early 2013 Middle 4958 (2014.06)

It is difficult to trust the transfer value of stocks in accordance with the final agreement.

In full view of the fact that the claimant appears to have received the full amount of the purchase price of outstanding shares in the first contract, it is difficult to accept the claim

Article 96 of the Income Tax Act

Suwon District Court 2014Guhap5330 (2015.04.01)

○ ○

○ Head of tax office

15.03.18

2015.04.01

1. The plaintiff's claim is dismissed.

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

The disposition rejecting the correction of capital gains tax made against the plaintiff on September 17, 2013 by the defendant of the Gu office shall be revoked.

1. Details of the disposition;

가. 원고는 2012. 6. 4. 주식회사 ☆☆☆☆☆엑스(이하 '☆☆☆☆☆엑스'라 한다)의 주식 64,000주(이하 '이 사건 주식'이라 한다)를 주식회사 ☆☆☆☆패션(이하 '☆☆☆☆패 션'이라 한다)에 양도하였고, 원고는 같은 날 피고에게 이 사건 주식을 ☆☆☆☆패션에 46억 원에 양도한 것으로 하여 양도소득세 427,750,000원을 신고하였다.

B. On August 21, 2013, the Plaintiff asserted that “the instant share transfer price was determined as KRW 1 billion pursuant to the final agreement between the Plaintiff and △△○○○○○ (hereinafter “instant disposition”) on July 20, 2012, the Plaintiff filed a claim for correction with the Defendant to the effect that the amount of the instant share transfer price was reduced to KRW 67,750,000 by using the actual transfer price as the actual transfer price, but the Defendant rejected it on September 17, 2013 (hereinafter “instant disposition”).

C. As to the Plaintiff’s objection, the Plaintiff filed an appeal with the Tax Tribunal on October 28, 2013, but received a decision of dismissal on February 6, 2014. The fact that there was no dispute with recognition, each of the entries in Gap’s 1 through 7 (including the number of branches), and the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

원고와 ☆☆☆☆패션은 2012. 6. 4. 합의서(갑 제8호증)를 작성하면서 ☆☆☆☆패션 이 상장폐지가 될 경우 계약을 원상복귀하기로 하는 내용의 조항을 두었고, ☆☆☆☆합 의 서원고(이하 '양도인'이라 한다)와 ☆☆☆☆패션 대표이사 이○○(이하 '양수인'이라 한다)의 ☆☆☆☆☆엑스(이하 '대상회사'라 한다) 주식양수도계약(이하 '본 계약'이라 한다)을 체결함에 있어 다음과 같이 추가 합의서를 작성하며, 본 합의서는 본 계약보다 우선하여 적용하기로 하는 것에 양 당사자는 상호 합의한다. -다 음-

1. After the conclusion of this contract, the transferor presented to the assignee the verification data of the subject company as of March 31, 2012, and the transferor and transferee assessed the stock value by ○○ Accounting Firm as of December 31, 201, and the purchase price is KRW 4.6 billion.

2. As regards the delivery of share certificates to the purchase-price, the subject company and the Myanmar corporations, the transferor and the transferee will:

2-1 The transferee shall pay KRW 1 billion out of the purchase price at the time of the conclusion of this contract. When the failure was delisting on July 19, 2012, the Plaintiff and ○○○○○○○ Fund, preparing the final agreement (Evidence A 10) on July 20, 2012, decided the transfer price of the instant shares to be KRW 1 billion. Therefore, the actual transaction price of the instant shares is KRW 1 billion. Therefore, the Defendant’s disposition based on the premise that the transfer price of the instant shares is KRW 4.6 billion is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) On June 4, 2012, in preparing a share acquisition agreement (No. 7) with the intention to pay the transfer price of the instant shares as KRW 4.6 billion, the Plaintiff and the 2-2 transferor drafted a written agreement (No. 8) with the following contents. The 2-2 transferor shall immediately transfer the share certificates of the relevant company to the transferee upon receiving KRW 1 billion. The 2-3 transferor shall receive 3.6 billion out of the purchase price from the third party’s share or CB, etc. issued by the transferee company.

2-4 The transferee shall, in order to guarantee payment by the third party allotment certificate or CB issuance, immediately after paying the down payment, set the number of shares equivalent to 3.6 billion won at the market price with respect to the shares issued by the Exchange-listed (Copis and KOSDAQ) listed in the exchange (the transferor shall be the law firm designated by the transferor as the number of shares equivalent to 3.6 billion won at the market price, and upon the issuance of the protective deposit certificate or CB, the transferee shall be immediately refunded the shares issued by the Association-listed (the shares issued by capital increase with respect to the shares issued by the third party allotment shall be one-year protective deposit, and upon the issuance of the protective deposit certificate in the name of the transferor, the

3. The transferor and transferee shall immediately return to their original status, in accordance with this Agreement and the Agreement, if the transferee becomes a KOSDAQ-registered company even though the transferee paid cash, stocks, or CB the sales amount, but the transferee could not be given the improvement period. The original return means the transferor’s return of the amount received from the transferee and the shares or CB received from the transferor and the transferee’s return to the transferor the shares of the company to which the transferor received from the transferor.

1. △△○○○○○○○○○○○○○○○○○ issued in custody of KRW 2,400,000 (hereinafter referred to as “share certificates”).

2. On July 8, 2012, 2012, ○○○ Law Firm: (a) kept share certificates until 3.6 billion won (no shares can be specified) was provided to the Plaintiff as a third party, who was scheduled to be a 3.6 billion won guard. (b) When ○○○○ Law Firm provides the Plaintiff with a security deposit certificate of KRW 3.6 billion, ○○○ Law Firm provides the Plaintiff with a security deposit certificate of KRW 3.6 billion, the share certificates shall be immediately refunded to ○○○○. Therefore, (c) the Plaintiff and ○○○○ Law Firm, ○○○ Law Firm, and ○○○ Law Firm, drafted an e-mail confirmation certificate (No. 1) with the following content between the Plaintiff and ○○ Law Firm on June 8, 2012:

최종합의서 원고(이하 '양도인'이라 한다)와 ☆☆☆☆패션 대표이사 이○○(이하 '양수인'이라 한다)는 ☆☆☆☆☆엑스(이하 '대상회사'라 한다)의 주식양수도계약(이하 '본 계약'이라 한다)을 2012. 6. 4.에, 추가합의서를 2012. 6. 26.에 체결하였으며, 양도인의 진술을 근거로 하여 대상회사에 대한 실사를 진행하였으나 실사 결과 양도인이 진술한 사항과 차이가 발생하여 본 계약서 및 합의서, 추가합의서에 이어 최종합의서를 작성하기로 하였으며, 본 최종합의서는 계약서 및 합의서, 추가합의서에 우선하여 적용한다.

- - Foods

1. The transferor and transferee shall pay the purchase price by adjusting the following agreement:

(1) The purchase price shall be adjusted from 3.7 billion won to 1. billion won.

(2) The transferor confirms that the down payment already paid KRW 1 billion has been fully paid in full. If the transferor fails to provide a certificate of deposit for protection of KRW 3.6 billion, he/she shall not return the share certificates to 3.6 billion.

3) On June 27, 2012, ○○○○○○ was issued to the Plaintiff a share of KRW 3.6 billion (7.2 million) by issuing capital increase to a third party, which was publicly announced in the electronic publication system for the mobilization of financial reduction.

4) On July 16, 2012, the Plaintiff visited ○○○○ Office, along with the ○○○○○○○○○○○○○○, to conduct the said e-mail confirmation in accordance with paragraph (3) of the e-mail confirmation. The Plaintiff signed a signature after stating that the Plaintiff is “not liable to ○○○ Law Firm.”

5) On July 20, 2012, the Plaintiff drafted the following final agreement (Evidence A 10) with the ○○○○ Department.

(3) The transferor shall waive all rights to the shares issued to the transferor and shall vest in all rights to the transferee.

(4) Paragraphs (3) and (5) of the agreement and additional agreements shall be deleted.

6) On April 26, 2013, the Defendant seized 7,200,000 U.S. stocks of Daehan under the Plaintiff’s name, which had been under custody for one year, for the purpose of the disposition on default. After the completion of the period of safekeeping, the Defendant was transferred to the Korea Securities Depository and is currently under custody.

Evidence Nos. 8, 10, 11, and Nos. 1 and 2 of the Grounds for Recognition; fact-finding with respect to Law Firm ○○; the purport of the whole pleadings

D. Determination

In full view of the following circumstances revealed by the above facts of recognition, the Plaintiff transferred the instant shares at KRW 4.6 billion to △○○○○○○, and on the premise of this, the Defendant’s disposition rejecting the Plaintiff’s claim for correction is lawful.

1) The transfer price of the instant shares is KRW 4.6 billion determined according to the result of the accounting firm’s assessment of the value of the instant shares as of December 31, 2011.

2) On June 27, 2012, 200, 720,000 shares issued to the Plaintiff via capital increase increase with the third party allotment method was allocated to the Plaintiff. The said content was electronically announced, but there was no evidence to deem that it was false.

3) On July 16, 2012, the Plaintiff confirmed that 3.6 billion won was received from ○○○, a law firm, from ○○○○, and there was no evidence to deem that it was false.

4) For the purpose of disposition on default, the Defendant seized the real securities of 720,000 shares in the name of the Plaintiff in the name of the Plaintiff, and currently keeps them.

5) The instant share transfer is paid in the amount of KRW 1 billion on June 4, 2012. On June 27, 2012, the Plaintiff appears to have been fully allocated 7.2 million shares in the name of the Plaintiff, and the implementation of the contract was completed. However, it is difficult to view that the content of the contract was modified by the agreement between the parties on July 20, 2012. 6) According to the original return clause under the agreement (Evidence A) (Article 8) the Plaintiff would return the price and shares received from ○○○○○○ (Evidence), and returned the instant shares to the Plaintiff. Since the contents of the final agreement (Evidence 10) are different, it is difficult to view that the instant final agreement was made pursuant to the aforementioned return clause. Rather, it is difficult to view that the Plaintiff and △○○○ was a new share transfer agreement that was concluded on July 20, 2012 separate from the instant transfer agreement.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Ma-○○○

Judges Doo-○

Judges Lee Dong-○

Related Acts and subordinate statutes

Periodical (amended by Act No. 12738, Jun. 3, 2014)

Article 94 (Scope of Transfer Income)

(1) Capital gains shall be the following incomes, generated in the relevant taxable period:

3. Stocks or investment shares falling under any of the following items (including preemptive rights; hereafter in this Article, the same shall apply):

Income generated from transfer of stocks, etc. in Chapter)

(a) A stock-listed corporation under the Financial Investment Services and Capital Markets Act (hereinafter referred to as "stock-listed corporation");

(c) A major shareholder prescribed by Presidential Decree in consideration of the ratio of stocks held, total market value, etc. as stocks (this shall apply)

(n) Transfer by major shareholders in this Chapter and the securities exchange under the same Act (hereinafter referred to as the “securities exchange”).

(3) transfer not by transaction under subsection (1) of this section.

(b) Stocks of corporations which are not listed corporations.

ii) Income Tax Act

Article 96 (Transfer Price)

(1) The transfer value of assets under the subparagraphs of Article 94 (1) shall be between a transferor and a transferee at the time of transfer of such assets.

the actual transaction price (hereinafter referred to as the "actual transaction price") shall apply.

Article 98 (Time of Transfer or Acquisition)

In calculating gains on transfer of assets, the time of acquisition and transfer shall not be clear from the date of liquidation of the price.

Except as otherwise prescribed by Presidential Decree, such as cases, the price of the relevant assets shall be the date of liquidation.

In such cases, capital gains tax and additional tax on capital gains tax on the transfer of the relevant asset shall be levied on the price of assets.

Where the transferee has agreed to bear the relevant capital gains tax and the capital gains tax, excluding the amount of additional tax.

(c)

The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 25193, Feb. 21, 2014)

Article 162 (Time of Transfer or Acquisition)

(1) Where the date on which the price has been paid is unclear and other cases prescribed by Presidential Decree.

case means any of the following cases:

1. Registration entered in the register, register, list, etc. where it is unclear on the date of settlement of the price;

Date of registration or date of transfer;

2. Where registration of transfer of ownership (including registration and statement of change of name) has been made before the price is settled;

The date of receipt of registration entered in the donation, register, list, etc.