The objective market price of shares can not be seen as a case of business practice that properly reflects the stock price.

The transfer of shares cannot be deemed as business example which properly reflects the objective market price of shares at the time of the transfer of ownership with the transfer of shares at the par value of the shares transferred after the transfer of ownership.

2012Guhap2612 Revocation of Disposition of Imposition of Gift Tax

1. HeB, a litigation receipt of the network leapA;

2. AleCC, a litigation taking place by the network leapA;

3. Prostitution, which is a litigation receipt of the network leapA;

4. The leap, which is the litigation acceptance of the network leapA; and

5. The Financial Supervisory Commission, a litigation receipt of the network leapA;

6. The leG, the litigation system of the network leapA;

Head of Public Tax Office

August 14, 2013

October 16, 2013

1. The Defendant’s disposition of imposition of gift tax OOO on July 1, 201 against leapA shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On December 13, 1998, the largest shareholder, who actually holds almost all of the shares of HH Savings Bank (hereinafter referred to as the “H Savings Bank”) located in the OO-dong O-O, O-dong O-O, was assigned to the position of the representative director and operated HH Savings Bank, and filed an accusation with the prosecutor of the Financial Supervisory Service after undergoing an investigation by the Governor of the Financial Supervisory Service, and then retired from the office of the representative director on May 2003, the H Savings Bank was appointed to the representative director and actually operated H Savings Bank.

B. At the time of October 2005, J, which became aware of the fact that the amount of non-performing loans to the HH Savings Bank was not reflected in the account books due to low-level window dressing accounts, among the above, was demanded to transfer the management rights to the HH Savings Bank, and if the HH Savings Bank did not exceed the management rights of the HH Savings Bank, it is required to transfer the management rights to the HH Savings Bank's shares 207,100 shares and borrowed-name shares with the management rights. The H Savings Bank's shares 207,100 shares and borrowed-name shares are transferred to the HaJ with the management rights. However, if the H Savings Bank operates its normal business by December 2, 2005, the H Savings Bank will receive the management rights of the PH Savings Bank's shares 207,100 shares and borrowed-name shares, and if the H Savings Bank operates its normal business by December 207, 2006, the transfer contract is concluded (hereinafter referred to as "transfer contract").

다. 오JJ은 이 사건 경영권양도계약에 따라 HH저축은행의 주식을 사실상 전부 취득하였으나, 지분율 50%를 초과하는 과점주주에 대한 중과세 등 문제를 회피하기 위하여 2005. 11.경 금융당국에 그 주식취득 관련신고를 함에 있어서는 종래 오JJ 앞으로 명의수탁 되어 있던 송II의 주식 134,070주(지분율 26.73%) 외에 송II으로부터 그 명의의 주식 111,100주(지분율 22.15%)만을 신규취득하여 합계 245,170주(지분율 48.88%)를 보유한 최대주주가 되는 것으로 신고를 하였고, 그 양수한 나머지 주식과 관련하여서는 과거 금융감독원에 함께 근무하던 지인 양KK으로부터 제공받은 윤AA, 송LL, 구MM의 명의를 이용하기로 하여 윤AA의 명의로는 송II이 이NN 등의 명의로 보유하고 있던 주식 49,489주를, 송LL의 명의로는 송II이유PP 등의 명의로 보유하고 있던 주식 48,912주를, 구MM의 명의로는 송II이 고QQ 등의 명의로 보유하고 있던 주식 47,469주를 각 넘겨받아 2005. 11.에서 12.경에 그 명의 개서를 마치는 한편으로, 일부 주식은 당분간 송II 등의 명의를 그대로 유지하기로 하여 송II 명의의 주식 96,000주 등과 관련한 명의개서절차는 마치지 아니하였다.

D. On November 2005, the Defendant notified of the results of the tax investigation by the Gwangju District Tax Office: (a) determined that the HaJ held that the shares of HH Savings Bank 49,489 shares (hereinafter “instant shares”) of HH Savings Bank, the transfer of which was completed in its name, was the shares trusted to leA; (b) applying the provision on the constructive gift of title trust property under Article 45-2 of the former Inheritance Tax and Gift Tax Act, the Defendant deemed that the gift amount was calculated as the amount of OOO per share by applying the provision on the constructive gift of title trust property under Article 45-2 of the former Inheritance Tax and Gift Tax Act, and accordingly, imposed OOO(including additional OOO) on leA on July 1, 201 (hereinafter “instant disposition”).

E. While leapA was dissatisfied with the instant disposition and was subject to the procedure of filing an objection and requesting a review to the Commissioner of the National Tax Service, all of the appeals were dismissed.

F. Meanwhile, after the filing of the instant lawsuit, leapA died while the lawsuit was pending, and accordingly, the Plaintiffs taken over the instant lawsuit.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 6, 13, Eul evidence Nos. 1 through 12 (including branch numbers, if any) and the purport of the whole pleadings

2. Whether the disposition of this case is unlawful

A. Summary of the plaintiffs' assertion

The Defendant considered the market price at the time of the purchase of the instant shares as an OOO per share and calculated the gift value based on the market price at the time of the purchase of the instant shares, but the instant disposition cannot be deemed as an OOO for each share at the time of the title trust of the instant shares. The instant disposition should be revoked as unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

Article 60 (1) and (3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8139 of Dec. 30, 2006; hereinafter the "Inheritance Tax and Gift Tax Act") provides that the value of donated property shall be based on the value assessed according to the supplementary assessment methods stipulated in Articles 61 through 65 in consideration of the type, size, transaction status, etc. of the property in question where it is difficult to calculate the market price as of the date of donation.

In this regard, Article 60 (2) of the Inheritance Tax and Gift Tax Act provides that "the market price under paragraph (1) of the same Article shall be the value which is generally recognized as being normal in the event of free transaction between many and unspecified persons and includes the amount which is recognized as the market price under the conditions as prescribed by the Presidential Decree, such as the acceptance and public sale price, appraisal price, etc." The main sentence of Article 49 (1) 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1933 of Feb. 9, 2006; hereinafter "Enforcement Decree of the Inheritance Tax and Gift Tax Act") provides that "if there is a transaction fact of the relevant property" as one of the transaction prices recognized as the market price, the transaction price shall be excluded in the proviso where it is objectively unreasonable

In addition, Article 63 (1) 1 (c) of the Inheritance Tax and Gift Tax Act, Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which provides for the supplementary evaluation method of unlisted stocks, provides that the net value per share of unlisted stocks shall, in principle, be the net value per share of the non-listed stocks (i.e., the interest rate determined and publicly notified by the Commissioner of the National Tax Service in consideration of the weighted average amount of net profit and loss per share of the last three years year-end corporate bonds guaranteed by financial institutions ± the rate of circulation of corporate bonds guaranteed by financial institutions ± the net

Therefore, in the case of unlisted stocks with low market value, where there is a transaction example, the stock value shall be assessed by considering the transaction example as the market value and the stock value shall not be assessed by the supplementary evaluation method stipulated in the Inheritance Tax and Gift Tax Act. However, since the market value means the objective exchange value formed by the general and ordinary transaction, in order to recognize such transaction example as the market value, the circumstances should be recognized that the relevant transaction is made in a general and normal manner and properly reflects the objective exchange value as of the donation date (see Supreme Court Decision 2010Du26988, Apr. 26, 2012).

2) Whether there exists transaction example reflecting the market price of the instant shares

우선 이 사건 주식의 객관적인 시가를 반영하는 정당한 매매사례가액이 존재하는지 여부에 관하여 보건대 먼저 송II과 오JJ 사이의 이 사건 HH저축은행 경영권 양도계약에 따른 주식거래는 경영권의 양도와 함께 그 양도가액이 일괄적으로 정해진 탓에 그 주식만의 객관적인 양도가액을 확인할 길이 없다. 그리고 송II이 이NN과 고QQ에게 지시하여 그들 명의로 보유 중인 주식을 이 사건 경영권양도계약에 따라 윤AA과 구MM 명의로 명의개서 하도록 한 연후에, 송II이 이NN과 고QQ에게 그 중 일부 주식에 관하여 그들이 과거 신주배정을 받음에 있어 납입한 주식 액면금 상당의 금원을 전보하여 준 것 역시, 그 주식거래를 불특정 다수인 사이에 자유로이 거래가 이루어지는 경우라고 보기 곤란할 뿐만 아니라 당시 이NN과 고QQ은 모두 송II이 지배주주로 있던 HH저축은행의 사용인이었던 점에 비추어 보더라도, 위와 같이 그 명의개서 연후에 송II이 이NN과 고QQ에게 일부 주식에 관하여 전보하여 준 그 액면금에 의한 신주납입대금을 두고 이를 위 명의개서 당시 HH저축은행 주식의 객관적인 시가를 정당하게 반영하는 매매사례가액이라고 볼 수도 없다고 할 것이다. 그 밖에 달리 이 사건 주식의 명의신탁 무렵에 그 객관적인 시가를 반영하는 정당한 매매사례가액이 존재한다고 볼만한 별다른 자료는 전무한 형편이다.

3) In case of calculating the value of the shares of this case by supplementary valuation methods

Therefore, the value at the time of title trust with respect to the instant shares shall be calculated by the supplementary assessment methods stipulated in the laws and regulations. Even when comprehensively considering all the evidence presented in the instant pleadings, it is insufficient to recognize that the weighted average value of net profit and loss per share of the instant shares at the time of title trust and the net asset value per share, calculated by the Defendant, based on the ratio of 3 to 2, is above OO per share of the instant shares, which is the value per share of the instant shares, based on the instant disposition. There is no other evidence to acknowledge otherwise. Accordingly, the Defendant’s disposition imposing gift tax of this case, premised on the premise that the value per share of the instant shares at the time of title trust is OO at the time of the instant title trust, cannot be exempted due to its illegality.

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified and it is so decided as per Disposition.