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청구외법인의 유상증자시 발생한 실권주를 보충적평가액 보다 저가로 인수하였다하여 그 차액을 증여의제하여 증여세를 과세한 처분의 당부(취소)

조세심판원 조세심판 | 2005-03-31 | 국심2004서2909 | 상증

[Case Number]

National High Court Decision 2004Du2909 (205.04.01)

[Items]

Donations

[Types of Decision]

Revocation

[Summary of Decision]

Since 6,000 won per share of shares at the time of capital increase is recognized as the market price reflecting the objective exchange values appropriately, it seems that the market price of shares is unclear.

[Related Acts]

Article 39 of the Inheritance Tax and Gift Tax Act / [Presumption of Donation on Capital Market, etc. by Capital Market, etc.] 【Calculation Method, etc. of Value Deemed as Donation on Capital Market and Gift Tax / [Principle of Evaluation, etc.] / [Principle of Evaluation, etc.] 【Principle of Market Price, etc.】

【Reference Decision】

National High Court Decision 2003Du2531 / National High Court Decision 2003Du2531 / National High Court Decision 2003Du2531/ National Court Decision 2531/

【Disposition】

The disposition of imposition of KRW 465,610 on the gift tax of 2001 on the claimant by the head of the Songpa District Tax Office on June 10, 2004 is revoked.

【Reasoning】

1. Summary of disposition;

The Korea-China Industrial Development Corporation (hereinafter referred to as "the Korea-China Industrial Development Corporation") is a non-listed corporation that has acquired the environmental business sector of the Korea-China Industries after the 129 executives and employees of the environmental business sector of the Korea-China Industries were established as capital (2 billion won) in the process of restructuring following the default of the Korea-China Industries (hereinafter referred to as "the Korea-China Industrial Development Corporation").

The claimant had 275 shares out of the last 48,632 shares of 48,632 shares (hereinafter referred to as “instant shares”) that were held at 6,000 won per 6,000 won per 6,000 won (the face value 5,000 won per 6,000 won per 1 share in the capital increase process.

The disposition agency assessed 18,094 won per share of the outstanding shares allocated in excess of the number of shares that can be equally allocated in proportion to the number of the relevant shares held by the applicant for the issuance of new shares by the method of supplementary evaluation under the Inheritance Tax and Gift Tax Act, and decided 3,325,850 won (12,094 won x 275 shares) by multiplying the difference with the 6,000 won per share of the subscription price by the number of the excessive allocated shares as the value of the donated shares, and decided 465,610 won for the gift tax of 201 to the applicant on June 10, 2004.

On July 6, 2004, the claimant appealed and filed an appeal for adjudication.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

The issue price of KRW 6,000 per share was recognized as the market price in accordance with the decision of national tax adjudication (it is unfair that the issue price of KRW 6,000 was determined as the market price in November 27, 2000 when the issue price of KRW 6,000 was determined at the time of the issue of capital increase with capital increase (it is not deemed that the financial status and business performance of the foreign corporation) and then the market price at the time of the issue of capital increase with capital increase cannot be deemed to have been improved, even though there was no example of sale within 3 months before or after the establishment of the foreign corporation, it is unreasonable to calculate the market price at the time of the issue of capital increase with capital increase by the supplementary evaluation method for the unlisted stocks under the Inheritance Tax and Gift Tax Act,

In addition, the burden of proving that it is difficult to calculate the market price as of the donation date is the tax authority, and if there is no example of business example between three months before or after the appraisal base date, the issue price in question should be determined whether it corresponds to the market price. However, even though the forfeited rate is 95%, and there is no special relation among the executives and employees such as the claimant, etc. who received excess of forfeited shares, it is reasonable to recognize 6,000 won per share, the issue price in this case, as the market price.

(b) Opinions of disposition agencies;

The claimant asserts that all of the transaction examples of the shares were 6,000 won or more after the incorporation of the non-contentious corporation, but all of them cannot be viewed as the transaction example as of the donation date under the Inheritance Tax and Gift Tax Act and the transaction amount after 10 months or more compared to the time of capital increase; and

In addition, examining the operating profits of the claim foreign corporation other than the ordinary profits of the profit and loss statement for the business year 199 through 2000 business year, the loss was sustained until the business year 200, but the business year 2001 was converted to black at a starting point, and the sales and gross profit increase is also increasing, and the net asset value at the time of capital increase with capital increase from 8,903 won to December 6, 2001, the net asset value at the time of capital increase from 12,829 won per share, and there was a change in the financial status, so it should not be deemed that the market price recognized as the market price by the national tax adjudication decision (the national trial decision 2003Do2531, Dec. 26, 2003) should not be applied equally to the capital increase with capital increase at the time of December 6, 2001. < Amended by Presidential Decree No. 17003, Nov. 27, 2000>

3. Hearing and determination

(a) Points in dispute;

The dispute over this recommendation was accepted at a lower price than the supplementary appraised value at the time of capital increase issued by the foreign corporation, and the propriety of the disposition imposing gift tax on the difference as the difference is deemed as gift.

(b) Related statutes;

The person who obtains the benefits falling under any of the following subparagraphs by issuing new stocks or equity shares (hereinafter referred to as “new stocks” in this paragraph) in order to increase the capital (including the amount of investment; hereafter the same shall apply in this Article and Article 39-2) of the Inheritance Tax and Gift Tax Act shall be deemed to have received the donation of the amount equivalent to the said benefits:

1. In cases where new stocks are issued at a price lower than the market price (referring to the price assessed under Articles 60 and 63; hereafter in this paragraph and Article 40, the same shall apply), the benefits falling under any of the following item (a):

(a) In case where a shareholder of the relevant corporation (including an investor; hereafter in this Article, the same shall apply) has renounced wholly or partially the right to receive new stocks, and where such renounced new stocks (hereafter in this paragraph, referred to as “beneficial stocks”) are allocated (excluding the case where a stock-listed corporation or Association-registered corporation under the Securities and Exchange Act allocates such new stocks by the method of solicitation of securities under Article 2 (3) of the same Act; hereafter in this paragraph, the same shall apply), the benefits acquired by those who received the allocation

(c) Profits acquired by a person who is not a stockholder of the relevant corporation by directly obtaining an allocation of new stocks from the relevant corporation (including the case of directly accepting and acquiring the relevant new stocks from an underwriter under the Securities and Exchange Act; hereafter in this paragraph, the same shall apply), or by directly obtaining an allocation of new stocks in excess of the number entitled to be allocated under equal conditions in proportion to the number

Article 29 of the Inheritance Tax and Gift Tax Act: < Amended by Presidential Decree No. 2034, Dec. 31, 2007>

1. Profits stipulated in Article 39 (1) 1 (a) and (c) of the Act: An amount calculated by multiplying the value computed under item (a) minus the value under item (b) by the number of forfeited stocks or new stocks under item (c);

(a) Value per stock calculated by the following formula: Provided, That in case of a corporation falling under any subparagraph of Article 22 of the Enforcement Decree of the Income Tax Act, where the appraised value per stock after the capital increase is less than the value per stock calculated by the following formula, the value concerned:

[The appraised value per share before capital increase 】 (the total number of outstanding stocks issued before capital increase 】 (the number of new stocks 】 the number of stocks increased by capital increase)] ± (the total number of outstanding stocks issued before capital increase + the number of stocks increased by capital increase)

(b) The acceptance price per new stocks;

(c) Number of forfeited stocks or new stocks allocated (in case of a person who has received allocation in excess of the number of new stocks allocated under equal conditions, the number of new stocks for such excessive portion); and

Article 60 of the Inheritance Tax and Gift Tax Act: (1) The value of property on which the inheritance tax or gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as the “date of appraisal”). In this case, the value assessed by the method of assessment under Article 63 (1) 1 (a) and (b) (excluding the case falling under the provisions of Article 63 (2))

(2) The market price under paragraph (1) shall be the price which is generally accepted in cases of free trade between many and unspecified persons, and shall include the price which is recognized as the market price under conditions prescribed by Presidential Decree, such as the price of expropriation and public auction

(3) In applying paragraph (1), where it is difficult to compute the market price, the price assessed by the methods prescribed in Articles 61 through 65 shall be based on the types, scale, transaction conditions, etc. of the relevant property.

Article 49 of the Inheritance Tax and Gift Tax Act: (1) "The amount deemed the market price under the conditions as prescribed by Presidential Decree, such as the expropriation price, public sale price, appraisal price, etc." in Article 60 (2) of the Act means the amount verified by the following provisions in cases of sale, appraisal, expropriation, auction (referring to an auction under the Civil Procedure Act; hereafter the same shall apply in this paragraph) or public sale during a period of not more than six months before or after the evaluation base date (three months in cases of donated property):

1. If the fact of sale and purchase of the relevant property exists, the transaction value: Provided, That this shall not apply where the transaction value is deemed objectively unfair, such as transactions with persons with a special relationship provided for in Article 26 (4);

C. Facts and determination

(1) On April 9, 199, 199, 129 executives and employees of the environmental business sector of Han Heavy Industries were a corporation established with capital of 2 billion won, and 140,000 capital was passed at the board of directors of the foreign corporation requesting the issuance of new shares and 133,014 shares (95.01%) as of the closing date of subscription on November 17, 2001, the board of directors of the foreign corporation requesting the issuance of 133,014 shares (95.01%) decided to arrange loans while growing the forfeited shares for each class of officers and employees, and the fact that the capital increase was completed as of December 6, 2001 due to the payment of shares by the existing shareholders and other employees.

(2) Of 133,014 shares forfeited at the time of capital increase with respect to the forfeited stocks issued by a foreign corporation, the disposition agency: (a) deemed that the Plaintiff’s 1,228 shares allocated in excess of the number of shares originally entitled to equal allocation in proportion to the number of shares held; and (b) assessed the forfeited stocks as 18,094 won per share assessed by the supplementary method; and (c) assessed the forfeited stocks as 18,094 won per share; and imposed gift tax on the difference between the amount paid and the amount paid;

The claimant asserts that, although there is no trade value within three months before and after the date of capital increase in the stocks of the requesting foreign corporation, the transaction value between executives and employees after the establishment is traded at 6,000 won per share. The claimant argued that the initial rate of forfeited rights at the time of capital increase in this case is 95%, and that 6,000 won per share should be regarded as the market value, since there is no special relation between the claimant who has been allocated over the forfeited stocks and the executives and employees of the requesting foreign corporation who renounced

(3) According to the report on the completion of the investigation into changes in stocks of the non-contentious corporation, which was presented as psychological data by the disposal agency, (3. 8, 2004) it was confirmed that the disposal agency decided 48,651 shares forfeited at the time of capital increase with 140,000 shares issued on December 6, 201 to 60 officers and employees from the right-type and 18,094 won per share of the outstanding shares and 6,000 won per share of the paid-in shares to the effect that the disposal agency would make a constructive donation of the difference between 18,094 won

According to the report on the appraisal of the stock of the issue issue, which is non-listed stocks, the net asset value per share prior to the increase of the capital is 12,329 won, and the net profit and loss per share prior to the increase of the capital was calculated to 20,660 won, but the appraised value per share prior to the increase of the capital was calculated to 20,660 won in accordance with the relevant laws and regulations, and it is confirmed that the appraised value per share prior to the increase of the capital is assessed to 20,660 won in accordance with Article 29 (3) 1 (a) of the Inheritance and Gift Tax Act.

Details of appraisal after the increase in the stock at issue in the decision resolution on the list 1.

The appraised value per share after capital increase = [20,660 won per share before capital increase x 660,000 won + (6,000 won per subscription price per share x 140,000 won)] ¡À (660,000 total number of issued stocks before capital increase + 140,000 won) = 18,094 won

(4) According to the meeting minutes of the board of directors dated 8, 2001, which the claimant presented as psychological data, the non-contentious corporation decided to issue 140,00 common shares per share of 6,00 won (5,000 won in face value, November 12, 2001, November 17, 2001, and December 6, 2001) with 140,01 as the date of new shares allocation, but the 13,014 forfeited shares equivalent to 95.01% of the shares subject to new shares subject to new shares issued on November 17, 2001 as of the expiration of the subscription period.

According to the meeting minutes of the board of directors dated November 20, 2001, it is confirmed that 133,014 shares forfeited at the time of the above offering of new shares for each class of executive officers and employees are cultivated as shown in the table (2) below by entering into a business agreement with the branch office of the Korea Exchange Bank temporarily located in the Korea Exchange Bank and arrange for a general fund loan to the executive officers and employees of the requesting foreign corporation.

Details on the cultivation of forfeited stocks by class of officers and employees;

-Representative 40,614 note 40, officer 2,00 note 2, director 1,50 note 1,200 note 1,20 note 1,200 note 1,20 note 8, director 600 note 8, representative 500 note , employee 300 note - 300 note : 26/11 November 26, 201

(5) In addition, considering the trading cases of stocks issued by a non-performing corporation during the period of one year after the date of this case’s capital increase increase ( December 6, 2001), it is confirmed that most of the trading prices traded during November 200 through November 3, 202 are 6,000 won per share equal to the payment price at the time of this case’s capital increase.

Table 3. Sales Cases for one year before or after the subscription for new shares issued in this case

(unit: State, source)

0.8% of 0.4% of the market price of December 3, 2001, 69,0060 12.4% of the market price of January 3, 2001, 6916,0060 , which was 0.55% of the 2,6806,0060 ,0.10% of the 0.406060 ,001.6% of the 2,6806,00060 , 2001, 2001.6% of the 2,0006,000 , 2002.6% of the 140,000 , 2002.8% of the 0.01% of the 2,2706,000 ,008 ,0080 ,0.7,7610.98% of the total 7,7610

(6) On the other hand, the disposition agency imposed gift tax on the ground that the forfeited stocks that occurred at the time of capital increase issued by the claim corporation on November 27, 2000 were excessively allocated to the executives and employees of the non-claim corporation by applying the deemed donation provision under Article 39(1) of the Inheritance Tax and Gift Tax Act and the market price of the forfeited stocks was assessed as a supplementary method under Article 29(2) of the Enforcement Decree of the same Act. In relation to the appeal filed by the executives and employees of the non-claim corporation, the Korean National Tax Tribunal has adopted 6,000 won per share at the market price before and after the date of capital increase at the market price and confirmed that the request for issuance was rejected (the

(7) In addition, it is confirmed by a decision resolution, etc. that the value per share assessed by the first capital increase as of November 27, 2000 and the second capital increase as of December 6, 2001 under the Inheritance Tax and Gift Tax Act at the time of capital increase as of December 4, 2001, the first capital increase as of December 23, 200 and the second capital increase as of December 6, 2001 is reduced to 20,673 won per share at the time of capital increase as shown in the attached Table 4

Table 4 Comparison table of Supplementary Value

(unit: won)

Division ① The net asset value ② The net asset value ② the net value ② the net value ② the net value ③ the net value value per share prior to the increase in the increase in the capital, 200. 8, 90323, 21823, 2181; 201. 6.12, 62920, 67320, 6733; 3,926 △△2,543,543

(8) Under the provision of Article 60 of the Inheritance Tax and Gift Tax Act, the calculation of the value of the inherited property according to the supplementary evaluation method stipulated in Articles 61 through 65 of the Inheritance Tax and Gift Tax Act is limited to the case where it is difficult to calculate the market value as of the commencement date of inheritance of the inherited property, and it is difficult to calculate the market value, and

The market price under Article 60 (2) of the Act refers to the price which is generally recognized as normal in cases of free transactions between many and unspecified persons, i.e., objective exchange price formed through normal transactions, even if there are actual transactions, the transaction price cannot be deemed as the price formed by normal transactions that properly reflects the objective exchange value of inherited property, and if the object of inheritance is unlisted stocks, the market price shall be deemed difficult to be calculated, and the price may be calculated according to the supplementary evaluation methods under Article 63 (1) 1 (c) of the Act;

Even if inherited and non-listed shares were traded near the date of commencing the inheritance, and if the transaction was made in a general and normal manner and it is judged that the transaction price properly reflects the objective exchange value, then the transaction price can be calculated by calculating the value of inherited property at the market price at the time of commencing the inheritance (see Supreme Court Decision 2004Du2271, May 13, 2004).

In this case, around November 200, the trading value of 1 year prior to the date of capital increase (2001 December 6, 200) was 6,000 won per share, and the transaction value of 6,000 won per share after 1 year was 6,000 won per share and the price of 2002 traded during the said period was confirmed to have not exceeded 6,000 won per share. In this case, it was confirmed that the first forfeited share occurred at the time of capital increase, and it was inevitable for the board of directors of the requesting foreign corporation to cultivate the forfeited share by class and arrange the loan.

According to the contents of the official document related to the transaction examples of stocks and transaction examples (execution investigation 3-439, March 24, 2005), sent by the director of the Central Regional Tax Office as a response data to the official document requested by the member of the Central Tax Office as a result of the member's inquiry (Enforcement 5 investigator-124, March 11, 2005), it can be confirmed that the stock transaction details of the requesting non-corporate company as shown below are 5,00 won or 6,000 won per share transaction price from 1999 to 2003 business years.

Transfer value of capital gains by transferor on the basis of the statement on changes in stocks, etc. at the market price of 1999-type-type-type-type-type-type-type-type-type-transfer-type-type-type-transfer-type-type-type-type-type-type-type-type-type-type-type-type-type-transfer-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type

Moreover, it is reasonable to view that the market price of the shares issued by the Claimant is widely recognized to the general public in 6,000, unless there is a significant change in the internal situation of the Claimant, in regard to the imposition of gift tax on forfeited shares, which occurred at the time of the first capital increase by the Claimant, as the national tax adjudication on the imposition of gift tax on forfeited shares, which occurred at the time of the Claimant capital increase by the Claimant, as long as 6,000 won per share has already been recognized as the market price, it is difficult to expect that the market price would be traded exceeding 6,000 won,

In addition, it is confirmed that 20,673 won per share prior to the capital increase due to the supplementary method at the time of this case’s capital increase has decreased compared to 23,218 won per share of the first capital increase. In addition, 6,000 won per share of the capital increase due to this case’s capital increase is not for the benefit of the related parties, but for the benefit of the related parties, it shall be deemed that it appropriately reflects the general and objective exchange values.

(9) Therefore, since 6,00 won per share of the paid-in shares at the time of capital increase consideration is recognized as the market price reflecting the objective exchange value appropriately, it is deemed that the disposition agency assessed and taxed the shares by the supplementary method under the Inheritance Tax and Gift Tax Act, considering that the market price of the shares at issue is unclear.

4. Conclusion

Since the request for a trial is deemed to be well-grounded as a result of the review, it shall be decided as ordered under the provisions of Articles 81 and 65 (1) 3 of the Framework Act on National Taxes.

April 1, 2005

chief of the National Tax Tribunal Kim Do-type

National Tax Judge Man-man Man-man

Doz. Doz. Doz.

Hexal Jiny