propriety of the disposition that a shareholder made at the time of donation of an immovable property to a specified corporation the shareholder gains

Even if property is provided without compensation to a corporation by a person with a special relationship, it shall be deemed that there is any profit even if the shareholder of the corporation has actually no profit, and it shall be deemed that there is an excessive provision beyond the purpose of legislation of the law to include it in the value of property according to the shareholder'

Article 41 of the Inheritance Tax and Gift Tax Act (Gift of Benefits Arising from Transactions with Specific Corporation)

Article 31 of the Inheritance Tax and Gift Tax Act (Calculation Method, etc. of Benefits through Transactions with Specific Corporations)

1. Each disposition imposing gift tax on each of the Defendants stated in the attached Form imposed by the Defendants against the Plaintiffs shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The decision is as follows (the date of the imposition of gift tax of KRW 7,99,130 on July 2, 2007, which was imposed on the Plaintiff ○○○○ of the Yangcheon Tax Office among the claims stated in the complaint, seems to be a clerical error in the statement on July 1, 2007).

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the purpose of pleading in each of the statements in Gap evidence 1-1 to 6, evidence 1-2 (Evidence 7-1, 2, evidence 3, evidence 5, evidence 7, evidence 8, evidence 9-1 through 4, evidence 10, evidence 11, evidence 1-1, evidence 1-2, evidence 3, evidence 4-1, 2, 5, 6, and 8 of evidence 1-2.

가. 주식회사 ㅇㅇㅇ상사(이하 'ㅇㅇㅇ상사'라 한다)는 1988. 4. 8. 경공업제품 원부자재 수출입업 등을 목적으로 설립된 법인으로서, ㅇㅇㅇ상사 총발행주식 204,000주 가운데 원고 ○○○이 104,000주(50.98%), 원고 ○○○이 40,800주(20.00%), 원고 ○○○가 20,800주(10.20%), 원고 ○○○이 38,400주(18.82%)를 각 보유하고 있었다.

나. ㅇㅇㅇ상사 주주들인 원고들과 특수관계에 있는 원고 ○○○ 및 ○○○은 2004. 11. 30. 각 1/2 지분비율로 공동소유하고 있던 서울 양천구 신월동 49-16 대 494.9㎡ 및 원고 ○○○이 소유하고 있던 위 대지 지상 4층 근린생활시걸 건물(이하 '이 사건 각 부동산'이라 한다)을 ㅇㅇㅇ상사에게 증여하였다. ㅇㅇㅇ상사는 2004년 사업년도 결손금 3,587,416,577원이 발생하였고, 2005. 12. 19. 폐업하였다.

다. 피고들은 원고 ○○○ 및 ○○○이 결손법인인 ㅇㅇㅇ상사에게 이 사건 각 부동산을 증여함으로써 그 주주들인 원고들이 그 가액 상당의 이익을 얻은 것으로 보아 원고들에게 상속세 및 증여세법(2003. 12. 30. 법률 제7010호로 개정된 것, 이하 '법'이라 한다) 제41조 제1항 제1호에 의하여 증여세를 부과하기로 하고, 그 증여재산가액을 산정함에 있어서 법 시행령(2003. 12. 30. 대통령 제18177호로 개정된 것, 이하 '법 시행령'이라 한다) 제31조 제6항에 근거하여 이 사건 각 부동산의 ㅇㅇㅇ상사 장부가액 1,410,472,000원에 원고들이 보유하고 있는 ㅇㅇㅇ상사의 주식 지분율을 곱하여 산정한 가액을 원고들의 각 증여재산가액으로 보고(원고 ○○○이 증여한 부동산 가액 872,628,000원의 50.98%에 해당하는 444,866,000원은 본인으로부터 증여에 해당하므로 과세대상에서 제외), 각 세액을 산정하여 원고들에게 주문 기재와 같이 각 2004년 귀속 증여세를 부과·고지하였다(이하 '이 사건 각 부과처분'이라 한다).

D. The Plaintiffs were dissatisfied with each of the instant dispositions and filed an appeal with each National Tax Tribunal on September 5, 2007, but were dismissed on December 26, 2007.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Article 41 of the Enforcement Decree of the Act delegates only to the Presidential Decree the specific method of calculating the profits a shareholder or an investor of a specified corporation, on the premise that the shareholder or an investor of the specified corporation gains profits. However, the benefits under Article 31(6) of the Enforcement Decree of the Act are imposed regardless of whether the shareholder or an investor of the specified corporation gains profits, not the profits a shareholder or an investor of the specified corporation, and thus, regardless of whether the shareholder or the investor gains profits from the specified corporation. As such, Article 31(6) of the Enforcement Decree of the Act deviates from the scope of delegation under Article 41 of the Act. In addition, Article 31(6) of the Enforcement Decree of the Act goes beyond the scope of delegation under Article 41 of the Act. Moreover, even where the shareholder

Even if the value of donated property is calculated in accordance with Article 31(6) of the Enforcement Decree of the Family Affairs Act, the amount obtained by subtracting the amount of loans secured by each real estate of this case and the amount of the obligation to return lease deposit shall be deemed as the value of donated property. However, each disposition

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Article 41(1) of the Act and Article 31(6) of the Enforcement Decree of the Act

Article 41 (1) of the Act provides that in case where the shareholders or investors of a specified corporation make profits through transactions similar to such transactions (hereinafter referred to as "donation, etc.") such as gratuitous provision of property or services with the relevant specified corporation by a person in a special relationship with the shareholders or investors of the specified corporation, the amount equivalent to such profits shall be regarded as the value of property donated to the shareholders or investors of the specified corporation, and Article 41 (2) provides that the profits earned by the shareholders or investors of the specified corporation shall be calculated by the Presidential Decree.

Accordingly, Article 31 (6) of the Enforcement Decree of the Act provides that "the profits that shareholders or investors gain, and the value of donated property (limited to losses) multiplied by the ratio of shares or equity shares (limited to cases where the amount is at least 100 million won)" (Article 31 (6) of the Enforcement Decree of the Act provides that "the amount calculated by multiplying the value of shares or equity shares increased by the value of donated property by the number of shares or equity shares shall be calculated by the number of shares," and the Supreme Court Decision 2003Du4249 Decided November 28, 2003 regarding the interpretation of "the value of shares increased by the number of shares" shall not be the value of shares, if the value of shares per share is all incidental before and after the transaction, such as donation, and it shall not be the value of shares, etc. so increased or the value of shares, etc. shall not be considered as an increase in the value of shares, and it shall not be considered that there is an absolute difference between the value of shares and other shares.

2) Whether the delegation of the parent law under Article 31(6) of the Enforcement Decree of the Act deviates from the delegated law

피고들은 앞에서 본 바와 같이 법 시행령 제31조 제6항의 규정에 의하여 이 사건 각 부동산의 ㅇㅇㅇ상사의 장부가액에 원고들이 보유하고 있는 ㅇㅇㅇ상사의 주식지분율을 곱하여 산정한 가액을 원고들의 증여재산가액으로 보았다. 그러나 법 시행령 제31조 제6항(이하 '이 사건 시행령 조항'이라 한다)은 다음과 같이 모법의 위임범위를 벗어난 것이거나, 법 제41조 제1항의 입법취지를 벗어나 실질과세의 원칙에 위반되는 것으로서 무효라 할 것이다.

① First, Article 41(1) of the Act provides that a shareholder shall make the amount equivalent to that of a shareholder’s donated value to “the case where the shareholder obtains the benefit from the transaction such as donation” and delegates the part concerning “the calculation of that benefit” to the Enforcement Decree. However, the provision of this case stipulates that the amount calculated by multiplying the value of the property acquired by the corporation by the share ratio owned by the shareholder is naturally, on the premise that the corporation acquires the benefit from the transaction such as donation, shall be the value of the property acquired by the corporation as the value of the property acquired by the shareholder. This is beyond the scope of delegation, in that it sets out the calculation method of the benefit by stating that “the shareholder shall only delegate the calculation of the benefit to the Enforcement Decree

② Second, Article 41(2) of the Act delegates "the calculation of profits acquired by shareholders" to the Enforcement Decree, and even if such delegation is deemed to be delegated to the Enforcement Decree on how to see the profit gained by shareholders or how to see the profit gained by shareholders, it would result in the conclusion that the pertinent provision of the Enforcement Decree would be the same as providing the property to shareholders as free provision of the property to a specific corporation by a person with a special relationship to a certain corporation as share ratio. Thus, the relationship between the company and its shareholders in the corporation

③ Third, in the case of a deficit corporation, dividends to shareholders shall not be given to shareholders, and most cases are incidental to the actual value of shares or the liquidation value of residual property. If a person with a special relationship becomes the actual value or liquidation value of shares per share due to the gratuitous provision of property to a corporation as such deficit, etc., within the limit of the increased value [in this case, it shall be deemed that a shareholder has gained substantial profits within the limit of the increased value [it shall be limited to the increased value from (0) to (+). However, even if a free provision of property is provided, if there is still a difference in the real value of shares or the liquidation value of residual property, any profit is not actually received due to holding the shares. Nevertheless, the provisions of the Enforcement Decree of this case, even though there is a free provision of property to a corporation, it shall be deemed that a shareholder has obtained profits, and therefore, it shall be deemed that it violates the principle of substantial taxation.

(4) Lastly, the regulation on deemed donation under Article 41 (1) of the Act does not pay corporate tax through donation of deficit to the shareholders of the relevant corporation, but its legislative purpose is to block the possibility of using it as an alternative donation method giving substantial economic benefits to the shareholders of the relevant corporation. However, even if there is no gratuitous provision of property to the corporation by a person with a special relationship, it shall be deemed that there is any profit even if the shareholders of the relevant corporation did not gain any profit, and it shall be deemed that there is no profit, and it shall be included in the donated property according

4) Sub-committee

In conclusion, the provision of the Enforcement Decree of the instant case is null and void, and thus, each of the instant dispositions based thereon is illegal.

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified without examining the remaining arguments, and it is so decided as per Disposition.

Related statutes

[Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003)]

Article 41 (Donation of Profits through Transactions with Specified Corporation)

(1) Where a person who has a special relationship with a stockholder or investor of a corporation (hereafter in this Article, referred to as the "specified corporation") who has deficits or under suspension or closure of business, obtains profits from the stockholder or investor of the specified corporation through transactions falling under any of the following subparagraphs, the amount equivalent to such profits shall be deemed the value of donated property of the stockholder or investor of the specified corporation:

1. Transactions in which property or services are provided without compensation;

2. Transactions in which property or services are transferred or provided for significantly low prices in the light of the common practices of transactions;

3. Transactions in which property or services are transferred or provided for significantly high prices in the light of the common practices of transactions;

4. Other transactions similar to subparagraphs 1 through 3 and prescribed by the Presidential Decree.

(2) The specific corporation referred to in paragraph (1) shall be subject to the conditions as prescribed by the Presidential Decree, with respect to the calculation of profits earned by specially related persons, shareholders or investors in a specific corporation, and the scope of significantly low prices and highly high prices.

[Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177, Dec. 30, 2003)]

Article 31 (Method, etc. of Calculating Profits through Transactions with Specific Corporations)

(5) "Persons having a special relationship with the shareholders or investors" in Article 41 (1) of the Act means persons having relationship with the largest shareholders, etc. of a corporation provided for in any subparagraph of paragraph (1) under Article 19 (2).

(6) The profits referred to in Article 41 (1) of the Act shall be the amount calculated by multiplying the following profits (limited to where the relevant amount is at least 100 million won) by the ratio of stocks or investment shares of the persons referred to in paragraph (5):

1. Where property is donated, or the debts of the relevant corporation are exempted, acquired, or repaid, the amount equivalent to the value of donated property, or the profits accruing from such exemption, acquisition, or repayment;

2. In the case other than subparagraph 1, the amount equivalent to the difference between the market price as referred to in paragraph (3) and the price.

[Enforcement Decree of the Act (amended by Presidential Decree No. 18177 of Dec. 30, 2003)]

Article 31 (Scope, etc. of Specific Corporations)

(6) A profit deemed to have been donated to a shareholder or investor of a specific corporation pursuant to Article 41 (1) of the Act shall be based on the amount calculated by multiplying the value per share of increased stocks or investment shares by the number of stocks referred to in paragraph (5) in connection with the amount equivalent to any of the following profits (in cases of a juristic person falling under paragraph (1) 1, it shall not exceed the relevant deficit):

1. Where property is donated, or the debts of the relevant corporation are exempted, acquired, or repaid, the amount equivalent to the value of donated property, or the profits accruing from such exemption, acquisition, or repayment;

2. In cases other than those as referred to in subparagraph 1, the amount equivalent to the difference between the market price as provided in paragraph (3) and the price.