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(영문) 서울고등법원 2007. 12. 26. 선고 2007누20210 판결
[양도소득세등부과처분취소][미간행]
Plaintiff and appellant

Plaintiff 1 and one other (Attorney Jeong-hee, Counsel for the plaintiff-appellant)

Defendant, Appellant

Head of Yongsan District Tax Office and 1

Conclusion of Pleadings

December 5, 2007

The first instance judgment

Seoul Administrative Court Decision 2006Guhap45180 decided June 29, 2007

Text

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The imposition of the gift tax of KRW 1,405,14,150 on December 15, 2005 by the head of Seodaemun Tax Office against the Plaintiff 2 on August 4, 2005 shall be revoked, respectively, of the capital gains tax of KRW 367,043,610 on December 15, 2005 by the head of Seodaemun Tax Office and the head of Yongsan Tax Office against the Plaintiff 1 on December 15, 2005.

Reasons

1. Details of the disposition;

A. Plaintiff 2,10,00 non-listed shares 2,10,00 won non-listed shares issued by non-party 2 corporation (hereinafter “1 non-listed shares”) as of January 9, 200, based on the income amount for the business year of non-party 2 corporation (amended by Act No. 7010, Dec. 30, 2003; hereinafter “10, Dec. 30, 2002”); Article 63 of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17828, Dec. 30, 200; hereinafter “the Enforcement Decree”), and Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17828, Dec. 30, 200; hereinafter “the above 3,954,300,000 won for each of the above 3,000 won for non-listed shares issued by non-party 30,70000 won for each of the above non-listed shares.

B. However, the director of Seoul Regional Tax Office found the omission of the fiscal year in relation to the assessment of the unlisted stocks of this case, and newly identified the income amount of the non-party 2 corporation and the non-party 3 corporation as transactions between the specially related parties. The transfer of the non-listed stocks of this case by the plaintiff 2 shall be subject to rejection of unfair calculation pursuant to Article 101 of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006; hereinafter the same shall apply) by deeming the transfer of the plaintiff 1 to fall under the low-price under Article 35 of the Inheritance Tax Act, 63 of the Inheritance Tax Act and the non-party 3 corporation, 205 of the non-listed stocks, 30 won or less per 65 of the non-listed stocks, 40 won or less per 20 won per 5,135,760, 200 won or less per share, 308 won or more per share, 465 won or more per share

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 7-1 to 4, Eul evidence 1-2, Eul evidence 2-2, 2-2-3, 4, and 5-1 to 6 each of the statements and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) Illegality of applying complementary assessment methods

The market price under Article 60 of the Inheritance and Gift Tax Act includes not only “a case where a specific amount is clearly calculated,” but also “a case where a certain range of market price is calculated in general.” Thus, if the market price is determined to the extent that it can achieve the purpose of calculating the market price prescribed by each taxation law, the market price can be calculated. Thus, in order to determine whether the transfer of unlisted stocks constitutes a wrongful calculation under the Income Tax Act or a case where the market price of the instant unlisted stocks is calculated only to the extent that it can determine whether the market price of the instant unlisted stocks is higher than the market price of the instant case.

However, as seen below, each of the dispositions of this case where transfer income tax, etc. is imposed on the premise that the market price of the non-listed stocks of this case is calculated by applying the supplementary evaluation method despite the apparent existence of a price lower than the transaction price of this case, is unlawful.

(A) The market price revealed in the process of bidding sale of the instant unlisted stocks

In order to dispose of unlisted stocks issued by non-party 2 corporation, the non-party 4 corporation publicly announced that the price should be sold according to the method of general competitive bidding at KRW 5,00, and indicated that the successful bidder should be the person who presented the highest price. However, the market price of the above shares does not exceed the above par value.

(B) The market price shown in the actual transaction.

On July 6, 2002, Plaintiff 2 transferred 25,00 non-listed stocks issued by Nonparty 2 to Nonparty 5 at KRW 6,500 per share. From November 21, 2002 to December 11, 2002, Plaintiff 2 transferred the same non-listed stocks to Nonparty 1 (the non-party to the judgment of the Supreme Court), 5, 6, 7, 8, 9, 10, and 11 at KRW 6,50 per share. From August 6, 2002 to December 11, 202, Plaintiff 2 transferred the same non-listed stocks to Nonparty 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 27, 208, 200 per share to Non-listed stocks as the actual market price of this case.

(C) The market price shown in the appraisal by the appraisal corporation

As a result of the appraisal by the global appraisal corporation, a reliable appraisal institution with respect to 1 non-listed stocks, the value per share was assessed as KRW 9,021.

(d)Comparing market prices with stocks of the same kind of construction business;

According to the stock price list of similar listed companies in 2001, the average stock price of similar listed companies is 6,625 won at the lowest of 2,020 won per year.

(E) General evaluation of the instant unlisted stocks

Considering the general standards of the construction industry, it is general perception that the unlisted stocks of this case cannot exceed the face value of 5,000 won per share as well as at the time, and it cannot be said that the face value exceeds 3,40 times.

(2) Illegality due to the deviation from the limitation of application of complementary evaluation methods under the Inheritance and Gift Tax Act

The supplementary evaluation method in 200 to 2003 under the Enforcement Decree of the Inheritance and Gift Act, and the increase in short-term profit during the evaluation period of Non-Party 2 and Non-Party 3 were calculated respectively as KRW 24,456 and KRW 89,136 per share. This is against the principle of no taxation without the law, since the market value of the non-listed shares in this case was excessively different from the real value of the non-listed shares in this case, each of the above four times and eight times of the market value of the non-listed shares in this case (6,500 won or KRW 12,000, or its neighboring price) is over the limit of the supplementary evaluation method as it goes against the purpose of calculating the market value under Article 60 of the Inheritance and Gift Tax Act, since it is apparent that the market value of the non-listed shares in this case is lower than the market value in this case and thus, it is unlawful to treat it as a transfer at a lower price than the mechanical valuation value in this case.

(3) The illegality of taxation in violation of the purpose of the taxation law

Each provision of the Income Tax Act and the Inheritance and Gift Tax Act, which forms the basis of each of the dispositions of this case, shall be an exceptional taxation provision, and its application should be strictly restricted, as well as a provision that reconcepts effective transactions in private law on the grounds of taxation based on the substance of the act. As such, each of the dispositions of this case, where transfer income tax, etc. is imposed by treating the transfer of unlisted stocks at a low price on the ground that the complementary appraised value, which is mechanically calculated is higher than the transaction value of this case, is inconsistent with the principle of substantial taxation and the fundamental purport of each of the above taxation provisions.

(4) The illegality of applying the standard after the date of concluding the transaction

As long as the transfer value is determined based on the market price or the amount of supplementary assessment calculated as at the time of conclusion of a sales contract, even if there was an additional decision of correction on the income of an issuing company for each business year thereafter, if it was determined as at the date of conclusion of the sales contract, it cannot be deemed that the sales price was lower than the market price. Accordingly, each disposition of this case

(5) Illegality of the Enforcement Decree of the Act

Although the Commercialization Act delegates the Presidential Decree to provide for the supplementary evaluation method in the vicinity of the market price as much as possible when it is difficult to calculate the market price, it deviates from the delegated limit of the Act to determine the supplementary evaluation amount of unlisted stocks only with net profit and loss when the net profit and loss value is higher than the net asset value under the Enforcement Decree of the Act.

(6) Improperity of additional tax

At the time of concluding a sales contract for the unlisted stocks of this case, the Plaintiffs calculated the transaction value of this case by the supplementary evaluation method based on the amount of income for the business year of Non-Party 2 and Non-Party 3. At that time, it was anticipated that the amount of income for the business year of Non-Party 2 and Non-Party 3 would be changed by the additional tax investigation, etc. after the transfer of this case, and it was not possible to calculate the market price based on the amount of income to be changed and calculate the transaction value of the non-listed stocks of this case. Therefore, the Plaintiffs’ additional tax

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Illegality of applying complementary assessment methods

According to Article 63 (1) 1 (c) of the Inheritance and Gift Tax Act, stocks and equity shares not listed on the Korea Stock Exchange shall be assessed in such a manner as prescribed by the Presidential Decree in consideration of the corporation's assets, profits, etc., and Article 54 of the Enforcement Decree of the Act (amended by Presidential Decree No. 17828, Dec. 30, 2002) provides a supplementary evaluation method of the value per share of shares not listed on the Korea Stock Exchange under Article 63 (1) 1 (c) of the Act. The supplementary evaluation method provides that the calculation of the value of donated property is limited to cases where it is difficult to calculate the market price at the time of donation, and it is difficult to calculate the market price at the time of donation. The market price at this point means an objective exchange price formed through normal transactions. Although there is a transaction example, the market price at this point is not a normal price formed by properly reflecting the objective exchange value of donated property, and if the subject matter of donation is difficult to calculate the market price, it can be assessed in accordance with the supplementary evaluation method (see Supreme Court Decision 96Nu 296.

On the other hand, the market price under Article 60 of the Inheritance and Gift Tax Act is not limited to the criteria to determine whether the market price is subject to the rejection of wrongful calculation under the Income Tax Act or the low price transfer under the Inheritance and Gift Tax Act, but to determine whether the market price is lower than the market price. Therefore, it is not sufficient to determine whether the market price is lower than the market price, but should be specified to the extent that the transfer income tax, etc. can be calculated (in terms of legal stability, the market price under Article 60 of the Inheritance and Gift Tax Act can not be interpreted differently according to the market price calculation purpose of each tax law, and if the market price cannot be calculated by the supplementary method because the market price is calculated by the supplementary method, and if the price exceeds the market price anticipated by the objective value of the property significantly, it is sufficient to dispute the supplementary method).

However, as examined below, the price of the unlisted stocks in this case claimed by the plaintiffs cannot be deemed as an objective and specific exchange price formed through normal transactions, and there is no evidence to acknowledge that the market price of the unlisted stocks in this case at the time of each of the dispositions in this case could be calculated. Thus, the plaintiff's assertion on this part, which is premised on the existence of the market price of the unlisted stocks in this case

(A) The market price revealed in the process of bidding sale of the instant unlisted stocks

Article 60(1) and (2) of the Inheritance and Gift Tax Act provides that the value of the property on which inheritance tax or gift tax is levied shall be based on the market price as of the date of commencing the inheritance or the date of donation (hereinafter “date of appraisal”). Here, the market price shall be the value generally deemed to be established in cases where free transactions are made between many and unspecified persons, and the market price shall include the amount recognized as the market price under the conditions as prescribed by the Presidential Decree, such as the public sale price. Article 49(1)1 and 3 of the Enforcement Decree of the Act, which was enforced at the time of the transfer of unlisted stocks in this case, shall be deemed to be the market price for the relevant property (excluding cases where the transaction price is deemed to be objectively unfair) or the public sale price is deemed to be the market price for the relevant property within three

According to the statement No. 3-1 and No. 2, the non-party 4 corporation announced the public sale of the non-party 2 corporation's non-indicted 704,500 shares (5,00 won per share) daily economic newspaper and the Korean Economic Newspapers on December 24, 2001. The contents of the notice are as follows: (a) the successful bidder determined the maximum price as the person who presented the bidding price among the persons who presented the bidding price at a price higher than the expected unit price of the party members by disclosing the number and unit price stated in the bidding application for the bid; and (b) the person who presented the highest price as the person who presented the bidding price at a price lower than the bidding price at a price lower than the bidding price; (c) the fact that the bid price did not reach the bidding price after the absence of the bidder; (d) there is no specific interest in acquiring management rights than the market price; and (e) there is no evidence to acknowledge that each stock subject to the public sale is not an objective and objective market price under the Enforcement Decree of the Public Auction.

(B) The market price shown in the actual transaction.

In full view of the purport of the entire argument in the statement No. 3-1 and No. 2 of the evidence No. 3-2, Nonparty 1, etc. claiming that Plaintiff 2 transferred the instant unlisted stocks can be acknowledged as having been a person having a special relationship with the said Plaintiff under the Enforcement Decree of the Act. Thus, it is difficult to view each of the transaction prices asserted by the Plaintiffs as an objective and specific exchange price of

(C) The market price shown in the appraisal by the appraisal corporation

According to the evidence evidence No. 5, the global appraisal corporation, an appraisal institution, has assessed the value per share of 1 non-listed stocks as KRW 9,021, but Article 49(1)2 of the Enforcement Decree of the Act explicitly excludes “stocks” under Article 63(1)1 of the Inheritance and Gift Tax Act while recognizing the appraisal value of a certain property subject to gift tax as the market price. Thus, the market price cannot be calculated on the basis of the price according to the above appraisal result, and the above fact of recognition alone is insufficient to recognize that the value based on the above appraisal result is an objective and specific exchange price of the non-listed stocks of this case, and there is no other evidence to acknowledge this differently.

(d) Other

As seen earlier, the market price stipulated in Article 60 of the Inheritance and Gift Tax Act refers to an objective and specific exchange price formed through a normal transaction, and the plaintiffs' assertion based on the premise of the average stock price of the construction-listed corporation or the general evaluation of the unlisted stocks of this case is merely that the market price of the non-listed stocks of this case is above the transaction price of this case, and therefore, it is no longer reasonable to review further, as it is not related to the specific market price.

(2) Illegality due to the deviation from the limitation of application of complementary evaluation methods under the Inheritance and Gift Tax Act

As seen earlier, the market price of the instant unlisted stocks cannot be calculated. Therefore, this part of the Plaintiffs’ assertion on the premise that the market price of the instant unlisted stocks is obviously lower than the market price of the instant unlisted stocks is unreasonable without any need to further examine.

(3) The illegality of taxation in violation of the purpose of the taxation law

As seen earlier, the market price of the instant unlisted stocks cannot be calculated. As such, the Plaintiffs’ assertion on the premise that the substance of the instant transaction does not constitute a transfer of low price at all is without merit.

(4) The illegality of applying the standard after the date of concluding the transaction

The fact that the Defendant did not evaluate the stocks as of the date after the date of conclusion of the sales contract for the instant unlisted stocks, but was found to have any omission in the fiscal year related to the assessment of the instant unlisted stocks as a result of the tax investigation conducted against Nonparty 2 and Nonparty 3 Company, and that the said Company reflected in the financial statements reported by the said Company. Therefore, the Defendant’s assertion on this different premise is without merit.

(5) Illegality of the Enforcement Decree of the Act

Article 63(1)1 (c) of the Inheritance and Gift Tax Act provides that unlisted stocks shall be evaluated by the method prescribed by the Presidential Decree in consideration of the assets, earnings, etc. of the relevant corporation. Accordingly, Article 54 of the Enforcement Decree of the Inheritance and Gift Tax Act provides that the net profit and loss shall be evaluated as the valuation method of unlisted stocks in principle with respect to the valuation method of unlisted stocks, and where the net profit and loss value falls short of the net asset value according to the net asset value, the net asset value shall be calculated. As can be seen, the above provision of the Inheritance and Gift Tax Act provides that the assets and profits of the relevant corporation shall be indicated as an important factor to be considered in the calculation of the value of unlisted stocks, but it shall not be deemed that the above two elements should be reflected at the same time or equally reflected. Article 54 of the Enforcement Decree of the Act provides that the real value of the relevant corporation shall be evaluated by net profit and loss in principle by considering the general fact that at least the net asset value can be received at the time of disposal of the relevant corporation.

Therefore, it cannot be deemed that Article 54 of the Enforcement Decree of the Act is an invalid provision that deviates from the scope delegated by the parent law, so this part of the plaintiffs' assertion is without merit.

(6) Improperity of additional tax

(A) Additional tax is an administrative sanction imposed pursuant to the provisions of tax law in order to facilitate the exercise of a taxation right and the realization of a taxation right, and a taxpayer’s intent or negligence is not considered as a taxpayer’s intentional act or negligence. Provided, That where a taxpayer is not aware of his/her duty or it is unreasonable for him/her to expect the fulfillment of his/her duty, etc., and there is a justifiable reason to believe that it is unreasonable for him/her to do so (see Supreme Court Decision 2002Du4761, Dec. 11, 2003, etc.).

(B) First of all, Plaintiff 2, who can be identified by the facts of the above recognition, etc. as to the portion of capital gains tax, transferred the instant unlisted stocks in KRW 7% per share, KRW 18,830,530 per share, which is merely 60%, and KRW 18,830 per share, and KRW 53,530 per share, which are merely 77%, and KRW 60%, even if the market price per share of the 1 non-listed stocks appraised by supplementary evaluation methods to Plaintiff 1, who is not another person, is 24,456 won, and KRW 89,136,00 per share, which is evaluated as supplementary evaluation methods, and the amount to be reported falls short of the legitimate amount of income, and Plaintiff 2 and Nonparty 3 were in a position to some extent known as to the internal situation of the non-party 2 and the non-party 3 corporation after the transfer of the instant unlisted stocks. In light of the above, it does not seem that Plaintiff

(C) Next, according to Article 35(1)1 of the Inheritance and Gift Tax Act, and Article 26(1) and (3) of the Enforcement Decree of the Act, the transferee of the property at a price lower than the market price (i.e., the price at which the price of the property acquired is at least 30/100 of the market price or the difference is at least 100 million won) is liable to pay gift tax on the amount equivalent to the difference between the price and the market price. In this case, the transferee refers to the price assessed pursuant to Articles 60 through 66 of the Inheritance and Gift Tax Act on the market price of the property acquired at the time of the above recognition. Plaintiff 1, who can be known by the above recognition, is merely a value higher than 60-70% of the market price per share of the non-listed stocks appraised by Plaintiff 2 as a supplementary evaluation method, and Plaintiff 1 and Nonparty 2 were not aware of the duty to report and pay the property to Plaintiff 1 and Nonparty 3.

Meanwhile, according to Article 78(1)1 of the Inheritance and Gift Tax Act, a penalty tax shall be exempted for the amount that falls short of the tax base to be reported due to the difference in the appraised value of the donated property as prescribed by the Presidential Decree. However, according to Article 80(1) of the Enforcement Decree of the Act, “Difference in the appraised value as prescribed by the Presidential Decree” means an appraisal of inherited or donated property, which is reported within each inheritance tax or gift tax, and thus, in the absence of a report on gift tax, it shall be deemed that there is no corresponding case

(D) Therefore, the plaintiffs' assertion on this part is without merit.

3. Conclusion

Therefore, since each of the dispositions of this case is legitimate, all of the claims against the plaintiff 1's director of Yongsan Tax Office and the claims against the plaintiff 2's director of Seodaemun Tax Office are dismissed as it is without merit. The judgment of the court of first instance is just in this conclusion, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Cho Jong-jin (Presiding Judge)

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