In a case where: (a) an executive of a corporation A, in fact, took over Company A’s shares to a controlling shareholder; (b) the tax authority imposed gift tax pursuant to Article 35(1)1 of the former Inheritance Tax and Gift Tax Act; (c) and Articles 19(2)2 and 26(4)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act; and (d) the tax authority imposed gift tax pursuant to Article 26(4)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the case holding that the imposition of gift tax is unlawful on the grounds that the executive of the corporation B, who is an executive, is deemed only a legal officer registered in

In a case where Eul, an officer of Gap corporation operating a hotel, took over Gap corporation's shares to controlling shareholders; the tax authorities imposed gift tax on Gap corporation's shares by taking account of the fact that the officer is not a person with a special relationship under Article 35 (1) 1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003; hereinafter the "Act"); Article 19 (2) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17039 of Dec. 29, 200; hereinafter the "Enforcement Decree") and Article 26 (4) 1 of the former Enforcement Decree of the Corporate Tax Act; since an officer is not a person with a special relationship under Article 13 (4) 2 of the Enforcement Decree of the Act or Article 9 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 195 of Apr. 3, 2001).

Articles 18 and 39(1)2(b) of the Framework Act on National Taxes; Article 37(1) of the Commercial Act; Article 35(1)1 of the former Inheritance and Gift Tax Act (Amended by Act No. 7010, Dec. 30, 2003); Article 13(4)2 of the former Enforcement Decree of the Inheritance and Gift Tax Act (Amended by Presidential Decree No. 17039, Dec. 29, 200); Articles 13(10)2, 19(2)2, and 26(4)1 of the former Enforcement Decree of the Inheritance and Gift Tax Act; Article 4 of the former Enforcement Decree of the Corporate Tax Act (Amended by Presidential Decree No. 195, Apr. 3, 2001); Article 6(1)1 of the former Enforcement Decree of the Corporate Tax Act (Amended by Presidential Decree No. 21302, Feb. 4, 2009); Article 16(1)6(2) of the current Enforcement Decree of the Corporate Tax Act (Amended by Presidential Decree No.

Plaintiff (Law Firm Rate, Attorneys Park Gi-sung et al., Counsel for the plaintiff-appellant)

Head of the District Tax Office

Seoul Criminal Administration Act (Law No. 2007Guhap32747 Decided January 9, 2009)

April 19, 2011

1. Revocation of the first instance judgment.

2. The Defendant’s disposition of imposing KRW 5,665,184,00 on the Plaintiff on May 8, 2006 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On December 6, 2000, Nonparty 1 owns 25,000 shares (31.25%) and Nonparty 2 owns 25,00 shares (31.25%) and 30,000 shares (37.50%) respectively, around December 6, 200.

B. On December 6, 200, the Plaintiff acquired the shares of this case from Nonparty 1, 2, and 3 (hereinafter “Nonindicted 1, etc.”) who is the shareholder of the instant company, to KRW 1 billion, and entered the transfer of the shares in its own name on January 30, 201, with KRW 15,700, KRW 25,000 in its own name, and KRW 39,300 in its own name on February 19, 2001, respectively, and on February 21, 2001, registered as the representative director of the instant company as the representative director of the instant company.

C. The Defendant confirmed the above transfer and acquisition, and deemed the transferor and transferee of the instant shares to be a specially related person under Article 26(4)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17039, Dec. 29, 2000; hereinafter “Enforcement Decree of the Act”), and assessed the market price of the instant shares at KRW 12,153,120,000 after subtracting the above acquisition price from the above market price at KRW 11,153,120,000 in accordance with the supplementary method of assessing the market price of the instant shares at KRW 12,153,120,00 in accordance with Article 35(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 7010, Dec. 30, 203; hereinafter “the Act”), and disposed of KRW 5,65,180,00 (hereinafter “the Act”).

D. The plaintiff appealed to the National Tax Tribunal on June 26, 2006, but the National Tax Tribunal dismissed the plaintiff's appeal on May 28, 2007.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 3, and Eul evidence 1 to 10

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

(1) The Plaintiff cannot be deemed to have a special relationship with Nonparty 1 at the time of acquiring the instant shares. In other words, “executive officers of a corporation controlled by investment,” which is included in a special relationship, are limited to the registered directors and auditors pursuant to the principle of strict interpretation derived from the principle of no taxation without law. The Plaintiff was not an executive at the time of acquiring the instant shares, and even if “de facto executive officers” are included in a corporation’s executive officers, the Plaintiff did not have performed their duties as the managing president

(2) The purchase and sale price of the instant shares is KRW 1 billion as determined by free will with Nonparty 1, etc. and the Plaintiff reflects the objective exchange value of the instant shares at the time of December 2000, and thus, it should be deemed as “market price” of the instant shares. Therefore, it cannot be deemed that the Plaintiff purchased the instant shares at a price lower than the market price.

(3) In addition, Article 35(1)1 of the Act on the deemed donation of low-price acquisition cannot be applied in a case where there is no awareness or intent between the parties to the transaction as to the transfer of the father without compensation. However, at the time of the sale of the instant shares, there was no such awareness or intent between the Plaintiff and Nonparty 1, etc., and even in such a case, the imposition of gift tax is in violation of the Constitution.

(4) Although the shares that the Plaintiff acquired from Nonparty 1 et al. are 15,700 shares that were transferred under the name of the Plaintiff, the Defendant issued the instant disposition against the Plaintiff on the premise that the Plaintiff acquired the entire shares of this case from Nonparty 1 et al.

(5) In rendering the instant disposition on January 30, 201, the Defendant assessed the net asset value of the instant shares as KRW 116,857 per share on the base date of appraisal, and after calculating the net profit and loss value at KRW 0,00, the value per share of the instant shares, including the management premium, at KRW 151,914, including the management premium. The base date of appraisal of the instant shares should be the end of December 6, 200 or at least December 200, at the time of the sale and purchase of the instant shares. The net asset value per share is excessively excessive exceeding KRW 116,857 per share.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring any special circumstance, barring any special circumstance, and shall not be extensively interpreted or analogically interpreted without reasonable grounds (see, e.g., Supreme Court Decisions 83Nu213, Dec. 27, 1983; 2000Du4378, Jul. 26, 2002). However, if a certain requirement fact exists under the law, even if there is only a “donation” within the original meaning, it shall be deemed that there was a “donation” (Articles 33 through 41-5, 42 of the Act), which is a requirement for the taxation of gift tax, notwithstanding the fact that there is no “donation” within the scope of “donation” under the Civil Act, and thus, the pertinent provision on deemed donation should be interpreted as a “donation” within the scope of “donation” under the Civil Act, regardless of whether there is a need for the pertinent provision on gift tax imposition 205.

(2) Meanwhile, Article 35(1)1 of the Act provides that “If a transferee acquires property from a person with a special relationship at a price lower than the market price, the transferee shall be deemed to have received a donation equivalent to the difference between the price and the market price and the amount equivalent to the profits prescribed by the Presidential Decree.” Article 26(4)1 of the Enforcement Decree of the Act provides that “a person with a special relationship under Article 35(1)1 of the Act refers to a transferor or transferee and a person falling under Article 19(2)1, 2, and 4 through 8” and Article 19(2)2 of the Enforcement Decree of the Act provides that “an employee shall be deemed as a “employee” and Article 13(4)2 of the Enforcement Decree of the Act provides that “an employee of a corporation controlled by investment” shall be included in the scope of the above employee under Article 13(4)2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 195, Apr. 3, 20019).

(3) We examine the instant case based on the aforementioned legal principles and regulations.

The Defendant applied Article 35(1)1 of the Act, Articles 19(2)2 and 26(4)1 of the Enforcement Decree of the Act to the instant disposition, and it is apparent that the Plaintiff is not an employee of Nonparty 1, etc., who is the transferor of the instant shares. As such, to be recognized as a special relationship between the Plaintiff and Nonparty 1, etc., at the time of the purchase and sale of the instant shares, ① Nonparty 1, etc. controlled the instant company by equity investment, and ② the Plaintiff was an officer of the instant company. However, the fact that Nonparty 1, etc. controlled the instant company by equity investment at the time of the purchase and sale of the instant shares is as seen above. Accordingly, the issue in this case is whether the Plaintiff at the time of the purchase and sale of the instant shares is deemed an executive of the instant company.

(3) According to Article 37(1) of the Commercial Act, if an executive officer of a corporation is deemed a de facto shareholder or a person with no special relationship under the former Enforcement Decree of the Corporate Tax Act, such an executive officer shall be deemed to have been registered as a representative under the same Act or the Enforcement Decree of the same Act. However, if an executive officer of the corporation is deemed to have been registered as a de facto shareholder or a person with no special relationship under the same Act, it is natural to interpret the same as the former Enforcement Decree of the Corporate Tax Act, which provides that the former Enforcement Decree of the Corporate Tax Act does not stipulate that an executive officer shall be deemed to have been registered as a de facto shareholder or a person with no special relationship under the same Act (see, e.g., Supreme Court Decision 209Da21302, Feb. 4, 2009). In light of the above, if the former Enforcement Decree of the Corporate Tax Act provides that the executive officer shall be deemed to have been registered as a de facto shareholder or a person with no special relationship under the same Act, it shall be deemed to have to be interpreted.

(4) Therefore, insofar as the Plaintiff was not registered as an executive in the corporate register of the instant company at the time of sales of the instant shares, the Plaintiff’s disposition based on the premise that the Plaintiff had a special relationship with Nonparty 1, the transferor, etc. is unlawful without having to examine the remainder of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with different conclusions, so it is revoked and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Kim Chang-suk (Presiding Justice)