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(영문) 서울고등법원 2015. 06. 12. 선고 2014누7598 판결

주식의 포괄적 교환으로 인한 증여 이익은 법인의 자본을 증가시키는 거래에 따른 이익임[일부국패]

Case Number of the immediately preceding lawsuit

Supreme Court Decision 2012Du6797 ( September 26, 2014)

Title

Donations by all-inclusive exchange of shares shall be the profit arising from transactions which increase the capital of the corporation.

Summary

The gift tax shall not be levied by applying Article 35(1)2 and (2) of the Inheritance Tax and Gift Tax Act or Article 39(1)1(c) of the Inheritance Tax and Gift Tax Act, and the gift tax shall be levied by applying Article 42(1)3 of the Inheritance Tax and Gift Tax Act on the donation of profits arising from transactions which increase the capital of the corporation.

Cases

2014Nu7598 Revocation of Disposition of Imposition of Gift Tax

Plaintiff

IsaA

Defendant

Head of Yongsan Tax Office

Conclusion of Pleadings

May 29, 2015

Imposition of Judgment

June 12, 2015

Text

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

The part of the imposition disposition of the gift taxx members against the plaintiff on February 11, 2008 by the defendant, which exceeds thex members, shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 20% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Cheong-gu and purport of appeal

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of the gift taxx members against the plaintiff on February 11, 2008.

Reasons

1. Details of the disposition;

A. From September 30, 2001, the Plaintiff is the representative director of ○○○○ (hereinafter referred to as “non-party company”) that produces functional health foods, cosmetics, and household goods, and its trade name was changed from July 13, 2006 to ○○○○ Co., Ltd. (hereinafter referred to as “○○○”) from July 13, 2006.

B. On June 1, 2006, the non-party company entered into an all-inclusive share swap contract with △△C as follows (hereinafter “instant share swap contract”).

C. On August 16, 2006, the Plaintiff transferred 647,300 shares of the non-party company (hereinafter referred to as “the shares of this case”) to △△ Co., Ltd. under the share swap contract of this case, and received △△ Co., Ltd. 26,040,00 shares (hereinafter referred to as “the shares transaction of this case”).

D. The director of the Seoul Regional Tax Office conducted a tax investigation with respect to the non-party company from June 5, 2007 to August 16 of the same year, and confirmed that the non-party company's shares were 37 times to 30,000 won per share from April 2006 to May of the same year, and confirmed that the stock transaction of this case constitutes a transfer of property at a price higher than the market price to another person under Article 35 (1) 2 of the Inheritance Tax and Gift Tax Act (amended by Act No. 916, Jan. 1, 2010; hereinafter "the Inheritance Tax and Gift Tax Act"). Accordingly, the director of the Seoul Regional Tax Office notified the defendant of the difference between the trading price of the above case (50,00 won per share) and the above transfer price (88,709 won per share) (the value of the non-party company's shares was 56,370,000 won [the value of the gift] 307,3088.7

E. Accordingly, on February 11, 2008, the Defendant imposed on the Plaintiff KRW 15,914,329,530 as gift tax for the year 2006 (hereinafter “instant disposition”).

F. The Plaintiff appealed and filed an appeal with the Tax Tribunal on April 28, 2008, but was dismissed on March 10, 2010.

G. After remanding, the Defendant changed the grounds for the disposition to Article 42(1)3 of the Inheritance Tax and Gift Tax Act pursuant to the purport of the judgment of remanding the case.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 8, evidence 45-1 to 3, Eul evidence 1 to 3, 5, each entry, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1)원고는 이 사건 주식교환계약 체결일인 2006. 6. 1. 당시 △△씨와 상속세및증여세법 제42조 제3항, 구 상속세및증여세법 시행령(2007. 2. 28. 대통령령 제19899호로 개정되기 전의 것, 이하 '상속세및증여세법시행령'이라고 한다)제31조의9제1항제1호, 제19조의제2항각호에서 규정한 특수관계가 없었고, 이 사건 주식교환계약 체결과정에서 증권거래법령및금융감독위원회가 정한 교환가액 산정방식을 준수하아ㅕ 외부평가법인의평가결과에 근거하여 주식의 교환비율을 산정하였으므로,특수관계없는자들 사이에서 일정한 사업목적을 위하여 이루어진 '거래의 관행상 정당한 사유'가 있으므로 이 사건 주식교환계약에 따라 얻은 원고의 이익은 상속세및증여세법 제42조제3항에 따라 비과세대상이다.

(2) Where gift tax is imposed pursuant to Article 42(1)3 of the Inheritance Tax and Gift Tax Act, the gift tax shall be calculated pursuant to Article 31-9(2)5 (a) and Article 28 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. The proviso to Article 28(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that a merger conducted pursuant to Article 190-2 of the former Securities and Exchange Act (amended by Act No. 8315 of Mar. 29, 2007) and Article 84-7 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20551 of Jan. 18, 2008) shall be non-taxation. Thus, the profits from the share exchange

(3)Notwithstanding non-taxation, the Defendant’s calculation of the Defendant’s gift value in the following portions (after remand, the Defendant calculated the gift tax base by x source and x source in the trial following the remand) was erroneous:

(A) The Defendant calculated the “value of the shares immediately before the merger of the merged party corporation (the non-party corporation in this case) in which the “value of the shares before the merger” under Article 28(5)2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act was excessively assessed, but the Defendant denied the shares of the non-party corporation and exchanged the x won, while it was an expensive transfer, and the x won, which was the example of transaction example, was included in the market price. Therefore, the amount of the shares of the non-party corporation, which was excessively assessed, should be calculated as the x won

(B) The Plaintiff, regardless of the instant share swap transaction, is in the position of the existing shareholders who already held shares of 19% prior to the conclusion and implementation of the instant share swap. As such, the portion of the gift profits corresponding to the initial share ratio of △△C among the donated properties is merely a gratuitous transfer from the Plaintiff, the existing shareholders of △△ C, which is the Plaintiff, to himself/herself. Accordingly, this part should be excluded from the Plaintiff’s increase interest.

(b) Related statutes;

[Attachment 2] The entry is as follows.

C. Determination

(i)a fact;

(A) The process of entering into and implementing an all-inclusive share swap contract with the non-party company and △C

1) From August 2005, the Plaintiff sought a plan for the bypass listing of the non-listed non-listed company, and decided to list the non-party company by means of a merger with △△C, a corporation listed in the KOSDAQ, on May 2006.

2) On May 26, 2006, the Plaintiff requested the △△ Accounting Corporation to assess the stock value of the non-party company and △△C. Accordingly, on the 30th of the same month, △ Accounting Corporation presented its opinion on the assessment of the share swap and transfer ratio. According to this, the value per share of the non-party company’s shares is 88,709 won.

3) 한편, 원고는 2006. 6. 1. 주식회사 ♧♧천으로부터 △△씨 주식 2,601,695주(당시 지분율 19.47%)를 55억 원에 양수하여 최대주주가 되었고, 같은 날 소외 회사 의 대표이사로서 2006. 6. 1. △△씨와 사이에 이 사건 교환계약을 체결하였다.

4) On July 13, 2006, the Plaintiff was appointed as the representative director of △△C.

5) Pursuant to the instant exchange contract on August 17, 2006, △△△ C issued new shares 41,260,000 shares and delivered new shares to the shareholders of the non-party company, including the Plaintiff, in accordance with its equity ratio. Accordingly, the Plaintiff became holding shares of 52.64% (28,657,385 shares) compared to the total number of outstanding shares of △△ C.

(B) Various circumstances related to stock assessment

1) The non-party company produced and sold functional health foods, cosmetics, etc. through the multi-level marketing system from around May 2004 to from around December 2004, sold the products in accordance with the multi-level marketing system, and 90% of the sales amount of the company was carried out in the same manner, but the transaction with the company from around July 2005 to △△ Special Co., Ltd. (hereinafter referred to as the "△△ Special"), which is a multi-level company from around August 2005, began with the transaction with the company of △△△ Special Co., Ltd. (hereinafter referred to as the "△ Special"), which is a multi-level company from around August 2005 to December 2005 (including value-added tax).

The non-party company received advance payment or investment funds from △△ Group in the form of advance payment or investment funds, and upon receipt of an order from △△ Group, it seems that it has conducted transactions by shipping out the relevant goods and supplying them.

around December 2005, ○○○ Company, the representative director of the said Company, and the financial standing of the said Company, has become difficult, and around December 2005, approximately KRW 3 billion of sales allowances to be paid to the closed source was not paid, making it impossible to conduct goods transactions with the non-party company rapidly, such as the transfer thereof, and eventually closed on June 19, 2006.

2) The Plaintiff prepared the financial statements for the year 2005 of the non-party company of March 2006, and opened the financial statements for the year 2005, while 2,647,279,00 won, the actual sales in 2005, which was paid in advance, was over-paid at KRW 35,556,186,08,00. The Plaintiff prepared the financial statements for the year 2006, and prepared the financial statements for the non-party company of 3,494,770,00 won (the total sales in 2,647,279,000 won) with the sales in 35,56,186,088,00 won with the sales in 3,380 won with the sales in 3,49,770,000 won with the total sales in 30,380 won with the real sales in 19,206

3) As above, the Plaintiff submitted a false sales report in 2005 and a statement of accounts in January 4, 2006 to the accountant in charge of accounting.

(C) Evaluation of the shares of the non-party company of △ Accounting Corporation

1) The valuation of this case is not a form of expression of opinion or guarantee including the opinion on the matters included in the report, because it is not an audit procedure in accordance with the general standards for accounting audit as a result of share swap and transfer evaluation opinion, and the stock value evaluation result is based on the estimated financial statements on the industry, management information, and future provided by the non-party company, and the business, financial prediction, and plan for future profit and loss presumption are entirely prepared under the responsibility of the non-party company. Thus, the realization of the families used in the preparation of the estimated financial statements and the completeness of the materials presented by the non-party company cannot be held liable, and this is merely a presentation as a reference for the decision-making for the purpose of share swap, and it is merely a presentation for the purpose of share swap, and it is not a responsibility for any loss

2) Profit value was calculated based on the estimated cost and revenue estimates prepared using the Nonparty Company’s past performance and anticipated business plan data and the industrial data disclosed to the public, and used the pertinent data under the assumption that the estimated data used was adequate to explain the future business situation.

In relation to the presumption of sale, the sales revenue in 2005, which is the basis for the presumption of sales revenue in 2006 and 2007, was based on the premise that the sales revenue in 2005, which is the basis for the presumption of sales revenue in 2005, was 35,56,186,088 won on the balance sheet submitted by the Plaintiff, and by 2004, 90% of the sales revenue in the company, was conducted through the company of the relevant company, but since 2005, transactions took place with multiple selling companies other than related companies by promoting a diversification of sales channels. In the case of cosmetics sales, the sales revenue through related companies has decreased to 50% in 205, and the ratio has decreased remarkably as 15% in the first quarter of 2006, and thereby, the distribution channel has been diversified.

The sales of the non-party company are composed of functional health foods, cosmetics, consumer products, and raw materials sales by item. From 2004 to 2006, considering the sales increase rate of the non-party company due to the quarterly sales performance of the non-party company, the growth rate of the business industry, the development plan of new products, about 10% per year for functional health foods, about 5% for cosmetics, about 15% for food products, about 20% for raw materials, and about 8% for each 20% for raw materials, the total sales amount is estimated as shown in Table 1 for each year.

3) The ratio of the sales amount of each distribution route submitted by the non-party company to △ Accounting Corporation is as follows.

4) Ultimately, based on the data submitted by the non-party company, △ Accounting Corporation estimated the sales amount of the non-party company in 2006 and 2007 based on the sales rate of the non-party company up to the previous 2005 year based on the sales amount of the non-party company up to the previous 205 year, based on the market conditions by item, etc., and calculated the profit value based on such estimation. The Plaintiff’s sales amount shows that the actual discontinuance of the transaction with the main business party (e.g., Do-ri, Do-ri-ri, Do-ri-ri-ri-ri, 2006 or the sales amount of the year 2005, which accounts for at least 90% of the sales amount of the non-party company’s first quarter in 206 or the sales amount of Do-ri-ri-ri-

The details of the final appraisal of stock value, exchange ratio, etc. by △ Accounting Corporation are as shown below.

5) A few actual sales, operating profits, etc. of the non-party company are as listed below [Attachment 4]

(e) Other circumstances

1) The Plaintiff sold 131,100 shares over 37 occasions to 37 persons, such as Kim E-E, for a period from April 26, 2006 to May 30, 2006, to 200 shares of the non-party company were each nominal trust with 2,80 shares to DaD, and 200 shares to DoD. The Plaintiff sold 131,100 shares per share to 50,000 shares to 37 persons, such as Kim E-E, during the period from April 26, 2006 to 30.

2) As to the Plaintiff’s share transfer portion in the share swap transaction of this case, the Defendant made a disposition to rectify corporate tax by applying the provision regarding the wrongful calculation register under Article 52 of the Corporate Tax Act, but on the ground that the person with a special relationship with △△C, among the persons who traded the share swap of this case, did not impose gift tax on the remaining shareholders except

[Reasons for Recognition] Each entry of Gap evidence, Gap evidence Nos. 9 through 13, 23, 27, 34, Eul evidence Nos. 6 through 14

(ii)Judgment on the first ground.

['상속세및증여세법 제42조제1항의 입법취지는 변칙적인 증여행위에 대처하고 과세의 공평을 도모하려는 데에 있다. 그런데 특수관계가 없는 자사의 거래에서는 이해관계가 서로 일치하지 않는 것이 일반적이고 자신이 쉽게 이익을 얻을 수 있는 기회를 포기하면서 거래상대방으로 하여금 증여이익을 얻도록 하는 것으 이례적이기 때문에, 상속세및증여세법 제42조 제3항은 특수관계자 사이의 거래로 인한 이익과는 달리 특수관계가 없는 자사이의 거래에 대하여는 거래당사자가 객관적 교환가치를 적절히 반영하여 거래를 한다고 믿을 만한 합리적인 사유가 있거나 합리적인 경제인의 관점엥서 그러한 거래조건으로 거래를 하는 것이 정상적이라고 볼 수 있는 경우와 같이 '거래의 관행상 정당한 사유'가 있다고 인정되는 경우에는 상속세및증여세법 제42조 제1항을 적용하지 않도록 과세요건을 추가하고 있다. 그러나 법령에서 정한 특수관계가 없는 자 사이의 거래라고 하더라고, 고래조건을 결정함에 있어서 불특정 다수인 사이에 형성될 수 있는 객관적 교환가치를 적절히 반영하지 아니할 만한 이유가 없으므로 합리적인 경제인이라면 거래 당시의 상황에서 그와 같은 거래조건으로는 거래하지 않앗을 것이라는 객관적인 사유가 잇는경우에는, 특별한 사정이 없는 한 상속세및증여세법 제42조 제3항에서 정한 '거래의 관행상 정당한 사유'가 있다고 보기 어렵다.

Meanwhile, in an administrative litigation seeking revocation of a taxation disposition on the grounds of illegality, the tax authority bears the burden of proving the legality of the taxation disposition and the existence of the taxation requirement fact. Thus, in the transaction between unrelated parties, the burden of proving that there is no justifiable reason for the transaction practice under Article 42(3) of the Inheritance Tax and Gift Tax Act (see, e.g., Supreme Court Decision 2011Du22075, Dec. 22, 2011). However, if the tax authority is a reasonable economy, it can be proven that there is no justifiable reason for the transaction practice by submitting data on the objective circumstance, etc. that the transaction did not have been traded under such conditions at the time of the transaction. If it is proved to a considerable extent, it is necessary to prove that there is a special reason that a taxpayer could easily submit specific data on the grounds of determining the transaction conditions, etc. in light of the difficulty of proof or the concept of fairness to reverse the said conditions, etc. (see, e.g., Supreme Court Decision 2015Du454935, Feb. 245, 2015).

However, as seen earlier, the Plaintiff excessively appropriated the sales revenue while preparing the first financial statement in 2006 and 1 year 2005 of the non-party company, and as such, the Plaintiff submitted a false sales statement in 2005 and the first quarter of 2006, which assessed the shares of the non-party company, to the accounting company in charge of the assessment of the non-party company's shares, so that the non-party company can set the share swap ratio in this case.

Therefore, even if the Plaintiff calculated the exchange rate based on the appraisal set by the external evaluation corporation in accordance with the Securities and Exchange Act and the Enforcement Decree of the Financial Supervisory Commission while making an all-inclusive share swap with △△ C, it cannot be deemed that there is a justifiable reason for transaction practice. Therefore, the Plaintiff’s assertion that it is unnecessary to examine whether the Plaintiff had a special relationship with △△

(3) Judgment on the second argument

Article 28 (3) through (6) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act concerning the total exchange of shares and the merger of shares which are the largest economic substance, on the ground that the Plaintiff gains a change in the shares by an all-inclusive share swap, the calculation of the gains of donation shall be made pursuant to Article 42 (1) 3 of the Inheritance Tax and Gift Tax Act and Article 31-9 (2) 5 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. Article 31-9 (2) 5 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the amount calculated by applying mutatis mutandis the provisions of Articles 28 through 29-3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act" refers to the amount calculated by applying mutatis mutandis the provisions of Articles 28 through 29-3 of the Inheritance Tax and Gift Tax Act. However, it is reasonable to view that Article 28 (1) of the Inheritance Tax and Gift Tax Act is applicable mutatis mutandis to the case where the said provision is a series between corporations.

Therefore, this part of the assertion to the effect that Article 28(2) of the Inheritance Tax and Gift Tax Act shall apply mutatis mutandis to the gift of this case is also subject to non-taxation.

(4) Judgment on the third argument

(A) Article 28 (6) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "The value of the immediately preceding merger under paragraph (5) shall be appraised under Articles 60 and 63 of the Act."

Therefore, in this case, since the transaction value of the sales case of the non-party company was recognized as 50,000 won, it should be calculated by considering such value as "the value immediately before the merger of the merged party corporation, which is assessed as 'the price before the merger'. However, the defendant calculated the gift profit by applying the transaction value between the plaintiff and △ C, which is unfair

(B) The parties to a share swap under the comprehensive exchange contract are the shareholders of the complete parent company of the complete parent company. Therefore, regardless of the share swap transaction in this case prior to the date of share swap, the Plaintiff acquired shares of △△△ C and held 2,604,695 shares (19% shares at that time) and thus, the Plaintiff cannot be deemed to have obtained the gift profit as to this part (in calculating the profit pursuant to the merger of 38-28-3 degrees of general provisions of the Inheritance Tax and Gift Tax Act, if the same large shareholder is merged with the shares of the merged company at the same time, the donor and the donee constitute both the donor and the donee, and thus, the amount equivalent to the donation from the principal is excluded from the value of donated property under Article 28(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act). Accordingly, the Defendant’s gift profit calculation that was not excluded from the gift profit is unjust.

(v)justifiable tax amounts;

In a lawsuit seeking revocation of a taxation disposition, the subject of adjudication is whether the tax base and tax amount imposed and collected by the tax authority are objectively existing, and where the tax base and tax amount acknowledged by the disposition of taxation are excessive compared to the legitimate tax base and tax amount, the disposition of imposition is unlawful within the scope exceeding the reasonable tax base and tax amount (see Supreme Court Decision 88Nu6504, Mar. 28, 1989).

In accordance with the above judgment, the tax base and tax amount are calculated as shown in the separate sheet No. 1. Therefore, the amount of KRW 2,652,346,657, which is a legitimate tax amount among the disposition of this case (the amount corresponding to the Plaintiff’s donation from the donor and donee shall be excluded from the value of donated property under Article 28(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the corresponding amount shall be the value under Article 28(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (the Plaintiff’s share ratio of the merged party corporation whose share price is under-assessment / the share price of the merged party corporation whose share price is over-assessment).Therefore, the value of donated property of this case shall be revoked by unlawful means that exceeds the value under Article 28(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, excluding KRW 2,104,730,000, which is the value under Article 28(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act).

3. Conclusion

Therefore, the plaintiff's claim shall be partially accepted within the above scope of recognition, and the remaining claims shall be dismissed without merit. Since the judgment of the court of first instance differs in part from this conclusion, it is so decided as per Disposition by revoking part of it and accepting part of the plaintiff's claim.