Claim that substitute securities trading for a futures trading loss was made by reference to the document section;

The alternative securities trading belongs to the plaintiff's income by the plaintiff's intention, considering that the plaintiff's notification of the situation of futures trading, including the substitute land, and the plaintiff's withdrawal of the profit by himself, and that the substitute stocks are appropriated to the futures trading loss because the substitute stocks are counter-transactioned.

Article 88 of the Income Tax Act

Article 94 of the Income Tax Act

1. Revocation of a judgment of the first instance;

2. The plaintiff's request shall be made.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 1,006,183,140 against the Plaintiff on August 2, 2004 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

On August 2, 2004, the Defendant: (a) on December 31, 1999, transferred the Plaintiff’s shares of the Korea Communications ○○○○○○○ (hereinafter “Korea Communications ○○○”) Co., Ltd. (hereinafter “Korea Communications ○○○”) with a total market value of at least 10,000,000,000 as of December 31, 199; (b) on the ground that the Plaintiff did not report the transfer income tax, the Defendant rendered a decision of imposition of transfer income tax on September 22, 200 to December 12, 200, 200, ○○ Securities Co., Ltd. (○○ Securities Co., Ltd. was merged with Korea Investment ○○○○ Co., Ltd.; hereinafter “○○ Securities Co., Ltd.”); (c) on the Plaintiff’s stock transaction account established at the Plaintiff’s Korea Communications ○○○○○○ (hereinafter “instant shares”); (d) on the ground that the Plaintiff did not report thereon.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, Gap evidence Nos. 1, 2, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The parties' assertion and the issues of this case

(1) The plaintiff's assertion

(A) When ○○○○○, an investment adviser affiliated with ○ Securities, designated the instant shares as ○ Securities by forging an application for designation of ○ Securities in the Plaintiff’s name without the Plaintiff’s delegation, and subsequently, losses incurred from futures and options trading, the instant shares were immediately deposited in ○○ Securities to cover the said losses. As such, the Plaintiff was not actually earned any income due to the instant shares trading, and thus, cannot be subject to the imposition of capital gains tax, and thus, the instant disposition is unlawful.

(B) Since 39,303 shares of this case, which were officially designated around August 7, 2000, are owned by ○○ Construction Co., Ltd. (hereinafter “○○ Construction”) and ○○ Housing Co., Ltd. (hereinafter “○○ Housing”) rather than the Plaintiff, the income accrued from the sale and purchase of a part of the said shares is not owned by the Plaintiff, and thus, it is not subject to capital gains tax against the Plaintiff.

(2) The defendant's assertion

Of the shares of this case, Korea Communications ○○○○ 92,700 shares were owned by the Plaintiff, and the interest accrued therefrom was attributed to the Plaintiff, even though the shares were transferred by the dissenting sale, and the shares transferred to the Plaintiff on July 2008, 39,303 shares, regardless of who was the original owner, were transferred to the Plaintiff by means of transfer to the account in the Plaintiff’s name, and the interest accrued from the opposite sale was also attributed to the Plaintiff. Since the profits accrued from the opposite sale were also attributed to the Plaintiff, the disposition imposing the transfer income tax of this case against the Plaintiff is lawful.

(3) The issues of the instant case

Therefore, the key issue of the instant case is: (a) whether the validity of the instant stock transaction may accrue to the Plaintiff; (b) whether the Plaintiff could not be subject to the disposition of capital gains tax because the Plaintiff did not have actually earned any income from the sales of the instant stocks; and (c) whether the opposing shares out of the shares publicly designated on August 7, 2000, are owned by ○○ Housing, etc., which is not the Plaintiff, and thus, whether the transfer income tax may not be imposed on the Plaintiff on the sales amount

(b) Related statutes;

Article 88 of the Income Tax Act

Article 94 of the Income Tax Act

Article 157 of the Enforcement Decree of the Income Tax Act

(c) Fact of recognition;

(1) As the representative director of ○○ Construction, the Plaintiff owned an amount equivalent to KRW 26,373,150,000 at the market price of 92,70 shares in Korea Communications ○○○ as of December 31, 199 (i.e., KRW 92,700 + KRW 284,50). The Plaintiff is the representative director of ○○ Housing, as the Plaintiff’s children, who is the representative director of ○○○, Kim Do is the director in charge of ○○ Construction’s accounting, and Kim ○-si is the investment adviser working at the ○○○ Securities Gwangju central branch as the ○○○○ Construction’s private village.

(2) Around April 1999, ○○○ was delegated to purchase shares worth KRW 3 billion from the Plaintiff. On April 26, 1999, ○○○ opened a spot consignment account (Account No. 022-2519-01, hereinafter referred to as the Plaintiff’s spot consignment account) in the name of the Plaintiff at the central branch of Gwangju District of mobilization securities, holding the Plaintiff’s seal imprintdo and the Plaintiff’s seal imprintdo and the Plaintiff’s seal imprintdo and deposited KRW 3 billion in the name of the Plaintiff. On the following day, ○○ purchased shares equivalent to KRW 50,000 of Hyundai Construction shares, 50,000 of Hyundai Electronic Shares, etc.

(3) Around May 1999, ○○○ was delegated by the Plaintiff to invest KRW 120 million in futures and options, and received the Plaintiff’s seal imprint designs and resident registration certificates, and deposited the said KRW 120 million by opening a gift and account in the Plaintiff’s name at the ○○ Securities Gwangju Central Branch on the 19th day of the same month, along with Kim○-do.

(4) However, on May 10, 1999, the ○○○○ Investment Company (hereinafter “○○ Securities”) designated shares in the Plaintiff’s spot consignment account as ○ Securities in addition to the above 1.20 million won and decided to invest them in futures and options. On May 10, 1999, the Plaintiff’s seal affixed to the Plaintiff’s application for the designation of ○○ Securities, designating ○○ Construction Shares 50,000 shares in the Plaintiff’s spot consignment account as ○○ Securities, 25,000 shares on July 23, 199, and 30,000 shares on February 21, 200 as ○○ Securities (hereinafter “the primary alternative designation”).

(5) From the account in the name of ○○ Construction Co., Ltd. deposited with ○○ Securities Co., Ltd. on November 7, 1999 to the Plaintiff’s spot consignment account opened on ○○ Securities. On March 28, 2000, as the stock price of ○○○ ○○ ○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○.

(7) As a result of the first and second substitute designation, Kim ○-do received a seal imprint and a share card from the Plaintiff, and deposited 30 million won in the passbook in the Plaintiff’s name (the Plaintiff’s share card was possessed only by the Plaintiff).

(8) When losses were incurred from futures and options investment at the end of July 2000 and additional deposits were required, ○○○○ Securities Co., Ltd., and 39,030 shares of ○○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 23,175 shares were transferred directly to the Plaintiff’s name, 9,038 shares were transferred to the Plaintiff’s spot consignment account opened in ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○.

(9) From the end of August 200, an appraisal loss was increased due to a fluctuation in the share price index in the Plaintiff’s futures and options transaction. Accordingly, among the shares of the Korea Communications ○○○○○ that was designated as the second and third substitute, the total of 84,241 share out of 200.9.22.41,150 shares, 10.42,020 shares in the same year, and 84,241 shares in the name of the Plaintiff and transferred to the Plaintiff’s futures and options account, and then transferred the shares to the Plaintiff’s futures and options account again, and then, the shares were appropriated for the loss of the said futures and options transaction.

(10) On December 12, 200, the Plaintiff sold 20,000 shares of Korea Communications ○○○○○○○○ in the Plaintiff’s spot consignment account on its own (the aforementioned 20,000 shares were composed of 8,459 shares remaining after the opposing trade was made until October 19, 200, and 11,541 shares out of 39,303 shares transferred from ○ Construction, etc. to the spot consignment account in the Plaintiff’s name on December 19, 200, again purchased 23,175 shares of Korea Communications ○○○○○○○○○○○○○, 700 shares on the same day to ○○○○○○○○○○○, 709 shares on the same day, respectively, and returned 23,175 shares on the same day to 2039,948,700 shares on the same day.

(11) When opening the Plaintiff’s futures and options account, the Plaintiff designated the Plaintiff’s notice place of the details of the transaction as ○○ Construction with the representative director. ○○ Securities sent to the Plaintiff’s domicile at the end of each month between May 19, 199 and December 10, 2000, and the ○○ Construction’s receipt of ○○ Construction’s accounting director, ○○ Construction’s receipt, but there was no objection as well as the Plaintiff’s filing of any objection.

(12) On July 13, 2001, the Plaintiff filed a complaint with respect to the act of substitute designation of the case 1, 2, and 3 as to the act of forging private documents, uttering, and occupational breach of trust, etc. On April 10, 2002, Kim ○ was prosecuted for the crime of forging private documents, the crime of uttering, and the crime of occupational breach of trust. On June 13, 2003, the judgment of innocence was rendered at the Gwangju District Court (2002DaDa1627) but was declared guilty for two years of suspended sentence (2 years of suspended sentence) at the appellate division of the Gwangju District Court (203No1131), and the Supreme Court reversed and remanded to the effect that the amount of damages of the crime of breach of trust was found to be erroneous by the Supreme Court (2003Do5380), and the Gwangju District Court rendered a final judgment of 205No240555 Decided Nov. 28, 2007.

The Supreme Court, on the grounds of the above reversal and return judgment, determined that the difference between the amount disposed of as a counter-trade and the amount disposed of as a counter-trade is the amount of damages caused by breach of trust if Kim○ was not able to believe that the plaintiff had obtained prior consent at the time of the third substitute designation with regard to the amount of damages caused by breach of trust, as in the case where there was prior prior consent to the effect of the existing futures, options, and the designation of substitute securities.

(13) Meanwhile, Article 98 of the Income Tax Act and Article 162 (5) of the Enforcement Decree of the same Act provide that if the acquiring time of transferred asset is unclear, the asset first acquired shall be deemed first transferred. Accordingly, the acquisition and transfer details of the instant shares so arranged shall be as follows:

Table Omission of the Table

D. Determination

(1) Reversion of the legal effect of the instant stock transaction

The following facts revealed: (i) the Plaintiff’s 00 million won was delegated to ○○○○○○○○○○○○’s ○○○○○○ Securities Depository prior to the commission of the Plaintiff to invest in the said 120 million won shares; (ii) the Plaintiff’s purchase of shares equivalent to KRW 3 billion was delegated to ○○○○○○○○; and (iii) the Plaintiff’s 120 million shares were granted to ○○○○○ ○○ ○○ ○○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○.

(2) Whether the Plaintiff obtained income from the counter-trade of the instant shares

The transfer subject to the transfer income tax is made regardless of the will of the owner such as auction or court judgment, but the transfer of the property is actually made at a cost. If the transfer is made under the Income Tax Act, the obligation to pay the transfer income tax arises regardless of the intention of the owner.

In addition, in the case of stock transaction, if the value of collateral is insufficient to continue the futures and options transaction and the additional deposit money is not paid for the shortage, the transaction of stocks is made by substitute designated for the protection of the securities company, and the price is appropriated for compensation after the transfer to the futures and options account of the owner of the stocks.

As to the instant case, as seen earlier, 104,241 shares in the Plaintiff’s name were traded against KRW 4,193,70,350 during the period from September 22, 200 to December 12, 200, and were transferred to the futures and options account in the Plaintiff’s name, and then transferred to the Plaintiff’s futures and options account, and then deposited to the ○○ Securities and subsequently appropriated for the loss of the said futures and options transaction. Therefore, the Plaintiff transferred 104,241 shares in the instant case to KRW 4,193,703,350 in total, although it was made through the opposite transaction form, and was appropriated for the loss of the futures and options account in the Plaintiff’s name. Accordingly, it is justifiable to impose capital gains tax on the transfer of shares in the instant case.

(3) The third alternative stock ownership relationship.

In full view of the facts that 39,303 shares of Korea, which were designated as the third substitute 200 on August 7, 200, 200, 23,175 shares 23,175 shares in the spot consignment account under the Plaintiff’s name, were transferred from ○○ comprehensive Construction, 7,090 shares, and 20,000 shares in Korea, which were located in the spot consignment account on December 12, 2000, and 23,175 shares were purchased at 20,000 shares on the same day to ○○○ Construction, and 9,038 shares were returned to ○○,7,09 shares in the spot consignment account under the Plaintiff’s name to ○○ comprehensive Construction. In full view of the facts that the Plaintiff transferred 20,000 shares from August 7, 200 to ○○ comprehensive Construction, all of which were owned by the Plaintiff and thus reverted to 201 shares.

Therefore, the argument that the third substitute-designated shares are owned by ○○ Construction, etc. is without merit without any need to further examine.

(4) Calculation of a reasonable amount of tax

Furthermore, the transfer value of 104,241 shares of this case is the total of 4,193,70 won, and the acquisition value is the 1,143565,700 won [the acquisition value of 716,60,000 shares + the acquisition value of 11,541 shares among the shares designated for the third alternative use + 426,965,70 won (the acquisition value of 11,541 shares of this case as of December 19, 200), and the transfer income tax calculated as of August 2, 2004, calculated as of August 2, 2004, is the 1,006,183,140 won, such as the entry in the total determined tax amount column, in the calculation of the transfer income tax in the attached Form.

Therefore, the defendant's disposition of this case that imposed capital gains tax on the plaintiff is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be raised as it is without merit, and since the judgment of the court of first instance is different from this conclusion, the defendant's appeal shall be accepted and revoked, and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.

[Maju District Court 2005Guhap2520 ( November 15, 2007)]

1. The Defendant’s disposition of imposition of capital gains tax of KRW 1,006,183,140 against the Plaintiff on August 2, 2004 that exceeds KRW 55,58,642 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 1/20 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s disposition of imposition of capital gains tax of KRW 1,006,183,140 against the Plaintiff on August 2, 2004 is revoked.

1. Details of the disposition;

On August 2, 2004, the Defendant was a major shareholder who owned the Plaintiff’s shares of 10,000,000,000 won or more at the market price as of December 31, 199 (hereinafter “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○,” and was in possession of the Plaintiff’s shares of 10,00,000 won or more at the time of the Plaintiff’s stock transaction account, and did not make a decision on the transfer income tax of △○○○○○○○○○, Inc., Ltd. (hereinafter “○○○○○○○○○○○”) from September 22, 200 to December 12, 200 of the same year on the ground that the Plaintiff did not report the transfer income tax of ○○○○○,000,000 won or more to another person (hereinafter “instant shares”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2; Gap evidence Nos. 1, 2; Eul evidence Nos. 1 and 2; the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) An investment adviser belonging to △△ securities designated the instant shares as substitute securities by forging an application for the designation of substitute securities in the name of the Plaintiff without the Plaintiff’s delegation, and then causing losses in the futures and options transaction. Since the instant shares were sold contrary to the agreement, they immediately deposited in △△ securities in order to cover the said losses, the Plaintiff cannot be subject to the disposition of imposition of capital gains tax on the grounds that the Plaintiff actually received any income from the opposite trading of the instant shares, and thus the disposition of this case is unlawful.

(2) Since the 39,303 share shares of this case, which were designated as the third substitute around August 7, 200, are owned by △ Construction Co., Ltd. and △△ Housing Co., Ltd., other than the Plaintiff, income from the transfer of shares designated as the third substitute share is not subject to capital gains tax for the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) 원고의 아들인 정○○는 □□건설 주식회사(이하, '□□건설'이라 한다)의 대표이사인 원고로부터 1999. 4.경 금 3,000,000,000원 상당 주식의 매입을 위임받아 1999. 4. 26. △△증권에 원고 명의의 현물위탁계좌(계좌번호 022-XXXXXX-XX, △△증권이 ▽▽▽▽증권 주식회사에 합병된 이후 계좌번호는 XXXXXXXX-XX이다)를 개설한 후 다음 날 ☆☆건설 주식회사 주식 50,000주, ☆☆전자 주식회사 주식 50,000주 등 금 3,000,000,000원 상당의 주식을 매수하였고, 같은 해 5.경 원고로부터 금 120,000,000원을 선물·옵션거래에 투자할 것을 위임받으면서 원고의 인감도장 및 주민등록증을 교부받아, 같은 달 19. △△증권에 원고 명의의 선물·옵션계좌(계좌번호 0XX-XXXXXX-XX △△증권이 ▽▽▽▽증권 주식회사에 합병된 이후 계좌번호는 XXXXXXXX-03이다)를 개설하여 금 120,000,000원을 입금하였다.

(2) However, on February 21, 2000, Ho○○ decided to invest shares in the Plaintiff’s spot consignment account as substitute securities. On the same day, he prepared an application for designating substitute securities in the Plaintiff’s name using the Plaintiff’s certificate of seal impression and designated 50,000 shares of △△ Construction Co., Ltd. in the Plaintiff’s spot consignment account, 25,000 shares of △△△△ Securities Co., Ltd. in △△△△△, 30,000 shares of electronic Co., Ltd. in △△△, △△△, △△△, Inc. in the Plaintiff’s spot consignment account, and designated 20,000 shares as substitute securities (hereinafter referred to as “first substitute designation”).

(3) 정○○는 2000. 3. 28. 1차 대용지정된 주식의 주가가 하락하자 ❍❍증권 소속 투자상담사인 김○○과 상의한 후 1차 대용지정을 해지하고, 대신 2000. 3. 28.부터 같은 해 6. 8.까지에 걸쳐 원고의 현물위타계좌에 있던 ○○○○○○○ 주식 92,700주를 대용증권으로 지정(2000. 3. 28. 20,000주, 같은 해 4. 4. 10,000주, 같은 해 5. 23. 30,000주, 같은 해 6. 2. 30,000주, 같은 달 6. 8. 2,700주 합계 92,700주를 대용증권으로 지정, 이하 '2차 대용지정'이라 한다)하여 선물·옵션거래를 계속 유지 하였다.

(4) When losses occurred in futures and options transactions around the end of July 200 and additional deposits are required, on August 7, 2000, ○○○○○○○○ shares owned by the above Kim○○○○○○ shares in the name of the above company and transferred 39,303 shares from the account in the name of the Plaintiff to the spot check account in the name of the Plaintiff (hereinafter referred to as “third substitute designation”) and additionally designated them as substitute securities for the instant futures and options transactions (hereinafter referred to as “third substitute designation”).

(5) From the end of August 200 to the 300-point price index, an appraisal loss has increased. Accordingly, 1,150 shares out of the 2,3 00 ○○○○○○○○○ which was designated as 2,3 alternative shares, which were purchased on September 22, 200, 43,020 shares together with 84,241 shares (hereinafter referred to as “instant 84,241 shares”) in the name of the Plaintiff 19-20-20-10-20-20-20-200-20-20-30-10-20-20-20-10-20-20-20-30-10-20-20-30-10-20-20-20-30-30-30-10-30-20-30-300-3,000-20-3.

(6) Article 98 of the Income Tax Act and Article 162 (5) of the Enforcement Decree of the same Act provide that if the acquiring time of transferred asset is unclear, the asset first acquired shall be deemed first transferred. Accordingly, the acquisition and transfer details of the instant shares so arranged shall be as follows:

○ Particulars of acquisition

Date of acquisition

Quantity (State)

Unit price (unit price)

Amount (won)

April 10, 1997

50,000

6,100

305,000,000

November 28, 1997

30,000

6,100

183,000,000

August 12, 1999

12,700

18,000

28,600,000

August 7, 2007

11,541

The fact that ○○○ transfers the shares owned by △○ to the spot account in the name of the Plaintiff in the name of the Plaintiff.

guidance.

104,241

○ Details of transfer

Transfer Date

Quantity (State)

Unit price (unit price)

Amount (won)

September 22, 2000

279

41,650

11,620,350

September 22, 2000

2,312

41,700

96,410,400

September 22, 2000

17,324

41,800

724,143,200

September 22, 2000

1,235

41,950

51,803,250

September 22, 2000

19,191

42,000

806,022,00

September 22, 2000

75

42,050

3,153,750

September 22, 2000

734

42,100

30,901,400

October 17, 2000

10,000

39,550

395,500,000

October 17, 2000

29,700

39,600

1,176,120,000

October 17, 2000

3,300

39,650

130,845,00

October 17, 2000

20

40,000

800,000

October 19, 2000

71

42,550

3,021,050

December 12, 2000

3,000

38,100

14,300,000

December 12, 2000

7,713

38,150

294,250,950

December 12, 2000

8,415

38,200

321,453,00

December 12, 2000

872

38,250

3,354,000

guidance.

104,241

(7) On July 2001, the Plaintiff asserted that ○○○○○○○○○○○○○○○, as seen above, incurred losses, regardless of the Plaintiff’s intent. The Plaintiff filed a complaint against the investment adviser Kim○○, an act of occupational breach of trust, an act of forging a private document forgery, and an act of uttering of an investigation document, etc. on the year of designating the substitute securities of this case. Kim○○ stated that, around August 7, 2000 at the time when he was investigated by the public prosecutor due to the above accusation, ○○ did not obtain the Plaintiff’s consent with regard to designating the instant stocks as the substitute securities. However, in order to meet losses, ○○ designated the third substitute securities in addition to the third substitute securities in the Plaintiff’s name, ○○ made a gift and options transaction by December 12, 200, which is the date on which the instant futures and options account was terminated.

(8) 김○○에 대한 형사재판결과 제1심 법원(○○지방법원 2002○○XXXX7)은 무죄를 선고하였으나, 항소심 법원(위 법원 2003○XXXX)은 김○○이 1, 2차 대용증권 지정 당시에는 정○○가 정□□의 사전승낙을 받은 것으로 믿었던 것으로 볼 여지가 있으나, 2000. 8. 7.경에는 정○○가 정□□의 사전승낙을 받지 않았음을 알고도 이 사건 3차 대용증권 지정신청서를 위조하여 행사하고, 정상선의 위탁없이 예탁증권을 임의 매매하였다는 사실을 인정하고, 제1심 판결을 파기하고, 위 각 범죄 사실들에 대하여 유죄를 선고하였는데, 상고심(대법원 2003○XXXX)에서도 이와 같은 항소심 법원의 판단을 정당하다고 판시하였다(다만, 공소사실 중 김○○의 업무상배임죄의 성립은 인정되나, 업무상배임죄와 관련된 손해액의 산정이 잘못되었다는 이유로 파기환송하였다).

[Reasons for Recognition] Facts without dispute, Gap evidence 3-1, 2, Gap evidence 4, Eul evidence 1, 2, 3, Eul evidence 4-1, 2, Eul evidence 4-2, Eul evidence 5-8, part of Eul evidence 5, and whole pleadings

3. Determination

(1) Whether the transaction of dissenting share 84,241 is subject to the imposition of capital gains tax

(A) The term "transfer" under the Income Tax Act means that an asset is actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of the asset (Article 88(1) of the Income Tax Act). If the owner of the asset transferred as above is not in a position to actually control, manage, and dispose of the transfer income, it shall not be deemed as a person liable to pay the transfer income tax.

(B) As acknowledged earlier, ○○○○○○○○○○ or Kim○○, who is the Plaintiff’s members of ○○○○○○○○○, arbitrarily forged an application for the designation of an alternative securities without the Plaintiff’s delegation or approval, and designated the instant shares as an alternative securities for futures and options trading. From March 28, 200 to December 12, 200, ○○○○○○○○○ was engaged in futures and options trading in the Plaintiff’s name. While ○○○ was aware of the fact that ○○○○○ was not authorized to act on behalf of ○○○○○○○ on August 7, 200, ○○○ was immediately suspended trading, and ○○○○○’s shares deposited in the Plaintiff’s name were either informed of the fact that ○○○○○○○ was designated as a substitute securities or terminated the designation of an alternative securities, and even thereafter, ○○○○○’s shares deposited in the Plaintiff’s name, i.e., an alternative securities trading on the same day.

Therefore, it is difficult to view that the Plaintiff was in a position to de facto control, manage, and dispose of capital gains accruing from the opposite trade of 84,241 share, and thus, the Plaintiff cannot be deemed as a person who actually acquired income and is liable to pay capital gains tax, and without examining the remainder of the Plaintiff’s assertion, the Defendant’s imposition disposition of capital gains tax on 84,241 share is unlawful.

(C) As to this, the Defendant did not follow the act of breach of trust by Kim ○, but did not follow the act of violation of trust by the Plaintiff, and it was a result of the Plaintiff’s designation of substitute securities outside the scope delegated by the Plaintiff. The Defendant asserted that the Defendant’s disposition of this case is lawful, in light of the following: (a) Ma○○ is an expression agent under Article 126 of the Civil Act; (b) Ma○○’s above act constitutes an expression agent under Article 126 of the Civil Act; (c) the legal effect of the act is deemed to belong to the Plaintiff; and (d) the price was deposited in the futures and options account under the Plaintiff’s name after the purchase of the shares of this case was made.

On the other hand, even if the expression agency established as the defendant's assertion and the civil legal effect in order to designate each of the substitute securities in this case belongs to the plaintiff, as seen above, since the plaintiff did not have the status to actually control, manage, and dispose of the above shares, the plaintiff cannot be deemed to be a person liable for capital gains tax as a person liable for capital gains tax, as long as he did not have the status to actually control, manage, and dispose of the above shares. Therefore, the defendant's argument is without merit.

(2) Whether the sale of the instant 20,000 shares is subject to the imposition of capital gains tax

However, as seen earlier, even if 8,459 shares originally owned by the Plaintiff among the shares 20,000 shares of this case were in a situation where the opposing trade was made in order to be appropriated for losses incurred from the futures and options transaction of this case without the Plaintiff’s consent as asserted by the Plaintiff, the Plaintiff sold the above 8,459 shares by itself, and the sale price actually reverts to the Plaintiff, so the above 8,459 share sale is subject to imposition of capital gains tax.

Meanwhile, according to the first out of the 20,000 shares of this case, the remaining 11,541 shares, excluding the above 8,459 shares, were originally owned by △ Construction, etc., and even if shares of △ Construction, etc. were transferred to the Plaintiff’s spot entrusted account by △○○, the above shares cannot be immediately owned by the Plaintiff merely because they were in the Plaintiff’s spot entrusted account, unless the Plaintiff acquired or borrowed the above shares from △ Construction, etc., and the Plaintiff’s said spot entrusted account was used as a temporary storage place for using shares of △ Construction, etc. of this case as substitute securities necessary for the futures and options transaction of this case, and there is no possibility of disposal of the above shares, and even after the Plaintiff disposed of the above shares, the ownership of the above shares does not belong to the Plaintiff, and thus, the above 11,541 share trading is not subject to the transfer income tax against the Plaintiff. Accordingly, the Defendant’s disposition of imposition of the capital gains tax against the Plaintiff is unlawful.

(3) Calculation of a reasonable amount of tax

Furthermore, the transfer value of 3,00 of the above 8,459 shares of 114,30,000 shares of 3,000 shares (=3,000 shares X 38,100), 5,459 shares of 208,260,850 shares (=5,459 X 38,150 shares), acquisition value of 152,262,00 shares (=8,00 shares of 8,459 X 38,642 shares). The transfer income tax calculated based on this is KRW 55,58,642 as stated in the total amount of tax determined in the attached Table in the calculation of transfer income tax.

3. Conclusion

Therefore, the part exceeding 55,58,642 won among the Defendant’s disposition imposing capital gains tax of this case is unlawful, and the remaining part is legitimate. Thus, the Plaintiff’s claim of this case seeking revocation of the disposition of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Details of calculation of capital gains tax

(The following formula is about the transfer income tax of 8,459 shares originally owned by the plaintiff among 20,000 shares sold on December 12, 2000

Classification

Amount

Jinay

Transfer Value

322,560,850 won

Application to the first in first in first in first in first in first in order to December 12, 2000 transferred on December 12, 200

X 3,000 Won = 114,300,000

X 38,150 Won = 208,260,850

Acquisition Value

152,262,00 won

Part of 12,700 shares acquired by offering new shares on August 12, 199

X 18,00 won = 152,262,00 won

Necessary expenses

2,257,925 won

Securities Transaction Tax Act of 0.4% of the transferred amount, 0.3% of the transferred amount

Transfer Margin

168,040,925 won

Capital gains amount;

168,040,925 won

Basic Transfer Income Deduction

2,500,000 won

Tax Base

165,540,925 won

Tax Rate

20%

calculated tax amount

3,180,185 won

Additional Tax

Impossibility of Report

3,310,818 won

10% of the penalty tax rate for failure to report;

Good Faith in Payment

19,169,639 won

X 1,158 (the number of past days from June 1, 2001 to August 2, 2004) X 5/100

Total determined tax amount

5,588,642 won

Notice Tax Amount

5,588,642 won

Related Acts and subordinate statutes

[Income Tax Act (amended by Act No. 6292 of Dec. 29, 200)]

○ Article 88 of the Income Tax Act (Definition of Transfer)

(1) "Transfer" in subparagraphs 3 and this Chapter means that assets are actually transferred for price due to sale, exchange, investment in kind in a corporation, etc. without any connection with registration or enrollment (hereinafter referred to as "transfer") of such assets.

○ Article 94 of the Income Tax Act (Scope of Transfer Income)

The transfer income shall be the following incomes generated in the current year:

3. Income accruing from the transfer of stocks or investment shares listed on the Korea Stock Exchange, which are prescribed by the Presidential Decree;

[Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17032 of Dec. 29, 2000)]

○ Enforcement Decree of the Income Tax Act Article 157 (Scope of Land, etc.)

(4) The term “those as determined by the Presidential Decree” in subparagraph 3 of Article 94 of the Act means the stocks, etc. transferred by a person falling under any of the following subparagraphs (hereafter in this Chapter referred to as “large stockholders, etc.”) from among the stocks or equity shares (including the preemptive rights; hereafter in this Chapter referred to as “stocks, etc.”) of a corporation which has issued the stocks listed on the securities market (hereafter in this Chapter referred to as the “securities market”) under Article 2 (12) of the Securities and Exchange Act: Provided, That the stocks, etc. falling under Article 158 (1) 1, 4 or 5 shall be excluded:

2. One stockholder concerned and other stockholders in case where the total market price of the stocks, etc. of the relevant corporation owned by one stockholder and other stockholders as of the end of immediately preceding business year immediately preceding that whereto the transfer date of stocks, etc. belongs is 10 billion won or more.