The suspicion of deemed donation due to the waiver of preemptive rights;

In the case of a waiver of new stocks with a special relationship, the provision on deemed donation is applied regardless of whether the actual economic benefits have been transferred without compensation.

Article 39 of the former Inheritance Tax and Gift Tax Act (Presumption of Donation by Capital Increase)

Article 29 of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act (Method of Calculating Benefits on Capital Increase)

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of KRW 27,343,290 against the plaintiff on August 1, 2004.

1. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged in full view of the overall purport of the arguments in the evidence Nos. 1, 1, 2, and 1.

A. The Plaintiff was a director and a shareholder of ○○○○○○○○○ (hereinafter “○○○○○○○○○○○○”) who closed the business on November 2003. On November 18, 2001, the Plaintiff renounced the acquisition of new shares 107,229 shares (hereinafter “instant shares”) consisting of 3,000 acquisition price per share at the time of offering new shares (hereinafter “instant shares”) issued in addition, ○○○○○○○○○○○○○○○○○○○○○ (hereinafter “instant shares”). Accordingly, the ○○○○○○○○○○ (hereinafter “instant shares”) who was the representative director of ○○○○○○○○○○○○○○○○○○○○○○ and the largest shareholder exceeded the key shares.

B. As above, the Defendant: (a) decided to impose gift tax on the constructive gift by applying Article 39(1)2(a) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter referred to as the “former Act”) to allow the Plaintiff to acquire shares in excess of the market price; (b) considered KRW 1,400 per share, the value of ○○○○○○○○○○ issued new shares at a price higher than the market price as at the time of the instant case’s capital increase; and (c) issued new shares at a price higher than the above market price; and (d) by having the Plaintiff acquire shares in excess of the market price at the time of the Plaintiff, the Defendant deemed the gift tax imposed on the Plaintiff pursuant to Article 29(3)3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17828, Dec. 30, 2002; hereinafter referred to as the “former Enforcement Decree”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff’s simple shareholder and director of ○○○○○○○ does not constitute “a person who renounces the acceptance of new shares with a special relationship” under Article 29(1) of the former Enforcement Decree, and thus, the instant disposition made by applying the deemed donation provision under Article 39(1) of the former Enforcement Decree is unlawful.

(2) The instant disposition that the Plaintiff deemed to have received certain benefits from the largest ○○○○, on the ground that the Plaintiff had the largest ○○○○○○○○○○, thereby making the Plaintiff acquire the shares in question in excess of its value, did not have gained any substantial economic benefits, such as increasing the value of the shares held by the Plaintiff.

(3) The Plaintiff is unconstitutional to apply the provision on the constructive gift without any reason, even if it is objectively evident that there is no intention of donation, rather than to accept the donation from the largest ○○, without being able to prepare the acquisition price of the shares in question.

(4) The market price at the time of capital increase by ○○○○○○○○○○○○○○○○○○○ was adjusted to KRW 2,700 per share at the time of offering 80% of the capital increase by ○○○○○○○○○○○○○○○○○○○○○’s capital. ② On August 1, 2001, ○○○○○○○○○○○○○○○○○○○○ issued a 3,000 won per share when calculating the conversion price as KRW 1.2 billion per share at the time of issuing a ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s capital increase by 34 investors who have been dissatisfied with a delay in the registration of ○○○○○○○○○○○○○○○○○’s capital. Therefore, the Defendant’s capital increase by 300 per share was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are not disputed between the parties, or acknowledged in full view of the purport of the entire pleadings in the descriptions of Gap evidence 2-1, 2, Eul evidence 2-4, evidence 5-1, 2-7-1, 8-1, 8-2, and 2.

(1) On November 18, 2001, the ○○○○○○○ issued new shares with the price of KRW 833,300 per share as indicated below at the time of the instant subscription for new shares as indicated in the table below, by equally allocating the shares held by the existing shareholders. However, all of the remaining shareholders (including minority shareholders) except the largest○○○○, renounced the subscription for new shares, and eventually allocated the entire new shares to the largest○○○○○○○○.

Name of shareholders

Relation

Before capital increase

Equal Allocation

Number of shares

Actual Allocation

Number of shares

Number of shares

(%) Equity (%)

○ ○

Representative

1,338,005

25.99

216,578

833,300

○ ○

Ministry of Justice

237,600

4.62

38,549

0

○ Kim

mother

237,600

4.62

38,459

0

○ ○

wife

158,400

3.08

25,640

0

Directors

662,456

12.87

107,229

0

○ ○

Directors

662,385

12.87

107,218

0

○ ○ Heading

·

730,000

14.18

18,162

0

Minority Shareholders

·

1,121,634

21.77

181,555

0

Consolidateds

5,148,080

100

833,300

833,300

(2) ○○○○○○는 2001. 8.경부터 주식회사 ㅇㅇㅇㅇ의 인수를 추진하여, 그 인수에 필요한 자금 50억 원 중 25억 원을 충당하기 위하여 이 사건 유상증자를 실시하게 된 것이었고, 당시 위 인수자금 25억 원을 조달할 수 있는 최○○에게 위와 같이 신주를 모두 배정하였다.

(3) The ○○○○○○○ achieved each net income of KRW 613,906,616 in 199 and KRW 205,69,267 in 2000. However, in 201, KRW 2,670,813,693 in 200, and KRW 14,611,574,002 in 202, and eventually closed on November 3, 2003.

D. Determination

(1) As to the first argument

According to Article 29(1) of the former Enforcement Decree, "a person who has renounced the acceptance of new stocks in a special relationship" refers to a person who has the relation falling under any of subparagraphs of Article 19(2) of the former Enforcement Decree with a person who has acquired the forfeited stocks, and the former part of Article 19(2)2 of the former Enforcement Decree refers to an employee.

(including a director of a corporation under control by investment. Articles 13(6)2, 13(8)1, and 19(2)6 of the former Enforcement Decree of the ○○○○○○○○○○○○ as an officer of ○○○○○○○○○○○○○○○○ at the time of issuing new shares, and the above facts of recognition are as follows: (a) as the representative director of ○○○○○○○○○○○○○○ at the time of issuing new shares, and his family members have 38.31% of the ○○○○○○○○○○○○○○○○’s shares (i.e., 25.9% + parents + 4.62% + 3.08% of the 3.08% of the ○○○○○○○○○○○○○’s shares, the Plaintiff was a director of ○○○○○○○○○○○○’s shares, which is controlled by investment.

(2) On the second argument

The legislative intent of Article 39(1)2 of the former Act, Article 29(1) and Article 29(3)3 of the former Enforcement Decree of the same Act, etc. is to impose gift tax on a forfeited shareholder by stipulating that the economic benefit equivalent to the difference between the issue value and the appraised value if the issue value exceeds the appraised value of the forfeited share becomes effective as a gratuitous transfer between the forfeited shareholder who renounced the subscription of new shares and the third purchaser of new shares. In light of the legislative intent and the language of the provision, where the benefit calculated pursuant to Article 29(3)3 of the former Enforcement Decree occurs to the forfeited shareholder by issuing new shares at a price higher than the market value of the new shares, such benefit is deemed a gift regardless of whether the forfeited shareholder gains substantial economic profit, and thus, in this case, the Plaintiff’s provision on the waiver of issuance of new shares and the acquisition value of the forfeited shares cannot be accepted as long as the pertinent provision of the former Enforcement Decree of the former Enforcement Decree of the Act is based on whether the forfeited shareholder had actually received economic profit or not.

(3) On the third argument

Article 39(1)2 of the former Act, Article 29(1) and Article 29(3)3 of the former Enforcement Decree of the same Act, etc., on the ground that, as seen earlier, in cases where a corporation cultivates forfeited stocks to a third party, the issue price of new stocks is in excess of the assessed value, economic benefits equivalent to the difference between the issue price and the appraised value would cause the effect of gratuitous transfer between the forfeited shareholder who renounced the acceptance of new stocks and the third party, and thus, in cases where a shareholder gains profits from the waiver of preemptive rights, it shall be deemed as a provision on the legal fiction of donation, regardless of whether the third party had expressed his intention of donation. Accordingly, this part of the Plaintiff’s assertion cannot be accepted.

(4) As to the fourth argument

The "market price" under Article 39 (1) 2 of the former Act refers to the market price of the stocks at the time when new stocks are issued at a price higher than the market price. However, according to Articles 60 (1) through (3), 63 (1) 1 (c), and Articles 49 (1) and 54 of the former Enforcement Decree of the former Act, the market price of non-listed stocks shall be the market price as of the date of donation, and in principle, if there is a transaction for the stocks at will between many and unspecified persons, the transaction price shall be the value that is recognized as normal if there is a transaction for the stocks at will during the period of three months before and after the date of donation. However, if it is difficult to calculate the market price by such method, the transaction price shall be included in the transaction price if there is a transaction for the stocks at issue during the period of three months before and after the date of donation. However, if it is difficult to calculate the market price by such method, the appraised price shall be supplemented by Article 63 (1) 1 (c) and Article 54 of the former Enforcement Decree.

In light of the fact that there are transaction cases that can be seen as the market price of ○○○○○○○○○○○○○ at the time of issuing new shares in this case, each of the statements stated in Nos. 7 (No. 6-5; hereinafter the same shall apply), 8, 20, 21, and 23 in No. 6-1 through No. 4, 6, and 8 as follows. In other words, not only the major shareholders, including the Plaintiff at the time of raising the oil in this case, but also the minority shareholders have waived the acquisition of new shares at the price of 3,00 won per share, and also the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was in line with the fact that there was a large net loss from 201 to 11, 2003, it is difficult to acknowledge the market price as legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is dismissed as the plaintiff's appeal is without merit. It is so decided as per Disposition.

Dois-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is

Dois-is-is-is-is-is-is-is-is-is-is-is-is-is-is

Dois-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is

public official law, order of law,

The former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003)

Article 39 (Presumption of Donation by Capital Increase)

(1) Where a corporation issues new stocks or equity shares (hereafter referred to as "new stocks" in this Article) for the purpose of increasing its capital (including the amount of investment; hereafter the same shall apply in this Article and Article 39-2), a person who obtains benefits falling under any of the following subparagraphs shall be deemed to have received a donation of an amount equivalent to such benefits:

2. Where new stocks are issued at a price higher than the market price, the profits falling under any of the following items:

(a) Where a stockholder of the relevant corporation has renounced wholly or partially the right to receive new stocks allocated, and where such forfeited stocks are allocated, the benefits acquired by the person who received the allocation of relevant forfeited stocks, by acquiring such stocks, from the person who renounced new stocks in a special

(3) Persons with a special relationship, scope of minority shareholders, method of calculating profits and other necessary matters under paragraphs (1) and (2) shall be determined by the Presidential Decree.

Article 60 (Principles, etc. of Appraisal)

(1) The value of property on which an inheritance tax or a gift tax is levied under this Act shall be the market price as of the date of commencing the inheritance or the date of donation (hereinafter referred to as the "date of appraisal"). In such cases, the value appraised by the method of appraisal stipulated in Article 63 (1) 1 (a) and (b) (excluding cases falling under Article 63 (2) 8) shall be deemed the market price

(2) The market price referred to in paragraph (1) shall be the price which is generally deemed to have been established in cases of free trade between many and unspecified persons and shall include the price which is recognized as the market price, such as the expropriation, public auction price and appraised price,

(3) In applying paragraph (1), where it is difficult to compute the market price, the value assessed by the methods prescribed in Articles 61 through 65 in consideration of the type, scale, transaction status, etc. of the relevant property.

(4) In applying paragraph (1), the value of the donated property added to the value of the inherited property pursuant to Article 13 shall be based on the market price as of the date of donation.

Article 63 (Evaluation of Securities, etc.)

(1) The appraisal of securities, etc. shall be conducted by the following methods:

1. Appraisal of stocks and equity shares:

(c) Stocks and equity shares that are not listed on the Korea Stock Exchange other than those under item (b) shall be appraised by the method prescribed by Presidential Decree in consideration of the assets, profits, etc. of the

The former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17828, Dec. 30, 2002)

Article 14 (Methods, etc. of Contribution to Property Invested by Public Interest Corporations)

(6) Increase of stocks of the same domestic corporation in which a contributor or a person in a special relationship with him/her has contributed to another public-service corporation, etc. under Article 16 (2) 2 of the Act shall include stocks, etc. owned by the heir and another public-service corporation, etc. which has contributed property by a person in any of the following relationship with him/her at the time of contribution:

(8) "Corporation controlled through investment" in paragraph (6) 2 and Article 39 (1) means a corporation falling under any of the following subparagraphs:

1. A corporation falling under Article 19 (2) 6;

Article 19 (Inheritance Public Property of Financial Property)

(2) For the purpose of Article 22 (2) of the Act, the term "major shareholder or largest investor as prescribed by the Presidential Decree" means the relevant stockholder, etc. in the event that the total number of stocks held by one shareholder or one investor (hereinafter referred to as the "shareholders, etc.") and persons in any of the following relationships is the largest number of stocks held:

1. Relatives;

2. Persons, other than employees and employees, who maintain their livelihood with the property of the relevant stockholders, etc.;

6. A corporation in which one stockholder, etc. and persons under subparagraphs 1 through 5 own 30/100 or more of the total number of stocks issued;

Article 29 (Calculation Method, etc. of Profits Accruing from Capital Increase)

(1) The term "a person in a special relationship" or "a person who has accepted new stocks or forfeited stocks in a special relationship" in Article 39 (1) of the Act means a person who has a relationship falling under one of subparagraphs of Article 19 (2) with the person who has not accepted or accepted new stocks or forfeited stocks.

3. Profits under Article 39 (1) 2 (a) of the Act: An amount calculated by multiplying the amount under item (a), subtracting the amount under item (b), by the number of forfeited stocks under item (c).

(a) The value of subscribed stocks per stock;

(b) The value per stock calculated by the following formula: Provided, That in case of a corporation falling under any subparagraph of Article 22 of the Enforcement Decree of the Income Tax Act, where the appraised value per stock after the capital increase is larger than the value per stock calculated by the following formula, the value concerned:

[The number of stocks increased by X capital increase per stock before capital increase] + (the number of stocks increased by X capital increase per new stock) ¡À(the total number of stocks issued before capital increase + the number of stocks increased by capital increase).

(c) Number of forfeited stocks by stockholders who have waived subscription for new stocks;

The number of forfeited stocks acquired by a person with a special relationship with a waived stockholder;

X x Poheading Profit

Total Number of forfeited Stocks

Article 49 (Principles for Evaluation, etc.)

(1) The term "those deemed to be the market price pursuant to the provisions prescribed by Presidential Decree, such as the expropriation or public sale price, the appraised price, etc." in Article 60 (2) of the Act means the amount verified pursuant to the provisions of the following subparagraphs in cases of sale, appraisal, expropriation or auction (referring to an auction under the Civil Procedure Act; hereafter the same shall apply in this paragraph) or public auction during a period not exceeding six months before or after the base date of appraisal (three months in cases of the light of donated property):

1. Where any fact of transaction has occurred in connection with the relevant property, the transaction price: Provided, That the same shall not apply to cases where the value of the transaction price is deemed objectively unjust, such as transactions with a person with a special relationship provided for in Article 26 (4);

Article 54 (Appraisal of Unlisted Stocks)

(1) Stocks and equity shares (hereafter referred to as "non-listed stocks" in this Article) that are not listed on the Korea Stock Exchange under Article 63 (1) 1 (c) of the Act shall be the value assessed in accordance with the following formula:

The value per share = The weighted average amount of net profits and losses per share for the latest three years ± the rate as prescribed by the Ordinance of the Ministry of Finance and Economy in consideration of the average interest rate formed in the financial market (hereinafter referred to as the “net profits and losses”).

(2) Where the value of the unlisted stocks appraised pursuant to the provisions of paragraph (1) is not equal to that of the following formula, it shall be the value appraised by the following formula:

The value per share = The net asset value of the corporation ± Total number of outstanding stocks (hereinafter referred to as “net asset value”).

(3) In the application of the provisions of paragraphs (1) and (2), where a corporation that has issued stocks or investment shares referred to in Article 63 (1) 1 (c) of the Act owns not more than 10/100 of the total number of outstanding stocks, etc. of the corporation that has issued other unlisted stocks, the evaluation of other unlisted stocks may be based on the acquisition value provided for in Article 74 (1) 1 (e) of the Enforcement Decree of the Corporate Tax Act, notwithstanding the provisions of paragraphs (1) and (2).

(4) In applying paragraph (2), "total number of issued stocks" shall be determined by the total number of issued stocks as of the evaluation base date.