Seocho 2012west 1949 (29. 2012.06)

The payment of capital gains tax is not for tax avoidance purpose.

Although the capital gains tax has been paid at the time of over-the-counter transactions, it is difficult to separate that only part of it has no purpose to avoid the capital gains tax separately because it has been engaged in over-the-counter transactions likely to decline in the stock price if it is sold in the future.

2012Guhap25514 Revocation, etc. of Disposition of Imposition of Gift Tax

Park AAA

Samsung Head of Samsung Tax Office

March 19, 2013

June 20, 2013

1. The following dispositions made by the defendant against the plaintiff shall be revoked:

A. On January 10, 2012, the portion exceeding KRW 000 of the disposition imposing gift tax amounting to KRW 000.

B. The portion exceeding KRW 000,000, out of the disposition imposing gift tax (additional tax) on December 6, 2012

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 70% shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s imposition of KRW 000,00, and KRW 000,00,00,000,000,000,000,000,000,000,000,00,000,000,000,00

1. Details of the disposition;

(a) Paid-in capital increase program of BBE;

"1) On July 16, 2004, KimCC entered into a comprehensive share swap agreement with OOOOOO of the FFland, a listed corporation, on July 16, 2004 and KimEE, and transferred 6,000,000,000 won (0 won) of the listed stocks from YGG, the former owner of which changed from YG, and on March 28, 2005, BBB of the Co., Ltd. was changed from 28, 2005, and on June 1, 2005, the Financial Supervisory Service made a comprehensive share swap agreement with OOOO, the non-listed corporation, the purpose of which is to develop cell therapy using stem cells, and changed its trade name to the KOOOOO, the former owner of which was a listed corporation (hereinafter referred to as "the corporation in this case, regardless of its trade name change and e-mail), and the corporation made a revised resolution on March 20, 2004 and the board of directors.

"3) On January 14, 2005, the board of directors adopted a resolution that "the prime payment date shall be March 14, 2005, and the allotment date shall be 100,000,000,000 common shares shall be made in the shareholders allocation method, and the forfeited and fractional shares shall be made thereafter through a resolution of the board of directors" shall be published on the electronic disclosure system of the Financial Supervisory Service (hereinafter referred to as "the date of resolution of the board of directors as of January 14, 2005"). On the same day, the corporation of this case shall be published on the electronic disclosure system of the Financial Supervisory Service (hereinafter referred to as "the date of resolution of the board of directors as of January 14, 2005"), and on January 14, 2005, the board of directors adopted a resolution to allocate forfeited shares related to the capital increase to a third party, and on the same day, the electronic disclosure system shall be published.

B. Title trust of KimCCC

The KimCC acquired the shares of the corporation of this case in the name of the plaintiff and 15 other than the plaintiff, as shown in the following table 2: The KimCC acquired 430,000 shares in the name of WhiteO on September 15, 2004 and completed the transfer of the title on each transfer date. In other words, the KimCC acquired 4,417,076 shares in total until February 11, 2005 (the table 2] until February 11, 2005 (the table 2), and 15,058,912 shares in the capital increase for new shares as of January 14, 205, with the allocation of shareholders, and (the table 2] assigned 15,000 and 15,000 shares to 15,000 shares and 30,000 shares and 305,00 shares and 305,00 shares and 305,00 shares under the name of 305,05,05 shares and 305,05.35 shares (1) shares

C. Taxation

1) The director of the Seoul Regional Tax Office, from July 21, 2011 to December 23, 2011, conducted a personal and property tax integration investigation with respect to KimCCC, and notified the competent tax office of the status quo table to impose gift tax pursuant to the title trust of the instant shares, and (2) interest income and other income and other income of the GimCCC (the penalty of KRW 1.5 billion upon termination of the contract for transfer of OO shares 2,600, and 000).

2) Accordingly, on January 10, 2012, the Defendant imposed a gift tax of 000 won (including additional tax of 000 won) in 2005 pursuant to the provision of the gift under the name of trust property under Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No.S2S, December 31, 2007, hereinafter “Inheritance Tax and Gift Tax Act”). Meanwhile, on the other hand, on December 6, 2012 where the instant lawsuit is pending, the Defendant revoked the additional tax portion among the disposition imposing the gift tax in this case, and imposed and notified the amount of the uniform amount, and imposed and notified the additional tax again.

[Reasons for Recognition] The non-speed facts, Gap 1 through 5, and 10 through 12, 16, 19, and 20, and the purport of the whole pleadings.

2. Whether the disposition of this case is legitimate

A. The plaintiff's assertion

① In order to avoid the obligation to report to the Financial Supervisory Commission or the Exchange, the KimCC held the title trust of the instant shares, and there was no tax avoidance purpose, and at least over-the-counter transactions had already been paid with capital gains tax. In addition, when issuing the cause of capital increase, merger, etc. within two months before or after the evaluation base date when assessing the value under Article 63(1) of the Inheritance Tax and Gift Tax Act and Article 52-2 of the Enforcement Decree of the same Act, the evaluation method vary if the cause of capital increase, merger, etc. is issued, and at this time, the date when the capital increase, etc., occurred should be the date when the capital increase, etc., was paid.

B. Relevant statutes

Attached Form. The entry in the relevant statutes is as follows.

C. Determination on the imposition of gift tax of this case

1) Purpose of tax avoidance

A) The legislative intent of Article 145-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter the same) is to recognize exceptions to the substance over form principle with the purport of effectively preventing the act of tax avoidance by using the title trust system and realizing the tax justice. Therefore, only when the purpose of tax avoidance is not included in the purpose of the title trust, the proviso of the same Article can be applied, and if so, the burden of proving that there was no other purpose of tax avoidance. Therefore, it can be proved by the method of proving that there was no other purpose of tax avoidance. However, the nominal owner who bears the burden of proof was not superior to the tax avoidance to the extent that there was no objective of tax avoidance in the title trust, and the nominal owner who bears the burden of proof has to prove that there was no tax avoidance at the time of thej title trust or there was no tax avoidance at the time of the future (see, e.g., Supreme Court Decision 2006Du124, Sept. 2124, 2006).

(B) the purport of the entire argument in each entry in Gap's 1 to 4, 10, 11, and 1 and 2.

further, the following facts may be recognized:

(1) On January 14, 2005, the corporation of this case promoted capital increase with capital increase in order to resolve the problem of capital erosion at KRW 000 in total in the year 2005.

(2) The KimCCC purchased and sold the shares of the instant legal entity as shown in [Attachment 6], and the share share ratio of the instant legal entity, including the shares in the instant case and those in the name of the Plaintiff, and of the KimCCC, as listed below.

(Omission of List)

(3) The KimCC reported and paid capital gains tax and securities transaction tax as shown in [Attachment 8] with respect to the shares sold outside the country without going through the securities market.

(4) With respect to the instant shares, the omission of capital gains tax for the year 2005 is as shown in [Attachment 9].

C) Article 94(1)3 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005, hereinafter referred to as the “Income Tax Act”) and Article 157(4) of the Enforcement Decree of the same Act provide that if one shareholder owns 3% or more of the total amount of the stocks of the corporation as of the end of the fiscal year immediately preceding the fiscal year in which the date of the corner transfer of stocks falls, it is difficult to conclude that one shareholder and other shareholders of the corporation own stocks of the corporation as of the end of the fiscal year immediately preceding the fiscal year in which the date of the transfer of stocks belongs, and that it is difficult to conclude that only one shareholder and other shareholders transfer the stocks of the corporation to acquire more than 00 won, and that it is difficult to acquire more than 5% of the transfer income tax by freely selling the stocks of the corporation under their name, and that it is difficult to obtain more than 1% of the transfer income tax for the corporation to acquire more than 5% of the stocks of the corporation.

2) Calculation of the value of donation

A) Article 160 of the Inheritance Tax and Gift Tax Act, and Article 63(1)1 (a) of the Inheritance Tax and Gift Tax Act provides that the value assessed by the method of appraisal for the increase of capital shall be the market price, and the shares and equity shares traded on the Korea Stock Exchange shall be the average market price on a daily basis before and after the appraisal base date, and that, in cases where it is inappropriate to adopt the average of the shares and equity shares on the basis of the reasons such as increase or merger before and after the appraisal base date, for 3 months before and after the appraisal base date, the average amount of shares and equity shares calculated as prescribed by the Presidential Decree shall be calculated on the basis of 3 months before and after the appraisal base date, and the total amount of shares and equity shares issued after the consolidation shall be calculated on the basis of 20 months after the issuance of new shares and equity shares, and the reasons for the consolidation or merger shall be calculated on the basis of 20 months after the issuance of new shares and equity shares, and shall be calculated on the basis of 3 months after the appraisal base date.

B) Allocation of shareholders

The party who trades shares when there is a public notice of increase in the number of shares. As such, it seems that the public notice of increase in the number of shares would have a significant impact on the formation of the stock price. However, in the case of stock allocation, it is entitled to determine the date of new shares allocation in order to determine preemptive rights, and to participate in the stock allotment to hold shares on the base date. Meanwhile, in the case of a listed corporation, it is entitled to participate in the stock purchase by two days before the base date, and even if shares are purchased at one day before the base date, the value of shares per day before the base date is lower than the value of shares of two days before the base date. The beginning price of the stock trading on the first day after the base date is determined within a certain period of time, and there is no need to take measures to reasonably decrease the number of shares before the base date by nine days before the base date, and there is no difference between the closing date and the 3th day after the first day after the issuance of new shares.

Since the capital increase by the method of the shareholder allocation, and the third party allocation is made only for the forfeited stocks, and the number of new stocks and capital increase related to the capital increase is publicly announced due to the public announcement of the capital increase, and the stock price is newly formed due to the stock increase measures according to the method of the shareholder allocation, the resolution of the board of directors for the subsequent third party allocation is deemed not to have any special effect on the stock price already formed, so it is reasonable to regard the "land for the stock allocation" as the "day following the date on which the cause, such as the capital increase, occurs."

D) Third party allocation method;

Article 418(2) of the Inheritance Tax and Gift Tax Act is limited to cases where it is necessary to achieve the managerial purpose of the company, such as the introduction of new technology, improvement of financial structure, etc., as the company's rights are affected by the dilution effect of the shares that the shareholders held in proportion to the shares, and the net asset value of the shares or shares, which is formed by mixing new and old shares with the new and old shares due to the occurrence of new shares, are lower than the previous shares (see Article 418(2) of the Commercial Act). Therefore, the issue of capital increase in the third party allocation method is determined by the board of directors and the date on which a cause, such as the increase of the board of directors and the date of public announcement, occurs, since the time when the board of directors passed a resolution and public announcement made has a significant impact on the formation of the shares price, the plaintiff claims that the payment date of capital increase in the third party allocation method should be based on the calculation method of the shares increase in the calculation method of the shares.

E) With respect to the shares held in title trust on March 15, 2005, the capital increase of the initial shareholder and a third party was all made within 2 months before the base date as of March 15, 2005, which is the base date for appraisal, and the base date for appraisal is the day after the corner cause for the capital increase occurred. Thus, the base date for appraisal is 00 won from February 7, 2005 to May 15, 2005, and the base date for appraisal is 00 won. The Defendant, unlike the initial shareholder allocation, made 00 won for the shares allocated to a third party among those transferred in title trust on March 15, 2005, and the base date for appraisal is 0% of the total amount assessed as of January 17, 2005 to 00, and the base date for appraisal is 00% of the amount assessed as of January 15, 2005 to 15, 2005.

D. Determination on the imposition of additional tax

1) Each entry in Gap's 2nd floor added the overall purport of the pleadings, and the defendants are acknowledged to have not stated the type of additional tax and the grounds for calculation in the notice at the time of the disposition of global income tax and gift tax in this case. However, the defendant revoked the imposition of additional tax ex officio in the disposition of global income tax and gift tax in this case, and stated the type of and the grounds for calculation of additional tax in the disposition of global income tax and gift tax in this case, and again imposed and notified the additional tax at the uniform amount of each global income tax and gift tax only. Thus, the plaintiff's assertion on this part is groundless,

2) Of the disposition imposing the gift tax of this case, when calculating the gift gains by making the assessed value per share of KRW 000, the amount of the additional tax calculated (=100 won additional tax on non-declaration of return + 000 won additional tax on non-payment + 000 won additional tax on non-payment).

3. Conclusion

If so, the plaintiff's claim against the defendant is reasonable within the above scope of recognition, and the other claims are without merit, and they are dismissed. It is so decided as per Disposition.