Incheon District Court 2012Guhap2645 ( October 25, 2012)

Cho High Court Decision 201J 5085 ( October 13, 2012)

Since the appraised value per share has increased, the existing shareholders' profits have been acquired.

(The judgment of the court of first instance is the same as the judgment of the court of first instance) of the parent company as a shareholder of the parent company and the representative director are exercising de facto influence on the management. As such, it constitutes a person with a special relationship, and the appraised value per share after acquiring new shares to the issue price increases, the plaintiff

2012Nu36479 Revocation of Disposition of Imposing gift tax

BAA

the director of the tax office of Western

Incheon District Court Decision 2012Guhap2645 Decided October 25, 2012

May 1, 2013

May 29, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition imposing gift tax of KRW 000 on the plaintiff on September 1, 201.

1. The part citing the judgment of the court of first instance

1. Details of the disposition and 2. Whether the disposition is legitimate or not.

(1) The part of the judgment of the court of first instance, which states that the Plaintiff was a shareholder of crowdfunding and TPC is as follows. In accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, the corresponding part is cited.

"O 2. 3 ...............................................

2. Determination

A. Whether there is a special relationship between the Plaintiff and his family members

Article 29(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the person who acquires new shares under Article 39(1)2(c) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act shall be one who has a relationship under each subparagraph of Article 19(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and Article 19(2)3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that one of the following persons who is in a relationship with an enterprise group prescribed by Ordinance of the Ministry of Strategy and Finance (including its executives) or who is deemed to exercise de facto influence over the management of the company through the exercise of the right to appoint or dismiss its executives. In light of the language and purport of the above provision, it is reasonable to view that the company is one of the largest shareholders of the company under Article 39(1)2(c) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and that the company is an affiliated company of the company under Article 19(2)3 of the former Enforcement Decree of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

① OO commercial aid is comprised of 31% of the Plaintiff and 20% of the weather, and OO and OOOO are owned by the Plaintiff as a real shareholder, and OO and OOO are included in the affiliate of a conglomerate in which the Plaintiff is the same person in accordance with Article 3 subparagraph 1 (a) of the Enforcement Decree of the Fair Trade Act.

② Family patriotism holds 100% of the total amount of 100% shares as a unified related person under Article 3 subparag. 1 (d) of the Enforcement Decree of the Fair Trade Act, and JO as its inside director is an employee of a national trade aid who is a person related to the same person under Article 3 subparag. 1 (e) of the Enforcement Decree of the Fair Trade Act, and the plaintiff is a representative director of a national trade aid and family patriotic and his/her representative director, and participates in the creation of convertible bonds and capital increase with capital gains (Article 3 subparag. 4). In light of the fact that family patriotism is established under his/her own initiative, and family patriotic can be seen as a company where the plaintiff exercises a dominant influence over the major decision-making or execution of business affairs of the company, directly or through OO and JOO, a person related to the same person. Thus, pursuant to Article 3 subparag. 2 (b) of the Enforcement Decree of the Fair Trade

③ Since it is recognized that the Plaintiff exercises de facto influence over the management of a family pet, which is an affiliated company of an enterprise group composed of O and family pets, the Plaintiff is judged to have a special relationship with a family pets pursuant to the latter part of Article 19(2)3 of the former Enforcement Decree

B. Whether the substance over form principle is violated

The legislative intent of Article 39(1)2 of the former Inheritance Tax and Gift Tax Act provides for the detailed calculation method of profits from capital increase as provided in subparagraph 9, namely, the increase in the value per share of 00 won and the increase in the value per share of 100 won per share of 00 won before capital increase, and the increase in the value of 100 won per share of 100 won after the increase in the value of 100 won per share of 100 won, and the increase in the value of 100 won per share of 100 won before the increase in the value of 100 won per share of 100 shares after the increase in the value of 100 shares, and the increase in the value of 100 shares per share of 100 shares before the increase in the value of 100 shares after the acquisition of 100 shares in the existing net assets of 100 shares.

3. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.