유가증권발행규정에 따라 산정된 신주의 발행가액을 시가라고 볼 수 없음[국승]
2012Guhap2451 (25 July 2012)
The issue price of new shares calculated in accordance with the Securities Issuance Regulations shall not be deemed the market price.
(1) In light of the fact that the issue price of new shares calculated pursuant to Article 57 of the Regulations on the Issuance of Securities cannot be deemed as the market price in light of the fact that the issue price of new shares cannot be deemed as the market price, as long as the new shares are selected with the purchase and sale contract of shares, the issue price of new shares calculated pursuant to Article 57 of the same
2012Nu28577 Revocation of Disposition of Imposition of Gift Tax
AA
1.2.Seongdong Head of the tax office;
Suwon District Court Decision 2012Guhap2451 Decided July 25, 2012
July 17, 2013
August 28, 2013
1. The plaintiff's claim against the defendant Sung Dong Tax Office whose exchange was changed in this court is dismissed.
2. The plaintiff's appeal against the chief of the party branch office is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
The judgment of the court of first instance is revoked. The revocation of each disposition on the attached list filed by the Defendants against the Plaintiff (such as changes in jurisdiction, etc., the correction of the Defendant was made in this court, and the portion of penalty tax was changed in exchange for the claim
1. The part citing the judgment of the court of first instance
The reasoning of this court's ruling is as follows, and the judgment on the plaintiff's assertion is added in the following paragraphs, and therefore, it is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
< The part to be used in case of :
"23,00 weeks" and "25,000 weeks that are 8th, and 9th, respectively, are 230,000 weeks and 250,000 weeks.
○ 4th below 3 to 8th below.
" 마. 피고 분당세무서장(관할구역 변경에 따라 피고 성남세무서장에서 피고 분당세무서장으로 변경되었다)은 구 상속세 및 증여세법 시행령(2008. 2. 22. 대통령령 제 20621호로 개정되기 전의 것， 이하 같다) 제29조 제3항 제1호 가목에 따라 평가할 때 BBBBBBBBB가 발행한 신주의 가액이 OOOO원임에도 OOOO원으로 저가발행함으로써 원고가 그 차액 상당의 이익을 얻었다고 판단하고 2011. 5. 1. 및 2011. 5. 2. 원고에게 별지 목록 기재와 같이 2006년 귀속 증여세 합계 OOOO원(가산세 포함) 을 부과하는 처분을 하였다. 그 후 피고 성동세무서장(증여세 가산세 부분은 원고 주소 변경에 따라 피고 성남세무서장에서 피고 성동세무서장으로 변경되었다)은 2013. 3. 22.경 위 부과처분 중 가산세 부과처분을 직권으로 취소하고， 2013. 5. 14. 가산세의 종류와 산출근거 등을 납세고지서에 적어 별지 목록 기재와 같이 다시 부과하였다(이하 증여세 본세 부과처분과 합하여이 사건 각 처분'이라 한다).", " 〇5쪽 [인정근거]에을 제2， 4， 6호증의 1 내지 8， 을 제5호증'을 추가한다.", " 〇7쪽 5~6째 줄발행'을발생'으로，아래에서 6째 줄127，500원'을127，500주'로， 마지막 줄540，000，000원'을5，400，000，000원'으로 고친다.",2. 추가 판단
A. The plaintiff's assertion
The Plaintiff asserts to the effect that the application of Article 39 (1) 1 of the Inheritance Tax and Gift Tax Act by deeming the instant capital increase shares as part of the merger procedure or constitutes exchange of stocks, in light of the fact that the instant capital increase shares was made as part of the merger procedure or cannot be said to have been abused as a means of tax avoidance or tax avoidance, rather than simply dependent on the content or form of the relevant contract pursuant to the substance over form principle under Article 14 of the Framework Act on National Taxes, and the overall process of the transaction, such as the parties’ intentions, the light of the conclusion of the contract, and the method of determining the price, and the process of transaction.
B. Determination
If the parties to a transaction have selected one of several ways and formed the legal relationship, the content and scope of taxes shall be determined individually in accordance with the legal relationship, and even if the ultimate objective of different transactions is the same, it cannot be deemed that the substance is the same or that the same is treated under the tax law, regardless of the difference in the legal form. In this case, as the BBBB selects the instant shares sales contract at the same time as the merger agreement of the instant case, it is difficult to regard the instant shares issued as part of the merger procedure or as an exchange of shares, and even when considering the entire process of the transaction, such as the process of the conclusion of the contract and the process of the actual formed transaction, even if the Plaintiff and BBBBBBBB were to take general merger procedures, the parties such as the Plaintiff and BBBBBBB have an intention to establish the legal relationship between the Plaintiff’s shares and the instant shares issued, and the CBCC and BBBBBBBBBBBBBB, even if they were to be in violation of the principle of substantial taxation (see Article 19 of the Inheritance Tax Act).
Unlike this, the Plaintiff’s assertion cannot be accepted.
3. Conclusion
Since the judgment of the first instance court on the principal portion of gift tax among each disposition of this case is justifiable, the appeal against the head of the party branch office is dismissed. The appeal against the head of the party branch office of this case is dismissed on the ground that there is no ground for the claim against the defendant branch office of this