The costs of appeal are assessed against the defendant.

[Seoul High Court Decision 2007Nu30583, Jun. 27, 2008]

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

가. 원고는 1998.3.24. 〇〇〇와 함께 섬유염색임가공을 사업목적으로 하는 〇〇〇주식회사(이후 그 상호가 〇〇〇산업주식회사로 변경되었음. 이하 '이 사건 회사'라고 한다)를 설립하였고, 그 당시 이 사건 회사의 총발행주식 10,000주(액면가 주당 10,000원)중 4,000주는 원고가, 1,000주는 원고의 처인 〇〇〇이, 4,100주는 위 〇〇〇가, 900주는 〇〇〇의 처인 〇〇〇이 각 인수, 보유하게 되었다.

나. 한편, 원고 및 〇〇〇는 공동대표이사로 취임하여 이 사건 회사를 공동경영하였고, 〇〇〇는 1999년경 처인 〇〇〇으로부터 이 사건 회사의 주식 900주를 양수함으로써 이 사건 회사의 주식 5,000주(50%, 이하 '이 사건 주식'이라고 한다)를 보유하게 되었다.

다. 원고는 2001.4.28. 〇〇〇로부터 그 소유의 이 사건 주식을 9억원(이 사건 회사의 경리직원이 2001.4.27.작성한 추정대차대조표에 의한 순자산가치를 기준으로한 금액을 주당 18만원임)에 매수하고, 〇〇〇에게 같은 날 계약금 및 중도금 7억5,000만원을, 2001.6.9.잔금 1억5,000만원을 각 지급하였다.

라. 〇〇〇는 2001.5.9. 이 사건 회사의 공동대표이사에서 퇴임하였고, 같은 날 이 사건 회사는 공동대표규정을 폐지하였다.

"마. 피고는 2006.4.14.원고에 대하여, 위 매매당시 이 사건 주식의 시가를 보충적 평가방법 중 구 상속세및증여세법(2003.12.30. 법률 제7010호로 개정되기 전의 것, 이하 '법'이라고 한다)제63조 제1항, 법 시행령(2002.12.30. 법률 제7010호로 개절되기 전의 것, 이하 '법'이라고 한다)제63조 제1항, 법 시행령(2002.12.30. 대통령령 제17828호로 개정되기 전의 것. 이하 같음) 제54조 제1항에 의한 순손익가치에 의하여 평가할 경우 그 가액이 3,259,155,000원(주당651,831원)이 되는데, 이 사건 회사의 임원으로서 이 사건 회사의 지배주주인 〇〇〇와 특수관계에 있는 원고가 〇〇〇로부터 이 사건 주식의 시가(순손익가치)와 실제 양도가액의 차액에서 법 시행령 제26조 제3항 제2호에 정한 1억원을 공제한 2,259,155,000원(=3,259,155,000원-900,000,000원-100,000,000원)을 증여받았다는 이유로, 위 금액을 과세표준으로 하여 증여세 1,041,126,800원을 부과하는 처분(이하이 사건 처분'이라고 한다)을 하였다.",[인정근거]다툼 없는 사실, 갑1호증, 을1,2호증, 을 3호증의 1내지 4, 을4호증, 변론 전체의 취지

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

법 시행규칙 제4조의 임원, 상업사용인 및 그 밖에 고용계약관계에 있는 피용자를 사용인으로 규정하고 있는데, 원고와 〇〇〇 사이에는 위와 같은 고용계약관계가 존재하지 않으므로, 원고와 〇〇〇 사이에 법 시행령 제26조 제4항 제1호, 제19조 제2항 제2호에 정한 양도자와 사용인 또는 양수자와 사용인으로서 특수관계가 존재하지 않는 이상 벱 제35조에 따라 이 사건 주식의 저가양도에 따른 증여의제규정이 적용될 수 없으므로, 위 규정을 적용하여 증여세를 부과한 이 사건 처분은 위법하다.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

Article 35 (1) 1 of the Act provides that where an asset is acquired from a person with a special relationship at a price lower than its market price, it shall be deemed that an amount equivalent to the difference between the price and the market price of the asset is donated to the person who acquires the asset, which is equivalent to profits prescribed by Presidential Decree. Article 26 (4) 1 and Article 19 (2) 2 of the Enforcement Decree of the Act provides that a person with a special relationship shall be appointed by Presidential Decree. Article 13 (6) 2 of the Act provides that "an employee shall include "an employee of a corporation under control by investment" in the scope of "an employee" and Article 19 (2) 2 of the Enforcement Decree provides that "an employee of a corporation under control by a person with a special relationship" shall be included in the scope of "an employee of a corporation under Article 13 (4) 1 of the Act, and Article 43 (6) 1 of the Enforcement Decree of the Corporate Tax Act shall be included in the transfer or acquisition by transfer to another person with a special relationship.

이 사건의 경우, 이 사건 주식의 양도 당시 〇〇〇가 이 사건 회사의 발행주식총수의 100분의 50에 해당하는 이 사건 주식을 출자함으로써 이 사건 회사를 지배하고 있었고, 원고가 이 사건 회사의 임원인 공동대표이사로 재직하고 있었음은 앞서 인정한 것과 같고, 위 인정사실에 의하면, 원고는 이 사건 주식의 양도자인 〇〇〇가 출자에 의하여 지배하는 이 사건 회사의 임원으로서 법 시행령 제26조 제4항 제1호, 제19조 제1항 제2호가 정하는 특수관계에 있는 자(그 반대의 경우에도, 즉 0.

〇〇〇가 이 사건 주식의 양수자인 원고가 출자에 의하여 지배하는 이 사건 회사의 대표이사로서 특수관계에 있는 자에 해당함)에 해당한다고 할 것이므로, 원고가 〇〇〇가 특수관계에 있음을 전제로 한 이 사건 처분은 적법하고, 원고의 위 주장은 이유 없다.

3. Conclusion

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

Related Acts and subordinate statutes

The actual tax amount shall be the Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003).

Article 35 (Presumption of Donation at Time of Transfer of Low Price or High Price)

(1) With respect to a person who falls under any of the following subparagraphs, the amount equivalent to the difference between market price and eo which has acquired or transferred the property concerned shall be considered to have been donated to him as equivalent to the profits as prescribed by

1. The transferee of the property, in case where he takes over the property from a person having a special relationship at a price below the market price;

2. In case where the property is transferred to a specially related person at a price above the market price, the transferor of such property;

(2) Persons having special relationships as referred to in paragraph (1) 1 and 2, low-value and the scope of high-value shall be prescribed by the Presidential Decree.

Article 60 (General Rules, etc. of Appraisal)

(1) The value of property on which an inheritance tax or a gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as the "date of appraisal"). In such cases, the value appraised by the method of appraisal stipulated in Article 63 (1) 1 (a) and (b) (excluding cases falling under the provisions of Article 6

(2) The market price under the provisions of paragraph (1) shall be the price which is generally recognized as normal in the case of free trade between many and unspecified persons, and shall include the price of expropriation, public auction, appraisal price, etc. which is recognized as the market

(3) In applying the provisions of paragraph (1), where it is difficult to compute the market price, the price assessed according to the methods prescribed in Articles 61 through 65 shall be based on the types, scale, transaction conditions, etc. of the relevant

(4) In applying paragraph (1), the value of a donated property to be added to the value of the inherited property under Article 13 shall be the market price as of the date of donation.

Article 63 (Appraisal of Securities, etc.)

(1) The appraisal of securities, etc. shall be made according to the following methods:

1. Appraisal of stocks and investment shares:

(b) The provisions of item (a) shall apply mutatis mutandis to the stocks and investment shares as prescribed by the Presidential Decree from among the stocks and investment shares of the Association-registered corporations as prescribed by the Presidential Decree. In this case, the “final market price”

(c) Stocks and equity shares not listed on the Korea Stock Exchange other than those under item (b) shall be appraised according to the methods prescribed by Presidential Decree in consideration of corporation assets and profits;

(3) In the application of the provisions of paragraphs (1) 1 and (2), with respect to the stocks, etc. (excluding the stocks, etc. of corporations that have losses under Article 14 (2) of the Corporate Tax Act continuously from the business year within three years before the business year including the evaluation base date) of the largest stockholder, the largest investor, and the stockholders or investors in a special relationship with the former (hereafter in this paragraph, referred to as the “large stockholder, etc.”) as prescribed by the Presidential Decree, the value assessed under the provisions of paragraphs (1) 1 and (2) shall be added to 20/100 (10/100 for the small and medium enterprises prescribed by the Presidential Decree) of the value assessed under the provisions of paragraphs (1) 1 and (2), but in case where the largest stockholder, etc. holds in excess of 50/100 of the total number of stocks issued by the relevant corporation, 30/100

The tax base of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17828, Dec. 30, 2002)

Article 13 (Method of Contribution to Property Invested by Public Interest Corporations)

(4) For the purpose of the proviso of Article 16 (2) of the Act, the term “domestic corporation which has no special relationship with contributors of the public service corporation, etc. concerned” means the domestic corporation not falling under one of the

1. A domestic corporation in which the contributor or a person in a special relationship with the contributor (referring to a person in a relationship falling under any of subparagraphs of paragraph (6) with the contributor, but excluding the public service corporation concerned) is the stockholder, etc., or in excess of 1/5 (referring to an officer provided for in Article 43 (6) of the Enforcement Decree of the Corporate Tax Act; hereafter the same shall apply in this paragraph) of the current number (referring to the number of officers falling short of 5; hereafter the same shall apply in this paragraph) of officers, and in which the contributor and a person in a special relationship with the contributor (referring to a person in a relationship falling under

(6) Stocks, etc. of the same domestic corporation that a contributor or a person in a special relationship with him/her has contributed to other public-service corporations, etc. under Article 16 (2) 2 of the Act shall include stocks, etc. held by his/her heir and a public-service corporation, etc. that has contributed

1. A person prescribed in subparagraphs 1 through 8 of Article 20 of the Enforcement Decree of the Framework Act on National Taxes (hereinafter referred to as the “relative”);

2. An employee (including any executive officer of a corporation controlled by investment; hereafter the same shall apply in this subparagraph and Article 19 (2) 2) or any person, other than an employee, who maintains his/her livelihood with the property of an heir;

(8) The term “corporation controlled through investment” in paragraph (6) 2 and Article 39 (1) means a corporation falling under any of the following subparagraphs:

1. Corporations falling under Article 19 (2) 6;

2. Corporations falling under Article 19 (2) 7.

3. A corporation which invests 50/100 or more of the total number of stocks issued by a corporation under subparagraph 1 or 2 and a corporation under Article 19 (2) 1 through 5;

Article 19 (Inheritance Deductions of Financial Property)

(2) For the purpose of Article 22 (2) of the Act, the term “major stockholder or largest investor as prescribed by the Presidential Decree” means the relevant stockholder, etc. in case where the total sum of stocks held by one stockholder or one investor (hereinafter referred to as the “shareholders, etc.”) and those of those persons having relations falling under any of the following subparagraphs

1. Relatives;

2. Persons, other than employees and employees, who maintain their livelihood with the property of relevant stockholders, etc.;

6. The corporation which invests 30/100 or more of the total number of stocks issued by one stockholder and persons under subparagraphs 1 through 5;

7. The corporation which invests 50/100 or more of the total number of stocks issued by one stockholder and persons under subparagraphs 1 through 6;

Article 26 (Scope of Low or High Price Transfer and Specially Related Persons)

(1) For the purpose of Article 35 (1) 1 of the Act, the term “low price” means the price in case where the value (referring to the value appraised under Articles 60 through 66 of the Act; hereafter in this Article and Article 31, referred to as “market price”) of the property acquired (excluding the convertible bonds, etc. under Article 40 (1) of the Act) differs by not less than 30/100 of the market price or the difference is not less than 100 million won.

(3) The term “profit prescribed by the Presidential Decree” in the main sentence of Article 35 (1) of the Act means the difference between the price calculated under paragraphs (1) and (2) and the market price minus the smaller amount of the following subparagraphs:

1. Where the value obtained by subtracting the price from the market price is at least 30/100 of the market price or at least 30/100 of the market price, the value equivalent to 30/100 of the market price;

2. 10 million won.

(4) The term “a person in a special relationship” as referred to in Article 35 (1) 1 and 2 of the Act means one of the following persons with a transferor or transferee (hereinafter in this paragraph referred to as a “transferr, etc.”):

1. A person who falls under Article 19 (2) 1, 2, and 4 through 8. In such cases, "one stockholder, etc." shall be deemed "transferee, etc.";

3. A person who is deemed to exercise de facto influence over the management of the concerned corporation by exercising the right to appoint or dismiss officers or by determining the course of business, etc.

Article 54 (Appraisal of Unlisted Stocks)

(1) Stocks and investment shares not listed on the Korea Stock Exchange (hereafter in this Article, referred to as “nonlisted stocks”) under Article 63 (1) 1 (c) of the Act shall be the value assessed by the following formula: Value per share of net profit and loss for the latest three years = The weighted average amount of net profit and loss per share of the preceding three years ¡Àthe average amount of net profit and loss formed in the financial market, and prescribed by the Ordinance of the Ministry of Finance and Economy

(2) Where the value of unlisted stocks appraised under paragraph (1) falls short of the value appraised by the following formula, the value shall be the value appraised by the following formula:

Value per share of the corporation = Net asset value of the corporation ± Total number of stocks issued (hereinafter referred to as “net asset value”).

The provisions of the former Inheritance Tax and Gift Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 288 of December 31, 2002)

Article 4 (Definition of Employee) The term "employee" in Article 13 (6) 2 and Article 19 (2) 2 of the Decree and Article 39 (1) 3 of the Decree means an officer, a commercial employee, or any other employee in an employment contract relationship.

The Enforcement Decree of the Corporate Tax Act

Article 43 (Non-Inclusion of Bonuses in Calculation of Losses)

(1) Bonuses paid by a corporation to its officers or employees in the disposition of profits (excluding piece rates falling under the provisions of any subparagraph of Article 20 (1)) shall not be included in the calculation of losses. In this case, remuneration paid to members who invest through work and labor in a limited partnership company E shall be deemed as bonuses from the disposition of profits.

(6) Officers under the provisions of paragraphs (1) through (5) (hereinafter “officer”) shall mean persons performing the duties under the provisions of each of the following subparagraphs:

1. All members of the board of directors and liquidators, such as the chairperson, president, vice president, chief director, representative director, managing director, and managing director;