Plaintiff (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Head of Sungbuk Tax Office

February 13, 2004

1. The Defendant’s imposition of securities transaction tax of KRW 6,835,170 against the Plaintiff on June 1, 2002 exceeds KRW 318,870, and the imposition of capital gains tax of KRW 186,021,760, exceeding KRW 75,757, and the imposition of capital gains tax of KRW 18,60,60, and the imposition of KRW 7,573,475, among the imposition of capital gains tax of KRW 18,60,170, shall be revoked, respectively.

2. The plaintiff's remaining claims are dismissed.

3. Ten minutes of the litigation shall be borne by the plaintiff, and the remainder by the defendant.

The Defendant’s imposition of securities transaction tax of KRW 6,835,170 against the Plaintiff on June 1, 2002; KRW 186,021,760; and KRW 18,602,170; and KRW 318,870; capital gains tax of KRW 75,175,690; and resident tax of KRW 7,517,560, respectively.

1. Details of the disposition;

[Grounds for recognition: Gap 1-3, Eul 2-1, Eul 2-3, Gap 3-4, Eul 5-1, Eul 1-1, Eul 2, Eul 2-1, Eul 2-2, Eul 3-1, 2, Eul 5-1, 2, Eul 6, Eul 7-7, Eul 7]

A. The Korea Securities Dealers Co., Ltd. (hereinafter “the non-party company”) is registered in the Korea Securities Dealers Association on June 26, 1997, as a company engaged in the manufacture and wholesale of computers and peripheral devices.

B. From November 21, 2001 to December 1, 2001, the result of the inspection of transfer income tax on the stocks of the non-party company conducted in Seocho Tax Office, the plaintiff transferred 290,000 shares of the non-party company from non-party 1, a major shareholder of the non-party company, to over-the-counter trading method without going through the above Association brokerage market on September 16, 1999, and sold the whole amount of the non-party company during the period from September 21, 199 to October 27, 199 through the above Association brokerage market. On September 16, 1999, the non-party company acquired overseas convertible bonds equivalent to USD 3 million issued by the non-party company, and transferred the whole amount of the non-party company's shares to non-party 1 through the above Association brokerage market during the period from September 29, 199 to 3, 199, acquired the remaining 19,000 won per share from 19.

C. Accordingly, on October 29, 1999, the Defendant calculated the Plaintiff’s tax base of securities transaction tax as the trading price (7,490 won per share) publicly announced by the Korea Securities Dealers Association on September 21, 1999 to November 9, 199, on the aggregate of the stocks transferred by the Plaintiff from September 21, 199 to November 1, 199, with the market price publicly announced by the Korea Securities Dealers Association as of each transfer date as of June 1, 2002, imposed the Plaintiff KRW 7,518,680, and capital gains tax of KRW 482,131,349, and resident tax of KRW 48,130 as of June 1, 199, respectively.

D. Thereafter, on March 24, 2003, the Plaintiff filed a request for a national tax trial against each of the above dispositions, and the securities transaction tax base on the stocks transferred to Nonparty 1 and 2 was corrected by the amount (6,741 won per share) obtained by subtracting the price limit (10%) determined by the same Association from the transaction base (7,490 won per share) on the transfer date published by the Korea Securities Dealers Association (7,490 won per share) and the total amount of stocks transferred from November 5, 199 to November 9, 199 shall be excluded from the subject of capital gains tax, and the amount of capital gains tax shall be excluded from the subject of capital gains tax, and in calculating the capital gains tax on the stocks transferred to Nonparty 1 and 2, the determination of the national tax assessment standard of the said securities transaction tax shall be revised by calculating the transfer value.

E. Therefore, around April 30, 2003, the Defendant notified the Plaintiff of the securities transaction tax for the year 199 as KRW 6,835,170, and the transfer income tax and resident tax for the year 1999 as KRW 186,021,760 and KRW 18,602,170, respectively (hereinafter “each of the dispositions of this case”).

2. Related statutes;

It is as shown in the attached Table related statutes.

3. Judgment on the legality of the disposition

A. The plaintiff's assertion

(1) The Plaintiff’s shares transferred to Nonparty 1 on October 29, 1999 to Nonparty 1 are shares that were returned after borrowing from Nonparty 1 on September 16, 1999, and thus, the securities transaction tax is not imposed. Therefore, the Defendant’s imposition of securities transaction tax including this is unlawful. Accordingly, the shares subject to securities transaction tax among the shares transferred on October 29, 199 by the Plaintiff on Nonparty 2 are limited to 14,191 shares that are transferred to Nonparty 2 for payment in kind. In this case, the amount of tax payable by the Plaintiff shall be calculated as KRW 318,870 (=6,835,170 x 14,191/304,191).

(2) On October 29, 199, the Plaintiff’s shares 290,000 shares repaid to Nonparty 1 at the time of acquisition can be confirmed. However, since the transfer price is not a sale, it is impossible to exist due to the fact that the transfer price is not a sale, the conversion price under the proviso of Article 100 of the former Income Tax Act and Article 166(2)1 (b) of the Enforcement Decree of the same Act must be calculated [the actual transaction price at the time of acquisition 】 the standard market price at the time of transfer / the standard market

However, it is unlawful to impose capital gains tax on the above 290,000 transfer because the transfer date is the same as the date of acquisition and the standard market price at the time of transfer. Therefore, the transfer price and the transfer price are the same as the transfer price and the transfer price do not occur

(3) In calculating gains from the transfer of 14,191 shares that the Plaintiff transferred to Nonparty 2 on October 29, 199 and 110,00 shares that were transferred from November 2, 199 to November 4, 199, the Defendant calculated the acquisition value of KRW 3,510 per share, which is the conversion price at the time of exercising the conversion right, but the acquisition value is reasonable in calculating the number of shares converted by the number of shares converted by the amount actually required until the conversion into the stocks. As such, the acquisition value is reasonable in dividing by the number of shares converted by the amount actually required until the conversion into the stocks after acquiring an overseas convertible bond, the exchange value of KRW 3,591,60,00, 7,183,200, total of KRW 120,300,000, total of KRW 3,598,903, 500 (70%) by dividing the conversion rate of KRW 2,519,234,50 per share.

Therefore, the amount of capital gains tax exceeding 75,175,690 won and resident tax exceeding 7,517,560 won should be revoked as illegal.

B. Determination

(1) Determination on the imposition of securities transaction tax

If the Plaintiff and Nonparty 1 enter into an agreement with Nonparty 1 on September 16, 199 that all the arguments were presented in the statement 3-1, 2, 4, 5-1, 2, and 6 of Eul, the Plaintiff shall borrow an overseas convertible bonds equivalent to US$3 million from the issuance of the non-party company acquired by the Plaintiff from the non-party 1 in the form of over-the-counter loan with the ordinary share of 290,000 shares issued by the non-party company as security, and the redemption of 290,00 shares of the non-party company issued by the non-party company before December 27, 199 is not the same as the initial loan shares. The shares to be redeemed shall not be the same as the original loan shares, and the prescribed amount of lending fees [the closing price 】 the number of borrowed shares 】 2.5% 】 10% 】 290,000 shares issued by the non-party 1, 290,010 shares issued by the non-party 29.

According to the above facts of recognition, the Plaintiff’s transfer of 290,000 shares of the non-party company to the non-party 1 is based on a loan agreement for consumption based on share certificates. Thus, Article 6 subparag. 4 of the former Securities Transaction Tax Act (amended by Act No. 6302 of Dec. 29, 200) and Article 3(1) subparag. 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17040 of Dec. 29, 200) cannot impose a securities transaction tax on the transfer of shares pursuant to Article 6 subparag. 4 of the former Securities Transaction Tax Act and Article 3(1) subparag. 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No.

(2) Determination on imposition of capital gains tax

(A) First, we examine the disposition of imposition of capital gains tax on 290,000 shares that the Plaintiff transferred to Nonparty 1 on October 29, 199.

According to subparagraph 4 of Article 94, Articles 95 (1) and (5), 97, 99 (1) 2, 100 (1) and (3), and Articles 157 (5) 1, 166 (1) and 166 (2) 1 (b) of the former Income Tax Act (amended by Presidential Decree No. 1664 of December 31, 199), where stocks not listed on the Korea Stock Exchange are transferred without going through the Korea Stock Dealers Association market, acquisition value and necessary expenses determined by Presidential Decree shall be determined based on the actual transaction value; where acquisition value and necessary expenses determined by Presidential Decree are determined based on the actual transaction value at the time of acquisition, only the actual transaction value may be confirmed, and where the actual transaction value at the time of transfer cannot be confirmed based on the standard market price at the time of acquisition or transfer, that is, the actual transaction value at the time of acquisition or transfer shall be determined by Presidential Decree.

In this case, on October 29, 199, the plaintiff transferred 290,000 shares to non-party 1 without going through the Korea Securities Dealers Association brokerage market pursuant to the above loan agreement, and as seen earlier, the actual transaction price at the time of acquisition can be confirmed, but the actual transaction price at the time of transfer falls under the case where the actual transaction price at the time of transfer cannot be confirmed and the amount converted into the price at the time of transfer should be calculated by considering the transfer price as the transfer price under the method as determined by the Presidential Decree. Since the standard market price at the time of acquisition is calculated at the same time as at the time of acquisition and the transfer date is calculated at the same time as at the time of acquisition, the transfer price shall not be the same as the acquisition price and thus, it is unlawful to impose the transfer income tax. Accordingly, the plaintiff's above assertion has merit.

The defendant asserts that when calculating the transfer value as above, the transfer value in the imposition disposition of securities transaction tax and the transfer value in the imposition disposition of capital gains tax are different. However, this is not unreasonable since the purpose of imposing tax and the calculation method of tax prescribed in the Act are different from each other, and it is not reasonable. In addition, if the transfer value differs, there is no reasonable ground to unify it with the transfer value as stipulated in the Securities Transaction Tax Act, not with the Income Tax Act.

(B) Next, we examine the argument that the acquisition value should be calculated as KRW 3,530 per share in calculating gains on transfer.

In Articles 95(1) and (5), 97(1), (3)1, and (5) of the former Income Tax Act, capital gains shall be the amount obtained by deducting necessary expenses from the transfer value. In this case, necessary expenses at this time mean the actual transaction price required for acquisition, and equipment expenses and improvement expenses, capital expenses, and transfer expenses as determined by the Presidential Decree, and matters necessary for the scope of the actual transaction price required for acquisition and calculation of necessary expenses shall be determined by the Presidential Decree. Accordingly, Article 163 of the Enforcement Decree of the same Act provides for necessary expenses in detail.

However, the Plaintiff’s assertion that money exchange fees or conversion fees claimed by the Plaintiff do not fall under the actual transaction price required for the acquisition stipulated in Articles 97(1) and (3)1 of the former Income Tax Act and Article 163 of the Enforcement Decree of the same Act, or the facility cost and improvement expenses, capital expenses, and transfer expenses prescribed by the Presidential Decree, and thus, should be taken into account in calculating the acquisition value or transfer gains, is groundless

(c) Political tax amount;

If the legitimate tax amount of the Plaintiff’s securities transaction tax and transfer income tax is calculated by excluding 290,000 shares transferred to Nonparty 1 from the tax base, it shall be as shown in the attached Form No. 1 securities transaction tax calculation table and the transfer income tax calculation table (the standard tax rate for resident tax is 10/100 of the income tax amount).

C. Sub-committee

Therefore, since each disposition of this case is unlawful within the extent exceeding the aforementioned legitimate tax amount, the part exceeding 318,870 won in the imposition disposition of securities transaction tax, the part exceeding 75,734,757 won in the imposition disposition of capital gains tax, and the part exceeding 7,573,475 won in the imposition disposition of resident tax should be revoked.

4. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.

Judges Yu Nam-nam (Presiding Judge) Kim Yong-ok

Judges Kim Yong-soon unable to sign and seal due to transfer