KT Co., Ltd. (Law Firm Cryp Co., Ltd., Counsel for the plaintiff-appellant-appellant)

Head of Sungnam Tax Office

Suwon District Court Decision 2007Guhap10847 Decided June 10, 2009

November 23, 2010

1. The decision of the court of first instance that ruled that the part against the plaintiff falling under the order to revoke is revoked. The part exceeding KRW 22,980,797,624 of the disposition imposing corporate tax of KRW 23,113,68,210 on the plaintiff on August 4, 2005 shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. The plaintiff shall bear 98% of the total litigation costs, and the remainder shall be borne by the defendant.

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of KRW 23,113,68,210 of the corporate tax for the year 2000 imposed on the plaintiff on August 4, 2005 shall be revoked [the date of disposition specified in the notice for tax payment (Evidence A 3) shall be corrected by the above date since the date of disposition of the claim is August 4, 2005).

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as follows, and it is stated in the reasoning of the judgment of the court of first instance except for adding related Acts and subordinate statutes as shown in the attached Form. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

▣ 제1심 판결문 2쪽 밑에서 5째줄 “2005. 8. 2.”을 “2005. 8. 4.”로 고친다.

▣ 제1심 판결문 2쪽 밑에서 첫째줄 “체결하지 아니한 국가의”를 “체결하지 아니하였거나 주식양도에 따른 소득에 대하여 원천지국(우리나라)에서 과세할 수 있는 내용으로 조세협약이 체결되어 있는 국가의”로 고친다.

▣ 제1심 판결문 3쪽 표의 양도인란의 “AIF-AIF Ⅱ”를 “AIG-AIF Ⅱ”로, “AIF-AOF”를 “AIG-AOF”로 각 고친다.

▣ 제1심 판결문 3쪽 밑에서 6째줄 “2005. 8. 5.자”를 “2005. 8. 4.자”로 고친다.

▣ 제1심 판결문 4쪽 밑에서 8째줄 “ 법인세법 제98조 제8항 기한”을 “ 법인세법 제98조 제8항 에 기한”으로 고친다.

▣ 제1심 판결문 5쪽 밑에서 9째줄 다음에 “가사 그렇지 않더라도 이 사건 SKT 주식의 양도시기는 대금청산일인 2000. 7. 26.의 증권거래소 종가인 1주당 339,000원으로 양도가액을 산정하여야 한다.”를 추가한다.

▣ 제1심 판결문 7쪽 2째줄 다음에 “가. 첫째 주장에 대하여”를 추가한다.

▣ 제1심 판결문 10쪽 밑에서 3째줄부터 11쪽 13째줄까지를 다음과 같이 고친다.

Article 96(2) and Article 94 subparag. 3 of the Income Tax Act provides that the calculation of the transfer value of stocks shall be based on the actual transaction value at the time of transfer of the relevant stocks (Article 96(2) and Article 94 subparag. 3 of the Income Tax Act), and the Corporate Tax Act does not directly provide for the calculation of the transfer value of stocks. However, in cases where a corporation trades assets such as stocks, etc., the transfer value of the transferor shall be deemed to be equal to the acquisition value of the transferee. Since the Corporate Tax Act provides for the calculation standards of the transfer value (Article 41 of the Corporate Tax Act and Article 72 of the Enforcement Decree of the Corporate Tax Act), it shall be reasonable to apply mutatis mutandis the calculation standards of acquisition value to the calculation of the transfer value, barring any special circumstance, in accordance with the legislative intent of the Corporate Tax Act and the corporate accounting principles. In this case, where a corporation exchanges stocks as in the instant case, it shall be deemed that the “market value at the time of transfer” is the basis for the calculation of

The defendant, according to the review and decision by the Board of Audit and Inspection, should determine the transfer value of the shares of this case at the time of transfer on July 25, 2000. After calculating the transfer value of the shares of this case on the basis of 346,000 won per stock, which is the closing price of the Stock Exchange on July 25, 2000, and then imposing the disposition of this case to reduce the amount of corporate tax, etc. imposed by the original disposition as the tax amount of corporate tax, etc. calculated accordingly. However, according to each of the statements in subparagraphs 37 through 39 (including the provisional number), the plaintiff delivered the shares of this case to the AIbuan Corporation with the transfer value of the shares of this case on July 26, 2005, the transfer value of the shares of this case on July 26, 200 to 300, 309, 306, 300, 306, 200, 306, 306, 200, etc.

Therefore, the Defendant’s disposition of this case is unlawful by selecting the time of transfer, which serves as the basis for calculating the transfer value, and thus, it shall be revoked within the scope exceeding the reasonable tax amount. Accordingly, the scope of legitimate tax amount shall be 22,980,797,624 won, such as the sum column of the separate political party’s tax amount calculated by calculating the transfer value of the instant S&T stocks at KRW 339,00 per share. Therefore, the portion exceeding the above amount in the disposition of this case shall

2. Conclusion

The plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed, and the part against the plaintiff who ordered the cancellation in the judgment of the court of first instance, which has different conclusions, shall be revoked, and the remaining appeal of the plaintiff shall be dismissed as it is so decided as per Disposition.

[Attachment]

Judges Sung Pung-tae (Presiding Judge)