(영문) 대법원 2008. 10. 09. 선고 2008두4862 판결

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(영문) 대법원 2008. 10. 09. 선고 2008두4862 판결

고가의 실권주 재배정에 따른 증여의제규정 적용 가능 여부[국패]

Title

Whether the regulations on deemed donation based on the cultivation of high-priced forfeited stocks can be applied.

Summary

The disposition imposing the gift tax on the premise that there is no objective evidence that the forfeited share occurred by waiver of the allocation of new shares, and that the forfeited share was cultivated, and thus, the disposition imposing the gift tax is unlawful.

Related statutes

Article 39 of the Inheritance Tax and Gift Tax Act (Presumption of Donation by Capital Increase)

Text

1. The appeal is dismissed.

2. The costs of appeal are assessed against the Defendant.

Reasons

We examine the grounds of appeal.

In full view of the admitted evidence, the court below found the facts as indicated in its holding. The court below held that the issue of new shares was difficult to be deemed to have been aimed at increasing ○○○○○○’s equity or investment amount, and that the forfeited interest was incurred by the Plaintiff’s waiver of the allocation of new shares, and that there was no objective data to know whether the issuance of new shares, the allocation of new shares, and the acquisition of new shares were notified to shareholders; whether the Plaintiff’s waiver of the acquisition of new shares, and whether the forfeited shares generated therefrom were allocated to ○○○○○, in light of the following: (a) the substantial purpose of the issue of this case’s offering of new shares was to enable ○○○ to dispose of the shares of ○○○○○○○ to acquire investment in funds from ○○○○○○; and (b) the issue of new shares was found to have been normally issued and allocated; and (c) there was no objective data to know whether the Plaintiff gave notice

According to the facts and records acknowledged by the court below, since ○○○○○’s capital amounting to KRW 9,255,100,000 due to capital increase by capital increase on November 29, 2001, and KRW 5,00,000 of capital increase by capital increase by capital increase by capital increase on February 25, 2002, the court below determined that ○○○○○○○○’s capital increase by capital increase by capital increase by capital increase on February 25, 2002 is somewhat inappropriate for the judgment of the court below, and the allegation in the grounds of appeal pointing this out is acceptable.

However, the lower court determined that each of the instant dispositions, based on the premise of such circumstances, was unlawful, since the Plaintiff’s waiver of the allocation of new shares did not constitute the forfeited share owner and Kim Hong accepted it. Therefore, in light of the relevant statutes and records, the lower court was justifiable.

There is no error of misconception of facts, incomplete deliberation, or misapprehension of legal principles due to violation of the rules of evidence.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

[Seoul High Court Decision 2007Nu23486, Oct. 13, 2008]

Text

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of gift tax of KRW 507,657,810 against the Plaintiff on March 16, 2006 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the imposition;

A. At the time of establishment as a juristic person established for the purpose of software development, production and sale on January 28, 2001, ○○○○ was a juristic person with capital of 200 million won (40,000 shares issued in total).

B. On November 29, 2001, and February 25, 2002, 2002, ○○○○ issued each of the instant capital increase (hereinafter “instant capital increase”). On November 29, 2001, 185,102 shares (valued 9,255,100,000 won) as KRW 50,00 per share. On February 25, 2002, ○○○ issued 10,000 shares (valued 50,00 won per share) as KRW 50,00 per share, and at that time, Kim○○, the representative director, was fully acquired.

C. From September 26, 2005 to November 4, 2005, the director of the regional tax office having jurisdiction over ○○○○○○ was investigating the change of corporate tax and shares with respect to ○○○○○○○○○○○○ from September 26, 2005. As a result, the Plaintiff, who had special relation with ○○○○○○, renounced the acquisition of new shares issued at a higher price than the market price to shareholders other than ○○○○○○, thereby making a decision that 1,269,000,000 won, and 4,000,000 won, were donated to the Plaintiff on November 18, 2005 by applying Article 39 of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”) and notified the Plaintiff of the result of the tax investigation to levy KRW 483,00,000,000 for gift tax on the gift on February 25, 2002.

D. Based on the results of the above tax investigation, the defendant decided and notified the plaintiff on March 16, 2006 the gift tax and additional tax 483,866,490 won and the gift tax and additional tax 23,791,320 won on the gift of February 25, 2002 (hereinafter referred to as "each of the above gift tax and additional tax and the disposition of notice" each of the above disposition of imposition).

E. The plaintiff requested a judgment with the National Tax Tribunal on June 14, 2006, but was dismissed on October 20, 2006, and the decision was served on the plaintiff on October 22, 2006.

Facts that there is no dispute over recognition, Gap evidence 1, 2, Eul evidence 1-1, 2, Eul evidence 3 and 4, the purport of the whole pleadings.

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

A. The plaintiff's assertion

(1) The Plaintiff did not acquire the shares of ○○○○○, and was appointed as an auditor on March 31, 2003 and became aware of the fact that the Plaintiff was registered as ○○○○○○○○○○○○○○○○○ shareholder. Thus, each of the dispositions of this case on the premise that the Plaintiff was a shareholder of ○○○○○○○○○○○○, is unlawful

(2) In order to be deemed to have received benefits from the issuance of new shares at a price higher than the market price under Article 39 of the Inheritance Tax and Gift Tax Act, the shareholders of the pertinent corporation should have given up all or part of the right to receive allocation of forfeited shares. However, ○○○○ merely borrowed the form of capital increase with a view to supporting ○○○○○○○’s funds, and does not comply with all procedures related to the issuance of new shares, such as allocation and notice of capital increase with consideration for new shares, and disposition of forfeited shares. As such, the Plaintiff was completely unaware of the fact that ○○○○○’s capital increase and the allocation of new shares were made until the

Therefore, since the Plaintiff did not waive the preemptive right to ○○○○○○’s capital increase with consideration, each of the instant dispositions is unlawful.

B. Relevant statutes

It is as shown in the attached Table related statutes.

C. Facts of recognition

(1) ○○○○ offered capital increase on March 7, 2001. According to the statement on the change of stocks, etc., the Plaintiff stated that 80,000 shares were acquired at that time, and the Plaintiff becomes a shareholder (80,000 shares) even in the statement on the change of stocks, etc. written thereafter. Meanwhile, on March 31, 2003, the Plaintiff was appointed as the auditor of ○○○○ on March 31, 2003.

(2) The process of issuing new shares in this case

(A) While ○○○○, a representative director of the Plaintiff’s Nam-dong, was a domestic corporation that developed fingerprint-type software and registered on KOSDAQ, ○○○○, a U.S. corporation, a corporation that ○○○○○○ (a company that sells fingerprint-type program developed by ○○○, operated by ○○○, a company that sells fingerprint-type program; hereinafter referred to as “○○○○”) with an amount of KRW 9.24 million and acquired ○○○○ (a company that sells fingerprint-type program developed by ○○○; hereinafter referred to as “○○○”) was undermining the registration of ○○○○’s KOSDAQ due to its poor management, and received a claim from investors. In order to register ○○○ on the KOSDAQ, ○○○ requested an exchange of shares owned by ○○○○○ and the shares owned by ○○○○○○○.

(B) At the time, Kim○ concluded a sales contract on October 19, 2001 with the Internet ○○○○○○ and the above ○○○○○○○○○○○○○○○○○○○○, selling ○○○○○○○○○, which was owned by ○○○○○○○, to exchange ○○○○○○○’s shares with ○○○○○○○○○○○○○○○○○○○ by means of buying ○○○○○○○○’s shares, and selling 10,306,77,50 shares for KRW 10,300.

(C) Under the foreign exchange transaction regulations at the time, an individual could not make a direct investment in a foreign company with an amount exceeding USD 3 million, and ○○○○ was unable to acquire ○○○’s shares from ○○○○ in his own name because ○○ was not an indirect investment as an unlisted foreign corporation, and thus, ○○○ was unable to acquire ○○○’s shares under one’s own name. ○○○ paid KRW 9,240,427,00 (the amount of money obtained by deducting transfer income tax) to ○○○○ in the form of capital increase with a capital increase and indirectly acquired ○○○ shares through ○○○○.

(D) Around November 12, 2001, ○○○○ concluded a sales contract to purchase ○○○’s 2,733,333 shares owned by ○○○○○○’s ○○○ 9,240,427,450 shares and to acquire 185,10 shares and to acquire ○○ ○○ ○ ○○ ○ ○ ○ ○ ○○ ○ ○ ○ ○ ○ ○ ○○ ○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

(E) At the time of the above capital increase, ○○○○○ and the Plaintiff, as well as Kim○○ and the Plaintiff, had the shareholders, but the ○○○○○ and the Plaintiff did not hold a board of directors. However, on November 12, 2001, the 10:0 on the 10:00 on November 12, 2001, the ○○○ attended by the representative director Kim○, directors Kim○, Kim○, Kim○○, and Lee○, and the auditor, who held the board of directors, decided to hold a board of directors and allocate new shares in an exceptional manner according to the number of shares owned by the shareholders listed in the register of shareholders, only prepared the minutes of the board of directors’ meeting with a view to making a resolution to allocate new shares in proportion to the number of shares owned by the shareholders listed in the register of shareholders on the same day, without entirely notifying the shareholders, including the Plaintiff of the allocation and subscription date of new shares, designation of subscription date, forfeited

(F) The purpose of this case’s capital increase is to dispose of the ○○○○ shares held by ○○○○○○○, and thus, the ○○○○○○○, an employee of ○○○○○○○○○ and the auditor and the head of the management support team of ○○○○○○○○○○, as an investor, directly deal with the opening of a separate deposit needed for the employee’s reason-based employee of the U.S.-based limited-liability investment company, and deposit, withdrawal, and remittance of the purchase price of new shares. Kim○○ paid a tax amount of KRW 1 billion on the passbook deposited for tax and public charges, such as capital gains tax due to the sale of ○○○○○ shares, and without having been given an opportunity to dispose of the remaining purchase price, he deposited the remaining purchase price into the deposit account of ○○○○○○.

(G) The ○○○○○ acquired the shares of ○○○○ and appropriated them as investment securities. However, the ○○○ applied for legal management in the U.S. court since the deficit was accumulated due to continuous management depression, and the ○○○○○ dealt with the said ○○○○○ by reducing the total value on the account books of the said ○○○○○○ shares at the time of settlement of accounts for the business year 20

(h) As ○○○○○ decided to increase the capital as of February 27, 2002 in order to raise the liquidation cost, ○○○○, a shareholder of ○○○○, again issued capital increase of KRW 500 million as of February 25, 2002 to pay the said capital increase, and 10,000 of the said new shares also acquired the entire shares by Kim○○. At this time, the board of directors’ minutes were not prepared and the procedures required under the Commercial Act following the issuance of new shares were not entirely met.

(3) Current status of ○○○○○’s shares before and after capital increase increase, and shareholder relationship.

(A) Status of stockholding before and after capital increase increase

for each shareholder.

Paid-in capital increase as of November 29, 2001

Paid-in capital increase as of February 25, 2002

Before capital increase

After Capital increase

Before capital increase

After Capital increase

Total

Number of shares

Ratio of Shares

Number of shares

Ratio of Shares

Number of shares

Ratio of Shares

Number of shares

Ratio of Shares

340,000 Shares

100%

525,102 note

100%

525,102 note

100%

535,102 Shares

100%

○ Kim

200,000

58.82%

385,102 Shares

73.34%

385,102 Shares

73.34%

395,102 Shares

73.84%

Plaintiff

80,000 Shares

23.53%

80,000 Shares

15.24%

80,000 Shares

15.24%

80,000 Shares

14.95%

Other

60,000 Shares

17.65%

60,000 Shares

1.42%

60,000 Shares

1.42%

60,000 Shares

1.21% by mass

(B) Of the shareholders of ○○○○ at the time of issuing the instant capital increase, ○○ was the former director of ○○○○, ○○ was the head of ○○’s strategic planning office (management director), and ○○ was the head of ○○○○’s team, and the Plaintiff was the head of ○○○○○’s team.

(C) In addition, as of November 12, 2001, ○○○○, who is a director of ○○○○○○, worked as an executive officer at ○○○○○○○○○○○○○○○○○○○○○○○, and served as the head of the team at ○○○○○○○○○○○○○○○○○○○○○○○○○, and was instructed by the head of the group to handle the capital increase with respect to the capital increase of the ○○○○○○○○○○○○○○○○, and the head of

(D) There was no objection from the directors and shareholders of ○○○○ in relation to the issue of capital increase with respect to the issue of capital increase and the issue of capital increase.

(E) The Plaintiff asserted that ○○○ acquired KRW 80,000 shares out of paid-in capital increase offered on March 7, 2001, in each of the demands filed by the Plaintiff while filing a pre-assessment review request and a request for a national tax trial on each of the instant dispositions.

[Reasons for Recognition] A without dispute, Gap evidence Nos. 3 through 14, Eul evidence Nos. 3, 4, Eul evidence No. 5-1 through 4, and witness No. 1 to 5-4, part of the testimony of Lee ○○ of the first instance court, and the prosecution of the whole pleadings

D. Determination

(1) Whether the Plaintiff is not a shareholder of ○○○○○

(A) The fact of ownership of shares is to be proved by the tax authority’s data, such as the list of shareholders, statement of stock transfer, or certified transcript of register, etc. However, even if it appears to be a single shareholder in light of the above data, in the event there are circumstances, such as where the name of the shareholder was stolen or registered in a name other than the name of the de facto ownership, it cannot be deemed to be a shareholder solely based on that name, but the nominal owner claiming that it

(B) We examine the instant case. As seen earlier, the Plaintiff’s ownership of ○○○○○’s 80,000 shares from the year 201 to the specifications on the change of stocks, etc., and the Plaintiff’s assertion that ○○○○○○’s major shareholder was the wife of ○○○○○○, who is the representative director, and that 80,000 shares were acquired at the time of filing a pre-assessment review and a request for national tax trial. In full view of the above, the Plaintiff’s assertion that ○○○○○ shareholder was a shareholder of ○○○○○○○○.

Therefore, the plaintiff's burden of proving that the plaintiff is not the shareholder of ○○○○○, is the plaintiff, and there is not sufficient evidence to acknowledge it only with the entries of 2 through 14 and the testimony of ○○○○○○○, and there is no other evidence to acknowledge it. Thus, the plaintiff's assertion about it

(2) Whether waiver of the preemptive right to new shares issued at the time of issuing new shares and acceptance of forfeited shares by Kim○○

However, Article 39 of the Inheritance Tax and Gift Tax Act provides that when new shares are issued at a price higher than the market price and the existing shareholders are deemed to have donated the benefits to be obtained by waiver of the subscription, the issuance of new shares is for the increase of capital or amount of investment, and at least for this recognition, the forfeited stocks were generated by waiver of the preemptive rights and the forfeited stocks were cultivated, and as a result, the forfeited stocks were cultivated, there should be a person to whom new shares are cultivated in excess of their own shares, and in light of the nature of the deemed donation, more strict determination as to whether the requirements are met

Therefore, examining whether the Plaintiff renounced the acquisition of the instant new shares and acquired them in the future, the following facts established based on the facts found earlier: (i) disposal of ○○○○○○’s shares whose substantial purpose of the offering of new shares was to ○○○○○ for the purpose of transferring ○○○’s stocks with poor asset value and obtaining investment in funds from ○○○○○○○; (ii) accordingly, the executives and investors of ○○○○○○○○’s shares were in charge of receiving and executing the funds without actually receiving the proceeds from the sale of ○○○○ shares sold ○○○○○○○○’s shares; (iii) in the case of the offering of new shares on November 29, 201, the number of executives and investors of ○○○○○○○○○’s shares was deemed to have been ordinarily issued and allocated through the meeting minutes of the board of directors, but it was difficult to find that there was no objective evidence to acknowledge the Plaintiff’s waiver of the offering of new shares and the offering of forfeited shares for the purpose of ○○○.

Therefore, each of the instant dispositions based on the Plaintiff’s renunciation of new shares and the Plaintiff’s acceptance of forfeited shares is unlawful.

3.In conclusion

Therefore, the defendant's each disposition of this case shall be revoked in an unlawful manner, and since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal shall be accepted, and the judgment of the court of first instance shall be revoked, and it is so decided as per Disposition with the decision to revoke each disposition of this case.

Related Acts and subordinate statutes

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

Article 39 (Presumption of Donation by Capital Increase)

(1) Where a corporation issues new stocks or equity shares (hereafter in this Article, referred to as "new stocks") for the purpose of increasing its capital (including the amount of investment; hereafter in this Article and Article 39-2, the same shall apply), a person who obtains benefits falling under any of the following subparagraphs shall be deemed to have received a donation of the amount equivalent to such benefits

2. In case where new stocks are issued at a price higher than the market price, the benefits falling under any of the following items:

(a) In case where the stockholders of the relevant corporation have renounced wholly or partially the right to receive new stocks, and where the forfeited stocks are allocated, the benefits acquired by the person who received such allocation, by accepting it, from the person who renounced the new stocks in a special relationship;

(3) Persons with a special relationship, scope of minority shareholders, method of calculating profits and other necessary matters under paragraphs (1) and (2) shall be determined by the Presidential Decree.

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

Article 19 (Inheritance Deductions of Financial Property)

(2) For the purpose of Article 22 (2) of the Act, the term “major shareholder or largest investor as prescribed by the Presidential Decree” means the relevant stockholder, etc. in case where the total number of stocks held by one shareholder or one investor (hereinafter referred to as the “shareholders, etc.”) and a person with a relationship falling under any of the following subparagraphs is the largest

1. Relatives;

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

3. A person who is in the relationship falling under any of the following items with an enterprise group as determined by the Ordinance of the Ministry of Finance and Economy (including persons who are officers of the enterprise concerned), or who is deemed to exercise de facto influence on the management through exercising the right to appoint and dismiss officers of the enterprise, and determining business policies:

(a) Other companies belonging to an enterprise group;

(b) A person who substantially controls an enterprise group;

4. Non-profit corporations established by one shareholder, etc. and persons under subparagraphs 1 through 3 who occupy the majority of directors or contribute assets;

5. Nonprofit corporations in which an officer of an enterprise under the main sentence of subparagraph 3 or (a) is the president.

6. A corporation in which one stockholder, etc. and persons under subparagraphs 1 through 5 own 30/100 or more of the total number of stocks issued;

7. A corporation in which one stockholder, etc. and persons under subparagraphs 1 through 6 own 50/100 or more of the total number of stocks issued;

8. Non-profit corporations established by one shareholder, etc. and persons under subparagraphs 1 through 7 who occupy the majority of directors or contribute assets;

Article 29 (Calculation Method, etc. of Value Deemed Donation at Time of Capital Increase)

(1) The term "person in a special relationship" and "person who has accepted or renounced new stocks or forfeited stocks which are in a special relationship" in Article 39 (1) of the Act means the person who has a relationship falling under any subparagraph of Article 19 (2) with the person who has not accepted or forfeited stocks.

(3) The benefits deemed to have been donated pursuant to Article 39 (1) of the Act shall be the benefits calculated according to the following classification:

3. Profits referred to in Article 39 (1) 2 (a) of the Act: An amount calculated by multiplying the amount obtained by subtracting the amount referred to in item (b) from the amount referred to in item (a) by the forfeited number

(a) The value of subscribed stocks per stock;

(b) Value per stock calculated by the following formula: Provided, That in case of a corporation falling under any subparagraph of Article 22 of the Enforcement Decree of the Income Tax Act, where the appraised value per stock after the capital increase is larger than the value per stock calculated by the following formula, the relevant value

[The total number of outstanding stocks before the increase in X capital] = (the number of stocks increased by the increase in X capital per new stocks) ¡À(the total number of outstanding stocks before the increase in capital + the number of stocks increased by the increase in capital)

(c) X (the total number of forfeited stocks / the total number of forfeited stocks/ the total number of forfeited stocks/the total number of forfeited stocks acquired by a person with a special relationship with the stockholder who has renounced the acquisition of new stocks

[Seoul Administrative Court 2006Guhap44064 ( August 24, 2007)]

Text

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of gift tax of KRW 507,657,810 against the Plaintiff on March 16, 2006 is revoked.

1. Details of the imposition;

A. On January 28, 2001, 2001, ○○○○ Co., Ltd. (hereinafter “○○○○○”) was a corporation established for the purpose of software development, production and sale, and capital was 200 million won (40,000 shares issued in total) at the time of its incorporation.

B. On November 29, 2001 and February 25, 2002, 2002, the ○○○ issued each of the new shares as KRW 185,102 (value assessed 9,25,100,000) with KRW 50,00 per share on November 29, 2001. On February 25, 2002, the ○○○ issued 10,000 new shares with KRW 50,00 per share (value assessed 50,00 per share) with KRW 50,00 (value assessed 50,000) with KRW 10,00 per share. The other shareholders except the ○○○, a representative director, renounced the preemptive right and acquired the entire shares by Kim○○○○.

C. From September 26, 2005 to November 4, 2005, the director of the regional tax office of ○○○○○ has investigated the change of corporate tax and shares with respect to ○○○○○○○ from September 26, 2005, and as a result, he has given up the subscription of new shares issued at a higher price than the market price by shareholders other than Kim○○, and determined that the Plaintiff in a special relationship with Kim○○○○ was a donation of KRW 1,269,000 and KRW 44,00,000 each from Kim○○○, and notified the Plaintiff of the result of the tax investigation on November 18, 2005 by applying Article 39 of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the “Inheritance Tax and Gift Tax Act”).

D. On March 16, 2006, the Defendant decided and notified the Plaintiff of KRW 483,866,490 on November 29, 2001 and KRW 23,791,320 on the gift tax of February 25, 2002 (hereinafter “each of the above gift tax determination and notice”), based on the results of the above tax investigation (hereinafter “each of the instant disposition of imposition”).

E. The plaintiff requested a judgment with the National Tax Tribunal on June 14, 2006, but was dismissed on October 20, 2006, and the decision was served on the plaintiff on October 22, 2006.

Facts without dispute over the basis of recognition, Gap 1, 2, Eul 1-1, 2, 3 and 4, and the purport of the whole pleadings

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

A. The plaintiff's assertion

(1) On March 31, 2003, the Plaintiff was registered as ○○○ shareholder only after being appointed as ○○○○○○’s auditor, and the Plaintiff did not acquire ○○’s new shares or acquire ○○○’s shares prior to each of the above subscription dates. Accordingly, the Plaintiff is not a shareholder of ○○○○○.

(2) In order to deemed the donation of profits acquired when issuing new stocks at a price higher than the market price under Article 39 of the Inheritance Tax and Gift Tax Act, the shareholders of the pertinent corporation should have renounced all or part of the right to receive allocation of new stocks, thereby allocating forfeited stocks. However, the Plaintiff did not know the fact that ○○○ issued new stocks with capital increase until the time of receiving each of the instant dispositions.

Therefore, the Plaintiff is not obligated to pay gift tax under Article 39 of the Inheritance Tax and Gift Tax Act on the grounds that the Plaintiff did not waive his/her preemptive right to new shares increase

(b) Related statutes;

It is as shown in the attached Table related statutes.

(1) On March 7, 2001, ○○○ offered capital increase with consideration. According to the statement on the state of stock fluctuation, the Plaintiff is deemed to have acquired 80,000 shares at that time. The Plaintiff becomes a shareholder (80,000 shares) even in the statement on the state of stock fluctuation prepared thereafter.

(2) The Plaintiff’s South East-dong ○○○○○ (hereinafter “○○”) was a domestic corporation that developed fingerprint-type software and registered on the KOSDAQ as a witness, which was a representative director. However, ○○○○, a U.S. corporation that acquired ○○○○○ with 9.24 million won and 9.4 billion won, (hereinafter “○○○○,” a company that sells an fingerprint-type program developed by ○○○○, was operated by ○○, and hereinafter “○○○○”). When ○○○’s KOSDAQ had been suspended due to its poor management, the Plaintiff’s capital became extinct, and ○○○○○’s KOSDAQ had been suspended. In order to ○○○○ and registered on the KOSDAQ, ○○○○ requested an exchange of shares owned by ○○○○○○ and those owned by ○○○○○○.

(3) On October 19, 2001, Kim ○○ sold ○○○○○○○○○ Co., Ltd. for KRW 10,306,777,50 (the proceeds from sale is to be paid in cash until November 28, 2001) the amount excluding the transfer income tax out of the proceeds from sale was KRW 9,240,427,00, which was owned by ○○○○○○○○○○○○ Co., Ltd. (the proceeds from sale was to be paid in cash).

(4) However, under the foreign exchange transaction regulations at that time, an individual could not make a direct investment exceeding $3 million, and ○○○ was not an indirect investment as an extraordinary foreign corporation. Therefore, Kim○-○ paid KRW 9,240,427,00 to ○○○○ in the form of capital increase with a view to capital increase (the capital increase with a view to November 29, 2001) and indirectly acquired ○○○ shares through ○○○○○○.

(5) On November 29, 2001, ○○ entered into a share sales contract with ○○○○ to purchase KRW 9,240,427,450 shares of ○○○○○ owned by ○○○○○ and KRW 2,733,33 shares.

(6) The ○○○○ acquired the shares of ○○○○ and appropriated them as investment securities. However, the ○○○ applied for legal management in the U.S. court due to the accumulation of deficit in business management. At the time of settling accounts for the business year 2002, the ○○○ dealt with the said ○○○○ shares by reducing the total value on the account books of the said ○○ shares as zero won.

(7) As ○○○○ decided to increase its capital as of February 27, 2002 in order to raise the liquidation cost, ○○○ issued capital increase as of February 25, 2002 to pay the said capital increase, 500 million won of the said new shares as of February 25, 2002, and 10,000 shares of the said new shares also acquired by Kim○○.

(8) The status of ○○○○’s shares held before and after capital increase increase is indicated in the following table.

for each shareholder.

Paid-in capital increase as of November 29, 2001

Paid-in capital increase as of February 25, 2002

Before capital increase

After Capital increase

Before capital increase

After Capital increase

Number of Stocks

Ratio of Shares

Number of Stocks

Ratio of Shares

Number of Stocks

Ratio of Shares

Number of Stocks

Ratio of Shares

Total

340,000 Shares

100%

525,102 note

100%

525,102 note

100%

535,102 Shares

100%

○ Kim

200,000 Shares

58.82%

385,102 Shares

73.34%

385,102 Shares

73.34%

395,102 Shares

73.84%

Plaintiff

80,000 Shares

23.53%

80,000 Shares

15.24%

80,000 Shares

15.24%

80,000 Shares

14.95%

Other

60,000 Shares

17.65%

60,000 Shares

1.42%

60,000 Shares

1.42%

60,000 Shares

1.21% by mass

(9) At the time of issuing capital increase, ○○○○○ shareholder, other than Kim○○, and the Plaintiff, in addition to ○○○, ○○○○, Kim○, Kim○, Nam○, Kim○, Kim○, Kim○○, and Park○○○, but ○○ was the former ○○○○○, and ○○ was the head of ○○’s strategic planning office (management director), and ○○○ was the head of ○○○○.

(10) According to the meeting minutes of the board of directors, on November 12, 2001, 10:00 a.m., 10:00 a.m., the representative director Kim○, directors Lee○, Kim○○, and Lee○○○○, the auditor attended to make a decision to grant capital increase for new shares (185,102 shares). The new shares are allocated in proportion to the number of shares owned by shareholders listed in the register of shareholders as of November 12, 2001, but the other procedures necessary for issuing new shares were decided to be entrusted to the representative director. However, the board of directors did not actually make such a decision and prepared the meeting minutes as above.

(11) At the time of November 12, 2001, Lee ○○, a director of ○○○, worked as an executive officer at ○○○○○○○○○ (the director of a research institute). The director Kim ○○○○ worked as the head of the team at ○○○○○○○○○○○○○○○, and the director of ○○○○○○○○ also worked at ○○○○○○○, and the director was instructed to handle the work of capital increase with respect to capital increase.

(12) There was no objection from the directors and shareholders of ○○○ in relation to the issue of capital increase with respect to the issue of capital increase and the issue of capital increase.

(13) The Plaintiff asserted that ○○ acquired 80,000 shares out of paid-in capital increase that was made on March 7, 2001, in each of the demands submitted by ○○ upon filing a pre-assessment review request and a request for a national tax trial on each of the instant dispositions.

Facts without dispute over the basis of recognition, Gap's evidence 3 through 14, Eul's evidence 3, 4, Eul's evidence 5-1 through 4, a part of the witness Lee ○, and the purport of the whole pleadings.

D. Determination

(1) Whether the Plaintiff is not a shareholder of ○○○○

(A) The fact of ownership of shares is to be proven by the tax authority through the data, such as the list of shareholders, the statement of stock transfer, or the certified copy of the corporate registry, etc. However, even if a shareholder appears to be a single shareholder in light of the above data, where there are circumstances, such as where the shareholder was stolen or registered in a name other than the real owner, the actual owner cannot be deemed a shareholder, but the nominal owner who asserts that he is not a shareholder should prove that he is not a shareholder (see Supreme Court Decision 2003Du1615, Jul. 9, 2004).

(B) We examine the instant case. As seen earlier, the Plaintiff’s ownership of ○○○○ shares from 2001 to 80,000 shares on the list of changes in stocks, etc. in ○○○○○○○’s shares, and the Plaintiff’s title as ○○○○’s major shareholder, who is a representative director, and claimed that 80,00 shares were acquired at the time of a request for pre-assessment review and a request for national tax trial. In full view of the above, the Plaintiff’s assertion that ○○○ shareholder was a shareholder of ○○○○○○○.

Therefore, the Plaintiff’s burden of proving that the Plaintiff is not the shareholder of ○○○○○. However, it is not sufficient to acknowledge the Plaintiff’s each statement of evidence Nos. 2 through 14 and the testimony of ○○○○ witness alone, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion

(2) Whether there was no waiver of the preemptive right to new shares issued at the time of issuing new shares

The following circumstances are as follows: (a) capital increase was normally made in appearance until the time of the instant disposition; (b) there was no objection from the Plaintiff as well as other shareholders until the time of the instant disposition; (c) capital increase was made by ○○○○○○○○○○, a U.S. corporation, but investment approximately KRW 9.2 billion in ○○○○○○, but the registration of ○○○○○○’s KOSDAQ was deferred on the wind that ○○○○’s capital was destroyed due to bad management; (d) it was made under mutual agreement between the ○○○○○○○ and the ○○○○○○○○○○○○○○○○○○○○’s representative director to ○○○○○○○○○○ and the ○○○○○○○○○○○’s ○○○○○○’s ○○○’s ○○’s ○○ ○○ ○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○.

Therefore, it is difficult to accept this part of the Plaintiff’s assertion.

3. Conclusion

Therefore, the defendant's each disposition of this case is legitimate, and the plaintiff's claim seeking revocation is without merit, and all of them are dismissed. It is so decided as per Disposition.

public official law, order of law,

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

Article 39 (Presumption of Donation by Capital Increase)

2. In case where new stocks are issued at a price higher than the market price, the benefits falling under any of the following items:

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

Article 19 (Inheritance Deductions of Financial Property)

(2) For the purpose of Article 22 (2) of the Act, the term “major shareholder 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 shareholder or one investor (hereinafter referred to as the “shareholders, etc.”) and those held by a person with a relationship falling under any of the following subparagraphs is