Seocho 2012west 3609 ( November 29, 2012)

Since a sales contract was revoked, the transferor shall not be deemed as income from the transfer of assets.

If the transferor cancels the sales contract due to the failure of the transferee to perform the obligation for payment of the remaining amount, etc., the sales contract is retroactively invalidated, and thus the transfer of assets, which is a taxation requirement of the transfer income tax, cannot be deemed to exist. Thus, even if the transferor acquires the right to claim compensation for damages due to the impossibility of restitution, it cannot be deemed as income arising from the transfer of assets.

Article 4 of the Income Tax Act shall be classified.

2013Guhap5164 revocation of disposition of imposing capital gains tax and securities transaction tax.

Park AA

O Head of tax office

September 26, 2014

October 28, 2014

1. The Defendant’s imposition of the capital gains tax of May 2, 2012 against the Plaintiff is revoked. The imposition of the capital gains tax of May 2, 2012 and the securities transaction tax of May 9, 2012 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. On July 9, 2008, a KOSDAQ-listed corporation BB (hereinafter “B”) issued bonds with warrant of OOOOO in order to raise funds for the new construction of the company, and the CC Savings Bank (hereinafter “CC Savings Bank”) acquired the total amount of the above bonds with warrant.

B. As seen below, the existing shareholders of BB held 3080,000 shares with the preemptive right of 28 million Won from theCC Savings Bank (OO) and held 3080,000 shares, the Plaintiff held 1820,000 shares, 1680,000 shares, 1680,000 shares, 280,0000 shares, 70,0000 shares, 840,000 shares, 84,000 shares, 9520 shares, respectively.

C. As examined below, Kim J agreed to take over BB’s preemptive right under the name of another person from the existing shareholders of BB, and NowonD, Plaintiff, JeonE, KimF, and JungG (hereinafter “DD, Plaintiff, JeonE, KimF, and JongG, a shareholder of BB, excluding Kim HH and No II from among the shareholders of B B, referred to as “the transferor of this case”), transferred BB’s preemptive right to BB’s preemptive right to KRW 10.8 million per share to Kim J on July 9, 2009 and August 2009 (hereinafter “the transfer contract between the transferor and Kim J”)

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 “Defendant” had transferred 1820,000 shares with the preemptive right to BB on July 8, 2009 to this KK and KimL (this K 700,000 shares, Kim L 1,120,000 shares) to OOO or transfer value OOO.

E. From September 30, 201 to December 31, 2011, the director of the Seoul Regional Tax Office: (a) determined that the transferor, including the Plaintiff, transferred the preemptive right to new stocks to the OO members per share (in the case of the Plaintiff, the transfer value OO members) and notified the Defendant of the same data; (b) accordingly, the Defendant notified the Plaintiff of the correction and notification of the KRW OO members of the capital gains tax for the year 2009, the securities transaction tax for the year 2009, and the securities transaction tax for the year 2009 (hereinafter collectively referred to as the “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.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 4, Eul evidence 1-1, 2, Eul evidence 2 and 3, 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 contract on the acquisition of preemptive rights with Kim J on the ground of fraud as well as the rescission of the contract on the grounds of nonperformance, the contract on the acquisition of preemptive rights of this case was retroactively invalidated. Therefore, 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) Acquisition of B preemptive rights by Nowon II, etc.

(A) Around July 9, 2008, BB issued OOO and 7% annual interest on the 6th bonds to theCC Savings Bank, and the preemptive right granted to the said bonds (hereinafter referred to as “instant preemptive right”) was indicated in the manner that the exercise ratio is 70% of the preemptive right, the exercise price is 0%, the exercise price is OOO and the exercise period is from July 9, 2009 to June 9, 201.

(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 held 28 million shares from CC Savings Bank to OOO (OOO). It held 3080,000 shares, the Plaintiff, 1820,000 shares, 1680,000 shares, 1680,000 shares, 280,000 shares, 70,000 shares, 1680,000 shares, 280,000 shares, 70,000 shares, 84,000 shares, 8,000 shares, 9520,000 shares, respectively.

(C) On July 9, 2009, the time when the preemptive right of this case was exercised, the previous shareholders of Dao and BB intended to sell part of the preemptive right of this case, realize profits by converting them into new shares, and hold them as shares. During that process, Kim J was introduced as a person who has considerable financial resources and is able to provide funding to BB’s projects through KimM.

(D) Around 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 28 million shares of preemptive rights held by shareholders of BB, excluding 9.52 million shares of preemptive rights held by No. II and then converting 1,8480,00 shares into new shares.

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

(가) 김JJ는 BB의 주주들로부터 강NN, 노OO, 김PP 등 차명주주(이하 '김JJ 측'이라 한다) 명의로 신주인수권을 양수하기로 하고 필요자금을 사채로 조달하였는데, 노II과 BB 부회장인 이QQ이 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 HH and Noh II, entered into the instant transfer agreement with Kim J on the acquisition of the preemptive rights as follows, and transferred the preemptive rights held by each party 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) equivalent to the total face value of the sixth bonds with warrants (8,680,000 shares) to the transferee and shall take over the same by the transferee.

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

Article 2 (Price for Transfer)

① The transferee shall pay the transferor the amount of the acquisition price of the preemptive right of this case (hereinafter referred to as “acquisition price”) to the transferee in accordance with the following schedule: (i) the preemptive right of the first acquisition of the preemptive right of 8,680,000 shares//O00 October 30, 2009: OOOO

transferor

The face value of face value

Number of Preemptives

RoD

OOOE

3,080,000 Shares

OOOE

1,820,000 Shares

E

OOOE

1,680,000 Shares

FF Kim

OOOE

1,400,000 Shares

[G]

OOOE

700,000 Shares

Total

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

H Kim H

OOOE

8,400,000 Shares

FF Kim

OOOE

700,000 Shares

Total

OOOE

9,100,000 Shares

(2) Unlike the acquisition price referred to in paragraph (1) of this Article, a gold OOO member under the letter of guarantee of joint and several loans for consumption (Attachment 1) dated July 9, 2009 shall pay the full amount of the principal and interest expenses raised by the transferee to the funds raised by the transferee under his/her responsibility in order to exercise the preemptive right acquired under this contract by the transferee.

Article 3 (Delivery 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.

(3) Exercise of preemptive rights and acquisition of share 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 to 9.24,00 shares out of 9.520,00 shares, and was converted to 924,00 shares in its own name on July 20, 2009.

(B) Conversion of the second preemptive right;

1) Around August 2009, KimJ paid OOF a transfer price to one of the instant transferor, and additionally received 1.4 million shares of preemptive rights (the remainder excluded from the first transfer price). On August 19, 2009, OOOOO was paid as the conversion price for the above preemptive rights to 1.4 million shares on the same day, and 1.4 million shares of new shares were converted under the name of KimJJ on the same day.

2) On August 19, 2009, NII also borrowed OOF from KimF to pay the converted price for the remaining preemptive rights of 280,000 shares owned by it, and was converted into 280,000 shares in its own name on August 19, 2009.

(C) Results of conversion of preemptive rights

According to the aforementioned 1 and 2 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 share certificates of 28 million shares, were respectively converted into the share certificates of 1,0080,000 shares in the name of KimJ and 9.52 million shares, which were converted into new shares, were entirely kept in his office.

(D) The acquisition price received by the transferor of this case

Ultimately, around July 9, 2009 and August 2009, the instant transferor transferred 10,0080 won of the instant preemptive right (i.e., KRW 8., KRW 8680,00 + KRW 1.4 million) to the KimJ, but Kim J did not pay only the purchase price for the instant transferor as the purchase price for the preemptive right (i.e., KRW 000 + KRW 1.4 million) to the instant transferor. Accordingly, the acquisition price for each of the instant transferor was paid by NAD, the Plaintiff, OOOO, NAE, OOOF, OOOOF, and POGOG.

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

(가) 이 사건 양도인들은 이QQ을 통해 2009. 8. 21. 김JJ와 사이에 이 사건 양수도계약에 대하여 다음과 같은 내용의 변경계약을 체결하였다.

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

This contract for the modification of the acquisition of preemptive rights (hereinafter referred to as this contract) is a contract to modify the terms and conditions of the contract(hereinafter referred to as the "transfer contract") entered into between transferor and transferee(DD, ParkA, JeonE, KimF, KimF, Kim H and Kim J) on July 9, 2009.

본 계약을 통하여 이전 계약상 양도인의 제반 권리 및 의무를 이QQ(이하 갑 )에게 위임하고 계약내용을 다음과 같이 변경하며, 양수인 김JJ(이하 을 )는 이에 동의한다.

C. Foods

1. One of the transferor under the previous contract, Kim H is excluded from the parties to the contract. Therefore, the right to acquire the transferred portion of Kim H’s preemptive right is excluded from the subject of the transfer.

2. 본 변경계약에 추가하여 을 이 담보로 보유 중인 BB 보통주 육백만(6,000,000)주를 김HH 명의 워런트 행사의 부족분으로 김JJ에게 제공하기로 한다. 다만 이 주식은 마지막에 처분하기로 하며, 처분 이전에 이종석은 타인 명의의 보통주 600만 주이거나 혹은 3항의 김HH 보유 워런트를 행사한 600만 주로 교환하기로 한다. 만약 김JJ 측이 매각을 하는 시점까지 600만 주가 교환되지 않을 경우에는 김JJ 보유 노II 명의 600만 주를 매각하여도 좋다. 이를 위하여 김JJ 측은 600만 주에 대한 매각권리대금으로 OOOO억(OOOO) 원을 이QQ에게 지급한다.

The terms and conditions of the payment shall be as follows:

- Down payment: GeumOOOO won on August 21, 2009

- Balance: GeumOOO on September 18, 2009

3. As to the preemptive right of 8,400,000 shares of Kim H-H, Party A would not exercise and sell preemptive rights except 6 million shares for the exchange referred to in paragraph 2 until March 1, 2010, and would not sell 6 million shares in the name of Nowon II exchanged after the event.

4. As of July 9, 2009, the transfer of preemptive rights to BB common shares (3,240,000 shares) that were offered as security for the performance of the contract would be transferred to BB common shares (3,240,000 shares) at the time of breach of the contract set forth in paragraph 3 above.

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 from the market situation in accordance with the good faith and sincerity, which shall be the priority of payment from the contingent remuneration of KimM.

(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 relevant company: BB;

2. Quantity of stocks: 6 million shares;

3. In accordance with the above-mentioned contract on August 21, 200, the Union and II shall offer 6 million Won as security and shall pay OOOJ for that shortage. However, if the last shortage is not attributable to Gap's responsibility, it shall dispose of the above shares, and in this case the above OOJ shall substitute for the purchase price.

(5) Payment of the purchase price by Kim J

노II과 이QQ은 위 8. 21.자 신주인수권양수도 변경계약 및 추가계약에 따라 김JJ부터 2009. 8. 21. OOOO원, 2009. 9. 18. OOOO원 등 합계 OOOO원을 받고, 2009. 9. 18. "상기 금액은 신주인수권 양수도 계약(2009년 7월 09일) 및 신주인수권 양수도 변경 및 매매계약서('09. 08. 21.자)와 상기 계약서에 대한 추가계약서('09. 08. 21.자)에 근거한 대금으로 정히 영수함"이라는 내용이 담긴 영수증을 작성하여 김JJ에게 주었다.

(6) Disposition of shares by Kim J

(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 received a loan from the ICR from the ICR, and offered 6 million Won out of 9.52 million Won of the new shares in the name of Trade II held by ICR as security. Only the ICJ 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 the remaining new shares in the name of Noh II, which were kept on and around December 16, 2009 to Noh II.

(7) The stock price of BB stock

BB’s share price entered on January 9, 2009, OOO on July 9, 2009, and OOOO on August 21, 2009, recorded on October 26, 2009, and thereafter recorded OOOO on October 30, 2009, and thereafter recorded on November 30, 2009, OOOO on November 30, 2009, OOOOO on November 20, 209, OOOOO on November 27, 2009, and OOOO on November 16, 2009, and OO again recorded on December 16, 2009.

(8) Progress of the relevant lawsuit

(A) on August 12, 201, Gu 300 KimJ has been held by the Seoul Central District Court of Seoul on August 12, 201, for the purpose of fulfilling the obligation to transfer 6 million shares of BB shares in the name of the shareholders of BB to Kim J or in the name of another person, and at around November 20, 2009, it received 6 billion shares from RR as collateral and embezzled 6 million shares in the above name of the above victim to RR as collateral and embezzled 6 million shares of BB shares in the above victim's name as collateral. The Kim J appealed was sentenced to imprisonment for a four-year period, but all of the appeals were dismissed by Kim J, Kim J, and Kim J appealed appealed appealed appealed.

(B) On May 31, 2012, NoD, one of the transferors of the instant case, filed a lawsuit against Kim J seeking payment of the purchase price of preemptive rights, OOOO, and damages for delay thereof, and won the judgment of the said court. The said judgment became final and conclusive as it is.

(C) On the other hand, even if the GimJ was transferred the preemptive right from the transferor in this case, it was prosecuted as charged that the transferor in this case's deceptions the transferor in order to pay the acquisition price of the preemptive right in accordance with the contract, and acquired 10,000,000 won of the market price of the BB preemptive right equivalent to the transfer price of the preemptive right by deceiving the transferor in this case, but it cannot be readily concluded that the Seoul Western District Court concluded the acquisition contract of this case under the intention to acquire the preemptive right in this case without the intention or ability to pay the acquisition price from the beginning of the Kim JJ, on January 16, 2014, and the prosecutor appealed, but the appeal was dismissed, and the judgment of innocence became final and conclusive as it is.

(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) In addition, on September 2, 2014, the transferor, including the plaintiff, expressed his/her intention of refusal by asserting that he/she had not paid the transfer price of preemptive rights to the transferor of this case to the KimJ on the basis of content certification, and that he/she had paid the transfer price of preemptive rights to the transferor of this case in the related litigation. If the refusal of performance is recognized, the transfer contract of this case shall be cancelled without a separate performance notice, 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 JJ did not pay the transfer price to the transferor of this case by the remainder of September 10, 2014, which is the period stipulated in the above content certification.

[Ground of recognition] Facts without dispute, Gap's evidence Nos. 6, 7, 8, 9, 10, 11, Eul's evidence Nos. 4, 5, 6, 7, 8, 9 (including branch numbers, if any), the purport of the whole pleadings

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 a taxable object of capital gains tax (see, e.g., Supreme Court en banc Decision 2010Du23644, Jul. 21, 201). Therefore, even if the transferor cancels the sales contract or canceled the conditions of transfer due to non-performance of the obligation for compensation for losses arising from the transfer of an asset, the transferor’s income cannot be deemed as retroactively null and void, and thus, the transferor cannot be deemed as the transferor’s 3198.

In light of the above legal principles, although the transferor including the plaintiff et al. transferred the right to new stocks to KimJ on July 9, 2009 and August 2009, the plaintiff et al. transferred the right to new stocks to KimJ on a total amount of KRW 100,000 per share of KRW 100,000,000, the plaintiff et al. did not receive KRW 100,000,000 from KimJ. The transferor et al., including the plaintiff et al., notified KimJ to pay the transfer price within 7 days from the date of arrival of the contents of the contract. The plaintiff et al. did not lawfully cancel the contract's transfer of the right to new stocks on September 2, 2014, because the transferor et al. did not legally cancel the contract's transfer of the right to new stocks after the expiration of the above period, the plaintiff et al., the plaintiff et al.'s transfer of the right to new stocks.

Therefore, the disposition of this case, based on the premise that the transfer of the preemptive right of this case caused income to the Plaintiff, is unlawful.

3. Conclusion

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