Seoul High Court 2008Nu30252 (Law No. 26, 2009)

Seoul Administrative Court 2007Gudan10955 (208.022)

In determining whether the stock price is a wrongful calculation following a low price transfer of listed stocks, the market price;

The market value of the transferred listed stocks shall be the average market value of the Korea Stock Exchange every two months before and after the date of transfer, except in extenuating circumstances, in determining whether they are subject to the denial of unfair calculation of capital gains due to a transfer of low-price listed stocks (over-time transactions) and, in this case, the rate of increase of the largest shareholder shall be added

The contents of the decision shall be the same as attached.

쇠지지지 3000 쇠은은은은은 3000 아은은은은은은은 3000 아은은은은은은 3000 아아은은은은 3000 이 아은은 3000 이 300209 13061

흰지지300 쇠지지지 3000 지지지 1. MaA

2. KimB

3. KimCC;

4. KimD

쇠지지지 3000 지지지지지 3000 지지지지지지 3000 지지지지지지지 3000

Article 300 u u3000 n u3000 n u3000 n u3000 Seoul High Court Decision 2008Nu30252 decided June 26, 2009

쇠은은 지지 개은은 3000 개은은은 3000 개은은은은은 3000 이 이 이 3001. 27 January 27, 2002

44 44 44 44 44 45 44 444 64 44

The judgment below is reversed and the case is remanded to Seoul High Court.

쇠鹬 쇠鹬 3000 쇠鹬 3000

The grounds of appeal are examined.

Article 167 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18173, Dec. 30, 2003) upon delegation of Article 101 (4) of the former Income Tax Act (amended by Presidential Decree No. 9897, Dec. 31, 2009) provides that with respect to wrongful calculation of transfer income, if it is deemed that the tax burden has been unjustly reduced because of acquisition of land, etc. in excess of the market price or transfer thereof below the market price in transactions with a person with a special relationship under paragraph (4) of the same Article, the acquisition price or transfer price shall be calculated based on the market price. In applying paragraph (5) of the same Article, the market price shall be calculated on the basis of the market price.

In addition, Article 60 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter "the Inheritance Tax and Gift Tax Act") provides that "the value of the property on which inheritance tax or gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter "date of appraisal"). In this case, the value appraised by the method of appraisal under Article 63 (1) 1 (a) and (b) (excluding the case falling under Article 63 (2)) shall be deemed the market price." Article 63 (1) 1 (a) of the same Act provides that "the average value of the market price of the Korea Stock Exchange per day before and after the evaluation base date shall be the average value of the stocks traded by the Korea Stock Exchange every two months, and Article 63 (3) provides that "in the application of the provisions of subparagraph 1 of paragraph (1), the largest shareholder or the largest shareholder and the shareholder or investor specially related to the former (hereafter in this paragraph) shall be added to the largest shareholder.

In light of the legislative intent of Article 60(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 5193, Dec. 30, 1996) which provides that the value assessed according to the supplementary evaluation method as stipulated in Article 63(1)1 (a) shall be considered as the market price in order to exclude arbitrariness and ensure objectivity in the evaluation, the legislative intent of which is to include the value assessed according to the supplementary evaluation method as stipulated in Article 63(1)1 (a), the structure of Articles 60 and 63 of the Inheritance Tax and Gift Tax Act concerning the evaluation method of listed stocks, the purport of the wrongful calculation system, and the above provisions, the market price of the transferred listed stocks shall be deemed as the market price in determining whether they are subject to the rejection of wrongful calculation of capital gains, barring special circumstances, it is reasonable to view that only the average market price publicly announced every two months before and after the date of transfer calculated in accordance with the supplementary evaluation method as stipulated in Article 63(1)1 (a) of the Inheritance Tax and Gift Tax Act (see Supreme Court Decision 20130Du1481, supra.

According to the reasoning of the judgment below, on June 12, 2001, Plaintiff KimB, KimCC, and KimD sold 160,080 shares of Y industry corporation to Y industry corporation on June 12, 200, 40, 40,960 shares of Y industry corporation to 27,60 won per day through mass trading. Plaintiff KimA sold Y industry corporation shares of 161,410 shares of Y industry corporation to Y industry corporation on the same day, and on the same day, it is difficult to recognize that the market price of 36,050 shares of Y industry corporation was reduced by 16,00 won per day by adding the market price of 160,050 shares of Y industry corporation to 30,000 won per day under the premise that the market price of 16,000 won per day was reduced by 16,000 won per day after the transfer price per 60,000 won per share.

However, in light of the above provisions, legal principles, and records, although the market price per share of the stock of this case shall be the amount calculated by adding 30% increase in the average market price per share of the stock exchange every two months before and after the date of transfer, which is published every two months after the date of transfer, the court below determined that the transfer price of this case constitutes the market price per share of the stock of this case at the time of transfer, and that the above increase in the number of largest shareholders cannot be applied. In so doing, the court below erred by misapprehending the legal principles as to the market price of listed stocks in the calculation of transfer income by misunderstanding the market price of

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Dan 300 Mau300 Mau 3000 Mau Mau 3000 Mau3000

Justices Yinu300 Mau300 Mau3000

Dan 300 Ma300 Ma3000 Mau300 Mau300 Man Mal Dol3000 Dol-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is

Justices Yinu300 Mau300 Mau3000 can-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is-is-