[증여세부과처분취소][공2003.11.15.(190),2192]
Whether Article 56 (2) of the former Inheritance Tax and Gift Tax Act on the evaluation and cancellation of unlisted stocks violates the substance over form principle or the market principle (negative)
The net value of shares is calculated by dividing the net value of shares by the total number of shares issued in the pertinent business year for a certain period of time, which is a business year. Thus, even if it is calculated based on the total number of shares issued as of the end of the business year without adding up the number of new shares that have not contributed at all to realizing the net value of shares during the pertinent business year, it cannot be deemed to violate the substance over form principle or the principle of market economy. Moreover, there is no basis for calculating the net value of shares by applying the
Articles 60 and 63(1)1(c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582, Dec. 28, 1998); Articles 54(1) and 56(2) of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15971, Dec. 31, 1998);
Plaintiff 1 and one other (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)
Head of Song District Tax Office and one other (Attorney Kim Young-soo, Counsel for the defendant-appellant)
Seoul High Court Decision 2002Nu1740 delivered on September 5, 2002
The judgment below is reversed and the case is remanded to Seoul High Court.
1. According to the reasoning of the judgment below, on April 25, 1994, the court below determined that the non-party's portion of the non-party's non-listed stocks, which is owned by it, is difficult to calculate the market price for the donation on July 8, 1997, under the name of the plaintiffs, the shares allocated at the time of four times such as the title trust to the plaintiffs and then May 17, 1995; the 27th of the same month; July 8, 1997; and the 8th of August of the same year were allocated under the name of the plaintiffs; and that the defendants, on the ground that the non-party's donation was donated from the non-party on April 10, 201, the net value of the shares issued and outstanding should be calculated by dividing the profits and losses in accordance with Article 54 (1) of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15971 of Dec. 31, 1998) into the net value of the shares issued and outstanding shares.
2. However, the net value of the shares is calculated by dividing the net value of the shares by the total number of shares issued in the pertinent business year during the pertinent business year. Thus, even if the number of new shares that did not have contributed at all to realizing the net value of the shares during the pertinent business year is calculated based on the total number of shares issued as of the end of the business year, it cannot be viewed as violating the substance over form principle or the principle of market economy. Moreover, there is no basis for calculating the net value of the shares by applying the "total number of shares
Therefore, the judgment of the court below which invalidated the provision of this case on different premise is erroneous in the misapprehension of legal principles as to the appraisal of unlisted stocks, and the ground of appeal pointing this out is with merit.
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Hyun-chul (Presiding Justice)