증여세부과처분취소
The appeal is dismissed.
The costs of appeal are assessed against the Plaintiff.
The grounds of appeal are examined.
1. Determination as to whether Article 39(1)1 and (2) of the former Inheritance Tax and Gift Tax Act is unconstitutional, meaning and scope of market value (ground of appeal No. 127)
A. Article 39(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “Gift”) provides that where a corporation issues new stocks at a price lower than the market price (referring to the price assessed pursuant to Articles 60 and 63) of the new stocks, a shareholder shall impose gift tax on the profits acquired by other shareholders (a) or a third party (c) who given up the right to receive new stocks through waiver of the right to receive the allocation of new stocks as the value of donated property. In applying Article 39(2)1 of the same Act, where there are not less than two minority shareholders who given up the right to receive new stocks allocated, the shareholder shall be deemed to have given up the right to receive the allocation of new stocks and shall be deemed to have given up the profits.
The purpose of legislation of Article 39 (1) 1 of the Inheritance and Gift Tax Act is to promote tax equality by imposing tax on the benefit since the effect of transferring the benefit from capital increase to shareholders who received the allocation of forfeited stocks without compensation if the corporation issues new stocks at a price lower than the market price.
The increase in stock price between the resolution date of the board of directors and the payment date of stock price is also the benefit that shareholders, etc. who received allocation of forfeited stocks from existing shareholders, etc. are transferred without compensation. Therefore, in principle, assessing the market price of stocks based on the payment date of stock price is consistent with the language and structure of
Meanwhile, the Securities and Exchange Act and the former Securities and Exchange Act (amended by Act No. 2008-8, Apr. 7, 2007; hereinafter “securities issuance regulations”) on the issuance and public disclosure of new stocks with respect to the issuance price of new stocks to ensure fairness and transparency in the issuance of new stocks.