed with the Plaintiff’s transfer of ownership to the ○○ Corporation. The period for exercising the call option is until October 1, 2013, and the right to receive the call option is extinguished upon the lapse of such period.

(4) Eul corporation and GG shall agree to provide collateral in any form, such as the creation of collateral security, to a third party of the Plaintiff’s transfer of membership right, and agree that the offered membership right becomes a transaction by the Plaintiff or a third party who is provided with collateral. In the event of trading, the purchased membership right shall be transferred in the name of the trading party immediately.

⑤ In relation to the above paragraph (3), when the Plaintiff provides security to a third party for membership, the Plaintiff shall ensure that the right to call options, which the Plaintiff acquired, can be succeeded as it is, if it provides security to the third party.

6. The corporation Eul shall ensure that the loan can be repaid from time to time within the due date, and it shall be deemed that the loan was used at the time of the final repayment, and the plaintiff shall return the membership registered in the name of the plaintiff to Eul corporation. In such cases, the plaintiff shall cooperate in all documents and procedures so that the change of ownership can be renewed in the name of Eul corporation.

7. All taxes generated in relation to the above 6.3 shall be borne by the corporation Eul.

E. On June 1, 2012, the Plaintiff drafted a written agreement on debt readjustment and enforcement with C○ corporations with the following content in order to reflect the above agreement with B○ corporations.

As of the date of conclusion of this Agreement, the plaintiff bears the total amount of KRW 20 billion on the basis of principal to Byung corporation, and the Byung corporation as a security for the above obligation is keeping the golf membership in this case after the plaintiff obtained a transfer of entry from Byung corporation.

-beaute-

Article 5 (Claim for Sale)

(1) Co., Ltd. grants the right to claim sale of the following conditions to golf membership of this case offered by the Plaintiff.

a) The subject of the claim for sale: Memberships remaining after the corporation disposes of in accordance with Article 3 among golf memberships in this case

b) Period for exercising the right to claim sale: the time when the repayment of loans under this Agreement is made in full, and the right to claim sale automatically terminates at the expiration of November 30, 2013.

(c) The exercise amount of the claim for sale: The full amount of the obligations remaining early repaid pursuant to Article 2 or appropriated for repayment pursuant to Article 3 until the date of the exercise;

(2) D&O corporation may arbitrarily dispose of golf membership of this case, notwithstanding this option, at its discretion, as provided in Article 3, and the option ceases to exist upon the expiration of the period for exercising the right to claim sale.

(f) On March 1, 2013, the regional tax office conducted a tax investigation with respect to the Plaintiff on March 1, 2013, on the grounds that the Plaintiff was suspected of evading interest income, etc. while engaging in bond business without registering as credit business.

As a result of the above tax investigation, on August 1, 2013, the ○ Regional Tax Office accused the Plaintiff and the Plaintiff’s representative director ○○○ on the act of evading corporate tax from 2010 to 2012, including the Plaintiff’s act of evading corporate tax of KRW 2,00,000,000 and the contract on lending and lending money. Moreover, the ○○ Regional Tax Office: (a) deemed that the Plaintiff was actually transferred the ownership of the instant golf membership; (b) deemed that the Plaintiff was in fact transferred the ownership of the instant golf membership, the difference between the Plaintiff’s market price of golf membership amount of KRW 20 billion and the Plaintiff’s loan amount of KRW 8 billion on the ○○ Corporation was included in gross income; and (c) notified the Defendant of taxation data that included a person who was recognized as a representative’s provisional payment in gross income. Accordingly, on September 2, 2013, the Defendant received a decision to dismiss the Plaintiff’s appeal on 200,000 won.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1 to 3, argument

The purport of the whole

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff’s transfer of title to golf membership of this case was unlawful in the instant disposition that deemed that the instant golf membership was acquired by accord and satisfaction, although the Plaintiff’s acquisition of security by means of security transfer cannot be deemed as having been acquired by means of payment in kind.

B. Determination

1) In a case where an agreement is made to transfer the ownership of an immovable property owned by an obligor to a creditor in relation to a debt, the issue of whether the agreement was made as a substitute for the repayment of the previous debt, or whether the agreement was made to transfer the ownership of the real property to a creditor in lieu of the payment of the previous debt, or to make a subsequent reservation and transfer of the liquidation procedure to secure the previous debt at the time of the agreement is an issue of interpretation of the parties’ intent at the time of the agreement. In addition, in a case where there is no clear proof as to this issue, it shall be determined whether the agreement is an object of security (see Supreme Court Decision 2012Da11648, Jan. 16, 2013). In addition, if an agreement was reached between the parties to transfer the property for the purpose of collateral and to pay the principal and interest within a certain period of time, and if the repayment was not made within the period of time, it shall be interpreted that the parties have to receive the principal and interest by means of the exercise of the security right.

2) In light of the facts acknowledged as above, it is reasonable to view that the agreement entered into between the plaintiff and Eul corporation with respect to golf membership of this case is a transfer for security in full view of the following circumstances revealed in light of the above facts.

① If an agreement entered into between the Plaintiff and ○○ corporations fully transferred the instant golf membership to the Plaintiff due to payment in substitutes, acquisition tax therefrom would naturally be borne by the Plaintiff, but according to Article 1(2) of the Agreement concluded between the Plaintiff and ○ corporations on April 1, 2012, the Plaintiff’s transfer of title to golf membership would be borne by the ○○ corporations.

② Since a contract for transfer for security is expected to be settled later, it is not necessary to state that the obligation is extinguished by the contract or that the obligation is terminated by means of other benefits in lieu of the original obligation. On the other hand, payment in substitutes must state that the obligation is extinguished by the original obligation and the obligation is extinguished by payment in substitutes. In addition, if a part of the obligation is extinguished, the amount of the extinguished obligation should also be stated. The first agreement entered into between the Plaintiff and the ○○ Corporation with respect to golf membership of this case is not submitted to this court, and there is no indication in the agreement dated April 1, 2012.

③ The Plaintiff’s claim against the instant golf membership was KRW 7 billion and interest accrued therefrom at the time of the transfer of entry into a title to the instant golf membership. On the other hand, the instant golf membership was worth approximately KRW 20 billion, and the instant golf membership was transferred to the Plaintiff by approximately KRW 3 times the principal of the relevant obligation in lieu of the repayment of the Plaintiff’s obligation to the Plaintiff, barring any special circumstance, it is difficult to understand that the instant golf membership was transferred to the Plaintiff in light of transaction practices and empirical rules, barring special circumstances.

④ According to Articles 1(3), 5, and 1(6) of the Agreement concluded between the Plaintiff and ○○ Corporation on April 1, 2012, which entered into between the Plaintiff and ○○ Corporation, the Plaintiff stated that the instant golf membership may be repaid with the borrowed amount and regress down the instant golf membership. Such content also supports that the agreement entered into between the Plaintiff and ○ Corporation on the instant golf membership is a transfer for security.

3. Conclusion

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