2. The defendant's remaining appeal is dismissed.

3. The defendant bears 5% of the total litigation costs, and the remainder shall be borne by the plaintiff.

A disposition rejecting correction made by the Defendant on April 11, 201 to the Plaintiff and the disposition imposing gift tax of KRW 232,254,720 as of October 13, 201 shall be revoked in entirety.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, the meaning of the abbreviationd language used in this part is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act (hereinafter the same as the judgment of the court of first instance).

2. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

3. Whether the instant disposition is lawful

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance except for the addition of the following in Part 5 of the judgment of the court of first instance to the corresponding part of the judgment of the court of first instance (Articles 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act.

In addition, since gift tax is based on the premise of a gratuitous property grant relationship, if there is a quid pro quo contribution between a donor and a donee, it shall not be considered as a gift. Therefore, in a case where an executive officer of a company takes over stocks of the company concerned from the company concerned in return for the contribution that improved the management status of the company, it is natural that gift tax may not be levied on it (see Supreme Court Decision 95Nu4353 delivered on September 15, 195).

4. Whether the rejection disposition of this case is legitimate

A. The plaintiff's assertion

1) Since the Plaintiff received the instant shares as compensation for labor relations, it does not constitute either a gift under Article 41-3 (hereinafter “instant provision”) of the Inheritance and Gift Tax Act or a compensatory acquisition. The instant rejection disposition on a different premise is unlawful.

2) Even if the Plaintiff’s acquisition of the instant shares constitutes a case where the Plaintiff’s acquisition with compensation, the Defendant’s evaluation of the premium under Article 63 of the Inheritance and Gift Tax Act was unlawful for the following reasons.

A) The date of settlement under Article 41-3(2) of the Inheritance and Gift Tax Act is only the date of calculating profits from the listing market price, and the “date of appraisal” under Article 63 of the Inheritance and Gift Tax Act stipulating whether to evaluate the premium should be deemed to be “the date of donation” rather than “the date of settlement”.

B) Since ero-energy is a juristic person established on November 17, 2006, which has continued to be a deficit in 2006 and 2007, it constitutes a deficit corporation whose ero-energy as of December 2, 2008, which is the acquisition date of the instant shares, is excluded from the object of verification under Article 63(3) of the Inheritance Tax and Gift Tax Act.

C) Even if the Defendant did not evaluate the premium when calculating the value of the first gift tax of the instant shares, the taxable value of the gift tax was unfairly increased by providing a certificate only when calculating the taxable value of the gift tax resulting from the exchange price marginal profits.

B. Determination

1) Whether the Plaintiff’s acquisition of the instant shares constitutes “oil acquisition” under the instant provision

A) The instant provision provides that, where a person having a special relationship with the largest shareholder, etc. receives a donation of stocks of the relevant corporation from the largest shareholder, etc. or has acquired them for a fee, the value of the stocks, etc. increases as a result of listing them on the Korea Exchange (referring to those listed on the securities market) under the Financial Investment Services and Capital Markets Act within five years from the date of donation or acquisition, the amount equivalent to such profits shall be deemed the value of property donated to the person who has acquired such stocks, etc., if the person who

According to the above facts, the Plaintiff’s acquisition of the instant shares constitutes an employee of the ero-energy controlled by the ero-energy, the largest shareholder of the ero-energy at the time of the acquisition of the instant shares, and constitutes a specially related person of the ero-raying; the instant shares were listed in the Korea Exchange within five years from the date of acquisition, and listed profits have accrued; on the other hand, the Plaintiff’s acquisition of the instant shares does not constitute a donation as a consideration for work. Accordingly, in order to enable the Plaintiff to levy gift tax on the above listed profits, the Plaintiff’s acquisition of the instant shares constitutes “the case where the Plaintiff acquired the shares with compensation

B) The provision of this case is a provision that is established to enable the largest shareholder, etc. to perform an irregular inheritance by donating or transferring unlisted stocks to a person with a special relationship, such as his/her children, etc. for the purpose of obtaining large profits from the registration of the Korea Stock Exchange listed or the Korea Securities Dealers Association by using corporate internal information, or continuously holding the same without transferring it by a donee or a acquisitor, and in fact, to regulate the problem of controlling affiliate without tax burden (see Supreme Court Decision 2010Du11559, May 10, 2012). The legislative intent of this case includes the imposition of gift tax on the listed profits of unlisted stocks by imposing a gift tax on the listed stocks and by imposing it without compensation before the realization is predicted at the time of donation or transfer (see Supreme Court Decision 2013Du14559, Oct. 29, 2015).

C) According to the language and text of the provision of this case, the term “compensation” generally refers to a word compared to “free,” and the term “the case of acquisition for compensation” in the provision of this case is provided concurrently with “the case of acquisition for gift.” The term “donation” in Article 2(3) of the Inheritance Tax and Gift Tax Act is distinguishable from that of “the case of acquisition for compensation” in comparison with that of “the case of free transfer of tangible and intangible property, regardless of the name, form, purpose, etc. of the act or transaction, free of charge, or the case of acquisition for compensation” in comparison with that of “an increase of property value of another person by directly or indirectly means of calculating economic value” in Article 2(3) of the Inheritance Tax and Gift Tax Act, “the case of acquisition for compensation” can be seen as a case of acquisition for free transfer or contribution (except for inheritance). In conclusion, regardless of the method of acquisition of stocks, it appears that the provision of this case is to regulate

Further, in light of the legislative intent of the provision of this case as seen earlier, even if non-listed stocks are acquired as compensation for work in terms of tax equality, it is sufficient to impose tax on the transfer of stocks predicted at the time of acquisition, and it is difficult to find the reason for different treatment compared with the acquisition of non-listed stocks by paying monetary compensation (if the largest shareholder paid to a specially related person as compensation for work and purchases non-listed stocks from a specially related person as compensation for work, it would be apparent that the case where the largest shareholder paid to a specially related person as compensation for work, and if he immediately paid the non-listed stocks to a specially related person as above, it would result in an untaxable result even if the substance is the same, even if the largest shareholder would not impose taxes on the same as the case where the largest shareholder transfers the non-listed stocks to a worker or an officer in return for work, and thereby obtains large profits from the listing, it would be reasonable to impose taxes on the market price of the stocks acquired as compensation for work. < Amended by Act No. 3100, Mar. 1, 20198>

D) Determination on the Plaintiff’s assertion

(1) The Plaintiff asserts that the provision of this case provides that “The Plaintiff shall obtain profits above the standard prescribed by Presidential Decree in excess of the taxable value or acquisition value of the original gift tax” and Article 31-6(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23040, Jul. 25, 201) provides that “the taxable value of the gift tax per share (the acquisition value per share as of the date of acquisition in case of acquisition of stocks, etc.) as of the date of donation of stocks, etc. shall be calculated in order to calculate the listing gains subject to gift tax” under subparagraph 2, and each of the above provisions provides that “the acquisition value per share as of the date of donation of stocks, etc. (the acquisition value per share as of the date of acquisition in case of acquisition)

However, since shares received as compensation for labor are compensation corresponding to the contribution made by workers or executives to the company, the value of labor offered as compensation for shares can be assessed as the market price of shares at the time of acquisition, barring any special circumstance. ② Under Article 39(2) of the Income Tax Act and Article 89(1)3 of the Enforcement Decree of the same Act, the acquisition value can be assessed as the “amount added to the market price at the time of acquisition of the pertinent assets” even in cases where monetary acquisition value of the acquired assets is unclear under Article 39(2) of the Income Tax Act and Article 89(1)3 of the Enforcement Decree of the same Act. In light of the above, it cannot be deemed that the above-mentioned related Acts and subordinate statutes stipulate “acquisition value” and thus, it shall not be deemed that the acquisition

Shebly, even if the Plaintiff received shares as remuneration for work, the acquisition value can be calculated if the shares were acquired through a gift pursuant to Article 3(3) of the instant provision, even if the market price on the date of acquisition is lower than the market price on the date of settlement and the date of settlement, or the refund of gift tax is possible, and thus, if shares were received as compensation for work, the original wage and salary tax is not refunded even if the market price on the date of settlement is lower than that on the date of acquisition. Thus, the Plaintiff asserts that the case where shares were received as compensation for work from the largest shareholder does not constitute a discrimination compared to the case where shares were received as compensation for work

However, the same applies to cases where shares are acquired by paying cash and acquiring shares. Therefore, it cannot be deemed that the acquisition of shares is excluded from the case of acquiring shares in return for labor within the scope of “oil acquisition” on the basis of such circumstances.

In light of the amendment process of the provision of this case, the Plaintiff asserts that “the case of acquisition with compensation” means “the case of acquisition with compensation,” and that “the case of acquisition with compensation” under the provision of this case does not include “the case of acquisition with compensation” does not include the case of acquisition with compensation for work.

In light of the legislative review report at the time of the above amendment, the provision of this case was amended by Act No. 6780 on December 18, 2002, where stocks of the relevant corporation are acquired from a person who is not the largest shareholder, etc. with property donated to the largest shareholder, etc., gift tax was imposed on the listed gains. The provision of this case was amended to include the acquisition of stocks from a person who is not the largest shareholder, etc. upon donation of funds for acquisition of stocks from the largest shareholder, etc., and it seems that the provision of this case was amended to include the acquisition of stocks from a person who is not the largest shareholder, etc. with property donated to the largest shareholder, etc., and it is difficult to interpret the provision of this case as “where stocks are acquired from a person who is not the largest shareholder, etc., with property donated to the largest shareholder, etc.” (see, e.g., Supreme Court Decision 200Du1681, Apr. 2, 201).

Applicant The Plaintiff’s assertion that “the case of acquiring stocks at a cost” under the instant provision shall be limited to “the case of acquisition of stocks donated to the largest shareholder, etc.” but the instant provision is clearly divided into “the case of acquisition at a cost” and “the case of acquisition of stocks, etc. of the relevant corporation from a person other than the largest shareholder, etc.” and it does not constitute a relationship that includes or limits any remainder.

(v) the Plaintiff’s assertion is not acceptable.

2) Whether an evaluation of the premium under Article 63 of the Inheritance and Gift Tax Act is lawful

A) According to the overall purport of evidence Nos. 26 and 1-2 of evidence Nos. 26 and 1-2, the Defendant may recognize the fact that the instant shares were calculated based on the Plaintiff’s donation profits following the listing of the instant shares on the basis of the date of September 30, 2010, which was the third month from June 30, 2010, which was listed on the Stock Exchange.

B) Article 60(1) of the Inheritance and Gift Tax Act provides that “The value of the property on which inheritance tax or gift tax is levied under this Act shall be the market price as of the date of commencing the inheritance or the date of donation.” However, Article 60(2) of the instant provision provides that “The profit under the provisions of paragraph (1) shall be calculated on the basis of the date on which three months elapsed from the listing of the relevant stocks, etc.,” and where the instant provision separates the taxation requirements for listing within five years of unlisted stocks, it may be deemed that Article 60(1) of the instant provision constitutes the special provision under the first sentence of Article 60(1) that provides for the principle of valuation of donated property under the Inheritance and Gift Tax Act. Accordingly, in the event where stocks are listed within five years after the acquisition of unlisted stocks as in the instant case, the value of the relevant stocks shall be assessed on the basis of

C) Therefore, as of September 30, 2010, the date on which the market price of the instant shares was listed on June 30, 2010, the Defendant’s evaluation under Article 63(3) of the Inheritance and Gift Tax Act, based on September 30, 2010, is lawful and lawful.

3) Therefore, the instant rejection disposition is lawful, and the Plaintiff’s assertion on a different premise is without merit.

5. Conclusion

Therefore, the part of the plaintiff's claim seeking the revocation of the disposition of this case (the disposition of gift tax as of October 13, 201) shall be accepted for the reasons that it is reasonable, and the part of the plaintiff's claim seeking the revocation of the disposition of this case (the disposition of rejection of correction as of April 11, 201) shall be dismissed for the reason that it is without merit. Since the part of the judgment of the court of first instance against the defendant as to the claim of revocation of the disposition of this case is unfair for the reason that it is different from this conclusion, it shall be partially accepted by the defendant's appeal and it shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed for the reasons that the remaining part

[Attachment]

Judges Sung Pung-tae (Presiding Judge)