The decision at the time of return by the OOO(including additional OOO) shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The Plaintiff’s revocation of the disposition of imposition of gift tax by the Plaintiff on October 00, 2012 at the complaint. However, the Defendant’s disposition on October 00, 2012 (including additional tax OOO) as of October 20, 2012 is determined by the report filed by the OOO (including additional tax OOO) of the gift tax on the profits arising from the stock listing of the AA Company, and the disposition of imposition itself is not itself. Thus, it is so decided as per Disposition.

A. On October 00, 2007, the Plaintiff acquired 000,000 shares issued by AA Co., Ltd. (hereinafter “AA”) with a third party’s shares issued by issuing new shares for capital increase, as shown in the following table 1: < Amended by Presidential Decree No. 17065, Oct. 0, 2007; Presidential Decree No. 2000, Oct. 00, 2009; Presidential Decree No. 2000, Oct. 00, 2009>

Status of stockholding by the plaintiff 1

B. AA was listed on the Korean securities market on October 0, 201, after a split of 1:10 shares on October 00, 201. At the time of listing, the number of shares owned by the Plaintiff was 0,000,000 shares in total (hereinafter “instant shares”).

다. 원고는 2012. 0. 00. 이 사건 주식이 상장됨에 따른 상장차익이 구 ��상속세 및 증여세법��(2011. 12. 31. 법률 제11130호로 개정되기 전의 것, 이하 '법'이라 하고, 그 시행령 및 시행규칙을 각각 '시행령', '시행규칙'이라 한다) 제41조의3에 따른 과세대상에 해당할 수 있다고 판단하여, 2012. 0. 00. ① 2007. 00. 00.자 증여 0,000,000주(액면분할 된 이후의 주식수) 증여이익 OOOO원, ② 2007. 00. 00.자 증여 000,000주 증여이익 OOOO원, ③ 2009. 0. 00.자 증여 000,000주 증여이익 OOOO원에 관한 증여세 OOOO원(증여세 OOOO원, 가산세 OOOO원)을 신고・납부하였고, 서울지방국세청장은 국세기본법 제45조의3 제3항에서 정한 기한후 과세표준신고에 따른 과세표준과 세액의 결정에 갈음하여 2012. 00. 00. 원고가 신고・납부한 AA의 주식상장에 따른 이익에 대한 증여세 OOOO원을 신고시인하는 결정을 하고, 이를 통지하였다.

D. The Plaintiff appealed and filed an appeal on October 00, 2013. However, the Tax Tribunal dismissed the appeal on October 00, 2013.

2. The plaintiff's assertion

A. After AA was incorporated as an entity of an OOO as a capital corporation, the instant disposition taken place on October 0, 2007 under the premise that it would be the payment of new shares and thus, it should be revoked as it is unlawful for the Plaintiff to pay the share price of an OO on October 0, 2007, and that it would have been conducted on October 0, 2007. The Plaintiff paid the KRW OO in accordance with the establishment capital payment plan after the establishment of AA. As such, the Plaintiff paid the share price of an OOO on October 00, 2007.

B. The Plaintiff does not constitute a person with a special relationship with the largest shareholder of AA, and directly acquired new shares with the third party’s funds on October 0, 2007, and thus does not constitute a case where a person with a special relationship with the largest shareholder under Article 41-3(1) of the Act acquires shares from the largest shareholder, etc. Therefore, the instant disposition based on Article 41-3(1) of the Act is unlawful and thus should be revoked.

3. Relevant statutes;

Attached Form is as shown in the attached Form.

4. Determination

(a) Facts of recognition;

1) AA was established as a corporation of OOO on October 0, 2007, 00, ** for the purpose of the production of solar power generation excessive and waferers. AA was listed on the securities market of Korea on October 0, 2007, which was an existing shareholder on October 00, 2007. AA was listed on the securities market of Korea on October 00, 2007.* AA was listed on October 0, 2007, on October 00, 2007, for the Plaintiff on October 00, 2007, and for the third party allocation of OOOOOO to the Plaintiff and new 00, respectively. A was listed on October 0, 2001.

"2) AA은 2007. 0. 0. 오000 주식회사(2009. 0. 0. 00제철화학 주식회사에서 상호가 변경되었다, 이하 '000'라 한다)의 계열회사에 추가됨으로써 독점규제 및 공정거래에 관한 법률상 동양화학 기업집단에 포함되었다. 이00은 00화학 기업집단의 지배자이자 이##의 주식을 2007. 00. 00. 기준으로 13.02%(최대주주등 소유 주식 합계 38.57%), 2009. 0. 00. 기준으로 12.46%(최대주주등 소유 주식 합계 36.97%)를 각보유하고 있고, 이00, 이**은 그 자녀들이다.",3) 원고는 2006. 0. 00.부터 현재까지 000의 대표이사로 등기되어 있다.

B. Whether the paid-in capital of the newly established capital was paid by the Plaintiff on October 22, 2007

1) In full view of the statements in Gap evidence Nos. 4 through 9, the fact that the AA’s capital investment plan (A Equitable) is 00, this*, etc. is scheduled to invest OO, New0, and the plaintiff was scheduled to invest OOO Won in each AA, and that later, this 00, this** was changed to make an investment of OOO Won on August 20, 2007, respectively, on September 14, 2007, in accordance with the above capital investment plan; 00, this* in accordance with the above capital investment plan * in accordance with the fact that the Plaintiff paid 00,000, and 00,000,000,000 won paid as OO shares issued on August 22, 2007, and OO shares issued on October 22, 2007, respectively.

2) As a taxpayer may choose one of the several legal relations to achieve the same economic purpose, the tax authority shall respect the legal relations chosen by the parties, barring any special circumstance (see, e.g., Supreme Court Decision 2000Du963, Aug. 21, 2001). In order to deny the validity of a party’s transaction based on the substance over form principle by deeming the party’s transaction as an act of tax avoidance in spite of its form, there is a separate and specific provision of denial under the principle of no taxation without law (see, e.g., Supreme Court Decision 98Du14082, Nov. 9, 199). It is not permissible to arbitrarily deny the legal relations chosen by the party, even though there is no such provision of denial, solely on the ground that the party’s chosen legal relations are not reasonable.

3) Examining the instant case in accordance with such legal principles, (i) the Plaintiff’s AA Capital Investment Plan, (ii) the Plaintiff’s establishment capital investment plan did not include the funds to be invested in AA after August 2007, and (iii) the Plaintiff agreed to pay all initial capital including the Plaintiff’s investment funds as the establishment capital, as alleged by the Plaintiff, if the investors paid the capital through the form of capital increase after the establishment of the company, it is reasonable to deem that the Plaintiff acquired new stocks after its establishment by respecting the legal relationship chosen by the parties, barring any special circumstance. In light of the above, it is insufficient to recognize that the Plaintiff paid the funds to the AO only three months after the establishment of the company, solely on the basis of the fact that the Plaintiff paid the funds to the AO in accordance with the AA’s Capital Investment Plan, was actually paid the establishment capital, and there is no other evidence to support this.

(c) Whether Article 41-3 (1) and (6) of the Act is applied;

1) Relevant provisions

법 제41조의3 제1항은 "최대주주등의 특수관계인이 최대주주등으로부터 해당 법인의 주식 또는 출자지분을 증여받거나 유상으로 취득한 경우에는 증여받거나 취득한 날, 증여받은 재산으로 최대주주등이 아닌 자로부터 해당 법인의 주식등을 취득한 경우에는 취득한 날부터 5년 이내에 그 주식등이 ��자본시장과 금융투자업에 관한 법률에 따라 한국거래소에 상장됨에 따라 그 가액이 증가한 경우로서 그 주식등을 증여받거나 유상으로 취득한 자가 당초 증여세 과세가액 또는 취득가액을 초과하여 대통령령으로 정하는 기준 이상의 이익을 얻은 경우에는 그 이익에 상당하는 금액을 그 이익을 얻은 자의 증여재산가액으로 한다"고 규정하고 있다. 즉, 법 제41조의3 제1항에 따라 상장시세차익을 증여로 과세하기 위해서는, ① 기업의 경영 등에 관하여 공개되지 아니한 정보를 이용할 수 있는 지위에 있다고 인정되는 최대주주 등과 특수관계에 있는 자가(제1요건), ② 최대주주등으로부터 해당 법인의 주식을 증여받거나 유상으로 취득한 경우 또는 최대주주등으로부터 증여받은 재산으로 최대주주 등이 아닌 자로부터 해당 법인의 주식을 취득한 경우(제2요건), ③ 그 주식 등을 증여받거나 취득한 날로부터 5년 이내에 그 주식이 상장됨에 따라 당초 증여세 과세가액 또는 취득가액을 초과하여 대통령령으로 정하는 기준 이상의 이익을 얻을 것(제3요건)의 요건을 모두 충족하여야 한다.

2) Whether the first requirement is met or not

A) Article 41-3(1) of the Act provides that "a person who falls under any of the following subparagraphs and is recognized as in a position to use undisclosed information about the management, etc. of a company", and includes "the largest shareholder or largest investor under the provisions of Article 22(2)" in subparagraph 1 and "the person who holds not less than 25 percent of the total number of domestic corporation's issued stocks or total amount of investment" in subparagraph 2 and "the person who holds not less than 25 percent of the total number of domestic corporation's issued stocks or total amount of investment as prescribed by the Presidential Decree" in Article 31-6(2) of the Enforcement Decree refers to the person who holds not less than 25 percent of the "Article 41-3(1)2 of the Act" in each subparagraph of Article 19(2) (including relatives and persons other than employees and employees and who maintain their livelihood with the assets of the stockholder in question)."

Comprehensively taking account of the aforementioned evidence and the purport of the entire arguments in the statement in subparagraph 3 (including all of the paper numbers), this* was in possession of 100% of the AA’s shares as of October 22, 2007 at the time of capital increase with punishment and holding at least 25% of the AA’s shares as of December 11, 2007 and May 27, 2009 at the time of capital increase with punishment and holding at least 25% of the AA’s shares as of May 27, 2009. This0 is recognized as being the largest shareholder of the AA’s shares as of October 22, 2007 and December 11, 2007 and May 27, 2009. According to the above facts, the representative director of the AA’s shares as of May 27, 200 constitutes a status of the AA’s largest shareholder under Article 41-31(1) of the Act.

B) Meanwhile, Article 41-3(1) of the Act requires that a “person in a special relationship with the largest shareholder” obtain certain profits. Article 41-3(8) of the Enforcement Decree provides that a “person in a special relationship with the largest shareholder” shall be delegated to the Presidential Decree as to the scope of the “person in a special relationship with the former under paragraph(1).” Article 31-6(1) of the Enforcement Decree provides that “any person in a special relationship with the former” means any person in a relationship with each subparagraph of Article 19(2). Article 19(2)2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “an employee shall be one of the persons in a special relationship with the former shareholder,” and Article 13(6)2 of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621, Feb. 2, 2008; Ordinance No. 2010, Feb. 2, 2012>

을 제7 내지 11호증의 각 기재에 변론 전체의 취지를 종합하면, 이00, 이**은 형제지간으로 2007. 10. 22.자, 2007. 12. 11.자 및 2009. 5. 27.자 각 유상증자 당시 AA의 주식을 적어도 25%이상 보유하고 있던 사실, AA과 000는 독점규제 및 공정거래에 관한 법률 시행령 제3조에 따른 00화학의 기업집단 계열사인 사실, 이00, 이** 000의 최대주주이자 00화학 기업집단의 지배자 이##의 자녀들이고,000의 최대주주등은 2007. 10. 22.자, 2007. 12. 11.자 및 2009. 5. 27.자 각 유상증자일을 기준으로 적어도 000 발행주식 총수의 100분의 30이상을 보유하고 있는 사실, 원고는 2006. 3. 27.부터 현재까지 000 대표이사인 사실을 인정할 수 있다.

According to the above facts, the plaintiff at the time of issuing new shares as of October 22, 2007, December 11, 2007, and May 27, 2009, as of May 27, 2009, is a 000 representative director which invests more than 30/100 of the total number of shares issued with a specially related person, etc., and thus, it constitutes a person who has a special relationship with 00 under Article 19(2)2 of the Enforcement Decree.

Therefore, this case satisfies the first requirement of Article 41-3 of the Act.

3) Whether the second requirement is satisfied or not.

A) The legislative intent of Article 41-3 of the Act is to impose gift tax by distributing profits increased due to the listing of stocks to the prevention of sacrificing or transfer of stocks in order to prevent large amount of assets by imposing taxes on listed marginal profits where the largest shareholder, etc. donates unlisted stocks to related parties such as children, etc. or transfers them for consideration with the aim of obtaining enormous profits from listing in the securities market by using internal information that is not open to the public in relation to business management.

In addition, Article 41-3(6) of the Act provides that "in applying paragraph (1), the acquisition of stocks, etc. shall include new stocks acquired or allocated by a corporation through the issuance of new stocks in order to increase its capital (including the amount of investments)", which was newly established on December 18, 2002.

In the past, Article 41-3 of the Act only takes the listed marginal profits from the stocks directly donated from the largest shareholder or acquired with compensation from the largest shareholder as taxable objects, but it is excluded from taxable objects despite the economic effect, thereby abusing them as a means of tax avoidance. In other words, the largest shareholder, who is recognized as in a position to use non-disclosure information on the management of a company, is entitled to add as taxable objects, even if he/she does not directly donate or transfer his/her stocks to the specially related person, or does not donate or transfer his/her stocks (in the amendment above, this part is added to taxable objects by amending Article 41-3(1) of the Inheritance Tax and Gift Tax Act when he/she issues new stocks to the specially related person through the exercise of management right, thereby allowing the specially related person to obtain the listed marginal profits, and thus, it can avoid the imposition of gift tax. Thus, the legislative intent of

Article 41-3 (1) and (6) of the Act provides that "the purpose of legislation is to acquire stocks, etc." and Article 41-3 (6) of the Act provides that "in applying Article 41-3 (1) of the Act, the acquisition of new stocks, etc. shall be deemed to have been donated or acquired from the largest shareholder, etc." It does not provide that "in case where a person having a special relationship with the largest shareholder acquires stocks, etc. by issuing new stocks, etc. independently from the largest shareholder, regardless of the largest shareholder, as gift tax is levied on listed profits, it is against the legislative intent of Article 41-3 (1) of the Act that intends to impose tax on the transfer of stocks, etc. from a person other than the largest shareholder. In addition, when an employee of an enterprise group acquires new stocks, etc. from a corporation of an enterprise group, which belongs to the largest shareholder, it is against equity in comparison with those that taxation cannot be imposed pursuant to Article 41-3 (1) of the Act."

B) According to the facts acknowledged earlier, the Plaintiff did not receive or acquire shares of AA from 00, which is the largest shareholder of 000, and did not acquire shares by receiving a donation from 00, and it did not directly acquire shares with its own funds, and it did not meet the two requirements for the Plaintiff’s acquisition of shares on October 22, 2007 by participating in the capital increase with the third party allotment method as of October 11, 2007 and the capital increase with the capital increase as of May 27, 2009. < Amended by Act No. 8777, Oct. 22, 2007; Act No. 8780, Dec. 11, 2007; Act No. 9003, May 27, 2009>

4) Therefore, the instant disposition is unlawful, and thus should be revoked without further review.

5. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.