Seocho 2014west 2867 (2015.03.04)

The meaning of the transfer value of share as the basis for calculating the securities transaction tax

The transfer value of share certificates includes all the agreed terms as consideration for the transfer of share certificates. In determining the transfer value, the determination shall be made by taking into account the motive and background of the agreement on consideration for the transfer of share certificates, the relationship between the parties involved in the agreement and their genuine intent, etc.

Article 7 of the Securities Transaction Tax Act

2015Guhap64268 Revocation of Disposition Rejecting Securities Transaction Tax Correction

AAAAA Limited Liability Company

○○ Head of tax office

December 18, 2015

January 29, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant’s securities transaction tax of 00,000,000 won per quarter of March 14, 2011 against Plaintiff on March 14, 2014

The disposition of refusal to correct reduction shall be revoked.

1. Details of the disposition;

(a) Acquisition of shares in BBB Co., Ltd and the PlaintiffCC;

1) At around 2006, 2006, 2B made an agreement with investors including the Plaintiff (hereinafter referred to as 'financial investors') to acquire the shares of CC (hereinafter referred to as 'CC') with BB corporation (hereinafter referred to as 'BB') and ○○○○ Group Co., Ltd. (hereinafter referred to as 'CC'), and BB entered into a contract with financial investors for acquiring the shares of CC (hereinafter referred to as 'CC') on November 15, 2006.

2) On December 15, 2006, the ○○○○ consortium acquired 00,000 shares ofCC (which constitute approximately 00% of the total number of issued shares) from the Joint Sales Council composed of nine institutions, including ○○○○○○○○○○○○○, etc. on KRW 00,000 per share.

B. Plaintiff’s exercise of sales options against BB

1) On December 14, 2009, financial investors agreed with BB on December 14, 2009, “If the convening of the creditor financial institutions’ joint management proceeding or creditor banks’ joint management proceeding under the Corporate Restructuring Promotion Act is notified, the investors will be deemed to have exercised the right of choice to sell this case to BB on the day immediately before the notice is given.”

2) On December 30, 2009, BB filed an application for the joint management proceeding with the creditor financial institutions, and the convening of the creditor financial institutions council to determine whether to commence the joint management proceeding with the BB was notified to the financial investors on the same day. Accordingly, on December 29, 2009, the Plaintiff was deemed to have exercised the right to choose sales under Article 8 of the Agreement between the shareholders with respect to BB as of December 29, 2009, and the sales contract between the Plaintiff and BB pursuant to Article 8(2) of the Agreement between the shareholders of this case was concluded (hereinafter “the instant primary sales contract”).

3) The sales value ofCC’s stocks was calculated as KRW 00,000 per share by subtracting dividends, etc. that the Plaintiff received during the calculation from the amount calculated by adding 00,000 per annum to the annual interest of 00,000 per share, which is the price purchased by the Plaintiff.

C. The Plaintiff’s revocation of the Plaintiff’s option

"1) On March 3, 2010, ○○ Bank, the principal creditor bank of the ○○○○○ affiliate’s principal creditor bank, presented a proposal to resolve the sales options as follows (hereinafter “instant proposal to resolve the sales options”). (2) On March 23, 2010, the Plaintiff revoked the sales options by consenting to the proposal to resolve the sales options. BBB creditor financial institutions’ consultative council, March 25, 2010, assessed BB shares of KRW 0.0% per share (0,000 per share) among the remaining claims of KRW 00,000 per share, and decided to suspend the redemption of the remaining 0.0% per share (0,000 won per share) and then make a decision to further conversion of investment.

D. The purchase and sale ofCC shares between the Plaintiff and DDD limited companies

(1) On December 13, 2010, the Plaintiff sold at KRW 00,000 (hereinafter referred to as “instant shares”) ofCC shares at KRW 00,000 per share to DDD companies (hereinafter referred to as “DD”). (2) On January 6, 2011, the Plaintiff received the sales price and delivered the instant shares to DD.

E. Plaintiff’s return and payment of securities transaction tax

1) On February 10, 201, the Plaintiff calculated the tax base of securities transaction tax for the instant shares of KRW 00,000,000,000 and the calculated tax amount of KRW 00,000,000,000 for each share, and reported and paid the securities transaction tax for the first quarter of the year 201.

2) On November 30, 201, based on the tax base of securities transaction tax on the instant shares, the Plaintiff re-determined KRW 000,000,000,000 as well as KRW 00,00,000,000, and paid for the first quarter of 201.

F. On January 29, 2014, the Plaintiff filed a claim for reduction or correction with the Defendant seeking a refund of KRW 00,000,000 among the securities transaction tax in the first quarter of 2011. However, the Defendant rejected the Plaintiff’s claim for correction on March 14, 2014 (hereinafter “instant disposition”).

G. The Plaintiff appealed and filed an appeal with the Tax Tribunal on May 22, 2014, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s appeal on March 4, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 9, 11, 12, Eul evidence 1, 2 and 3 (including relevant numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The primary argument

The cost of the transfer of the instant shares is calculated on the basis of KRW 00,000 per share to be paid from DD pursuant to the instant secondary sales contract. Of the exercise price of the option of sale from B, the Plaintiff was paid the amount exceeding the sales price of the instant shares (hereinafter referred to as 'the Plaintiff’s claim against BB’) upon actual exercise of the right to claim joint sale of the instant shares by shareholders under the instant contract is: (a) the difference arising from the exercise of the right to claim joint sale of the instant shares; or (b) the return of the principal and interest on the instant damages agreement or the loan to BBB arising from the nonperformance of the obligation under the instant primary sales contract; and (c) any transaction separate from the instant secondary sales contract is irrelevant to the transfer of the instant shares. Accordingly, the amount of the instant workout claim should be excluded from the cost of the transfer of the instant shares; and therefore, the tax base of the securities transaction tax on the transfer of the instant shares shall be KRW 1 million per share.

2) Preliminary assertion

Even if the amount of the workout claim of this case is included in the cost of transferring the shares of this case, the amount of the workout claim of this case was agreed to comply with the debt adjustment scheme set forth in the management normalization plan of BB from the beginning. However, the creditor financial council of creditor financial institutions of this case shall convert the amount of 0.0% (0,000 won per share) out of the workout claim of this case into 00,000 shares of BB, and the remaining amount of 0.00% (0,000 won per share) was deferred for redemption but later decided whether to convert into investment thereafter. Thus, the tax base of the securities transaction tax on the transfer of the shares of this case shall be deemed to be the total amount of 00,000 won (0,000 won paid by the Plaintiff from DD, 00 won, 00,000 won per share x 0,000 won at the time of listing, 00 won and 00 won per share) of the shares of this case.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the primary argument

A) The meaning of "transfer value of stock certificates" as the basis for calculating securities transaction tax

“Transfer value of share certificates, which are the basis for calculating securities transaction tax, refers to the actual amount agreed upon as consideration at the time of transaction, rather than an objective exchange value (see, e.g., Supreme Court Decision 2008Du21614, Jul. 28, 201). Furthermore, when the ownership of share certificates is transferred for consideration, the securities transaction tax is the distribution tax imposed as the ability to pay taxes. ② Article 2(3) of the former Securities Transaction Tax Act (amended by Act No. 13628, Dec. 29, 2015; hereinafter the same) provides that “transfer value of share certificates under the Securities Transaction Tax Act shall be transferred for consideration due to contractual or legal reasons; ③ Article 5(1) and (2) of the former Securities Transaction Tax Act provides that “when the time of transfer of share certificates, etc. is finalized, the transfer value of share certificates shall be determined by Presidential Decree in its entirety or in consideration of the circumstances under which the share certificates are transferred for consideration under Article 2(3) of the former Enforcement Decree of the Securities Transaction Tax Act (amended by Presidential Decree No. 273).

In the end, if a third party, other than the assignee, has agreed to bear part of the consideration for the transfer of share certificates with respect to the transfer of share certificates at the time of transaction of share certificates, the consideration for the transfer of share certificates to be paid by the transferee as well as the consideration to be paid by the third party is also included in the "transfer value of

B) Whether the amount of the workshop bond of this case is included in the transfer value of the stock of this case

In full view of the following circumstances and facts revealed in light of the aforementioned facts and the overall purport of the arguments, the Plaintiff agreed to the amount calculated on the basis of KRW 00,000 per share, the base price for the transfer of the instant shares, at the time of the instant secondary sales contract, between DD and BB, based on the previous sale option. However, the amount of the transfer price is calculated on the basis of KRW 00,000 per share from DD, the transferee of the instant shares, and the amount of the transfer price is calculated on the basis of KRW 00,00 per share. BB shall be deemed to have agreed to receive the payment from BB as divided payment for the instant workshop’s bond calculated on the basis of KRW 00,00 per share.

(1) Considering that the financial situation of BB worsens, it seems that the Plaintiff did not withdraw the exercise of the right to choose sale of the instant shares even when the Plaintiff was paid KRW 00,000 per share, which is only 00 per share of the purchase price claim under the instant first sales contract, for the price of the instant shares.

(2) According to the resolution of the instant option, the portion calculated on the basis of KRW 00,00 per share of the purchase price bonds under the instant primary sales contract shall be paid to the Plaintiff as the purchase price, and the portion calculated on the basis of KRW 00,000 per share shall be dealt with according to the management normalization plan as determined by the creditor financial institutions council of the BB. Thus, the resolution of the instant option is aimed at guaranteeing the Plaintiff the entire amount of the purchase price bonds calculated on the basis of KRW 00,000 per share pursuant to the instant primary sales contract. The method is to change the payment subject of KRW 00,000 per share of the purchase price bonds to D and the transferee of the instant shares shall also be interpreted as having been prepared to change to D (the revocation of the right of choice within the instant sales option). However, it is difficult to view the resolution of 00,000 per share to be made on the basis of the resolution of 00,000,000 won as the resolution of the instant sales agreement between BB and creditor financial institutions.

(3) Articles 2 and 3 of the Special Act on the Sales and Purchase of Stocks, which were prepared at the time of the instant secondary sales and purchase contract, stipulate the contents of the said paragraph 1. and 3. Article 8(1) of the Special Act on the Settlement and Purchase of Stocks, and Article 5 of the Special Act on the Settlement and Purchase of Stocks (hereinafter “Special Act on the Settlement and Purchase of Stocks”) repeats the contents of the said clause on the “special agreement of each seller,” and Article 5 of the same Act provides that “0,000 won per share price, which is the price per share specified in the written consent.” Such content appears not to be included in the instant secondary sales contract if the Plaintiff had the intent to receive only the amount calculated on the basis of KRW 00,00 per share as the price for the transfer of the instant stocks. In full view of the above contents, the instant secondary sales contract, with the Plaintiff’s consent on March 23, 2010, concluded between the Plaintiff and the Plaintiff’s Special Act on the Settlement and Purchase of ○○○○○.

(4) The Plaintiff’s receipt of the sales price calculated on the basis of KRW 00,00 per share of the shares from BB, and some of the amount equivalent to the above sales price shall be paid from DD, and the remainder shall be paid from BB’s shares and money, which is the debtor under the first sales contract of the instant case, is identical to the economic effect of receiving compensation from the debtor. The Plaintiff consented to the resolution of the instant sales option in order to enjoy the same economic effect as when the Plaintiff exercised the right of choice instead of exercising the right of choice of sale, and participated in the resolution of creditor Financial Council’s resolution on the reorganization of claims against BB, etc., and concluded the second sales contract of the instant case.

(5) According to Articles 7(1), 7(3), and 8(1) and (2) of the Agreement between ○○○○○○○○○○ 2 and the instant 0-party share purchase and sale agreement, BB is merely a separate claim for 10-party share purchase and sale agreement between ○○ 2 and ○ 20-party share purchase and sale, and thus, it cannot be disposed of to a third party other than ○ 2-party. BB-party’s right to demand purchase and sale of shares under the Agreement between 00 and 1-party share purchase and sale agreement between 00 and 20-party share purchase and sale agreement. If 1-party share purchase and sale agreement between 0-party share purchase and 2-party share purchase and sale agreement between 00 and 1-party share purchase and sale agreement between 1 and 20-party share purchase and sale agreement between 0-party investors were not subject to joint ownership rights to demand purchase and sale of shares.

(6) The instant secondary sales contract was concluded based on the resolution of the instant sales option as seen earlier. Compared to the instant primary sales contract, the Plaintiff merely changed the subject and means of paying the consideration for the transfer of the instant shares, and agreed to be guaranteed the same price as the Plaintiff exercised the sales option against BB. Therefore, there is no room for the issue of nonperformance of the instant primary sales contract in the event of the instant workout claim.

(7) A private equity fund established by ○○○○ Bank, the principal creditor bank of ○○○○ affiliate companies, for debt readjustment BB, is equivalent to the economic interest between BBB and ○○○ Bank in terms of BBB’s normalization of management and creditor financial institutions’ recovery of claims. Therefore, the same cannot be assessed as the transfer of the instant shares to a third party who does not have any interest in the securities market, etc., and it is unreasonable to interpret and evaluate the instant secondary sales contract concluded with D in comparison with BB.

Therefore, the Plaintiff’s economic substance may be evaluated as being repaid the principal and interest of the loan to BB by adding up the sales of the instant shares to DD and the acquisition of shares by BB BB due to a debt-equity swap to BB. However, it is difficult for the Plaintiff, a financial investor, to separate the instant secondary sales contract and the debt-equity swap to BB from a separate transaction, to evaluate only the economic substance of BB as repayment of the loan principal and interest.

C) Therefore, the Plaintiff’s primary assertion that the amount of the workout claim should be excluded from the cost of transferring the instant shares is without merit.

2) As to the conjunctive argument

The “transfer value of stock certificates, which serves as the basis for calculating the securities transaction tax, is not a general market price that reflects the objective exchange value, but the actual amount agreed upon at the time of the transaction is as seen earlier. Therefore, in the case of a simple exchange transaction, the actual transfer value cannot be confirmed. However, barring special circumstances to deem that the transaction is a value exchange based on the monetary value of the object of exchange, and that it is not a provisional exchange, if one of the objects of exchange is determined by objective monetary value, such as the appraisal value or market value, and accompanied by settlement procedures for the difference between different values based on such value, then the transfer value can be confirmed. Therefore, even in the case of a transfer of stocks issued by another company with cash with the price of stock transfer, the actual transfer value of the transferred stocks should be first examined in calculating the securities transaction tax base, and it is not necessary to determine the tax base by summing up the market value at the time of the acquisition of stocks received in cash and the stocks received in exchange (see, e.g., Supreme Court Decision 208Du21614, Jul. 28, 2011).

In light of the above legal principles, as seen earlier, the Plaintiff agreed to receive “CC stocks from BB on the basis of the first sale contract and the cancellation of the sale option.” At the time of the transfer of the instant stocks, the “sale option option option price” is KRW 00,000 per share, which is the base price for sale following the exercise of the instant sale option, and the “amount of purchase and redemption ofCC stocks” is KRW 00,000 per share, which is to be paid from DD pursuant to the second sale contract of this case. As such, the remaining amount of credit is determined as KRW 00,00 per share, which is the difference at the time of the transfer of the instant stocks (the Plaintiff agreed to obtain the payment of KRW 00,00 per share as principal and interest for KRW 00 per share and KRW 00 per share, which is determined as the market price of the instant stocks at the time of the purchase option, the Plaintiff’s claim that the purchase price of the instant stocks should be determined as 00,000 per share,000 won per share as the price of the instant stocks is determined as 00.

3) Sub-determination

Furthermore, the Plaintiff transferred the instant shares to DoD through an over-the-counter transaction, not by the method prescribed in each item of Article 3 subparag. 1 of the Securities Transaction Tax Act, such as transfer within the securities market. Since the transfer value of the instant shares is specified as KRW 00,00 per share as seen earlier and the transfer value of stock certificates can be known, the tax base of the securities transaction tax on the transfer of the instant shares shall be calculated by multiplying the Plaintiff’s shares by the number of shares owned by 00,000 per share pursuant to the main sentence of Article 7(1) subparag. 2 (a) of the former Securities Transaction Tax Act.

Therefore, this case does not fall under “where the tax base and tax amount entered in the return of tax base, which are grounds for correction under Article 45-2(1)1 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014) exceed the tax base and tax amount to be reported under the Securities Transaction Tax Act,” and thus, the Plaintiff’s request for correction of reduction is without merit. The Defendant’s disposition refusing a request for correction is lawful

3. Conclusion

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

shall be ruled.