National Tax Service Review and Transfer 2010-0100 (24 June 2010)

It constitutes a stock transfer and cannot be seen as a whole phase of an all-inclusive stock exchange transaction.

In full view of the fact that the transfer of shares is made at the price of the assets due to sale, etc., and the time of the transfer is "the date of the settlement of the price of the assets in question", and that the agreement to receive capital reduction shares of the non-party company by transferring shares is not made, the transfer of shares is deemed to have been made, but it cannot be deemed that the transfer of shares is made

1. The plaintiff's claim is dismissed.

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

The defendant's refusal to correct the transfer income tax for the portion belonging to the year 2008 against the plaintiff on December 24, 2009 is revoked (the "23 December 24, 2009" appears to be a clerical error in the "24 December 24, 2009" in the application for amendment of the purport of the claim).

1. Details of the disposition;

A. On May 20, 2006, the Plaintiff acquired 8,000 shares (e.g., face value: 5,000 shares; hereinafter referred to as “instant shares”) of AAAAD Entertainment Co., Ltd. (hereinafter referred to as “AAA”), a non-listed small and medium enterprise, to KRW 40,00,000 (i.e., KRW 5,000 per share of 8,000 shares) and reported the transfer of shares to the Defendant on August 12, 2008, BBB Co., Ltd. (former trade name before the change: hereinafter referred to as “CCCC Co., Ltd.”) (hereinafter referred to as “non-party Co., Ltd.”) (hereinafter referred to as “the transfer of shares”), which is 610,176,000 won per share of 8,000 x 76,272 won per share, and reported to the Defendant on June 16, 2009

B. On November 12, 2009, the Plaintiff filed a claim for correction to the effect that “the Defendant participated in the capital increase with the instant shares issued by the non-party company with the capital increase price in KRW 500 per share, but the shares actually distributed by the Plaintiff as the non-party company reduced its shares at the ratio of KRW 20-1 on October 27, 2008, is merely 61,018 shares. Therefore, the capital gains tax originally reported was erroneously reported even though there was no capital gains on transfer.”

C. Accordingly, on December 24, 2009, the Defendant rejected the Plaintiff’s request for correction with the following purport.

“To protect and honor the shares of the non-party company acquired on August 14, 2008 at the time of transfer of shares of the AAAD Entertainment Company, and to delisting the shares of the non-party company during that period, notify that the non-party company’s claim for correction against you do not have any relation to the shares of the transferred AAAD Entertainment Company, without reason.”

D. On March 25, 2010, the Plaintiff appealed and received a decision to dismiss the request from the Commissioner of the National Tax Service.

E. Meanwhile, the details of transfer by shareholder of AA are as follows.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 1, 2, and 4 through 6, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) 주위적으로, 소외회사는 상장기준을 충족하지 못하여 상장폐지 위기에 놓이자 이를 모면하기 위하여 증자를 통해 2008. 7. 2. 주식을 20 : 1의 비율로 감자하여 재무 구조를 개선하기로 계획하였다. 그리고 원고는 2008. 8. 12. 소외회사에게 이 사건 주 식 8,000주(1주당 76,272원)를 610,176,000원에 양도한 후 2008. 8. 28. 그 양도대금으로 소외회사의 유상증자에 참여하여 소외회사의 주식 1,220,349주(≒ 610,174,500원 ÷ 1주당 500원)를 배정받았으나 소외회사가 2008. 10. 27. 재무구조를 개선할 목적으로 20대1의 비율로 주식감자를 결정함에 따라 원고가 실제 배정받은 주식은 61,018주(이하 '이 사건 취득주식')로서 그 가액은 30,509,000원{= 1주당 500원 x 61,018주(≒ 1,220,349주 ÷ 20}에 불과하다. 결국 이 사건 주식양도계약과 이 사건 취득주식 배정은 원고와 소외회사와 사이에 이 사건 주식 8,000주를 소외회사의 주식 61,018주와 교환하는 상법 제360조의 2가 정한 주식의 포괄적 교환거래의 전단계에 불과하고 그 교환가액은 30,509,000원에 불과하다. 그 결과 원고는 이 사건 주식양도로 인하여 9,491,000원(=취득가액 40,000,000원 - 양도가액 30,509,000원)의 양도차손을 입었으므로 이 사건 주식 양도계약을 독립된 거래로 보아 양도차익이 발생하였음을 전제로 그 경정청구를 거부한 이 사건 처분은 위법하다.

(2) Preliminaryly, until August 14, 2008, the non-party company did not pay the Plaintiff, etc. the transfer price of KRW 600,000,000,000, which is the transfer contract of this case, and the Plaintiff filed a lawsuit to the effect that the contract was rescinded due to the non-party company’s nonperformance of obligation, and that the right to shareholders of the shares of this case was confirmed to the Plaintiff. In the course of the lawsuit, the above court did not raise an objection against the non-party company. Ultimately, since the transfer contract of this case was rescinded by agreement with the Plaintiff according to the expression of intent between the Plaintiff and the non-party company, it cannot be said that there was a transfer of assets, which are the taxation requirement of the transfer income tax.

(b) Statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Main argument

First of all, the instant share transfer agreement and the instant share transfer agreement between the non-party company and the Plaintiff are merely an all-inclusive share transfer transaction prescribed by Article 360-2 of the Commercial Act to exchange 8,000 shares with the non-party company's 61,018 shares, and the exchange value is 30,509,000 shares.

According to the statement 3, 7, 8, 10 and 11 (each number 2) of the above 50 shares issued by 10 non-party 2, the shareholders of AA including the plaintiff at the time of the transfer of the shares ("the plaintiff, etc.") were 6,00,000,000 won (including 6,176,000 won per share, 70, 272 won per share) were 0.10 shares issued by the 10 non-party 2,00 shares issued by the 10 non-party 2,00 shares issued by the 10 non-party 2,00 shares issued by the 20-party 10-party 2,000 shares issued by the 20-party 10-party 2,000 shares issued by the 10-party 2,000 shares issued by the 10-party 2,000 shares issued by the 10-party 2,000 shares issued by the 38.

(A) The above facts and (A) pursuant to Article 88(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010) Article 162(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010); (b) pursuant to Article 610,176,000 (the issue price: 76,272 won per share) assessed the value of the shares of this case to the non-party company at the time of the transfer of the shares and stated it as the transfer price; and (c) pursuant to Article 162(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010), the Plaintiff merely transferred the shares of this case to the non-party company to the comprehensive exchange of shares at the time of the transfer of the shares.

(2) Preliminary assertion

According to each statement of Gap's evidence Nos. 3 and 4, and Eul's evidence Nos. 12 (including each number), the plaintiff and one other filed a lawsuit against the non-party company on August 18, 2010 to the effect that the contract was cancelled due to the non-party company's non-performance of obligation, and that the plaintiff and one other confirmed the plaintiff that the non-party company had the shareholder's right of the shares of this case (such as the confirmation of the shareholder's right of the non-party company's non-performance of obligation, etc.). The above court decided to recommend a compromise that "the shareholder's right of this case is confirmed to be in the plaintiff," and the non-party company did not raise an objection, and the decision was finalized on December 16 of the same year, and on the other hand, AA has closed its business as a non-party company around October 10, 2010.

However, just because the Plaintiff filed a lawsuit as above and the non-party company did not raise an objection against the decision of recommending reconciliation that was issued by the above court, it cannot be deemed that the agreement between the Plaintiff and the non-party company was concluded to cancel the above contract. If, even if there was an agreement between the Plaintiff and the non-party company to cancel the share transfer contract of this case, the Plaintiff appears to have suffered losses to the non-party company due to its business progress while acquiring the shares of this case and taking capital reduction measures in order to attract external capital, but the non-party company did not have good performance. In light of the fact that the AA closed its business around October 2010, it is reasonable to deem that the above declaration of intent to cancel the agreement constitutes a false agreement and null and void. Therefore, this part of the

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.