[증여세부과처분취소청구사건][고집1972특,336]
In a case where new shares are acquired in accordance with their face value, whether it can be deemed to constitute a case where the property under Article 34-2 of the Inheritance Tax Act (Law No. 1971) is transferred
In full view of the legislative intent of Article 34-2 of the former Inheritance Tax Act and the purpose of the Commercial Act concerning the issuance and underwriting of new shares, the acquisition of new shares is subject to many restrictions on the acceptance price or the acquisition procedure, and it is difficult to view it as the same case as the case of transfer of the issued shares because it is difficult to view it as the case of transfer of the issued shares.
Article 34-2 of the Inheritance Tax Act
Supreme Court Decision 73Nu6 delivered on March 13, 1973 (Supreme Court Decision 10427 delivered on March 13, 197, Decision No. 34-2(2)1910 delivered on the summary of the decision)
Plaintiff
The Head of the Maternization Tax Office
The disposition that the defendant imposed KRW 730,511 on the plaintiff on September 16, 1971 as an occasional gift tax of 1971 is revoked.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
The Defendant imposed KRW 730,511 on the Plaintiff on September 16, 1971, and the Plaintiff acquired KRW 14,966 per share of KRW 500 per share of KRW 500 Do 7,483,000 on March 10, 1970 and March 13, 1971; the Defendant calculated the above new shares market price of KRW 744 won per share of KRW 500 per share of KRW 500 per share of KRW 500 Do 7,483,00; and the Defendant calculated the above new shares market price pursuant to Article 33-6, Article 1-5, and Article 1-7 (B) of the former Enforcement Decree of the Inheritance Tax Act; the Plaintiff acquired KRW 500 won per share of KRW 300 per share of KRW 500 per share of KRW 344,500 per share of the gift tax under the premise that the difference between the above shares and the gift tax price per share x 246146464,746464.
We examine this point of view that the Plaintiff’s acquisition of new shares at par value is an error of law to regard the transfer of property under the former Inheritance Tax Act as the transfer of property.
In full view of the legislative intent of Article 34-2 of the former Inheritance Tax Act and the purpose of the Commercial Act on the issuance and acceptance of new shares, it is reasonable to conclude that the acceptance of new shares is the same as the case of the receipt of the issued shares in light of the fact that there are many restrictions on the acceptance price or the acquisition procedure, etc. of the new shares. Therefore, it is reasonable to conclude that the acquisition of new shares cannot be regarded as the case of the transfer of property under Article 34-2 of the former Inheritance Tax Act.
Therefore, even if the Plaintiff accepted new shares at a price lower than the market price calculated by the Defendant, it cannot be deemed that the Plaintiff received the property, and thus, the Defendant’s disposition of gift tax in this case, which reported the transfer of the property to the Plaintiff, shall not be deemed to be an unlawful act.
Therefore, since the imposition of gift tax is illegal, the plaintiff's claim seeking revocation is justified, and the lawsuit cost is assessed against the losing party.
It is so decided as per Disposition.
Judges Yong-Ank, Myun (Presiding Judge)