The meaning of “where the ownership is transferred at a cost” under Article 2(3) of the former Securities Transaction Tax Act and the meaning of “transfer value of share certificates, etc.” under Article 7(1)2(a) of the same Act / Whether the actual agreed amount is included in “transfer value of share certificates, etc.” in cases where a third party, other than a transferee, partially bears the transfer price, and falls under the consideration for the transfer of share certificates, etc. itself (affirmative)

Article 1 main sentence of Article 1 and Article 2(3) of the former Securities Transaction Tax Act (amended by Act No. 13628, Dec. 29, 2015) stipulate the transfer value of share certificates, etc. in cases where share certificates, etc. are transferred at a cost due to contractual or legal grounds, other than cases where share certificates, etc. are transferred at a cost due to a transfer of share certificates, etc. under Articles 7(1)2(a) through 3 subparag. 1(a) and where the transfer value of share certificates, etc. can be known, the “transfer value of share certificates, etc.” is the tax base of “transfer value of share certificates, etc..” In this context, “where the ownership is transferred at a cost” means the case where the price is paid as a consideration for the transfer of ownership. Since “transfer value of share certificates, etc., which serves as the basis for calculating the securities transaction tax” refers to the amount agreed on at the time of transaction, if a third party, other than the transferee, bears part of

Articles 1 (see current Article 2), 2(3) (see current Article 1-2(3)), and 7(1)2(a) of the former Securities Transaction Tax Act (Amended by Act No. 13628, Dec. 29, 2015);

Supreme Court Decision 2008Du21614 Decided July 28, 201 (Gong2011Ha, 1836) Supreme Court Decision 201Da105621 Decided November 28, 2013 (Gong2014Sang, 35)

Future Ep Partners Private Equity Fund (Law Firm LLC, Attorneys So-young et al., Counsel for the defendant-appellant)

The director of the tax office

Seoul High Court Decision 2015Nu50636 decided January 19, 2016

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

Article 1 main sentence of Article 1 and Article 2(3) of the former Securities Transaction Tax Act (amended by Act No. 13628, Dec. 29, 2015) provide that “where the ownership is transferred at a cost due to contractual or legal grounds,” the transfer of share certificates, etc. shall be subject to taxation. In cases where share certificates, etc. are transferred pursuant to Articles 7(1)2(a) through 3 subparag. 1 and where the transfer of share certificates, etc. can be known, the “transfer value of the relevant share certificates, etc.” is the tax base of “where the ownership is transferred at a cost” (see Supreme Court Decision 2011Da105621, Nov. 28, 2013). The “transfer value of the relevant share certificates, etc., which serves as the basis for calculating the transfer value” refers to the amount actually agreed in consideration at the time of transaction (see Supreme Court Decision 2011Da105621, Jul. 28, 2011).

(5) The lower court, citing the reasoning of the first instance judgment, found the following facts: (i) gold Asia and five affiliated companies, including the Plaintiff, purchased 24,65,611 shares of Daewoo Construction Co., Ltd. (hereinafter “Treatment Construction”) at KRW 26,262 per share in KRW 206,00,000, and concluded a contract between the shareholders of this case who purchased treatment construction shares at the base price calculated on the basis of the rate of return from financial investors; (ii) the Plaintiff shall be deemed to exercise its option to sell shares at KRW 20,00,000 for KRW 27,00,000,000 for KRW 10,000,000,000; and (iii) the Plaintiff shall be deemed to exercise its option to sell shares at KRW 36,00,000,000,000,000,000,0000,000,000.

Next, the lower court rejected the Plaintiff’s claim that: (a) if the Plaintiff was to receive only KRW 18,00 per share of the instant shares as the price for the transfer of the instant shares, the Plaintiff would have not withdrawn the exercise of the sale option; (b) would have changed only the subject of payment of the purchase price and the transferee of the instant shares as the means of guaranteeing the entire amount of the purchase price pursuant to the first sale contract; and (c) would have simply transferred the instant shares to KRF at KRW 18,000; and (d) the Plaintiff’s disposal of the instant shares was concluded in order to implement the resolution of the sale option specifically; (e) the Plaintiff would have been able to enjoy the same economic effect as exercising the sale option of the instant shares at KRW 60 per share of the instant shares; and (e) the Plaintiff would have received the sale option of the instant shares from 60 per share of the instant shares from 160 per share of the instant shares to 60 per share of the instant shares; and (e) the Plaintiff would have been entitled to receive the sale option of the instant shares from 1616 per share of the instant shares.

Examining the record in light of the aforementioned provisions and legal principles, the lower court did not err by misapprehending the legal doctrine on the assessment of the tax base of securities transaction tax, contrary to what is alleged in the grounds of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)