Suwon District Court 2010Guhap13440 ( October 19, 2011)

National Tax Service Review and Transfer 2010-0100 (24 June 2010)

It constitutes a stock transfer and cannot be seen as a whole phase of an all-inclusive stock exchange transaction.

Since the Plaintiff voluntarily reported securities transaction tax and transfer income tax following the transfer of shares, and agreed to receive capital reduction shares of a non-party company in return for the transfer of shares, it is reasonable to view that the Plaintiff transferred shares and received capital transfer proceeds from the transfer of shares, and it cannot be deemed that it was merely a whole phase

2011Nu9203 Revocation of disposition of imposing capital gains tax

XX

O Head of tax office

Suwon District Court Decision 2010Guhap13440 Decided January 19, 201

July 7, 2011

September 1, 2011

1. The plaintiff's appeal is dismissed.

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

The decision of the first instance court is revoked. The defendant's refusal to correct the transfer income tax for the portion belonging to the plaintiff on December 24, 2009 against the plaintiff on December 24, 2009 is revoked (" December 23, 2009" seems to be a clerical error in the statement of the amendment of the purport of the claim).

1. Details of the disposition;

A. On May 20, 2006, the Plaintiff acquired 40,000 shares (e.g., face value: 5,000 won; hereinafter referred to as “instant shares”) of 8,000 shares (i.e., 8,000 shares) (i., e., 5,000 won per x 1 share) (i., 5,000 won) from 0,176,000 shares (i.e., : 8,000 shares) which are non-listed small and medium enterprises, and (ii) reported to the Defendant on August 12, 2008, the Plaintiff made a revised request for the transfer of shares at 10,176,00 shares (i.e., 76, 272 won per 1,000 shares). The Plaintiff made a revised report to the Defendant on the transfer of shares at 05,000 shares (hereinafter referred to as “O’s shares”).

C. On December 24, 2009, the Defendant rejected the Plaintiff’s request for correction with the following purport.

“The receipt of shares of OE acquired at the time of the transfer of the instant shares on August 14, 2008 and the delisting of the shares of OE during that period shall be notified to the effect that no reason exists for ear’s request for correction because the shares of OE are not superior to those of the transferred shares.”

D. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on March 25, 2010, but it was so doing.

was ruled dismissed.

E. Meanwhile, the details of transfer by shareholder in XX are as follows.

(The following details of transfer are omitted)

F. The details of capital increase with consideration of the OE are as follows.

(The following details of capital increase consideration are omitted)

[Ground of recognition] Facts without dispute, Eul evidence Nos. 1, Eul evidence Nos. 2-1, 2, Eul evidence Nos. 4, Eul evidence Nos. 5 and 6-1, 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Main argument

(가) OO에스는 상장기준을 충족하지 못하여 상장폐지 위기에 놓이자 이를 모면하기 위하여 2008. 7. 2. 증자 후 주식을 20:1의 비율로 감자하여 재무구조를 개선하기로 계획하였는데, 원고는 2008. 8. 12. OO에스에게 이 사건 주식 8,000주(1주당 76,272원)를 대금 610,176,000원으로 정하여 양도하고, 2008. 8. 28. OO에스의 유상 증자에 참여하여 OO에스의 주식 1,220,349주(≒ 610,174,500원 ~ 1주당 500원)를 배정받았으나, OO에스가 2008. 10. 27. 재무구조를 개선할 목적으로 20:1의 비율로 주식갑자를 결정함에 따라 원고가 증자 참여로 실제 배정받은 주식은 61,018주(이하 '이 사건 취득주식'이라 한다)로서 그 가액은 30,509,000원{= 1주당 500원 x 61,018주 (≒ 1,220,349주 ~ 20}에 불과하다. 결국 이 사건 주식양도계약과 이 사건 취득주식 배정은 원고와 OO에스 사이에 이 사건 주식 8,000주를 OO에스의 주식 61,018 주와 교환하는 상법 제360조의2 소정의 주식의 포괄적 교환거래를 위한 전단계에 불과하고 그 교환가액은 30,509,000원이라고 할 것이므로, 원고는 이 사건 주식양도로 인하여 9,491,000원(= 취득가액 40,000,000원 - 양도가액 30,509,000원)의 양도차손을 입었을 뿐임에도, 피고가 이 사건 주식 양도계약을 독립된 거래로 보아 원고가 양도차익을 얻었음을 전제로 원고의 위 경정청구를 거부한 것은 위법하다.

(B) According to Article 114(7) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) and Article 176-2(2) and (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter the same), where the transfer value or acquisition value is based on the actual transaction value and where it is impossible to recognize or confirm the actual transaction value at the time of transfer or acquisition of the pertinent asset due to account books or other documentary evidence due to the reasons prescribed by the Presidential Decree, the transfer value or acquisition value shall be determined or corrected by estimating the transaction value as prescribed by the Presidential Decree. However, since the transfer value under the stock transfer contract of this case is based on the estimation of the net asset value of XX 1.3 billion won, x. 17,230 won, the transfer value shall be determined or corrected by means of the investigation.

(2) Preliminary assertion

C. Until August 14, 2008, the Plaintiff did not pay the transfer price under the instant transfer contract to the Plaintiff. Accordingly, the Plaintiff filed a lawsuit to the effect that the instant contract was rescinded due to the Plaintiff’s nonperformance of obligation, and that the Plaintiff confirmed that the shareholder’s right of the instant shares was the Plaintiff. In the process of the lawsuit, the Plaintiff did not raise an objection to the decision of recommending settlement that “the instant court confirms that the Plaintiff was the shareholder’s right of the instant shares.” As such, the instant share transfer contract was rescinded by agreement in accordance with the Plaintiff’s expression of intent between the Plaintiff and theOE, and thus, it cannot be said that there was the transfer of assets, which are the taxation requirement of the transfer income tax.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) As to the primary argument

(A) Facts of recognition

(5) Comprehensively taking account of the overall purport of arguments stated in Gap 2, 7, 8, 3, 8, 10, and 11: (1) shareholders including the plaintiff at the time of the transfer of the shares (hereinafter referred to as "the plaintiff, etc.") enter into a contract for the transfer of 00,66 shares to 00,000 won (including 610,176,000 won per share) that were owned by 00,000 won, 20,0000 won under the above 80,000 won under the name of 0.0, 208, 300,000 won were transferred to 0,000 won under the above 20,000 won were transferred to 0,000 won under the name of 10,000 won under the above 20,000 won were transferred to 20,000 won under the name of 20,000 won under the above 80,08,08,0000.

28.OS’s capital increase (value: 500 won per share) included in the third party’s allocation method, and registered as a shareholder after allocating OS’s 1,220,349 shares (12,00,000 shares for the shares allocated to the Plaintiff, etc.). On October 17, 2008, the above shares were deposited with the Korea Securities Depository for one year; 7 On October 27, 2008, the Plaintiff, etc. acquired on October 27, 2008, 110,128,458 shares for OS’s capital increase (5,506,42 shares after capital increase) acquired on a third party allocation method; 8. The Plaintiff’s voluntary report related to the transfer of shares may be acknowledged as having been made without compensation at the ratio of 201 shares (5,500,422 shares after capital increase; 8.05,50,500 won following the following day of the instant case’s capital increase.

(B) Whether the transfer of the instant shares is merely a whole phase of all-inclusive share swap transactions

According to the above facts, the date of withdrawal of loans under the name of HongA’s lending account, deposit date and each transaction amount are identical or similar to the Plaintiff’s OE’s payment date, the payment date and the subscription price for new shares or the subscription price for new shares, and the Plaintiff was registered as a shareholder after the payment date of the subscription for new shares. Since the Plaintiff voluntarily reported securities transaction tax and the transfer income tax on the transfer of the instant shares, it is reasonable to deem that the Plaintiff, an agent of the instant share transfer contract, received loans from △△ integrated Financial Co., Ltd. for the purpose of raising the subscription price for new shares, and thus, it is reasonable to deem that the Plaintiff transferred the funds to ○○ Co., Ltd. for the loan from △△ integrated Financial Co., Ltd. on the following day to redeem the above funds. Accordingly, it is reasonable to deem that the Plaintiff received the funds from OE to 14 August 14, 2008 under the premise that the Plaintiff received the funds from 0OE’s transfer of the instant shares.

(C) Whether the transfer value of the instant case should be estimated and corrected

According to Article 96 (1) of the former Income Tax Act, the transfer value of assets shall be the actual transaction value between the transferor and the transferee at the time of transfer. In this case, the actual transaction value is confirmed by sales contract, receipts, and documentary evidence. In a case where it is impossible to recognize or confirm the actual transaction value of the assets concerned by books or other documentary evidence pursuant to Article 176-2 of the former Enforcement Decree of the Income Tax Act, the transfer value or acquisition value may be determined by means of transaction example, appraisal value, etc. pursuant to Article 114 (7) of the former Income Tax Act. However, it is difficult to conclude that the transfer value of the assets in this case can not be acknowledged or confirmed by only the above facts and evidence No. 5-1, No. 4, and No. 6, and each statement of No. 13-1, No. 2, and No. 3, the above fact that the parties to the stock transfer contract in this case agreed on the transfer price of the stocks in this case and the above fact that the shares were transferred to the Plaintiff and the shares in this case No. 200 60.

(2) As to the conjunctive assertion

According to the evidence No. 3 and No. 4-1 and No. 2 of the same year, on August 18, 2010, the plaintiff filed a settlement recommendation with the purport that "the shareholder's rights of the instant shares are confirmed to the plaintiff on the ground that the Plaintiff's claim was cancelled due to the non-performance of OS's shares transfer contract (SS)." The above court decided to recommend a settlement that "the shareholder's rights of the instant shares are confirmed to the plaintiff" on November 9, 2010, and although OS did not file an objection against the above decision, it is recognized that the Plaintiff and OS et al. met all their obligations under the stock transfer contract, including the payment of stock transfer price, and there is no evidence to acknowledge that the Plaintiff did not pay the stock transfer price to the Plaintiff from 208OO to 208.4 of the instant case on the ground that the Plaintiff did not have any other reason to acknowledge that the Plaintiff paid the stock transfer price to the Plaintiff.

3. Conclusion

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