증여세가 부과되는 재산의 가액은 증여일 현재의 시가에 의함[국승]
2012west 4406
It is reasonable to impose gift tax on the amount that the father of the claimant has acquired from other shareholders of the corporation whose largest shareholder is the applicant in the face value.
It is difficult to regard the face value, which is the acquisition value of the stocks, as market price, in light of the fact that it cannot be deemed that free trade takes place between many and unspecified persons, barring special circumstances, and that the claim statement related to the calculation of the transaction value of the stocks at issue is not confirmed and that no effort is made to determine the legitimate
Article 60 of the Inheritance Tax and Gift Tax Act
2013Guhap53448 Revocation of Disposition of Imposition of Gift Tax
1.A 2. B. 3. RoCC 4. RoD
EE Director of the Tax Office
August 30, 2013
September 13, 2013
1. All of the plaintiffs' claims are dismissed.
2. The costs of lawsuit are assessed against the plaintiffs.
The judgment that revoked both the imposition of the gift tax for 2008 and the gift tax for 2008 and the gift tax for 2008 on the 6th day of the same month on July 1, 2012 by the defendant against the plaintiff Lee Dong-A, and the imposition of the gift tax for 2008 and the gift tax for 2008 on the 5th day of the same month against the plaintiff Lee Dong-B, and the imposition of the gift tax for 2007 and the gift tax for 2008 on the 6th day of the same month against the plaintiff Lee Dong-B.
1. Details of the disposition;
(a) The plaintiff is the representative director of the FF FF corporation (formerly named FF corporation, hereinafter referred to as "FF") that sells photographs, sirens, films, etc., and both the plaintiff B, thisCC, and thisD are children of the plaintiff.
B. On July 26, 2007 and August 21, 2008, the plaintiffs acquired 16,500 shares of FFF (hereinafter collectively referred to as "the shares of this case") from EOOO, the face value of which is 16,50 shares of EOO, the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as "the Enforcement Decree") and Article 26 (4) of the Enforcement Decree as follows:
Date of acquisition;
transferor
A transferee
Number of shares
Amount of transfer;
July 26, 2007
Park H
BB
2,500 Notes
OOO per share
D. D
2,000 note
August 21, 2008
GG
IsaA
Notes 1,500
CC
4,500 Notes
II
BB
Notes 3,000
D. D
Notes 3,000
16,500 Notes
C. In July 2012, the Defendant considered that the Plaintiffs acquired the instant shares at a price lower than the market price without justifiable grounds, and imposed gift tax (including additional tax) on the difference between the market price (OOOOOO as of April 26, 2007 as of August 21, 2008) calculated according to the supplementary assessment methods stipulated in Article 63(1) of the Act, and Article 54 of the Enforcement Decree (hereinafter collectively referred to as “instant disposition”) as follows pursuant to Article 35(2) of the Act and Article 26 of the Enforcement Decree.
Taxables
Notice Tax Amount
Date of Taxation
July 26, 2007
BB
OOOE
July 6, 2012
D. D
OOOE
July 6, 2012
August 21, 2008
Shares acquired by transfer
IsaA
OOOE
July 1, 2012
BB
OOOE
July 6, 2012
CC
OOOE
July 5, 2012
D. D
OOOE
July 6, 2012
Consolidateds
OOOE
D. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal on October 8, 2012, but the Tax Tribunal dismissed the appeal on February 7, 2013.
[Grounds for Recognition] The overall purport of the arguments and arguments between the facts without dispute, Gap evidence 1 and 2, Gap evidence 1 to 6, Gap evidence 3, 5, and 7, Gap evidence 14 to 16, Gap evidence 14 to 15-4, and Eul evidence 1 to 6, and Eul evidence 1 to 6
2. Whether the instant disposition is lawful
A. The plaintiffs' assertion
The instant disposition shall be revoked as it is unlawful as seen below.
(1) The FF’s shares were traded among unrelated parties from 2003 to 2006 at the price of OOO per share. Therefore, the market price of the instant shares is an OOO per share of transaction example pursuant to Article 60(1) and (2) of the Act, and there is no room for applying supplementary evaluation methods.
(2) Even if the supplementary evaluation method is applied to the shares of this case, and accordingly the price that the plaintiffs acquired is significantly below the market price, the plaintiffs are duly taking over the shares of this case according to trade practice upon the transferor's request that they recover the investment principal and do not receive a donation of profits through abnormal and unfair transactions.
(b) Relevant statutes1
Attached Form is as shown in the attached Form.
(c) Progress of the FF and case of trading stocks; and
(1) Park H, upon the recommendation of the Plaintiff, obtained 5,500 shares of FF in 196 and 199 as a person operating a photographic and audio-visual retail company in the FF neighborhood.
(2) ThisG and this II acquired 6,000 shares of FF from the FF to the OO in 202 after the FF entered into a domestic monopoly supply contract with the Japanese Kamera company (as seen below, thisG acquired 6,000 shares, and this II acquired 3,000 shares in 203 and 205 respectively).
(3) The FF imported high-class carmer from Japan and distributed them in Korea, and the sales and operating profits have increased since 2003 as follows, but the sales and operating profits have decreased in 2008 after the changes in financial crisis and market conditions.
(amount unit: million won)
Business year
201
202
203
204
205
206
Sales
OOO
OOO
OOO
OOO
OOO
OOO
Sales Profits
OOO
OOO
OOO
OOO
OOO
OOO
Operating Income
OOO
OOO
OOO
OOO
OOO
OOO
Sheetal Sheet
OOO
OOO
OOO
OOO
OOO
OOO
Business year
OOO
OOO
OOO
OOO
OOO
OOO
Sales
OOO
OOO
OOO
OOO
OOO
OOO
Sales Profits
OOO
OOO
OOO
OOO
OOO
OOO
Operating Income
OOO
OOO
OOO
OOO
OOO
OOO
Sheetal Sheet
OOO
OOO
OOO
OOO
OOO
OOO
(4) On the other hand, the total number of shares issued by FF is 35,000 shares, and from 2003 to 2006 the transaction cases are as follows (Korean J and KK are all the wife of Plaintiff LA).
Date of Transaction
transferor
A transferee
Number of shares
Amount of transaction;
September 2, 2003
LL
SongN
3,000 note
per share
OOOE
II
3,000 note
MM
6,000 note
March 25, 2005
JJ
II
2,000 note
March 25, 2005
MM
SongN
3,000 note
II
1,000 note
CC
2,000 note
August 25, 2005
SongN
GG
6,000 note
September 5, 2006
KK
CC
2,000 note
[Grounds for Recognition] The non-speed facts, Gap evidence 4, 5, 6, 10, and 8 evidence l through 12, Gap evidence 14-1 through 16, and Gap evidence 15-1 through 5, and the purport of the whole pleadings
D. Determination
(1) Article 60(1) of the Act provides that the value of the property on which gift tax is levied shall be based on the market price as of the date of donation, and Article 60(3) of the Act provides that the supplementary method of assessment stipulated in Articles 61 through 65 of the Act shall be applied only when it is difficult to calculate the market price, taking into account the type, size, etc. of the property in question. In addition, according to Article 60(2) of the Act, the market price refers to the value, i.e., the objective exchange price formed through a normal transaction where a free transaction is made between many and unspecified persons, and even if there is a transaction example, it cannot be deemed that the transaction price is formed by a normal transaction that adequately reflects the objective exchange value of the donated property, and in particular, it is difficult to calculate the market price if the donated property is unlisted stocks (see Supreme Court Decision 2004Du
(2) Meanwhile, Article 60(2) of the Act provides for the definition of the market price under the law as a definition provision that corresponds to the essence of the market price, and Articles 61 through 65 of the Act provide for the method of reasonably estimating the market price. Article 60(3) of the Act provides for the method of assessing the market price under Article 61 through 65 of the Act as an alternative in the case where it is difficult to calculate the market price under Article 60(2) of the Act, and Article 60(3) of the Act provides that the value assessed by the methods under Articles 61 through 65 of the Act pursuant to Article 60(3) of the Act constitutes not only the market price that serves as the basis for assessing the value of the property on which the gift tax is levied, but also the market price that is the basis for determining whether the property is subject to gift tax under Article 35(2) of the Act (see Supreme Court
(3) The following facts revealed about the above facts, i.e., F's stocks are non-listed stocks, and i.e., F's stocks are free to be traded between many and unspecified persons unless there are special circumstances, and it is difficult to view that the plaintiffs have reflected the objective exchange value because the transactions have been conducted several times for several years. (ii) It is difficult to find out the circumstances that those who trade FF's stocks provide reliable accounting corporations with objective data to assess the appropriate value of the stocks or determine the trading price through substantial price negotiations with interest tension. (iii) As a result, it is difficult to find that the FF's sales and business performance are larger than those of the plaintiffs in this case, and that it is difficult for the plaintiffs to purchase the stocks from the FF's 200,000 won or more than those of the plaintiffs in this case, and that it is difficult for the plaintiffs to purchase the stocks from the 200,000 won or more than those of the 20,000 won or more than those of the plaintiffs in this case.
4. Conclusion
All of the plaintiffs' claims are dismissed and the costs of lawsuit are assessed against the losing plaintiffs. It is so decided as per Disposition.