2. The plaintiff's claim is dismissed.

3. The total costs of the litigation shall be borne by the Plaintiff.

the Gu Office's place of service and place of service

1. Claim: A disposition rejecting correction of KRW 11,146,95,570, which the Defendant rendered to the Plaintiff on July 28, 2014, shall be revoked.

2. Purport of appeal: It is so ordered;

A. Capital increase issued on August 20, 2009 and KOSDAQ-listed on November 26, 2010 by Si ○○○○ Stock Company (hereinafter “instant company”).

1) The instant company established as a foreign-invested company in 1966 was selected as a company subject to business structure improvement due to financial difficulties in 1998 and became an affiliated company in April 200 by ○○○ Co., Ltd. (hereinafter “○○○”) upon purchasing △△△△△△△△% of the issued shares, thereby getting out of the company subject to corporate structure improvement work early, and became an affiliated company as of June 1, 200, together with ○○ and its affiliated company under the Monopoly Regulation and Fair Trade Act (hereinafter “○○ Group”).

(2) After that, the company of this case was subject to the commencement of composition on February 2003 upon the aggravation of semiconductor games and the arrival of excessive repayment of loans, and was subject to the decision of June 19, 2003, but on August 10, 2007, the company of this case completed the composition procedure early by exemption from its duty of reporting 2.4 billion won on October 2007, after receiving an investment of 17.4 billion won through subscription of convertible bonds from AA Bank ○○○○○ Private Equity Fund (hereinafter referred to as “ATB”), and after receiving an investment of 5.0 billion won through priority subscription, the company of this case was required to enter into an investment contract with ATB to verify its performance of its obligations on an average of 0.0 billion won, 3.0 billion won prior to that date, the company of this case, which was an affiliated company of ○○○○○○ Group, and the company of this case, which was also an affiliated company of this case.

4) In such a situation, the instant company held a board of directors on July 31, 2009, and decided to issue the instant company’s shares in the proportion of 16.75%, 16.6% of the board of directors, 16.6% of the company’s shares, 26.6% of the company’s shares, 26.60% of the company’s shares, and 4.1% of the company’s shares, ○○ Bank held 8.57% and 8.21% of ATB, respectively, in order to maintain financial soundness through early repayment of loans raised at high interest.

5) However, as of August 18, 2009, four affiliated companies, including the above ○○, and CCC, as of the time, renounced all the preemptive rights of the 7, △△△△, and △△△△△△ (hereinafter referred to as the “instant shares”) allocated to their shareholders on August 18, 2009, and given up the preemptive rights allocated to the shareholders, the instant company, following the resolution of the board of directors on August 19, 2009, allocated forfeited shares to the Plaintiff. The Plaintiff, on August 20, 2009, paid the total amount of KRW 99,99,110 (9, △△△△△, 1,030,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

6) Accordingly, the instant company success in the KOSDAQ on November 26, 2010.

B. Plaintiff’s return, payment, and correction of gift tax, and disposition of this case

1) At the time when the Plaintiff allocated all forfeited shares by the resolution of the board of directors of the instant company on August 19, 2009, the Plaintiff was in the position of de facto controlling ○○ Group by holding ○○○○ representative director, who is the holding company of the instant ○○ Group, to which the instant company belongs, concurrently holding the director positions of its affiliated companies, such as ○ Electronic, ○○BB, and ○○ Reading Center, which renounced the preemptive right as above. However, the instant company did not directly become an executive officer or hold shares. As seen above, the Plaintiff came to hold 12.45% of the instant company’s shares through the allocation of forfeited shares such as the instant shares and the acquisition thereof.

2) After that, upon success of the instant company on the KOSDAQ on November 26, 2010, the Plaintiff was originally assigned to ○○○○, ○○ Electronic, DoBB, ○○ Library, and the CCC of the instant company, and the Plaintiff was assigned to the Plaintiff as a specially related party with the waiver of his/her preemptive rights, and the increased value arising from the listing of the instant shares was allocated to the Plaintiff and acquired by him/her as a result of his/her waiver of his/her preemptive rights, △△△△, 721,012,385 won was the subject of taxation under the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 2011; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) and thus, the Plaintiff did not receive or waive the gift tax under Article 41-3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Apr. 28, 2011).

3) On July 28, 2014, the Defendant rendered the instant disposition rejecting the Plaintiff’s request for correction. The reason was that, even in a case where the Plaintiff again accepted the instant shares that became forfeited stocks from the instant company, such listing gains would be subject to the gift tax under Article 41-3(6) of the former Inheritance Tax and Gift Tax Act.

[Grounds for Recognition: Gap's statements and the purport of whole pleadings as to Gap's evidence 1 through 12, 14 through 21, 25 through 29, 31 through 33, Eul's evidence 1 through 9 (including each number),

2. Whether the instant disposition is lawful

A. The provision of Article 41-3(1) and (6) of the former Inheritance Tax and Gift Tax Act and the legislative purport thereof

1) Article 41-3 of the former Inheritance Tax and Gift Tax Act (hereinafter referred to as "Article 41-3") provides that a person in a special relationship with the largest shareholder who is deemed to be in a position to use undisclosed information concerning the management, etc. of the company under paragraph (1) of the same Article, (1) where a person directly receives shares of the corporation or obtains shares of the corporation for consideration (hereinafter referred to as "type 1"), or (2) where a person, who received shares of the corporation from a person other than the largest shareholder, acquires shares of the corporation (hereinafter referred to as "type 2"), or where the shares are listed on the Korea Exchange within five years from the date of donation or acquisition, such shares increase in their value as they are listed in the shares, shall be deemed to be the value of property donated to the corporation. In the application of paragraph (1) of the same Article, the acquisition of shares shall include new shares acquired or allocated by the corporation to increase its capital.

2) The purpose of Article 41-3(1) and (6) is to realize the tax justice and tax equality by preventing ex officio donations to the specially related persons of the largest shareholder and by regulating, through possession by the donee or acquisitor, the control over the affiliate without tax, by controlling the affiliate without any tax, by listing stocks in the nearest future where the largest shareholder with internal information on the listing, etc. of the company has donated or sold stocks of the company to the specially related person prior to listing, or acquired other property, and allowing the specially related person to gain excess profits.

(b) Feasibility of Article 41-3(6);

1) However, the provisions of Article 41-3(6) are stipulated in the provision itself as the premise of the application of paragraph (1) in addition to the fact that Article 41-3(6) is to block an irregular donation to the specially related persons of the largest shareholder, and it cannot be interpreted that Article 41-3 itself provides that the largest shareholder is subject to taxation of listed profits by expanding the shares additionally acquired through a capital increase without compensation, based on the premise of direct, indirect, and free transfer of shares from the largest shareholder to the specially related persons (see, e.g., Supreme Court Decision 2012Du25620, Oct. 29, 2015).

2) However, according to the factual relations mentioned above and Articles 41-3(1)1 and 41-3(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23040, Jul. 25, 201) and Articles 31-6(1) and (2), and 19(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, all of the ○○○ Group affiliated with the same enterprise group or its executives, who were affiliated with the same enterprise group, or affiliated with the same ○○○ Group, or its executives, constitutes the largest shareholder of the instant company under Article 41-3(1). However, the shares acquired by the Plaintiff fall under the largest shareholder of the instant company under Article 41-3(1) but it is clear that the shares acquired by the largest shareholder, such as ○○ and other largest shareholder, were allocated new shares by waiver of preemptive rights to ○○, etc., and thus, were disposed of from the instant company’s profits.

(c) Feasibility of direct application of Article 41-3(1);

1) Meanwhile, although the Plaintiff’s shares acquired by the largest shareholder, including ○○, waives his preemptive right to new shares and allocates the shares acquired by the Plaintiff to the Plaintiff to the Plaintiff who is a specially related party, the shares per se do not constitute the type No. 1 of Article 41-3(1), which provides that shares are directly donated or transferred from the largest shareholder to the Plaintiff, in that the shares per se are not directly donated or transferred to the Plaintiff from ○○ et al.

2) In addition, the type of Article 41-3(1) is related to the type 2 of Article 41-3(1). This can be said that the largest shareholder donated property to a specially related person and, in other words, acquired the shares of the pertinent corporation with the capital of the given property. However, it can be said that the preemptive right of the instant shares by the largest shareholder, such as ○○, constitutes a legal right with economic value (see, e.g., Supreme Court Decisions 2002Du4440, Oct. 23, 2003; 2008Du17882, Apr. 28, 201); however, it is difficult to readily conclude that the waiver of such preemptive right and the allocation of the shares to the Plaintiff constitutes a donation immediately, or that the Plaintiff acquired the shares of this case with the funds therefrom.

D. Application of Article 2(3) and (4) of the former Inheritance Tax and Gift Tax Act

1) However, Article 2(3) of the former Inheritance Tax and Gift Tax Act provides that "donation" shall be free of charge transferred to another person by direct or indirect means, regardless of the name, form, and purpose of the transaction, and Article 2(4) of the same Act provides that where it is deemed that gift tax has been unjustly reduced by indirect means through a third party or by more than one act or transaction, it shall be deemed that the transaction was conducted directly by the party or that the transaction was conducted in succession, and Article 2(3) of the same Act shall apply.

2) The above provisions of the former Inheritance Tax and Gift Tax Act introduced the so-called comprehensive taxation of gift tax by introducing the concept of comprehensive gift unique to tax-related Acts and uniformly converting the previous provisions into the provisions on the calculation of donated property. In principle, in cases where any transaction or act constitutes the concept of gift stipulated in the above provisions, taxation of gift tax shall be possible pursuant to paragraph (1). However, in cases where the calculation of individual value is limited to only a certain transaction or act among the transaction or act regulated by the individual provision on the calculation of individual value, and the scope of taxation can be deemed to have set the scope and limit of gift tax by prescribing a specific type of transaction or act in order to ensure the predictability of taxpayers and ensure the stability of tax-related relations, it may not be subject to gift tax even if the transaction or act excluded from the scope of gift tax or the scope of taxation among the transaction or act governed by the above provisions on the calculation of individual value reaches the concept of gift stipulated in the above provisions (see, e.g., Supreme Court Decisions 2013Du13266, Oct. 15, 2015).

3) Therefore, it is problematic whether Article 41-3(1) of the Act only provides for the scope and limitation of taxation only for a specific type of transaction and act subject to taxation, but it is not so in the form of transaction for gift purposes. In conclusion, the purpose of Article 41-3 is to promote tax equality by imposing gift tax on listed profits of unlisted stocks at the time of donation or transfer and imposing tax on the transferred property predicted at the time of donation or transfer (see, e.g., Supreme Court Decision 2012Du25620, Oct. 29, 2015). As such, the scope and limitation prescribed in the above provision is limited to the acquisition of stocks in the status where the largest shareholder recognized as being in a position to use information that is not open to the public regarding business management, etc. of the company, and it cannot be deemed that the provision directly or indirectly provides for the form of transaction for the acquisition of stocks in the form of transaction, such as the acquisition of new stocks, and it does not directly or indirectly include the acquisition of stocks from the largest shareholder.

4) From this perspective, in light of the fact that ○○○○ et al. provided for the listing duty of the instant company in an investment contract through the acquisition of the instant convertible bonds between the instant company and ATB, and that ○○○ et al. had the duty to cooperate with the Plaintiff as an interested party, and the Plaintiff’s de facto control over the largest shareholder such as ○○○○ et al., the waiver of preemptive rights to the instant shares in the capital increase for the purpose of securing financial soundness pointed out as the most important factor in the listing of the instant company is not merely a waiver of rights, but it can be deemed that the waiver of rights was a transaction aiming at the outcome of capital increase and listing by combining the Plaintiff’s cultivation with the mutual exchange between the Plaintiff and the Plaintiff, and that Article 39(1)1(a) of the former Inheritance Tax and Gift Tax Act provides for the waiver of rights to new shares and the allocation of forfeited shares to the person who is a related party to the instant corporation, and that it can be deemed that the Plaintiff’s waiver of rights to the forfeited shares has been subject to gift taxation.

(e) Actual substance of donation;

1) In relation to this, the Plaintiff asserts that the Plaintiff’s participation in the issue of capital increase with respect to the instant company’s acquisition of the instant shares was merely a sacrifice of the private contribution as a major shareholder of ○○ Group, and that there was no actual donation.

2) However, comprehensively taking account of the overall purport of arguments in Gap's evidence Nos. 1, 3, 14, and 18 through 21 and Eul's evidence Nos. 4 through 6 (including each number), the company of this case was continuously recorded and kept operating profits since 2004, and ○○○, the largest shareholder of this case, was holding the funds at the time when he waived preemptive rights to the shares of this case. ② The preemptive rights to the shares of this case were set as KRW 1,030 per share, and the ○○○○ shareholder could not be ruled out as the largest shareholder of this case's shares of this case's company's 5,306,750 won per share, and the ○○○ shareholder's 2009 shares of this case's ○○○ shareholder did not have any influence on the shares of this case's ○○ shareholder's 200,500 won per share.

(f) Scope of the largest shareholder;

1) In addition, the Plaintiff asserts that, in light of the purport of the Supreme Court Decision 2010Du11559 Decided May 10, 2012, the largest shareholder referred to in Article 41-3(1) refers to a person who holds the largest share holding ratio or at least 25% of the total outstanding shares, and when considering the number or ratio of shares held in total, including the number of shares held by a specially related person, only 00 and 2BB are the largest shareholder, and that ○○ Electronic and ○○ Library and ○○ Library and CCC do not fall under the largest shareholder of the instant company.

2) However, in light of the provisions of Article 41-3(1)1 and 2 of this Act, and Articles 31-6(1) and (2) and 19(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23040, Jul. 25, 2011), the purport of the above Supreme Court decision cited by the Plaintiff is to consider the shareholder as the largest shareholder in cases where the total number of shares held by both the donor and a person holding the largest number of shares held by the person holding the largest shares based on the donor and his/her specially related person, and to calculate the awareness of the specially related person if the specific shareholder is deemed a specially related person, even if the specific shareholder is deemed a specially related person, it should not be deemed the largest shareholder in calculating the number of shares held by the said specially related person. The purport of the above Supreme Court decision should not be deemed to be that the shareholder holding the highest number of shares held by the Plaintiff, like the Plaintiff’s assertion by the Plaintiff.

3) Articles 41-3(1)2 and 41-3(1) of the same Act stipulating that “a person prescribed by Presidential Decree, who holds not less than 25/100 of the total number of stocks issued by a domestic corporation” shall be deemed to be the largest shareholder solely, or a person who holds the largest number of stocks among those who hold not less than 25/100 of the total number of stocks held by the donor shall not be deemed to be the largest shareholder, but shall be deemed to be the regulations that always hold not less than 25/100 of the total number of stocks issued when aggregating all the number of stocks held by the shareholders and persons who belong to a related party with the donor, focusing on the donor, are the largest shareholder (see Supreme Court Decision 2013Du15385, Mar. 24, 2016). The Plaintiff’s assertion contrary thereto is unacceptable from any point of view.

G. Sub-determination

As a result, the defendant's disposition of this case is legitimate in that it is based on Article 41-3 (1) and Article 2 (3) and (4), which are the general ground provisions, as well as Article 41-3 (1). Thus, the defendant's assertion that is the same purport is reasonable, and the plaintiff's assertion against it

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance differs from this conclusion, the judgment of the court of first instance shall be revoked, and the plaintiff's claim shall be dismissed as per Disposition.