early 2010west036 ( December 31, 2010)

Since the acquisition of shares in this case also becomes null and void due to a self-transaction conducted without the approval of the board of directors of the plaintiff, the disposition based on the premise that the plaintiff

Since the agreement on the acquisition of shares is null and void as an act of self-transaction conducted without the approval of the Plaintiff’s board of directors, since the Plaintiff’s share holding ratio except the shares in this case does not exceed 50% and the Plaintiff does not constitute an oligopolistic shareholder, the disposition of this case on the premise that

Article 39 of the Framework Act on National Taxes

2011Guhap1235 Revocation of a taxation disposition

AAA Corporation

Samsung Head of Samsung Tax Office

March 20, 2012

April 5, 2012

1. On October 12, 2009, the Defendant: (a) designated the Plaintiff as the secondary taxpayer ofCCA for the business year 2007; (b) revoked both the disposition of imposition of KRW 000 and additional tax KRW 000; (c) corporate tax of KRW 000 and additional tax of KRW 000 for the business year 2008; (d) value-added tax of KRW 000 for the second period of 2007; (e) value-added tax of KRW 000 for the first period of 2008; and (e) value-added tax of KRW 000 for the second period of 2008; and (e) additional tax of KRW 00 for the second period of 208.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A.CC Co., Ltd. (hereinafter referred to as “Non-Party Co., Ltd”) was established on March 21, 2007 for the purpose of carrying on wholesale and retail business of non-metallic metals, etc., and was closed ex officio by the Defendant on June 30, 2009.

B. On September 17, 2009, the Defendant imposed and notified respectively the corporate tax of 00 won for the business year 2007, the corporate tax of 000 won for the first year for the business year 2008, the value-added tax of 000 for the second year for the second year for 2007, the value-added tax of 00 won for the second year for the second year for 2007, the value-added tax of 000 for the second year for 2008, and the second year for 2008 for the second year for 2008.

C. According to Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same), the Defendant deemed that the non-party company’s property owned 266,000 shares of the non-party company from November 29, 2007 to become an oligopolistic shareholder of the non-party company by holding the non-party company’s shares 266,000 shares (10% shares). On October 12, 2009, the Plaintiff designated the non-party company as the second taxpayer of the corporate tax for the business year of 2007 and at the same time, the corporate tax for the business year of 200, the corporate tax for the second year of 2008, the value-added tax for the second year of 200, the value-added tax for the second year of 200, the additional tax for 000,000 won and additional tax for 208.

D. On December 16, 2009, the Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on December 16, 2009. On December 31, 2010, the Tax Tribunal rendered a decision to re-examine the processed and stolen transaction amount with regard to 000 won, which is different from the facts, and to rectify the tax base and tax amount according to the result.

[Based on recognition] Gap evidence Nos. 2 and 3 (including branch numbers; hereinafter the same shall apply), Eul evidence Nos. 2, 3, 5, and 8, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Park GG, the representative director of the Plaintiff, acquired 00 shares of the non-party company (the shares 62.41%, hereinafter "the shares of this case") in the name of Park H, and immediately entered into a contract to acquire the shares of this case on behalf of the Plaintiff at a price much higher than the price he/she acquired (hereinafter "the contract of this case"). The contract of this case constitutes an anti-social order as stipulated in Article 1103 of the Civil Act and constitutes an anti-social order as stipulated in Article 1103 of the Civil Act for the purpose of the criminal act of embezzlement. The contract of this case is not only a false declaration of intent, but also a false declaration of intent in collusion with Park H, without the approval of the board of directors. The contract of this case was null and void since the acquisition of shares of this case was merely 37.59% of the shares of the Plaintiff except for the shares of this case, and thus, it does not constitute an oligopolistic shareholder or an oligopolistic shareholder under Article 39 (1) 2 of the Framework Act on National Taxes.

The entries in the attached Table-related statutes shall be as follows.

C. Facts of recognition

1) The Plaintiff is a company whose main business is the manufacture, sale, brokerage, etc. of semiconductors, optical devices, etc., and Park GG as the Plaintiff’s largest shareholder on October 11, 2007 and was in office as the Plaintiff’s representative director from October 29, 2007 to April 29, 2008.

2) Park G and Park Ho-H are senior friendlys. Park G and Park Ho-H asked Park to lend the name necessary to take over the certificate of listing to Park Ho-H, and Park Ho-H allowed this and issued the certificate of their personal seal impressions and certificates of personal seal impressions to Park G-G.

3) On August 31, 2007, Park G decided to acquire 000 new shares by participating in the capital increase with capital increase issued by the non-party company under the name of Park HH on the part of the non-party company and its shareholders, and on September 5, 2007, Park H participated in the capital increase issued by the non-party company in the name of Park HH and acquired 500 won per share (=00 shares x 500 won).

4) On November 29, 2007, after becoming the representative director of the Plaintiff, Park G entered into a contract for the acquisition of the instant shares on behalf of the Plaintiff to acquire a total of KRW 000 won per share, which is much higher than the price he/she acquired prior to about three months. From fixed II on the same day, Park G entered into a contract for the acquisition of shares to acquire a total of KRW 000 per share (33.83% of the total issued shares) of the non-party company at KRW 000 per share, the maximum amount of KRW 00 per share (3.76% of the total issued shares) from J to KRW 00 per share.

5) On November 29, 2007, the Plaintiff: (a) held a board of directors on November 29, 2007 to approve each share acquisition agreement to acquire 000 shares of the non-party company (100 shares) in total of 000 won per share; and (b) paid 000 won in total on the same day.

6) ParkG used 000 won of the transfer price of the instant shares received from the Plaintiff to pay its personal debt.

7) Meanwhile, upon imposition of KRW 000 as a capital gains tax on the transfer of the instant shares, Park HH filed an application for rectification with the head of Sungnam District Tax Office. The head of Sungnam District Tax Office revoked ex officio the said imposition of capital gains tax on the ground that Park HH was merely a trustee of the instant shares, and the actual owner was Park GG, and changed to impose gift tax on Park HH based on the deemed donation of title trust of the instant shares.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1, 4, 5, 11, 14, 19, and the purport of the whole pleadings

D. Determination

In order to be deemed an oligopolistic shareholder with secondary tax liability under Article 39(1)2(a) of the former Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010; hereinafter the same) to be the oligopolistic shareholder with the secondary tax liability, the total amount of small and medium-sized shares meets the formal requirements that exceeds 50/100 of the total number of outstanding shares of the relevant corporation and the substantive requirements that the person who actually exercises the rights to the said shares shall be deemed to have complied with the validity of the contract. First of all, the acquisition of the instant shares related to the formal requirements shall be deemed to have been effective only when the board of directors approves the approval of the board of directors. Article 398 of the Commercial Act provides that the so-called self-transaction without the approval of the board of directors is null and void (see, e.g., Supreme Court Decisions 94Da24626, Oct. 11, 194; 2003Da64688, Mar. 25, 2004).

In light of the above legal principles, this case’s acquisition of shares is a contract for the transfer of the shares of this case, which are owned by the representative director of the Plaintiff, to the Plaintiff. Thus, the acquisition of shares of this case requires the approval of the Plaintiff’s board of directors as to the contract. However, the following circumstances, i.e., ① to prevent anti-transaction between the director and the company from being kept confidential in light of the aforementioned facts, i.e., to ensure the fairness of the transaction, and to ensure the appropriate exercise of the right to supervise duties by the board of directors, the director related to the transaction is not required to start the company’s own interest in the transaction and the important facts related to the transaction without the approval of the board of directors. Thus, the Plaintiff’s disposal of shares of this case’s 30G acquisition without the commencement of the company’s board of directors’ resolution, which is merely a mere ordinary transaction that permits the transfer of shares, are not merely a 9G acquisition of shares, but also a mere 390G acquisition of shares under the premise that it would not be approved by the board of directors.

3. Conclusion

The plaintiff's claim is justified and accepted.