2. The costs of lawsuit shall be borne by the Plaintiff.

1. Details of the disposition;

A. On December 29, 2003, the Plaintiff donated 20,000 shares issued by the non-party company, who was the non-party company at the time, to the non-party company at the time, pursuant to Article 41-3(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as “Inheritance Tax and Gift Tax Act”) as an executive officer of the ○○○○○○ (hereinafter referred to as “non-party company”).

B. On October 5, 2004, November 5, 2004, and December 22, 2005, the non-party company offered capital increase once more than three times. At each of the above capital increase, the Plaintiff acquired KRW 30,000 per share totaling 10,000 shares of the shares it owns (hereinafter “instant new shares”). The shares of the non-party company were listed on the KOSDAQ market on January 25, 2008.

C. The Busan Regional Tax Office conducted an integrated investigation with respect to the non-party company from August 10, 2009 to September 30, 2009, and imposed gift tax on the Plaintiff on 000 won of profits accrued from listing 20,000 shares originally issued. However, the gift tax was not imposed on the profits accrued from listing the new shares with compensation in this case.

D. On January 25, 2010, the Board of Audit and Inspection issued a request to audit the business of Busan Regional Tax Office to impose a tax on KRW 000 on the profits accrued from the listing of the instant shares with compensation. On July 5, 2010, the Defendant imposed a gift tax of KRW 00 (including additional tax 00 won) on the Plaintiff as the value of donated property (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 17, 2010, but the Tax Tribunal dismissed the disposition on June 29, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1. The assertion that the listed marginal profits from stocks issued with capital increase are not subject to gift tax

① The language and text of Article 41-3(6) of the Inheritance Tax and Gift Tax Act provides that “in the application of the provision of paragraph (1), new shares acquired through capital increase shall be included.” Since shares received through capital increase do not meet the requirements of paragraph (1) because they were not donated or acquired with compensation from the largest shareholder, it does not constitute Article 41-3(6) of the same Act. If gift tax is imposed on the listed marginal profits from stocks acquired through capital increase on the ground that

② Meanwhile, even if shares issued with capital increase are issued under the Commercial Act, it constitutes an independent shares separate from the original shares issued with capital increase, and is not an incidental right to the previous shares. Therefore, it cannot be deemed that the previous shares issued with capital increase are subordinate interests, and thus, they cannot be deemed as subject

③ In addition, in calculating the listing marginal profit under Article 31-6(4) and (5) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the amount of increase in the stock value from the date of donation to the date of listing by multiplying the amount obtained by the number of shares issued as of the date of donation as of the date of the date of settlement of accounts by the number of shares, and the listed marginal profit is calculated by deducting this amount from the amount of increase in the stock value, considering the company’s profit accumulated from the date of donation to the date of listing as the actual value increase in the company. The above provision does not fully consider the change in the real value of the company’s capital increase in the calculation of the listing marginal profit on the premise that the above provision includes only the shares received without compensation, which do not cause any change in the real value of the company. Thus,

④ It is reasonable to interpret that the gift tax is imposed only on the shares issued through the shareholders allocation method as well as on the third party’s allocation method. It is unreasonable to interpret that the taxation is not imposed on shares issued through the third party’s allocation method.

Therefore, in light of the interpretation of Article 41-3(1) and (6) of the Inheritance Tax and Gift Tax Act, the pertinent disposition imposing gift tax on the exchange marginal profits of new stocks issued with capital increase is unlawful, since such marginal profits are not included in the subject of gift tax.

2) The assertion that Article 41-3(6) of the Inheritance Tax and Gift Tax Act, which is the basis of the instant disposition, is unconstitutional

Article 41-3(1) and (6) of the Inheritance Tax and Gift Tax Act includes gains from listing stocks that are issued with capital increase; ① Article 41-3(6) of the Inheritance Tax and Gift Tax Act imposes gift tax on the listed stocks that are issued with capital increase and acquired with capital increase. This is irrelevant to the legislative purpose of Article 41-3(1) through (3) of the Inheritance Tax and Gift Tax Act, which seeks to achieve a balance in taxation by imposing on the profits accruing from listing when the listed stocks are listed with capital increase without consideration. Since the purport is to achieve the legislative purpose by imposing gains from listing on the stocks issued with capital increase, it violates the adequacy of means, minimum damage, and balance in legal interests, and ② It is contrary to the principle of excessive prohibition under the Constitution, i.e., when a legal act, which is subject to taxation, is conducted after five years or more from the date when the first largest shareholder received stocks from the date of donation, i.e., the taxpayer’s legal stability and predictability are infringed, and, thus, the gift tax is imposed on the same kind of stocks issued without consideration.

3) The assertion that there are justifiable grounds for not imposing additional tax

Even if the listing marginal profit of new stocks with consideration in the instant case is subject to gift tax, the Defendant imposed tax pursuant to the opinion of the Board of Audit and Inspection after being pointed out by the Board of Audit and Inspection even though it was conducted a tax investigation on August 10, 2009 and did not impose gift tax on the listing marginal profit of new stocks with consideration in the instant case. Whether to impose gift tax on the listing marginal profit of stocks with consideration to be paid with consideration constitutes a conflict of view under the tax law among the tax authorities. Therefore, the Plaintiff cannot expect the return and payment of gift tax on the premise that it is subject to taxation from the beginning. Therefore, the Plaintiff’s nonperformance of obligation is deemed to have a justifiable reason, and even if there is no justifiable reason for the Plaintiff’s failure to pay taxes, the Defendant notifies the Plaintiff of the erroneous result that it is not subject to gift tax on August 10, 2009, and thus, it is unlawful for the Plaintiff to impose penalty tax on the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the assertion that stocks issued with capital increase are not subject to gift tax

A) The legislative intent of Article 41-3 of the Inheritance Tax and Gift Tax Act is to impose gift tax on a person with special interest who, by imposing taxation on the listed marginal profits in cases where the largest shareholder, etc. donates or gratuitously transfers stocks to a related party, such as his/her child, etc. for the purpose of obtaining enormous market profits based on the Korea Securities and Exchange Exchange (referring to those listed on the securities market or the KOSDAQ market) by using internal information that is not open to the public in connection with the management of the company, by putting the profits increased by the listing of stocks in order to prevent the variable of the listing marginal profits on the stock market on the basis of the taxation of the listed marginal profits. Meanwhile, Article 41-3(6) of the Inheritance Tax and Gift Tax Act is newly established by the amendment on December 18, 202. The amendment is intended to make the person with special interest be subject to taxation by excluding the listed marginal profits directly received from the largest shareholder or acquired with the same economic effect and thus excluding them from the securities market or the securities market.

B) In addition, the language and text of Article 41-3(6) of the Inheritance Tax and Gift Tax Act provides that “the acquisition of stocks shall include new stocks acquired and allocated by the corporation to increase its capital (including the amount of investments).” It does not distinguish whether the new stocks are issued by capital increase or capital increase without compensation, and whether the new stocks are allocated to shareholders or a third party in the case of capital increase. Therefore, according to the language and text of the above provision, it is interpreted that the scope of “acquisition of stocks, etc.” is included in both capital increase, capital increase, capital increase, and capital increase, and capital increase that are allocated to a third party in the assessment of gift tax on marginal profits from listing. In addition, the language and text of the above provision provide that the scope of “acquisition of stocks, etc.” should not be extended in the form of expanding the scope of “stocks” among the requirements of paragraph (1) of the same Article. Accordingly, it cannot be deemed that the same provision only provides for capital increase without compensation as the original shares divided.

C) Meanwhile, as alleged by the Plaintiff, Article 41-3(6) of the Inheritance Tax and Gift Tax Act applies only where new shares meet the requirements of Article 41-3(1) of the Inheritance Tax and Gift Tax Act, and where the same Article applies only where new shares are issued with the funds received from the largest shareholder, as the shares received without compensation from the relevant corporation are acquired without compensation from the relevant corporation, and so, insofar as shares received from the largest shareholder are not received or paid with compensation from the relevant corporation, it would result in unreasonable consequences not meeting the requirements of Article 41-3(1) of the Inheritance Tax and Gift Tax Act, and Article 41-3(6) of the Inheritance Tax and Gift Tax Act provides that "in applying Article 41-3(1) of the Inheritance Tax and Gift Tax Act, the acquisition of shares, etc. shall include new shares, etc. received by the corporation upon the issuance of new shares (i.e., the acquisition of shares by the corporation). Therefore, it is difficult to interpret both provisions of Article 41-3(1) of the same Act.

D) In calculating the listing marginal profit under Article 31-6(4) and (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the Plaintiff merely calculates the listing marginal profit from the date of donation or the date from the date of acquisition to the date before the listing of the stocks, which is calculated by subtracting the amount from the increase in the actual value of the company. It does not take into account the change in the real value of the company due to capital increase. Thus, it is alleged that it is premised on the premise that the stocks acquired as the reasons for Article 41-3(6) of the Inheritance Tax and Gift Tax Act are not included in the stocks. However, Article 31-6(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act and Article 10-4(1) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 74 of Apr. 23, 2009; hereinafter the same) stipulate that the net profit per share is calculated as the amount of net profit calculated under Article 56(3) of the same Act.

E) Therefore, in light of the legislative intent and contents of Article 41-3 of the Inheritance Tax and Gift Tax Act, the new shares under Article 41-3(6) of the Inheritance Tax and Gift Tax Act shall be deemed to include new shares resulting from capital increase with consideration. Therefore, the Plaintiff’s assertion on

2) The determination on the assertion that Article 41-3(6) of the Inheritance Tax and Gift Tax Act is unconstitutional

A) As seen earlier, Article 41-3 of the Inheritance Tax and Gift Tax Act provides that, for the purpose of obtaining large profits from the listing of stocks, etc. by using internal information on the company, where the largest shareholder, etc. donated unlisted stocks to a related party, etc. prior to listing or transfers them for consideration, it is subject to the taxation by the largest shareholder, not by itself, but by allocating profits from listing. In such a case, Article 41-3 of the Inheritance Tax and Gift Tax Act provides that the largest shareholder shall be subject to the taxation by allocating profits from stocks, etc. as well as stocks donated by him/her. Likewise, even if new stocks acquired for consideration by a related party are paid with the price for stocks, the said price is merely the price for stocks itself, not the price for listing gains. Moreover, if a related party, such as the largest shareholder, etc., who is in a position to use information that is not disclosed on the company’s management, etc. obtained listed profits more than the standard prescribed by the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the taxation profits on the listing is imposed on the same stocks received directly or capital increase without consideration.

Meanwhile, Article 41-3(1) of the Inheritance Tax and Gift Tax Act limits the scope of the donee’s specially related persons such as the largest shareholder, etc. who are in the position to use information that is not open to the public regarding the company’s business management, and limits the scope of the donee’s marginal profits subject to taxation to be more than the standard prescribed in Article 31-6 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and limits the scope of the donee’s listing of stocks to five years in consideration of the fact that the period of

Therefore, the provision on the inclusion of new shares received as a result of the reason of Article 41-3(6) of the Inheritance Tax and Gift Tax Act does not violate the principle of excessive prohibition or the principle of equality.

B) The taxation requirement under Article 41-3 of the Inheritance Tax and Gift Tax Act provides that ① a person having a special relationship with the largest shareholder, etc. of an unlisted corporation shall either donate or acquire stocks of the unlisted corporation from the largest shareholder, etc. or obtain new stocks for consideration, ② the relevant stocks shall be listed within five years from the date of donation or acquisition, ③ a person having a special relationship shall obtain profits above the standard under Article 31-6 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act due to an increase in the value of stocks under the listing. Therefore, all taxation requirements shall be satisfied only when a person having a special relationship obtains profits from the listing of stocks. As such, Article 41-3(2) of the Inheritance Tax and Gift Tax Act provides that the listed gains shall be calculated on the basis of the settlement base date as of the three-month period from the listing date.

In addition, Article 41-3(1) of the Inheritance Tax and Gift Tax Act provides that the gift tax shall be imposed by calculating the profits acquired by the listing under Article 31-6 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act in relation to the taxation of the gift tax on the profits accruing from the listing. However, Article 41-3(3) of the Inheritance Tax and Gift Tax Act provides that the person who gains from the listing shall calculate the tax base of the gift tax and the amount of the tax in addition to the original taxable amount of gift tax shall be imposed. It is merely that the provision provides that the issue of the gift tax on the stocks itself and the gift tax on the profits accruing from the listing of the stocks shall be imposed on the basis of a single taxation framework, including not only the increase of the share price due to the listing but also the decrease of the share price, and it cannot be deemed that the provision provides that the gift tax on the stocks itself shall be imposed at the price after the listing of the donated stocks. Therefore, the Plaintiff’s assertion that Article 41-3(6) of

C) In addition, Article 41-3 of the Inheritance Tax and Gift Tax Act, unlike the donation of a different kind of property, is subject to taxation, rather than the said property itself, and the size of the benefit can be assessed properly only after the listing is actually completed. Thus, it cannot be deemed that there is a discrimination against the case of donation of a different kind of property without reasonable grounds.

D) Therefore, Article 41-3(6) of the Inheritance Tax and Gift Tax Act cannot be deemed as unconstitutional against the principle of excessive prohibition, the principle of clarity of the requirements for taxation, the principle of equality of taxation, and the principle of ability to respond. Therefore, the Plaintiff’s assertion on this part is without merit.

3) Determination as to the assertion on additional tax portion

A) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under the tax law is an administrative sanction imposed under the conditions as prescribed by the individual tax law in cases where a taxpayer violates various duties, such as a return and tax payment, without justifiable grounds, and it is unreasonable for the taxpayer to be aware of such duties, and thus, it is unreasonable for the taxpayer to be reasonably present or to expect the performance of such duties to be carried out by the party concerned, etc., if there are justifiable grounds that make it unreasonable for the taxpayer to be unaware of such duties, imposition may be exempted (see, e.g., Supreme Court Decision 2003Du4089, Apr. 15, 2005).

B) In light of the above facts, the Busan regional tax office conducted a tax investigation with respect to the non-party company from August 10, 2009 to September 30, 2009, and imposed gift tax on the profits accrued from the listing of the original shares with respect to the profits accrued from the listing of the shares with respect to the stocks with respect to which the gift tax was not imposed on the profits accrued from listing the shares with respect to the stocks with respect to the profits accrued from the listing of the instant case, as seen above, the public official in charge of the Busan regional tax office may recognize the fact that the public official in charge of the Busan regional tax office did not impose gift tax on the

However, in light of the following circumstances, which are acknowledged as comprehensively considering the purport of the entire argument in the statement Eul evidence No. 3, namely, the "Case of Tax Investigation on Stock Change" distributed by the National Tax Service around March 2008, which states that the gift of listed marginal profits falls under the entire amount of acquisition with consideration, capital increase with consideration, capital increase with consideration, capital increase with consideration, and stock dividend, etc. when calculating the gift of listed marginal profits as a taxation case of listed marginal profits, the above public official in charge appears to have omitted taxation on the new stocks with consideration without examining the above case collection, etc., and the Busan Regional Tax Office merely notified the Plaintiff of the imposition of gift tax on the listing marginal profits of the issued stocks with consideration after the above tax investigation, and there is no evidence to prove that the Plaintiff explicitly notified the Plaintiff that "the listed marginal profits with consideration of new stocks of this case are not subject to gift tax." Thus, it is difficult to accept this part of the Plaintiff's assertion.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.