Early High Court Decision 2012J 2864 (No. 21, 2012)

The instant disposition that the Defendant reported the Plaintiff as the transferor of the instant shares is legitimate.

It is reasonable to view that the disposition of this case by the Defendant, which regarded the Plaintiff as the transferor of the shares of this case, is legitimate in full view of the following: (a) the Plaintiff’s substantive rejection of the Plaintiff’s substance is not logically consistent while taking account of the acquisition of economic benefits; and (b) the securities transaction tax is a circulation tax imposed when the

Article 1 of the Securities Transaction Tax Act

2012Guhap16634 Revocation of Disposition of Imposing securities transaction tax

Bosa

BB Director of the Tax Office

July 3, 2013

September 11, 2013

1. The plaintiff's claim is dismissed.

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

On May 15, 2012, the Defendant revoked the disposition of imposition of the securities transaction tax OOO(including additional OOOO and additional OOOO) against the Plaintiff.

1. Details of the disposition;

A. On April 24, 2009, the Plaintiff acquired 1200,000 shares (hereinafter “the instant shares”) issued by EE from DD No. 1 (hereinafter “DD”) to OO, and transferred the instant shares to PEE Co., Ltd. on May 4, 2009.

B. On May 15, 2012, the Plaintiff did not report and pay the securities transaction tax following the transfer of the instant shares, and the Defendant determined and notified the OOO(including the OOO on negligent tax return and the OOOO(the additional tax on non-payment) of the securities transaction tax on the ground that the transfer of the instant shares is subject to taxation stipulated in the Securities and Exchange Act.

C. On June 5, 2012, the Plaintiff appealed to the Tax Tribunal, and was dismissed on September 21 of the same year.

[Reasons for Recognition] The facts without dispute, Gap evidence 1, 3, and 4, and Eul evidence 1 (including paper numbers, hereinafter the same shall apply), and the whole purport of the pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The actual transferee of the instant shares is FElectronic Co., Ltd., and the Plaintiff is merely a mere transfer to FFElectronic Co., Ltd. after formally taking over the instant shares upon delegation by FFElectronic Co., Ltd., and the instant disposition was imposed against the Plaintiff, who cannot be deemed the actual right holder of the said shares. As such, the instant disposition was unlawful in violation of the principle of substantial taxation.

B. Relevant statutes

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

(c) Fact of recognition;

1) On February 13, 2007, EE sold 300,000 common shares issued by EE to DD, and Article 8 of the sales contract provides that when DD intends to sell 0.5% or more of the total issued shares of EE to a third party through internal or over-the-counter trading, the EE company, the representative director of EE of the company, and the officers of EE, have the preferential right to purchase the shares under the same condition. In addition, on February 13, 2007, HH and sulfur II sold 50,000 shares issued by EE to DD on the same condition. Article 5 of the sales contract provides that DD has the preferential right to purchase the shares under the same condition that DD would sell the shares to a third party through internal or over-the-counter trading at least 0.5% of the total number of issued shares of EE of the company, and that DD would have the same preferential right to purchase the shares under the same condition as HG stocks.

2) On the other hand, as the City/Do occurred in around 2009, the price of the shares of the EE of the Co., Ltd. was deteriorated, and on April 2, 2009, DD intended to sell the shares of this case to EE Co., Ltd. on April 2, 2009, and notified whether to exercise the preferential purchase right. The EE Co., Ltd. established a plan to acquire the shares of this case by FFE Co., Ltd. as a means of defense against hostile M&A, and notified D to exercise the preferential purchase right to the shares of this case on April 9, 200, and in the process, the Plaintiff, who was in office as the team leader of the management support division of EE Co., Ltd., Ltd., was expected to exercise the preferential purchase right to the shares of this case to D Co. 3, Ltd. at a higher price than that of the EEG representative director of EEG.

3) Accordingly, EE and FE Co., Ltd. concluded a delegation agreement with the Plaintiff on April 24, 2009 that delegated the conclusion of the sales contract for the instant shares owned by the Plaintiff and DD to the F EE Co., Ltd., not an executive officer of EE Co., Ltd. with the understanding of DD, but the Plaintiff, an employee, acquired the shares at a preferential price, thereby allowing the Plaintiff to transfer the shares again.

4) On April 24, 2009, the Plaintiff acquired the instant shares as an OOOO for each share, a preferential purchase price, and the price was borrowed from JJ alone, the representative director of the FF electronic and FF electronic brokerage company, the representative director of the JJ alone Holdings. Thereafter, on May 4, 2009, the Plaintiff transferred the instant shares to FF Electronic Co., Ltd. at the price the same OOO for each share.

[Grounds for Recognition] Gap evidence 2, Eul evidence 2, and evidence 5 through 11, and testimony of witness L

D. Determination

(1) ① The fact that the Plaintiff received the purchase price of the instant shares from the FElectronic Co., Ltd. is recognized, but if the Plaintiff did not become the purchaser, DD did not sell the shares by the preferential purchase price, and there was a mutual agreement between the Plaintiff and DD that the Plaintiff would acquire the instant shares. ② The fact that the Plaintiff acquired the shares only formally, and the Plaintiff’s acquisition of the shares to FFElectronic Co., Ltd. goes against the internal and subjective intention or room between the Plaintiff and FFElectronic Co., Ltd. for acquiring the preferential purchase price, is merely merely an internal and subjective intention or room between the Plaintiff and FFElectronic Co., Ltd., and it cannot be denied the validity of the Plaintiff’s acquisition of the shares. ③ The Plaintiff acquired the economic benefits that the Plaintiff acquired with the preferential purchase price, and the Plaintiff’s denial of the Plaintiff’s substance from the taxation point of view is logically inconsistent, and it is reasonable to deem the Plaintiff’s disposal of the instant shares as lawful considering the fact that the Plaintiff, a distribution tax, regardless of whether the ownership of the shares was transferred for payment.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.