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

A. As the Korea Asset Management Corporation dies on April 8, 1993, the deceased non-party 3, who is the founder of the non-party 2 corporation (hereinafter "non-party 2 corporation"), the heir paid in kind as inheritance tax, with the sales of non-party 2 corporation non-party 1,203 shares issued as non-party 2 corporation (hereinafter "stocks paid in kind") entrusted by the Ministry of Finance and Economy on November 17, 1997, the minimum estimated sale price per share as KRW 1,686,342 was commenced by the public auction. However, in the above public auction procedure, there was no bid participants in the public auction procedure, 197, 1998, 2, 1999, 6, 2000, 300 shares paid in kind with the above 13-60 shares paid in kind, the Korea Asset Management Corporation entered into the public auction on September 8, 200, 2003 and 36710 shares paid in kind.

B. On November 20, 200, the Plaintiffs received the donation of Non-Party 2’s non-indicted 17,150 shares (non-party 1: 10,445 shares, non-party 5: hereinafter “the instant shares”) of Non-Party 2’s non-indicted 17,150 shares (the non-party 1: 10,445 shares, non-party 6,705 shares; hereinafter “the instant shares”) held by them from Non-Party 1 and 5, who are their major shareholders of Non-Party 2’s company, as indicated in the list of stock donation statements, and then calculated the instant public sale price of the instant shares as the market price of the instant shares (hereinafter “the market price of the instant shares”) and filed a gift tax thereon with the Defendants.

C. On this issue, the Defendants assessed the value of each share of this case as KRW 3,408,486 according to the supplementary assessment method under Articles 60 and 63(1)1 (c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301, Dec. 29, 2000; hereinafter “the Act”) and Article 54(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17828, Dec. 30, 2002; hereinafter “former Enforcement Decree”), and assessed the value of each share of this case as KRW 3,408,486, and assessed the gift tax on the Plaintiffs as stated in the attached Table 2.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1-30, Gap evidence 2, Gap evidence 3-1-9, Gap evidence 4, the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

According to Article 60(1) and (2) of the Act and Article 49(1)3 of the former Enforcement Decree of the Act, the value of the property subject to gift tax shall be based on the market price as of the date of donation as of the date of donation. Here, the market price shall be the value generally recognized as being constituted in the event of free transactions between many and unspecified persons, and shall include the price determined by each subparagraph of Article 49(1) of the former Enforcement Decree, such as the expropriation and public sale price and the appraisal price. However, since the public sale price determined in the public sale procedure as above for the stocks paid in kind is the market price of the stocks of this case, the above public sale price is deemed as the market price of the stocks of this case without recognizing it as the

B. The defendants' assertion

From 198 to 2001, the Korea Asset Management Corporation has conducted a public auction on 52 non-listed shares, but only 23 shares were held by 30 shares, and only 23 shares were sold thereafter, the Plaintiff 1, the representative director of Non-Party 2, and Non-Party 4, his agent agent, participate in the public auction procedure in planned collusion for the purpose of reducing gift tax related to the gift of the shares of this case. The public auction price of this case is only 19.7% (6,380 won/3,408,486 won) of the value of the shares of this case assessed by the supplementary method. The gift of this case is merely 75% (17,150 shares/22,743 shares) of the total number of shares issued by Non-Party 2, against the fact that the transfer of management rights of the company was accompanied by the transfer of shares of this case, the value of shares of this case cannot be viewed as the market price of this case, not the transfer price of the shares of this case.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

First, we examine whether the instant negotiated contract price can be seen as the market price of the instant shares.

(1) Articles 60(1) and 60(2) of the Act provide that the value of the property on which the gift tax is levied shall be based on the market price as of the date of donation, and the market price shall be recognized as the market price under the conditions as prescribed by the Presidential Decree, such as the public sale price. Article 49(1)3 of the former Enforcement Decree, which was applied at the time of donation of the stocks of this case, stipulates that in the case of the donation, where there is a fact of public sale of the pertinent property within three months before the base date of appraisal, the amount of the public sale shall be deemed as the market price. According to the above provisions, where the public sale of the stocks of this case was made within three months before the donation of the stocks of this case

In addition, as seen earlier, the Korea Asset Management Corporation that did not sell the shares paid in kind to the Plaintiff seven times or more for the public sale of the shares paid in kind in the case of the Plaintiff by a negotiated contract. As such, the negotiated contract price is equivalent to the public sale price stipulated in Article 60(2) of the Act and Article 49(1)3 of the former Enforcement Decree, and a negotiated contract for the shares paid in kind was made on July 23, 1999, which was within three months before October 22, 1999 when the shares were donated in the case of the instant shares, so the negotiated contract price of the instant shares shall be deemed to constitute the market price in calculating the donation price of the instant shares.

(2) The defendant asserts that the non-listed stocks paid in kind, unlike general public sale or private contract, are purchased through a free contract by the plaintiff, who is the inheritor. Thus, the price of the private contract of this case cannot be deemed to fall under the market price stipulated in Article 60 (2) of the Act and Article 49 (1) 3 of the former Enforcement Decree. However, the defendant's above assertion is without merit when examining

First, under the principle of no taxation without law, a tax law interpretation shall be interpreted as a statutory interpretation, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. However, Article 60(2) of the former Enforcement Decree provides that the market price of the donated property, which is the basis for calculating the donated value, shall include the sale price, etc., and Article 49(1)3 of the former Enforcement Decree provides that where a public sale of the pertinent property is conducted, the public sale price shall be deemed to be the market price under Article 60(2) of the Act, and it does not provide that the public sale price or a negotiated contract price shall not be included in the market price under Article 60(2) of the Act where a heir of the property paid in kind is either sold or purchased through a free contract under the law or the former Enforcement Decree. Therefore, where a heir of the property purchased the property through a public sale or a negotiated contract under Article 60(2) of the former Enforcement Decree without reasonable grounds and Article 49(1)3 of the former Enforcement Decree shall not be included in the market price.

Second, Article 60(2) of the Act provides that the market price, which serves as the basis for calculating the donation price, shall be “if a free transaction is made between many and unspecified persons” and the auction price shall be deemed to be the market price. In this case, where a free transaction is made between many and unspecified persons, it shall not mean a case where a transaction is made between many and unspecified persons, but a case where a possibility of free transaction is ensured between many and unspecified persons. The public auction price is included in the market price because its price is determined under the condition that there is possibility of free

Therefore, even where an heir purchases property paid in kind through a public auction or a negotiated contract, if the auction price or a negotiated contract is determined under the condition that it would be freely traded between many and unspecified persons, it shall be deemed that the auction price or the negotiated contract price falls under the market price stipulated in Article 60 (2) of the Act. In other words, even if an heir participates in the public auction procedure for the property paid in kind and the heir does not participate in the public auction or any other person does not participate in the public auction procedure and thus the heir sells the property by a negotiated contract, if the above public auction or a negotiated contract is guaranteed the free participation of many and unspecified persons, the auction price or the negotiated contract price shall be deemed to fall under the market price stipulated in Article 60 (2) of the Act. In other words, the auction price cannot be deemed to fall under the market price provided in Article 60 (2) of the Act.

However, in cases where the determination of the negotiated contract price of this case was made in a state where it is not guaranteed that the free transaction will be made between many and unspecified persons, for example, in cases where the possibility that the plaintiff or a third party other than the plaintiff can participate in public sale or private contract, the price of the instant negotiated contract of this case cannot be deemed the market price stipulated in Article 60(2) of the Act

Third, Articles 60(1) and 60(3) of the Act provide that the value of the property on which gift tax is levied shall be calculated at the market price as of the date of donation in cases where it is difficult to calculate the market price on the basis of the type, scale, transaction circumstances, etc. of the relevant property, based on the appraised value by the method prescribed in Articles 61 through 65 of the Act in consideration of the type, size, transaction conditions, etc. of the relevant property. As such, in principle, the Act provides that the valuation of the donation value is based on the market price. As such, the sale price, auction price, and public auction price, which are the market price in cases where the property is sold, sold, sold, or sold at public auction, shall not be necessarily reflected in the adequate exchange value of the property. This is because the sale price, etc. of the property is determined by the supply and demand based on various factors, such as the possibility of easy loss in addition to the adequate exchange value of the property. In particular, there may be a big gap between the market price and adequate exchange value.

Therefore, even if there is a difference between the public auction price or private contract price in the public auction of unlisted stocks paid in kind and the value according to the supplementary assessment method under Article 54 of the former Enforcement Decree, the above public auction price or private contract price cannot be deemed to fall under the market price under Article 60 (2) of the Act on the sole ground of such difference.

Fourth, Article 49(1)3 of the Enforcement Decree of the amended Act newly established the proviso that where an heir of the property paid in kind receives a public sale of the property, the sale price concerned shall not be deemed the market price under Article 60(2)3 of the former Enforcement Decree. This proviso cannot be deemed to be a provision that is naturally accepted as a matter of course in the interpretation of Article 49(1)3 of the former Enforcement Decree, and where an heir of the property paid in kind is a public sale, it shall not be deemed to be the market price under Article 60(2) of the Act and shall be deemed to be a special provision for calculating the value of the property in accordance with the supplementary method under Article 54(1)3 of the Enforcement Decree, rather than the market price under Article 60(2) of the former Enforcement Decree. Therefore, in calculating the gift value of the shares in this case, it is practically impossible to regard the free contract price of this case as the market price of the shares in this case on the ground that the Plaintiff, the heir, purchases by a free contract.

(3) Therefore, without examining the remaining arguments of the Plaintiff, the instant disposition is unlawful.

3. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition by citing it.

[Attachment 1 and 2]

Judges Kwon Soon-il (Presiding Judge)