Examination-transfer-2015-010 ( October 21, 2015)

Income tax shall be subject to capital gains tax because it falls under major shareholder requirements.

As long as it is difficult to deem the sale to be null and void, it is difficult to deem that the transfer does not constitute a transfer subject to capital gains tax under the Income Tax Act.

Article 94 (Scope of Transfer Income)

2016Guhap2809 Revocation of Disposition of Imposing capital gains tax

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AA Head of the Tax Office

November 29, 2016

December 16, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The disposition of imposition of capital gains tax of 000 won (including additional tax of 000 won, additional tax of 000 won for unfaithful return) that the Defendant made to the Plaintiff on October 0, 2014 is revoked.

1. Details of the disposition;

The Plaintiff transferred 00 shares out of the above shares of AAA (hereinafter referred to as “instant shares”) in 200 shares of ○○○ listed company (hereinafter referred to as “instant company”), while holding 00 shares of 00 shares (the total shares issued as of December 31, 201, and the total market value of the instant company is KRW 0 billion).

On October 0, 2014, the Defendant imposed capital gains tax of 000 won (including additional tax of 000 won and additional tax of 000 won) on the transfer of the instant shares to the Plaintiff (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The Plaintiff offered the instant shares as collateral for the instant company’s debt guarantee against BB bank. The instant shares were transferred to BB bank due to the Plaintiff’s opposite transaction while the Plaintiff lost its officer qualification as the instant company. If BB bank did not unilaterally make a opposite transaction, the Plaintiff was able to obtain investments from investors and repay all obligations, and the instant shares were also able to be returned. Accordingly, the Plaintiff cannot impose capital gains tax on the instant transfer.

B. Determination

Article 88 (1) of the Income Tax Act provides that "The actual transfer of assets is made for price due to sale, exchange, investment in kind in corporation, etc. regardless of the registration or enrollment of the assets."

Meanwhile, according to Article 94(1)3 (a) of the Income Tax Act (amended by Act No. 12738, Jun. 3, 2014; hereinafter the same) and Article 157(4)1 and 2 of the Enforcement Decree of the same Act, where a shareholder or a shareholder owns at least 5/100 of the total amount of stocks of the relevant corporation as of the end of the business year to which the transfer date belongs, if the total amount of stocks of the relevant corporation as of the end of the business year to which the transfer date belongs exceeds five billion won, the transfer of stocks by such

As seen earlier, on December 31, 201, the date immediately preceding the fiscal year immediately preceding the fiscal year in which the transfer date of the instant shares belongs, the Plaintiff held 00% of the shares of the instant company in which the total market value was KRW 0 billion, and thus, the transfer of the instant shares is subject to capital gains tax. Even if the BB bank, as alleged by the Plaintiff, sold the instant shares, as long as such sale cannot be deemed null and void, it is difficult to view that such transfer does not constitute a transfer subject to capital gains tax under the Income Tax Act.

Therefore, we cannot accept the Plaintiff’s assertion on a different premise.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.