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(영문) 서울행정법원 2016. 04. 29. 선고 2015구합75176 판결
신주인수권증권의 주식전환에 따른 이익에 대하여는 구 상증세법 제4조의2, 제40조 제1항 제2호 나목이 적용됨[국승]
Title

The provisions of Article 4-2 and Article 40 (1) 2 (b) of the former Inheritance Tax and Gift Tax Act shall apply to the gains accruing from the conversion of shares of warrant certificates.

Summary

Article 40 (1) 2 (b) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 40-2) provides that Article 40 (1) 2 (b) of the same Act applies to the situation where the corporation issues warrant certificates, etc. for financing, and imposes tax on the largest shareholder, etc. without asking for the purpose or cause of acquiring and acquiring preemptive rights in excess of the share ratio owned

Related statutes

Article 40(1) of the Inheritance Tax and Gift Tax Act

Cases

Seoul Administrative Court 2015Guhap75176

Plaintiff

leap*

Defendant

*The Director of the Tax Office

Conclusion of Pleadings

April 8, 2016

Imposition of Judgment

April 29, 2016

Text

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant revoked a disposition rejecting correction of KRW 730,164,960, which was made against the Plaintiff on July 16, 2014.

C.

Reasons

1. Details of the disposition;

(a) Co., Ltd.***********batech (hereinafter referred to as "bio") is a company incorporated on January 18, 199 for diagnostic reagents, medical equipment manufacture, import and export business, etc.********** the largest shareholder (19.75% as of the end of the business year 2008) and the representative director.

B.**** on June 30, 2008, 'the third non-registered bonds with non-guaranteed private placement' (hereinafter 'the bonds of this case') and its contents are as follows.

Classification

Details

Total face value of jurisdiction

KRW 100 million

Category and Amount of Authority

10 million Won 10

Issuance Price

100% of the face value of each corporate bond

Method of Repayment

on June 30, 2015, 100% of the principal shall be paid in lump sum with respect to the claim.

The acquiring company

*****Securities Co., Ltd.

The exercise ratio of warrant certificates

100% of the face value of warrant certificates

Exercise Price

1,250 won (based on par value 500 won per share)

************* by entering into an underwriting contract for the bonds of this case with a stock company and the bonds of this case, and************************************************************************ the company has separated the bonds from the bonds of this case from the bonds of this case and the warrant certificates, and has sold to the Plaintiff the whole amount of warrant certificates (******* KRW 800,000,00 ± the right to convert the bonds of this case into the total amount of 1,00,000 ± the exercising price of 1,250 won per share).

C. On February 13, 2013, the Plaintiff: (a) the amount of warrant certificates equivalent to KRW 500 million per share to executive officers and employees; (b) KRW 62.5 won per share.

As of the same day, the warrant right of this case in an amount equivalent to KRW 500 million (hereinafter referred to as "the warrant right of this case").

To exercise 1,250 won 1,250 won **** 400,00 shares of Ba.

On May 30, 2013, the Plaintiff reported and paid KRW 730,164,960 to the Defendant for gift taxing KRW 2,458,236,00, which exceeds 19.75% of the Plaintiff’s shareholding ratio.

D. On May 28, 2014, the Plaintiff filed a claim for correction against the Defendant for gift tax amounting to KRW 730,164,960, by asserting that the benefit from the conversion of shares does not constitute subject to gift tax. Such claim shall be avoided.

On July 16, 2014, the appeal rendered a rejection disposition against the Plaintiff’s request for correction (hereinafter “instant rejection disposition”), and the Plaintiff filed an appeal with the Tax Tribunal on October 16 of the same year, but was dismissed on July 22, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4 through 6, Eul evidence Nos. 1, 3, 4, and 6, the purport of the whole pleadings

2. Whether the rejection disposition of this case is legitimate

A. The parties' assertion

1) Plaintiff

The Plaintiff did not acquire the warrant certificates of this case from the issuing corporation or the underwriter as well as the public project ******* because the Plaintiff inevitably acquired the warrant certificates of this case according to the basic plan for asset-backed securitization support business, the benefits arising from the exercise of the warrant certificates of this case are not subject to gift tax.

2) Defendant

The Plaintiff acquired the warrant certificates of this case from the underwriter****** Securities Co., Ltd. and********** even if the Plaintiff did not acquire the warrant certificates of this case from the underwriter, the Plaintiff acquired them through a third party, which was actually issued corporation********* because the Plaintiff acquired the warrant certificates of this case from Bao, so it constitutes an acquisition of the warrant certificates of this case, and thus, the benefits arising from the exercise of the warrant certificates of this case under Articles 4-2 and 40(1)2 (b) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 40 (1) 2 (b) of the former Inheritance Tax and Gift Tax Act provides for the purport that, where a person who is the largest shareholder of a corporation that has issued convertible bonds, bonds with warrant (referring to warrant certificates if they are separated) or bonds entitled to take over stocks (hereinafter referred to as "convertible bonds, etc.") or a person who has a special relationship therewith obtains stocks, etc. in excess of the number entitled to take over convertible bonds, etc. under equal conditions in proportion to the number of stocks held by him/her (including cases where he/she has acquired and acquired them from an underwriter under Article 9 (12) of the Financial Investment Services and Capital Markets Act; Article 40 (1) 2 (b) of the former Inheritance Tax and Capital Markets Act, which serves as the basis for determining whether the person falls under the category of an underwriter; Article 40 (1) 2 (b) of the former Inheritance Tax and Capital Markets Act, which applies at the time of conversion of stocks of this case; Article 30 (3) of the former Capital Markets Act provides for the same purpose as the value of the person who acquired profits in lieu of the former Act.

(2) In full view of the aforementioned relevant provisions, an underwriter under Article 40(1)2 (b) of the former Inheritance Tax and Gift Tax Act, which applies at the time of the conversion of shares of the instant warrant certificates, is stipulated as an underwriter under the former Capital Markets Act. However, considering the following circumstances, an underwriter under Article 40(1)2 (b) of the former Inheritance Tax and Gift Tax Act, which applies at the time of the conversion of shares of the instant warrant certificates, shall be deemed to mean an underwriter under the former Securities and Exchange Act, which is not an underwriter under

① As the former Capital Markets Act was enacted on August 3, 2007 and enforced on February 4, 2009, Article 9(12) of the former Capital Markets Act does not have any separate transitional provisions on the application of the acquisition provisions under the said Act, the provisions on underwriters under the former Capital Markets Act shall be construed as being applied since February 4, 2009, which was enacted and enforced under the said Act, and the former Securities and Exchange Act shall be applied thereto.

(2) As seen earlier, the term "subscriber" under the former Securities and Exchange Act or the former Capital Markets Act refers to a person who performs a certain act as stipulated in the laws and regulations at the time of issuing the relevant securities, and in its nature it is determined as at the time of issuing the relevant securities. As recognized earlier, the bonds of this case are issued on June 30, 2008 and issued on the same day before the enactment and enforcement of the former Capital Markets Act, ********************** because a limited liability company specialized in securitization acquired the warrant certificates of this case separated from the bonds of this case on the same day to the Plaintiff. As such, all of the warrant certificates of this case were issued, transferred, and acquired before the enforcement of the former Capital Markets Act.

③ In a case where both the phrase “an underwriter” under Article 40(1)2(b) of the former Inheritance Tax and Gift Tax Act is interpreted as is, it would result in the retroactive application of the provisions on underwriters under the former Capital Markets Act to the extent that the said Act was enacted and enforced before February 4, 2009.

(3) Therefore, in applying Article 40(1)2(b) of the former Inheritance Tax and Gift Tax Act to the benefit arising from the conversion of shares of the warrant certificates of this case, the issue of whether the purchaser is "in applying Article 40(1)2(b)

Article 2 (6) and (7) of the former Securities and Exchange Act provide that ① an underwriter shall engage in the act of underwriting (such as acquiring all or part of securities from an issuer) for the same Act or for the same purpose of soliciting subscription for securities (Article 2 (4) of the former Securities and Exchange Act) and Article 2-4 (2) of the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 20947 of July 29, 2008; hereinafter referred to as the "former Enforcement Decree of the Securities and Exchange Act") provides that an underwriter shall be entitled to purchase or sell securities for the same purpose. Article 2 (1) of the former Securities and Exchange Act or 8 of the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 20947 of the Securities and Exchange Act; hereinafter referred to as "the former Enforcement Decree of the Securities and Exchange Act") and such person shall be entitled to buy or sell securities for the same purpose without the invitation of subscription for new or outstanding securities.

(2) In light of the above provisions, the above facts of the recognition as mentioned above have been issued: ①***************** Securities Company transferred 100% of the bonds of this case to the stock company,******************************* the specialized stock company of securitization****** the company of securitization has separated the bonds of this case from the bonds of this case and transferred 100% of the company of this case to the plaintiff who is the largest shareholder of this ************************* the stock company of this case***** the stock company and******** the stock company's subscription to the bonds of this case**** the stock company** the subscription to the securities of this case*** the subscription to the securities of this case*** the subscription to the securities of this case*** the subscription to the securities of this case**** the subscription to acquire the securities of this case****.

C) Therefore, since the Plaintiff did not acquire the instant preemptive right from the underwriter, Article 40(1)2 (b) of the former Inheritance Tax and Gift Tax Act does not serve as the basis for taxation on the profits accrued from the conversion of the shares of the warrant certificates.

2) Article 4-2 and Article 40(1)2 (b) of the former Inheritance Tax and Gift Tax Act provides that where it is recognized that gift tax has been unjustly reduced by indirect means via a third party or by means of performing two or more acts or transactions, it shall be deemed that a transaction directly made by the party concerned, or a transaction has been conducted, depending on the economic substance. In order to apply Article 4-2 of the former Inheritance Tax and Gift Tax Act, it shall be recognized as "an act unreasonably reduced gift tax". The above provision aims to realize equality of taxation by regulating a tax avoidance act to avoid or reduce the burden of gift tax by taking a transaction form in which a third party or another act or transaction is made. Thus, in light of social norms or transaction practices, it shall be determined based on whether the general public does not take a reasonable transaction form.

Meanwhile, Article 40(1)2(b) of the former Inheritance Tax and Gift Tax Act provides that “for profits acquired by the largest shareholder, etc. of a corporation that issued convertible bonds, etc. in excess of the share ratio owned by the corporation (or underwriter) and by converting them into stocks, etc.” (see, e.g., Article 40(1)2(b) of the former Inheritance Tax and Gift Tax Act provides that “[t]he largest shareholder, etc. of a corporation that issued convertible bonds, etc. shall obtain profits equivalent to the difference between the market price of the stocks and the converted and acquired price of the stocks by acquiring convertible bonds, etc. or preemptive rights substantially.” This is a matter of whether the largest shareholder, etc. acquired the convertible bonds, etc. in excess of the share ratio owned by the corporation (or underwriter) or whether

B) Determination

(1) The facts without dispute, as stated in the evidence Nos. 3 and 5,********** the fact that the company specialized in asset-backed securitization entered into a sales contract with the Plaintiff on June 20, 2008, which was before the bonds of this case were issued, and the Small and Medium Business Corporation promoted the Small and Medium Business Corporation Asset-backed Securitization Support Project. The above Support Project was carried out in the manner of accepting non-guaranteed bonds and bonds with warrants issued by the superior small and medium business and supporting funds for facilities and operation, and the fact that the company, the supervising company, ****** the major shareholder prior to the issuance of bonds of this case.

(2) Comprehensive consideration of the following circumstances revealed from the above facts ** the Plaintiff has taken the form of trading that it acquired from a small and medium enterprise specialized in asset-backed securitization, but the economic substance thereof********************* the Plaintiff acquired the warrant certificates through a limited liability company specializing in asset-backed securitization ******* because the Plaintiff acquired the warrant certificates through an indirect method that acquired them. As such, Article 4-2 and Article 40 (1) 2 (b) of the former Inheritance Tax and Gift Tax Act applies to the benefit from conversion of the warrant certificates of this case, regardless of the difference between the acquisition of the warrant certificates of this case and the transfer of shares, it is difficult to view that the Plaintiff was in the position of the largest shareholder***, as a matter of course, whether the Plaintiff acquired the warrant certificates of this case under Article 4 of the former Inheritance Tax and Gift Tax Act and the transfer of shares under Article 40 (1) 2 (b) of the former Inheritance Tax and Gift Tax Act and the reason of this case* is difficult to consider the reason of the transfer of shares**

⑤ Meanwhile, the Plaintiff, as the largest shareholder and the representative director of 202 ******* as the representative shareholder and the representative director of 2002 *** the number of existing shareholders has decreased due to the issuance of the instant bonds, and the Plaintiff, as the largest shareholder, may be deemed to have intentionally acquired the instant preemptive right to new shares in order to maintain and increase their equity ratio. ************** because the Plaintiff, as the major shareholder of 206, had the intent to purchase the instant warrant certificates, has the intention to purchase ************ whether the specialized company of 2000 transferred the instant case to the Plaintiff, or not, have been forced to possess them.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.

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