Seoul High Court 2011Nu27973 ( November 17, 2011)

National Tax Service Review and Transfer 2010-0311 ( October 21, 2011)

The wrongful calculation based on the low-price transfer of shares is illegal.

As long as it is deemed unreasonable to evaluate the value of net profit and loss as the weighted average amount of net profit and loss for the last three years due to a sudden increase in the amount of net profit and loss during the last three years due to a temporary contingency case, it is illegal to evaluate the value of net profit and loss as the weighted average amount of net profit and loss for the last three years

Article 56 of the Enforcement Decree of Inheritance Tax and Gift Tax Act

Article 17-3 of the Enforcement Rules of Inheritance Tax and Gift Tax Act

2011Du32300 Revocation of disposition of imposing capital gains tax, etc.

Doz. 3 and 2 others, Doz., Doz.

The director of the Southern Incheon District Office

Seoul High Court Decision 2011Nu27973 Decided November 17, 2011

June 14, 2012

All appeals are dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 35(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “Inheritance Tax and Gift Tax Act”); Article 26(1) and (3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621, Feb. 22, 2008; hereinafter referred to as the “Enforcement Decree of the Inheritance Tax and Gift Tax Act”); Article 101(1) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009); Article 167(3) and (5) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 2358, Feb. 2, 2012); Article 7(1)2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Act No. 838, Jan. 9, 2008); Article 26(14) of the former Enforcement Decree of the Inheritance Tax Act.

Articles 60 and 63(1)1(c) of the Inheritance Tax and Gift Tax Act and Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provide that, in principle, the value per share of unlisted stocks shall be based on the market value as of the date of commencing the inheritance or the date of donation, which is the base date of appraisal, and in cases where it is difficult to calculate the market value, the net profit or loss per share (the rate determined and publicly notified by the Commissioner of the National Tax Service in consideration of the weighted average amount of net profit or loss for the last three years per share ± the rate of circulation of corporate bonds with the maturity of three years guaranteed by the financial institution ± the weighted average amount of net asset value per share (the net asset value of the relevant corporation ± total number of issued stocks) and the net asset value per share shall be based on the weighted average rate of 3 to 2, but

In addition, Article 56 (1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the weighted average amount of net profit and loss for the latest three years per share" shall be the value under subparagraph 1, i.e., [3] + (the net profit and loss per share for the business year before the base date of appraisal x (2) + (the net profit and loss per share for the business year before the base date of appraisal x (1) x (1) x 1/6] calculated by the formula of 1/6. In cases where the relevant corporation prescribed by the Ordinance of the Ministry of Finance and Economy that it is unreasonable to determine the value under subparagraph 1 for the recent three years due to a temporary and rapid increase in the net profit and loss per share, i.e., the value under subparagraph 2, the weighted average amount of profit and loss per share calculated by 2 or more credit assessment institutions or accounting corporations within one year before the base date of appraisal x 3) x the amount of net profit and loss per share before the base date of appraisal, and the amount of net profit and loss per share 30.

Each subparagraph of Article 17-3(1) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act provides that the amount of net profit and loss for the latest three years is unable to be calculated, or that it would be unreasonable to calculate the amount of net profit and loss for each share based on such fact because the amount of net profit and loss for the latest three years is abnormal. Thus, barring any special circumstance, the value of net profit and loss per share based on the "amount of net profit and loss for the latest three years" under Article 56(1)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which is the value for the latest three years, may not be calculated unless there are special circumstances (see Supreme Court Decision 2006Du16434, Dec. 11, 2008). Such legal principle applies to cases where: (a) the amount of net profit and loss for each share, which is the value under Article 56(1)2 of the Inheritance Tax and Gift Tax Act, is not calculated, or it is unreasonable to calculate the amount of net profit and loss per share under subparagraph 2, even if it

If the value per share of unlisted stocks cannot be evaluated as an weighted average amount of net profit and loss value and net asset value based on the value under Article 56(1)1 or 2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, Article 65(2) of the Inheritance Tax and Gift Tax Act provides that the evaluation method under Articles 65(1) and 60 through 64 shall apply mutatis mutandis to the evaluation method under the Inheritance Tax and Gift Tax Act, and in cases of the supplementary evaluation method under the Inheritance Tax and Gift Tax Act where the value cannot be assessed even if it is based on the supplementary evaluation method under the Inheritance Tax and Gift Tax Act, it shall be assessed by applying the objective and reasonable method among the supplementary evaluation methods under Article 54(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which are to be assessed by only the net asset value (see Supreme Court Decision 2010Du26988, Apr. 26, 2012).

In the same purport, the court below recognized the fact that the average weighted average amount of profit and loss on disposal of securities and tangible assets and special profit and loss on corporate accounting standards as of the evaluation base date exceeds 50 percent of the weighted average amount of profit and loss for the last three years before deducting corporate tax, and held that the plaintiffs did not report the average amount of profit and loss on the presumption per share under Article 56 (1) 2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act within the gift tax, since it is deemed unreasonable to calculate the weighted average amount of profit and loss for the last three years under Article 56 (1) 1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act because it falls under Article 17-3 (1) 6 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act and it cannot be calculated as the weighted average amount of profit and loss on the basis of the value under Article 56 (1) 1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act for the last three years. There is no error in the misapprehension of legal principles as to Article 56

2. Regarding ground of appeal No. 2

The lower court determined that the imposition of gift tax of this case, etc. was unlawful by applying the value under Article 56(1)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act and calculating the value of donated property, transfer value, etc. on the basis thereof, and did not render any judgment as to whether Article 56(1)2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act can be applied to the case where the average value of presumed profits is not reported within one’s own house, etc.

3. Conclusion

Therefore, all appeals are 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 on the bench.