capital gains due to the disposal of secured stocks shall not be attributed to the principal due to the embezzlement of the agent;

capital gains due to the disposal of secured stocks shall not be attributed to the principal due to the agent's influence and embezzlement.

Article 88 of the Income Tax Act

2015Guhap54803 Revocation of Disposition of Corporate Tax Imposition

Plaintiff:

AA and 2

Defendant:

D Head of the tax office

December 1, 2016

1. On December 1, 2013, the Defendant revoked the imposition of the capital gains tax of the Plaintiff A on December 1, 2013 on the part exceeding o,o,o, ando in the imposition of the capital gains tax of the 2010-year transfer income tax of the Plaintiff A, the part exceeding o,o, ando in the imposition of the capital gains tax of the 2010-year transfer income tax of the 2010-year transfer income tax on the Plaintiff B, and the imposition of the o,o, ando on the part exceeding the o,o, ando, that of the disposition of the 2010-year transfer income tax on the Plaintiff CCC.

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 plaintiffs are major shareholders of EE Co., Ltd. (the trade name: FF, FF, hereinafter referred to as the "instant company"), and the plaintiff AA is the mother of plaintiff BB and CCC.

B. On April 19, 2010, Plaintiff AA granted the right of representation to GG, a financial director of the instant company, with respect to the lending of funds. On May 19, 2010, GG borrowed KRW o00 million from HH on behalf of the Plaintiffs on August 18, 2010 with the maturity of payment from HH, a corporate bond manager, on behalf of the Plaintiffs, at KRW 3% per month (hereinafter “the first loan agreement”). From among the shares of the instant company owned by the Plaintiffs as collateral, Plaintiff AA provided oo ando share out of the shares of the instant company owned by the Plaintiffs as collateral. If the price of the shares offered as collateral differs and the principal amount is less than KRW 140% and KRW 1,348, as above, and if Plaintiff AA did not immediately provide collateral, Plaintiff A would immediately sell the principal shares to Plaintiff AA without prior notice and immediately sell the principal shares to the Plaintiff, and even if the terms and conditions were not included in HA’s criminal sale of collateral.

C. Meanwhile, prior to the instant first loan agreement, Plaintiff AA borrowed KRW 3 billion from J Investment Co., Ltd., Co., Ltd., which offered the instant company’s shares as collateral and borrowed KRW 3 billion from J Investment, which was delegated by Plaintiff AA, with the loan borrowed from Plaintiff AA under the first loan agreement of the instant case, and Plaintiff AA repaid the said J Investment with the loan borrowed from Plaintiff AA. The Plaintiff was returned o0,00 shares of the instant company.

D. However, on July 8, 2010, GG in collusion with KK, the head of the financial team of the instant company, and returned to the Plaintiffs, who were children of Plaintiff AA, among the said o Man Man Man Man, provided as collateral to HH without permission of the Plaintiffs giving the remainder of o only, and o billion won was due on August 7, 2010, and the interest was arbitrarily borrowed at 3% per month and embezzled by using it as the acquisition cost, etc. of the GG listed company at around that time (hereinafter “the act of embezzlement of KRW o00,000 of the instant GG”).

E. As a result, HH had the shares of the instant company as collateral of o,Oo,Oo, Plaintiff BB-owned o,o,o,o, and o,o,o, and o,O, owned by Plaintiff CCC (hereinafter “instant shares”). Although the terms and conditions of the first loan agreement were not fulfilled on July 12, 2010, HH arbitrarily sold o,Oo, andO, among the shares of the instant company on July 14, 2010 through August 25, 2010, o,O, andO were arbitrarily sold to o,o,O, andO to o,O, from July 14, 2010 to August 25, 2010 (hereinafter “the instant shares”). On July 13, 2010, OH arbitrarily sold o,O, the average selling price of o, o, and o’s 'the instant shares’ (hereinafter “H”).

F. On August 18, 2010, GG borrowed KRW 3.21 billion from HH on behalf of the Plaintiffs on November 18, 2010 in order to renew the said loan contract upon the arrival of the due date for the first loan contract of this case (hereinafter “the second loan contract of this case”). The above loan contract includes a condition that Plaintiff AA does not raise any objection against civil or criminal charges, even if the collateral shares are sold and disposed of immediately without prior notification to Plaintiff AA and appropriated the principal and expenses.

G. From the end of August 2010 to the end of November 2010, HH transferred the shares remaining after the embezzlement of the instant H from the instant shares under a third party’s name, and sold the shares as indicated in the separate sheet, excluding the part pertaining to the transfer of MM, through the securities company (hereinafter “instant HH’s sale”).

H. The director of the Seoul Regional Tax Office investigated the change of shares of the instant company, and as a result, he transferred all the shares of the instant company to a third party by HH, and deemed that the Plaintiffs did not report the establishment of capital gains tax liability, and notified the Defendant of the taxation data.

I. Accordingly, on November 5, 2012, the defendant decided o,o,o,o,o, owned by the plaintiff AA, the plaintiff BB, o,o,o, owned by the plaintiff CCC [the shares of this case and the shares transferred by the plaintiff AA: o,o, owned by the plaintiff CCC on June 16, 2010, o, owned by the plaintiff BB: o,o,o, owned by the plaintiff BB: o,O, owned by the plaintiff: 1,00, the defendant added additional tax to the shares transferred by the plaintiff AA on November 5, 2012, o,o,o,o, owned by the plaintiff BB, and o, owned by the plaintiff (including additional tax to the plaintiff 2o,o, 200, o, 2000, o, and o, 200, o, and o (including additional tax to the plaintiff 2o, 2010, o,

(j) The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on March 12, 2014, but was dismissed on December 30, 2014.

[Reasons for Recognition] Facts without dispute, Gap 1 through 4, 8, Eul 1, 3, 32, 38 (including each number), and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiffs' assertion

For the following reasons, the part exceeding the ooo,oo, andoo that Plaintiff AA is a person of the instant disposition, the part exceeding the ooo,oo, and the part exceeding the oo,oo, and the part of the capital gains tax on Plaintiff CCC should be revoked as it is unlawful.

1) The primary argument

① Although the Defendant is responsible for proving ‘transfer', ‘transfer value', etc., which is a taxable requirement for the instant disposition, the instant disposition is unlawful.

② As the act of embezzlement in the instant case, HH embezzled part of the instant shares without permission, and disposed of part of the instant shares without the consent of the Plaintiffs despite the non-fulfilment of the opposite trading condition. The Plaintiffs did not receive any monetary amount or damages from HH, etc., which conducted the said embezzlement and the act of disposal, and did not recover the ownership of the instant shares, and thus, the transfer income accrued from the disposal of the instant shares was not in a position to control, manage, and dispose of them, and thus, did not actually belong to the Plaintiffs.

③ As to the instant act of selling HH, the Defendant alleged that HH believed that the Plaintiff was the Plaintiff’s agent and that the said act was valid on the ground that the expressive agent was established on the Plaintiff’s act. However, Plaintiff AA granted Plaintiff AA the right to representation on the conclusion and renewal of each of the instant loans to the GG regarding the first and second lending contracts. Since the Plaintiff AA granted Plaintiff AA’s right to representation to the GG upon the termination of the right to representation of the GG after the said contract, no fundamental right to representation exists on the ground that the right to representation of the GG was extinguished, and the Minister of Education, Science and Rural Affairs had no justifiable reason to believe that H had the right to represent on the disposal of the instant shares to the GG, and therefore, HH’s act

④ On October 18, 2010, the Plaintiffs agreed with HH to redeem loans and redeem the instant shares that were previously offered as security on November 18, 2010. Since each of the instant loans contract became invalid retroactively due to the cancellation of the said agreement, it is difficult to deem that the instant shares were transferred.

2) Preliminary assertion

① Even if all of the above arguments are groundless, HH continued to sell the shares of this case, even after HH made an appropriation for the performance with respect to Plaintiff AA’s loans of KRW o,o0, and KRW o00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000

② (Preliminary Claim by Plaintiff BB and CCC) even if the above allegations were not accepted, the act of offering collateral by Plaintiff BB and CCC is null and void since the Plaintiff did not have any authority to provide collateral for each of the instant shares to Plaintiff AA with respect to each of the instant shares, and thus, the act of offering collateral by Plaintiff AA is null and void. Accordingly, capital gains from the disposal of shares held by Plaintiff AA and HH are not vested in Plaintiff BB and CCC.

(b) Fact of recognition;

1) Details of delegation by Plaintiff AA to the GG

On April 19, 2010, Plaintiff AA drafted to GG on April 19, 2010 with respect to the first loan agreement of this case (hereinafter referred to as “the first proxy agreement of this case”) stated the following:

Delegation Documents

Plaintiff : Plaintiff AA

Representative: GGG

The above agent delegates all the powers relating to the principal’s borrowing of funds.

April 19, 2010

Plaintiff AA, who is the above delegate,

In addition, with respect to the second loan contract of this case, the power of attorney prepared by the plaintiff AA to the GG (hereinafter referred to as "the second delegation of attorney in this case") stated the following contents:

Delegation Documents

H H H H Ha Ha

Plaintiff : Plaintiff AA

mandatary: GGG

August 18, 2010 to delegate to the mandatary all matters relating to extended loans.

AA: Plaintiff AA

2) The judgment of conviction due to embezzlement by GG or KK

GGG obtained from KK on August 18, 2010 a total of KRW o0,000,000,000,000,000,000, and used it for the repayment of loans to HH, and embezzled it at will. In addition, around September 29, 2010, GG sold the shares of this case from HH in accordance with the opposite trading terms and conditions, and appropriated the remaining balance after appropriating it for the debt, o0,000,000,000,000,000,000,000,000,000,000, and was kept on October 25, 2010, and both 10,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00.

3) Judgment of conviction due to embezzlement by HH

HH acknowledged that GG embezzled KRW 100 million on October 25, 2010, with respect to the act of embezzlement by GG, even though it did not notify the Plaintiffs of the fact that the payment was made, HG assisted the act of embezzlement of KRW 100 million by granting KRW 100 million to GG without notifying the Plaintiffs of the fact that the payment was made. The prosecutor of the Seoul Central District Prosecutor’s Office indicted HH as embezzlement aiding and abetting the above embezzlement and embezzlement and embezzlement by the instant HH’s embezzlement, and all of the facts charged were found guilty, and HH was sentenced to imprisonment for two years, suspended execution for three years, and community service order for 160 hours on October 24, 2014 by Seoul Central District Court Decision 2014Da5786, which was sentenced to imprisonment for two years, suspended execution for three years, and the said judgment became final and conclusive by withdrawing H’s appeal after having appealed appealed appealed.

4) A criminal trial against GG, KK, and H

The prosecutor of the Seoul Central District Prosecutors' Office indicted GG, KK, and HH as follows on August 21, 2015. On September 9, 2016, the Seoul Central District Court found that all facts charged with GG, and KK were guilty, and sentenced to imprisonment for August, 2015 and the suspension of execution for two years, and one year with respect to KK, respectively, to GG as Seoul Central District Court Decision 2015Da748, Seoul Central District Court Decision 2015Da748, the above judgment became final and conclusive on September 20, 2016, and the trial for HH is currently underway.

1. Joint Offences of forging private documents by GG or KK;

GG in collusion with KK

① On July 8, 2010, in relation to the embezzlement of KRW o00,00,000 of the instant GIST, each of the three copies of the agreement on the loan of stock security in the name of Plaintiff AA and one copy of the confirmation document are forged;

② On August 18, 2010, in relation to the second loan agreement of this case, two copies of the agreement for the loan of stock security in the name of Plaintiff AA are forged, respectively;

2. The sole principal of forging private documents of GG;

GG:

① On July 8, 2010, with respect to the embezzlement of KRW o00,00,000 of the instant GG, each of the two copies of the standard contractual terms on loan transactions in the name of the Plaintiff AA, each of which constitutes KRW o0,000,000,000,

② On August 31, 2010, HH H H H H H H H and Plaintiff AA’s delegated agent GGG confirms that the share price of this case fell below KRW 2,250, the opposite share price is o, o, o, o, and o.o. that was the opposite share price, and received the said sales report from the creditor HH, and confirms that there is no problem under the share security agreement. On August 31, 2010, Plaintiff AA’s agent GG was arbitrarily written with the content of “GGG’s agent’s certificate of fact,” and forged Plaintiff AAA’s agent’s certificate of fact in the name of Plaintiff AA.

③ On September 29, 2010, GGG’s delegated agent of the Plaintiff AA applied for the sale of part of the remaining shares after trading against the decline in the share price. By September 27, 2010, the Plaintiff sold the said shares to Doo, oo, oo, oo, and oo, received KRW o0 million from HH and received a sale report. On September 29, 2010, she arbitrarily stated that the Plaintiff’s agent GGGGG was “the Plaintiff’s agent of the Plaintiff AA,” and forged a written confirmation of the fact of the Plaintiff’s name under the Plaintiff’s name.

④ On September 29, 2010, in the name of Plaintiff AA, the receipt of KRW o0 million, KRW o0,000,000, forged two receipts in the name of Plaintiff AA;

3. A crime in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) of HH;

HH on October 18, 2010, as the plaintiffs' side members of the company of this case, did not contact with RR, NN, and PP, who are employees of the company of this case without attending the company, and the GG and KK did not request the return of secured stocks by reducing the principal of the loan, and even though they did not hold stocks by selling and opposing a large number of the shares of this case, HH made a false statement that they would receive loans and return secured stocks within a month, and that they will arrange their shares by November 18, 2010.

From September 29, 2010 to October 25, 2010, the Kim Dong-dong delivered KRW o0,000 to o0,000, and all of the settlement of accounts has been completed. Accordingly, the shares held in custody have been returned to the plaintiffs. Nevertheless, the shares held in this case after October 25, 2010 were not returned to the plaintiffs, and o0,000 shares of this case were embezzled by arbitrarily disposing of them from October 27, 2010 to October 29, 2010.

C. Determination

1) Whether HH’s disposal of the instant shares can be deemed as “transfer of assets” by the Plaintiffs

Article 4 (1) 3 of the former Income Tax Act (amended by Act No. 10924, Jul. 25, 201) provides that "income from the transfer of assets" is "income from the transfer of assets," and Article 88 (1) of the same Act provides that "the transfer of assets is actually transferred for consideration due to sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of assets." As such, capital gains tax is imposed on income from the transfer of assets. Thus, even if an asset is transferred for sale, exchange, investment in kind (hereinafter referred to as "sale, etc."), if a contract such as the sale of assets is invalidated or cancelled later, etc., the sales amount, etc. received by the transferor should be returned to the transferee in principle, and thus, it cannot be viewed as income of the transferor and thus, it cannot be viewed as income subject to capital gains tax as criminal charges.

Therefore, in order to view HH’s disposal act of the instant shares as “transfer of assets” by the Plaintiffs, HH’ disposal act of the instant shares shall be effective and income accrued therefrom shall belong to the Plaintiffs.

A) Division of a disposal act

The instant act of disposing of the instant shares of HH may be divided into ① the act of embezzlement of the instant HH conducted with respect to the shares disposed of between July 12, 2010 and August 25, 2010 by the Seoul Central District Court Decision 2014 high group5786, and the act of embezzlement of the instant HH conducted with respect to the shares disposed of from July 12, 2010 to August 25, 2010 (the instant judgment became final and conclusive as embezzlement), and ② the act of selling the instant HH conducted from August 26, 2010 to November 20.

B) The instant act of embezzlement by HH

First, we examine the embezzlement of HH in the instant case.

Unless there are special circumstances where it is difficult to adopt a judgment of facts in the criminal trial in light of other evidence submitted in the administrative trial, the facts that have already been recognized as the grounds for the criminal judgment, even though they are not bound by the fact-finding in the criminal trial, are sufficiently binding evidence for the same facts (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012).

On the other hand, the facts that the act of embezzlement of the H in this case was found guilty in a criminal trial are as seen earlier, and there are no special circumstances to recognize the facts contrary to the fact-finding of the above criminal judgment. Thus, the disposition of the plaintiffs' shares due to the act of embezzlement of the lemon type of this case is null and void as a disposition by an unentitled person. Therefore, the above act cannot be deemed as "transfer of the assets held by the plaintiffs," and the income therefrom cannot be attributed to the plaintiffs.

C) The instant act of selling HH

Next, in order to take effect with respect to the act of selling HH of this case, the expression agency is established as to the contract borrowed o0 million won in the name of Plaintiff AA. At the time of selling the shares of this case by HH, the terms of the first and second loan contract of this case and the loan contract of o0 million won are satisfied at the time of the act of selling the shares of this case by HH, and GG had all the rights with HH as to the said act of selling the shares of this case (hereinafter “the rights of this case”), or the expression agency should be established as to the exercise of the rights of this case by GG.

In full view of the following circumstances acknowledged by taking into account the above facts of recognition and the purport of the entire arguments as a whole, it is difficult to view that GG used this case’s authority constitutes an unauthorized representation, and it is difficult to view that HH had justifiable grounds for believing that HH had the above authority to GG at the time. Therefore, the instant act of selling HH is null and void, and thus, it is difficult to regard it as constituting “transfer of the Plaintiffs’ assets” and the income therefrom cannot be attributed to the Plaintiffs. Moreover, as long as the Plaintiffs did not grant the instant authority to GG and Kim Korea appears to have known that it engaged in embezzlement or exercising the said authority, it is difficult to view that the Plaintiffs were in control and management of such transfer income through GG. Accordingly, it is difficult to impose transfer income tax on the Plaintiffs on the income accrued from the disposition of the instant stocks as taxable income.

(1) The first proxy letter of this case contains a statement that Plaintiff AA shall delegate all the powers related to the borrowing of funds to GG. The second proxy letter of this case contains a statement that “all the matters related to the extension of loans” on August 18, 2010 is as seen earlier. According to the above facts of recognition, Plaintiff AA shall be deemed to have delegated the authority to borrow funds to GG and the authority to extend the first loan contract of this case. Accordingly, GG is only granted the authority to conclude a contract for a contract to borrow and extend loans, and if it is authorized to do a legal act, the legal relationship that caused the power to exercise the power to act is completed in principle, and therefore, the exercise of the authority of this case constitutes a non-exclusive agent.

(2) In addition, in full view of the following circumstances, it is reasonable to view that GG does not constitute an expression representation beyond the authority under Article 126 of the Civil Act, since it is not recognized that the instant authority was exercised by GG and the HH was justifiable grounds for its belief.

① From July 12, 2010 to August 25, 2010, HH was convicted of the crime (Embezzlement’s embezzlement of the instant HH) committed by selling oo and oo shares as collateral (the instant act of embezzlement) while keeping o and o shares, part of the instant shares, and even after the second loan contract of this case ( August 18, 2010), HH did not comply with the terms and conditions of the opposite trade (the terms and conditions of the second loan contract of this case are less than KRW 1,280,000,000,000).

o,Oo, andO. However, according to the details of the publication (Evidence A2) by date between May 19, 2010 and October 18, 2010, the above conditions have not been satisfied.

② HHH은 GGG으로부터 담보로 제공받은 주식 oo만 주에 관하여, 2010. 6. 18. GGG으로부터 'QQQ로부터 이 사건 회사 주식 ooo만 주를 돌려받지 못하고 있는데 원고 AAA로부터 위 주식을 돌려받으라는 독촉이 있으므로 자신에게 거짓으로 위 ooo만 주를 보관하고 있다는 서면을 작성하여 달라'는 부탁을 받고 거짓으로 위 ooo만주를 HHH 자신이 보관하고 있다는 서면을 작성하여 GGG에게 교부하여 주었다.

Therefore, at that time, HH seems to have been aware of the fact that the GG had deceiving Plaintiff A and made a false report.

③ Since each power of attorney prepared by Plaintiff AA to GG stipulates that only the authority to borrow or extend the loan, such as the loan and the extension of the loan, is delegated, HH had already known that GG had already induced Plaintiff AA at the time of disposing of the instant shares, as seen above, since HH had known that it had already been deceiving the Plaintiff at the time of disposing of the instant shares, it did not communicate with the Plaintiffs as the principal, even though it did not confirm the scope of the right to receive GG revenue, additionally demanded the Plaintiffs to provide a security, or notified the Plaintiffs that the transaction would be conducted on the ground of fulfillment of the terms of the transaction.

④ HH had been engaged in credit business that connects the so-called former owner with the borrower and received fees, and had been engaged in the loan business several times prior to the instant case (No. 20-1 through 3). Although the above credit service provider should have verified its intent or verified the scope of his/her representative authority in order to prevent any subsequent disposal of the shares to the market due to fulfillment of the opposite transaction terms and conditions, HH did not confirm such intention. Furthermore, HH was well aware of the management dispute within the instant company that Plaintiff A had a large value of the instant shares (No. 20-1), however, it did not take measures such as informing Plaintiff AA of the procedure for the opposite transaction, including the request for prior security.

⑤ HHH은 앞서 본 바와 같이 GGG의 요구에 의해서 사실과 다르게, ooo만 주를 QQQ로부터 반환받아 자신이 보관하고 있다는 주식보관확인서를 작성하여 주었을 뿐만 아니라, GGG은 이 사건 제1차 대출계약의 원금인 oo억 원 중 일부를 변제하라는 명목으로 KKK을 통하여 원고 AAA의 돈 o억 o,ooo만 원을 받고 이를 횡령하였는바, HHH은, 위 횡령사실을 숨기기 위하여 oo억 원을 oo억 o,ooo만 원과 o억 o,ooo만원으로 대출계약서를 나누어서 작성할 필요가 있던 GGG으로부터 위와 같이 대출계약서의 금액을 나누어서 두 장으로 작성해 달라는 부탁을 받고 그대로 작성하여 주었으며, GGG이 원고 AAA 명의로 oo억 원을 차용할 때에도 GGG으로부터 o억 원과 oo억 원으로 된 두 장의 대출계약서를 작성해 달라는 부탁을 받고 그대로 작성해 주었는데, HHH은 수사기관에서 위와 같은 GGG의 행위에 대해 그 이유를 묻지 않았고 달리 의심하지 않았다고 진술하였다. 그러나 HHH은 대부업을 영위하는 자로서 이 사건 주식이 이 사건 회사의 경영권 획득을 위하여 원고들에게 가지는 중요성을 이미 알고 있었던 것으로 보이는 사정 등에 비추어 보면 윤군식이 GGG의 행위를 그대로 믿었다는 점은 선뜻 수긍하기 어렵다.

④ On October 18, 2010, HH did not communicate with GG, including RR, NN, etc. on the part of the Plaintiff AAA, but sought to pay the principal of oo, o00 and to receive the instant shares, and then upon calculating the interest to be paid on October 18, 2010, HH would receive the payment of o, o, and o, o, o, o00 won after calculating the reduction of 1.5% per month for the interest to be paid on October 18, 2010. The return of existing collateral was confirmed to be arranged by November 18, 2010, and it was prepared with a confirmation document stating that the principal of 100,000 won was not satisfied, and that the Plaintiff had been aware of the principal of o, 200,000,000 won, or that the Plaintiff had been aware of the legitimate cause of the loan of o2,000,000 won.

2) Defendant’s assertion and judgment

A) The assertion that it conforms to the substance over form principle

The defendant asserts that since there exists an agent relationship between the plaintiffs who are the principal and GGG, both the act of transfer and the ownership of capital gains were within the scope of the plaintiff's control and management, and only the plaintiff's omission which neglected the management, it is not allowed to transfer the responsibility for embezzlement of GG to the state or to other taxpayers under the substance over form principle.

The substance over form principle under Article 14(1) of the Framework Act on National Taxes, in cases where there is a separate person to whom such income, profit, property, transaction, etc. belongs, unlike the nominal person to whom such income, profit, property, transaction, etc., belongs, the person to whom such income, etc., belongs is not the nominal person, but the actual person to whom such income, etc., belongs, on the ground of form and appearance, is the tax obligor (see, e.g.

Although the plaintiffs have the right to claim damages against GG or HH, it is difficult to view that the effect of repayment of the claims against the plaintiff AA's obligation to HH has occurred, and therefore, it is difficult to deem that the above debt exists as it is. Since the above right to claim damages has not been actually exercised and the amount of the above right to claim damages has not been recovered, it is difficult to view that the income accrued from the transfer of the shares of this case was actually reverted to the plaintiffs, and the above argument by the defendant cannot be viewed as having applied the substance over form principle to the case of this case

B) The assertion that it constitutes an abuse of power of representation

The Defendant asserts that the Defendant’s additional loan of KRW o0 million and the exercise of the instant authority in relation to the counter-sale of the instant shares was an abuse of the right of representation by GG, and HH, the other party, was unaware of this, and thus, the effect of the disposition of the instant shares takes effect on the Plaintiffs.

As seen earlier, the representative act of the GG on the instant authority is an unauthorized representation and is in excess of the authority delegated by the Plaintiff AA. As such, the Defendant’s above assertion premised on the fact that the agency act of the GG is within the authority is within the authority is without merit.

C) The assertion that it violates the principle of good faith

The Defendant asserts that the Plaintiff’s assertion that there was no capital gains tax liability is contrary to the good faith principle, since the Defendant was entirely unaware of the Plaintiff’s unauthorized loan of the GG and the dissenting sale by HH on the instant shares.

On the other hand, the application of the principle of good faith related to the law of a tax entity which strongly acts on the basis of the principle of legality under the principle of no taxation without law shall only be applied when it is deemed necessary to protect specific trust even if the legality is sacrificeed. In particular, when a taxpayer commits an act against his past speech or behavior against the tax authority, he shall be subject to a disadvantageous disposition, such as deprivation of benefits, such as tax reduction or exemption under tax law, punishment by various additional taxes, penalty under tax law, etc., the tax authority shall have the right to on-site investigation in a superior position against the taxpayer, and the burden of proof for the legality of the tax disposition is against the tax authority in principle.

In addition, this should be extended and interpreted (see, e.g., Supreme Court Decisions 95Nu18383, Mar. 20, 1997; 2005Du6300, Jun. 28, 2007; 2005Du2087, Nov. 26, 1999; 2005Du6300, Jan. 26, 2006; 2005Du2087, Jun. 28, 2007).

On the other hand, in a case where the circumstances alleged by the defendant are at issue of unauthorized Representation and Apparent Representation, the taxpayer can generally assert it, and such circumstance alone alone is difficult to see that the plaintiffs' act is against the principle of good faith and therefore, the defendant's assertion is without merit

(iii)the calculation of a reasonable amount of tax;

In the absence of dispute between the parties or according to the statements in the evidence No. 21-1 to No. 3, the transfer income tax for the year 2010, which should be imposed on the plaintiffs in this case, for the plaintiff AA, the transfer income tax for the year 2010, which must be imposed on the plaintiffs, shall be o, o, o, o, o, and o, for the plaintiff BB, and there is no legitimate transfer income tax for the plaintiff CCC.

4) Sub-determination

Therefore, the Defendant’s imposition of the capital gains tax for the year 2010 against Plaintiff A, in excess of o,o, ando, in the imposition of the capital gains tax for the year 2010 against Plaintiff A, the portion exceeding o,o, ando, in the imposition of the capital gains tax for the year 2010 against Plaintiff B, the portion exceeding o,o, ando, in the imposition of the capital gains tax for the year 2010 against Plaintiff CCC, and the imposition of the capital gains tax for the year 2010 against Plaintiff CCC, should be revoked.

3. Conclusion

Therefore, the plaintiffs' claims of this case shall be accepted for all reasons, and it is so decided as per Disposition.