KT Co., Ltd. (Law Firm Yang Hun-Ga, Attorney Shin Jong-sung, Counsel for defendant-appellant)

Head of Sungnam Tax Office

March 11, 2009

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of corporate tax of KRW 23,113,68,210 against the Plaintiff on August 5, 2005 by the Defendant shall be revoked.

1. Basic facts

A. On July 25, 200, the Plaintiff entered into a contract with the Malaysia-AF Ltd., AI-AIF Lt., and AI-AI-AI II Lt. (hereinafter referred to as “AI Lt.”), under which the Plaintiff would purchase shares 21,911,622 shares of SoriM.com Co., Ltd. (hereinafter referred to as “instant shares”) from Korea (hereinafter referred to as “the instant shares”), and the details of shares of the number of shares of the instant shares and the won, USD, promissory notes (including bills interest), and Stcom (hereinafter referred to as “SK”) paid by the Plaintiff by the transferor stipulated under the above contract are as follows.

AI-AIF Ltd. 6,82,481,641,96,450 25,128,139 100,236,647,279,279 187,279 187,985 AI-AIF II Lt. 7,076,3736,645,838,38625,835,913103,059,571,527193,280, 77,8284,4284,419,47,9639,297,97,947,947,97,947,97,941,639,639,297,294,294,616,294,297,294,294,216,297,294

B. On August 2, 2005, the Defendant: (a) instead of the actual transferor of the instant shares on August 2, 2005, not the AIG L.P.; (b) as investors of AIG-ian Inc. L.P; and (c) AIG-ian Inc. L.P.; and (d) an investment company of AIG-U.S. L.P. (hereinafter collectively referred to as “AIG mother fund”), the Plaintiff is obligated to withhold capital gains tax from the investors of the instant shares, who are residents of the countries that did not enter into a tax agreement with the Republic of Korea, as corporate tax; and (b) imposed corporate tax of KRW 23,949,00,50 for the business year of 200 (exchange rate is 1,112.4/4,000; and (c) the price of the instant shares is calculated as KRW 1390,00 per share (the exchange rate is calculated as KRW 390,000).

Details of payment in Korean currency 35,641,966,45,477,477,297,475,297,365,297,367,475,297,475,297,367,475,297,297,367,97,297,297,747,297,297,297,367,97,297,47,297,297,367,297,47,297,297,297,365,297,297,297,275,297,275,297,275,297,37,57,297,257,200,7314,714,757,207,537,2947,275,27,2947,2,207,3947,2

C. On November 2, 2005, the Plaintiff dissatisfied with the above disposition and filed a request for review with the Board of Audit and Inspection on November 2, 2005. On September 13, 2007, the Board of Audit and Inspection made a decision to the effect that 390,000 won per share of the shares of Scomcom Co., Ltd. shall be changed to 346,000 won, which is the closing price of the Stock Exchange, and the amount shall be corrected.

D. According to the above review and determination, the Defendant corrected the amount of 835,312,290 won among the amount of tax imposed by the original disposition (hereinafter “the instant disposition”), which was not corrected among the dispositions rendered on August 5, 2005.

[Reasons for Recognition] Each entry of Gap evidence Nos. 2 through 5, the purport of the whole pleadings

2. The plaintiff's assertion

In light of the following, the instant disposition should be revoked in an unlawful manner.

A. As an entity established by the laws of Malaysia for the purpose of investing in Korea, the parties to the instant stock transaction shall not be deemed the investors of AI mother fund, but shall be deemed the said entity, and there is no specific provision to deny the legal personality of the said entity. Therefore, with respect to the instant stock transaction concluded between the AIbu Corporation and the Plaintiff, only the instant stock transaction can be imposed only on Malaysia pursuant to Article 13(4) of the Korea-Malaysia Tax Convention (hereinafter “Tax Convention”), and it cannot be deemed that the Plaintiff is liable to withhold taxes.

B. Even if the transfer income of the instant shares is deemed to have been ultimately reverted to the investors of the AI mother fund, it is merely paid to the investors of the AI mother fund in the form of overseas dividends, etc. after the transfer income of the instant shares was reverted to the AIG parent fund corporation, and since it cannot be said that the Plaintiff paid direct income to the investors of the AI mother fund, the Plaintiff does not constitute the “foreign corporation.............. domestic source income in Korea is paid to the foreign corporation” under Article 98(1) of the Corporate Tax Act, and the transferor AI subsidiary corporation does not constitute the “person who pays.......... domestic source income in Korea to the foreign corporation” under Article 98(1) of the Corporate Tax Act, and paid the transferred transfer proceeds from the Plaintiff to the AI mother fund outside of Korea. Therefore, the AI subsidiary corporation is not obligated to withhold taxes

C. When the Plaintiff pays the transfer price of the instant shares to the AI Lbuan corporation, the Plaintiff was practically unable to withhold taxes because it was not entitled to demand data on the users of the said transfer price, shareholders of the AIG Lbuan corporation, and investors of the AIG Lbuan fund. In light of the fact that the Defendant did not impose penalty tax in imposing the instant disposition, it cannot be deemed that there was any special circumstance that the Plaintiff could not perform its duty to withhold taxes, and thus, the obligation to withhold taxes should be excluded.

D. The instant disposition is unlawful in light of the principle of trust and good faith and the principle of prohibition of retroactive taxation by a corporation located in Malaysia, which confirmed that the Defendant had no tax amount to be withheld, and established rules that are subject to the instant tax Convention (total of 46017-535). In the case of a partnership taxation under the U.S. law, it is against the established rules that determine whether to impose taxes pursuant to the provisions of the tax agreement entered into with a partner himself/herself, not a partner’s resident state, rather than a partner’s resident state (state 46107-471).

E. The investors of AIG mother funds constitute an invested institution engaged in financial business, and thus, the instant stock transfer income constitutes business income, not securities transfer income.

F. The Defendant calculated the transfer value of the instant shares by evaluating the value per share of the SKS stocks paid in addition to cash, etc. as KRW 346,000, but the transfer value of the instant shares is a simple exchange that does not entail the settlement procedure, and thus, the transfer value of the instant shares is not confirmed. As such, the transfer value of the instant shares ought to be calculated based on the standard market value of the instant shares as of the date of share swap, based on

2. Related statutes;

It is as shown in the attached Form.

3. Determination

A. As to the first argument

(1) Facts of recognition

(A) On July 31, 1998, AI-AIF L.P. (hereinafter referred to as the "AI-AIF L.P.), AIG-Assian Inc. L.P. (hereinafter referred to as the "AI-AIF II L.P.) located in Malaysia, and AIG-AOF L.P. (hereinafter referred to as the "AI-AOF L.P.) located in Malaysia, were each acquired shares of the corporation on August 18, 1998 (hereinafter referred to as the "stocks of the case").

(B) On August 18, 1998, the date of the completion of the instant stock acquisition contract, the AI Corporation has obtained approval from the Investment Committee of the AI mother fund. The instant stock acquisition contract includes the participation of the AI mother fund parties in addition to the AIbuan Corporation, and the director and representative of the AIbuan Corporation concurrently serves as the principal executive officers of the AI mother fund and the AIbuan Corporation located in Hong Kong where the decision-making in the Asian region is made in the Asian region of the AIG investment fund. The Hong Kongbuan Corporation provides that part of the members of the board of directors, the audit committee, and the executive committee of the Hanbucom Corporation shall be designated from the AI mother fund, and all of the contact items, such as notification, shall be sent to the AI mother fund, and a copy thereof shall also be sent to the AIIC company located in Hong Kong.

(C) According to the written application for foreign investment registration of the AIbuan Corporation, each representative is the Nonparty, the representative of the AIGIC in Hong Kong, and each contact point is all (the telephone number omitted), and the total amount of assets is 40 million won or more as of December 31, 1999, each of which consists of the instant stocks, but all of which consists of 40 million won or more as of December 31, 199, each of which consists of the instant stocks. The location is all the Malaysia, a trustee company called Trusco Lbuan Land. in the Malaysia, and there is no separate office and employee of the AIbuan Corporation, and three employees of the entrusted management company manage multiple company documents, including the AIGbuan Corporation, and act on behalf of all the reported business and contact.

[Recognizing the facts] The evidence Nos. 2-1, 2, Eul evidence Nos. 3, Eul evidence Nos. 4, Eul evidence Nos. 5-1, 2, Eul evidence Nos. 6-1 through 4, Eul evidence Nos. 7-1, 8, 9, Eul evidence Nos. 10-1 through 3, Eul evidence Nos. 11-4, Eul evidence Nos. 12-1 through 4, Eul evidence Nos. 12-1 through 12, and the purport of the whole pleadings

(2) Determination

The fundamental purpose of the Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion, such as the instant tax Convention, is to prevent international double taxation, thereby promoting exchanges between goods and services, capital and human resources, and at the same time preventing avoidance of taxes and tax evasion. In light of the purpose of the tax agreement and the principle of substantial taxation under Article 14 of the Framework Act on National Taxes, etc., the imposition of corporate tax on domestic source income of foreign corporations under Articles 98 and 93 of the Corporate Tax Act shall be subject to the tax agreement entered into with the country of residence of the person whose domestic source income

In this case, according to the health team, ① AI fund was established on July 31, 1998, immediately before acquiring the shares of this case, and the representative and officers of the AIbubuan corporation are concurrently executives of the AIbuan fund, and when preparing the acquisition contract of the shares of this case, the AIbuan fund was established for the acquisition of the shares of this case. In light of the fact that the AIbuan fund was established for the acquisition of the shares of this case, ② The assets of the AIbuan corporation are only composed of the shares of this case, and the number of employees belonging to it and its affairs, it seems that the above corporation did not conduct other independent business activities than the stock transaction of this case, ③ the acquisition of shares of this case and the acquisition of shares of this case between the owner and the owner of the investment company of this case and the owner of the investment company of this case, and the owner of the investment company of the AI and the owner of the investment company of this case can be seen to have been subject to taxation of the Korea AI fund for the purpose of acquisition of the shares of this case.

B. On the second argument

As seen earlier, inasmuch as the transferor of the sales contract of this case and the actual partner of the transfer price are deemed not an AI master fund, but an investor of the AI master fund, even if the payment of the transfer price of this case was made in the form of dividends to the AI master fund through the AIG subsidiary corporation, the transferor under the stock sales contract of this case, in light of the form of the stock sales contract of this case, the Plaintiff did not have a direct payment to the investors of the AI master fund. Thus, this constitutes a case where the Plaintiff paid the transfer price of this case to the investors of the AI master fund with no domestic place of business in Korea, and thus, the Plaintiff is liable to withhold taxes under Article 98(1) of the Corporate Tax Act. Since the Plaintiff did not have a permanent establishment in Korea, it does not exempt the Plaintiff from the above obligation.

C. On the third argument

As long as a person who pays domestic source income to a foreign corporation bears a withholding duty under the relevant Acts and subordinate statutes, such obligation cannot be exempted due to the existence of such circumstances as having de facto difficulty in withholding taxes, and the defendant did not impose additional tax in consideration of such circumstances. Thus, the plaintiff's assertion on this part is without merit.

D. As to the fourth argument

According to Gap evidence No. 1, 200, the defendant confirmed on July 7, 200 the foreign currency amount and withholding rate to the AIbuan Corporation as "0% of withholding rate and zero won of source tax amount" in relation to the stock transaction of this case, but it cannot be viewed as a confirmation that there is no tax amount even in the case of a formal company for tax avoidance as seen earlier, as it is based on the premise that the Plaintiff is the actual transferor of the stocks of this case, and it is difficult to view that the tax authority did not impose tax or did not impose tax even in the case of this case, on the sole ground that the Plaintiff established the tax payment certificate to the effect that there was no tax payment amount. The defendant prepared the tax payment certificate to the effect that the transfer income of the stocks of this case is subject to taxation at the expiration of five years, and thus, it does not violate the principle of trust protection or retroactive taxation.

E. As to the fifth argument

Article 93 of the Corporate Tax Act provides for "income from a business operated by a foreign corporation as prescribed by Presidential Decree" in subparagraph 5 as domestic source income. Article 10 provides that "income from the transfer of stocks or investment certificates issued by a domestic corporation or other securities issued by a domestic place of business of a domestic corporation or a foreign corporation, as prescribed by Presidential Decree," and Article 132 (1) 9 of the Enforcement Decree of the Corporate Tax Act provides that "income from the transfer of stocks or investment certificates issued by a domestic corporation or other securities issued by a domestic place of business of a domestic corporation," and Article 132 (1) 9 of the Enforcement Decree of the Corporate Tax Act provides that where a foreign corporation runs a business other than those under subparagraphs 1 through 8 in Korea and abroad as one of those prescribed by Presidential Decree, the income from the income from the relevant business shall be divided into a domestic place of business and a foreign place of business, and the separate independent business operator operates the relevant business and trades between them according to the transaction price based on the ordinary transaction conditions, and Article 132 (7) 2 of the Enforcement Decree refers to the relevant stocks or investment certificates.

However, as seen earlier, an institution established for the purpose of making investments in financial assets, etc. by investors of AIG mother fund with a branch office or place of business in Korea and conducting such financial investment business, or separate such business from domestic business and overseas business, and there is no evidence to deem that the instant stock transfer income constitutes business income under Article 93 subparag. 5 of the Corporate Tax Act. Thus, the instant stock transfer income does not constitute business income under Article 93 subparag. 10 of the Corporate Tax Act, but is not business income under Article 93 subparag. 5 of the Corporate Tax Act, but it constitutes business income under Article 93 subparag. 10 of the Corporate Tax Act and Article 132 subparag. 7 subparag. 2 of the Enforcement Decree of the Corporate Tax Act. Accordingly, the Plaintiff’s assertion on this part is rejected.

F. As to the fifth argument

Comprehensively taking account of the aforementioned evidence and the purport of the argument in the statement No. 15-1 and No. 15-2, the Plaintiff’s share transfer price is 40,000 won per share for the transferor who selected the conditions under which the Plaintiff would receive 30% of cash and 70% of the shares of this case from June 6, 200, and the shares of this case are 390,000 won per share (the closing price of the TS shares is 394,000 won). Thus, the share exchange rate of 1:9.75 on June 5, 200, the Plaintiff’s share transfer price is 30% per share for the Plaintiff’s share transfer price and 80% of the shares of this case. As such, the Plaintiff’s share transfer price and 30% of the shares of this case cannot be viewed as 00,000 won per share as 137,000 won per share, 305,7081 of the shares of this case.

In this regard, the plaintiff argued that if there is a formal company among investors of the AI fund, it is illegal to grasp only the investment stage of the AI fund's original investors (the upper-tier investors of the original investors) even though it is necessary to grasp the investment stage of the AI fund. However, according to the Eul evidence 13, the defendant did not claim that the above portion of the investment share transfer rate of the AI-AIF L.P. of August 1, 2005 and the AI-AI-AIF II L.P. of the investor of the AI-AIF II L.P. of 200 business year of audit report and partnership in July 30, 200, and the Plaintiff's taxation rate of the above shares transfer through the name of the investment partner and the name of the investment partner, which is the formal investor of the AI-AF LF LF LF LD., and therefore, it cannot be viewed that the above taxation rate of the investment share transfer rate of the company was only the ground for the taxation of the above shares transfer rate of the investment partner.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment-Related Acts and subordinate statutes omitted]

Judges lower-class (Presiding Judge)