National Tax Service Review Donation 2011-0051 ( November 30, 2011)

It is difficult to regard it as a business example that properly reflects objective exchange values.

For a long time, it is difficult to see that the transaction value which has been engaged in steel industry and has been engaged in the same kind of industry and has been significantly low compared to the value according to the supplementary evaluation methods is an objective transaction example that reflects the objective exchange value.

2011Revocation of revocation of disposition imposing gift tax, 6678

XX

Head of the tax office

August 24, 2012

September 21, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing gift tax of KRW 000 (including additional tax) against the Plaintiff on May 6, 2011 shall be revoked.

1. Details of the disposition;

A. XX Co., Ltd. (hereinafter referred to as " XX") is an unlisted corporation established on September 27, 1990 for the purpose of Switzerland lease pressure.

B. On October 14, 2008, the Plaintiff purchased (hereinafter referred to as “purchase of the instant shares”) 000 won per share with 000 shares of XX shares (the par value per share of 000 won) 224,400 won per share (hereinafter referred to as “instant shares”).

C. The Defendant considered that the market price at the time of the purchase of the instant shares falls under cases where it is difficult to calculate the market price at the time of the purchase of the instant shares, and assessed the weighted average value of the net profit and loss per share and the net asset value per share based on the supplementary assessment method under Articles 60 and 63 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010; hereinafter referred to as the “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”), and assessed the purchase price of the instant shares at KRW 300 on May 6, 201 [the aggregate of the market price of KRW 100 + 4000,000,000 won [the statutory additional tax shall be deducted]

D. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on July 5, 201, but was dismissed on November 30, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 4-1, 2, Eul evidence 1, 2-3, Eul evidence 3-1 through 7, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The assertion that the value cannot be computed according to the supplementary assessment methods

The defendant calculated the market price of the shares of this case according to the supplementary evaluation method under Article 63 (1) 1 (c) of the former Inheritance Tax and Gift Tax Act. In light of the following circumstances, the above market price is unlawful or unreasonable.

A) The purchase price of the instant shares is the market price.

In light of the fact that the price per share at the time of the Plaintiff’s purchase of the instant shares is the same as that at the time of the purchase of the shares from the Chapter B, etc. on April 10, 2007, the Plaintiff and the seller did not know about the purchase of the shares, the said price should be the market price at the time of the purchase of the instant shares, and even if the purchase price of the instant shares was not at the market price, OrCC purchased the instant unlisted shares from DaD, etc. on August 12, 2008, at KRW 00 per share, so the transaction price at the said transaction price can be deemed as the market price, and therefore, the difference between the price calculated by supplementary evaluation methods and the price at the above transaction price cannot be deemed as the gift profit, apart from the fact that the Plaintiff considers 00 won per share, which is the difference between the purchase price of the instant shares and the above transaction price at the market price.

(B) there is a legitimate reason.

In light of the following: (a) the Party: (b) purchased and subsequently requested the OCC, the representative director of the XX, who would not be listed; (c) the Party refused and introduced the Plaintiff; and (d) the Plaintiff purchased the shares upon the determination that the Plaintiff would be able to make a return on investment when the listing was made in the future; (c) the Plaintiff was anticipated to be less than the minimum public offering price in 2007; and (d) the public offering was withdrawn in 2007; and (c) there was no abnormal intent in the motive for the purchase of the instant shares; and (d) there was a justifiable reason in light of the trade practice, the purchase of the instant shares does not constitute a lower price acquisition under Article 35(2) of the former Inheritance Tax

C) The value of the instant shares in accordance with the supplementary assessment methods was excessively assessed.

As of December 31, 2007, the financial status of XX is 000 won and its considerable portion is non-performing loan, and the value of inventory assets including the appraised loss reserve fund is 000 won and the balance of foreign short-term loan was reflected in the account book at a higher level than the actual value of assets due to the relationship where most of the liabilities have to be repaid early at 000 won, and the defendant did not reflect the depreciation amount on the buildings and machinery in the account book. The defendant did not reflect the depreciation amount on the buildings and machinery in the account book, and the accounting staff E did not deduct 00 won from the assets from the amount embezzled between September 15, 2004 and October 10, 2008. In consideration of the fact that the minimum estimated public offering price in 207 was 00 won per share and 100 billion won per share, the value of the shares appraised by the defendant is unlawful.

2) The assertion that Article 35(1) and (2) of the former Inheritance Tax and Gift Tax Act are unconstitutional

Article 35 (1) and (2) of the former Inheritance Tax and Gift Tax Act are invalid in violation of the principle of private autonomy, the principle of market economy order, the respect for private property, and the principle of excessive prohibition.

3) The allegation of illegality in imposing penalty tax

As long as the Plaintiff could not compute the objective exchange value on a stock price per share, and is unable to identify the financial status of XX, assessing the value of unlisted stocks and their profit values, or demanding the return and payment of gift tax by deeming the difference between the value of unlisted stocks and the sales value as a gift does not have a possibility of social norms. As such, the Plaintiff’s failure to perform his/her duty cannot be subject to penalty tax on the ground that there is a justifiable reason for the Plaintiff’s failure to pay taxes (=00 won for additional tax return + KRW 000 for additional tax for unfaithful payment) out of the disposition of this case

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to whether the computation of value according to the supplementary assessment methods is illegal

A) Relevant provisions and legal principles

Article 35(2) of the former Inheritance Tax and Gift Tax Act provides that "where property is transferred between persons other than those in a special relationship, the amount equivalent to the difference between the consideration and the market price shall be presumed to have been donated only when property is transferred at a significantly higher price than the market price in light of the transaction practices." Article 26(5) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "any value of the property acquired at a remarkably lower price means the consideration where the market price differs by 30/100 or more of the market price." Meanwhile, Article 60(1), (2), and (3) of the former Inheritance Tax and Gift Tax Act provides that the value of property on which gift tax is levied shall be calculated based on the market price as of the date of donation, and its market price shall be deemed to be established if it is difficult to calculate the market price, and Article 60(2) and (3) of the former Enforcement Decree provides that "the reasonable method of assessment shall not be deemed to be the market price before and after the sale price of the relevant property."

B) First of all, we examine whether the Plaintiff purchased the instant shares from 0 DaD, etc. or 200 won, and examine whether the Plaintiff’s purchase price of the instant shares can be recognized as the market price. The above evidence and evidence Nos. 4, 2, 5 Eul, 6, 7 Eul evidence No. 8-1 and 2, and evidence No. 1 and 7 of YU as witnesses, together with the overall purport of the pleadings, 1CC was engaged in the steel industry for a long time; 200 U.S. 10 shares and 20 U.S. 20 shares were assessed against 0 U.S. 10 shares, and 20 U.S. 1 shares were assessed against 50 U.S. 20 shares and 00 U.S. 1 shares, and 30 U.S. 20 U.S. 1 shares were assessed against 50 U.S. 20 shares and 00 U.S. 1 shares. 20.

C) Next, as to whether there exists a legitimate cause for transaction practice, the existence of “justifiable cause” under Article 35(2) of the former Inheritance Tax and Gift Tax Act shall be determined by comprehensively taking into account the transactional circumstances, transactional relationship, transactional relationship, and transaction price determination process. As seen earlier, the Plaintiff’s indirect possession of shares before and after the date of the submission of the evidence as follows: (i) the details of the purchase of shares in this case and the motive of the transaction, and the Plaintiff’s assertion on the interests of both parties derived from the purchase of shares in this case; (ii) the Plaintiff appears to have not been aware of or could have been able to have been aware of the price of shares in this case through 0G 20 shares offering and public offering; and (iii) the purchase price of shares in this case is more than 10G 200,000,000,000 won and 0G 20.

D) If it is difficult to calculate the market price of the instant shares purchased by the Plaintiff, the relevant shares shall be calculated in accordance with the supplementary evaluation methods stipulated in Articles 60 and 63(1)1(c) of the former Inheritance Tax and Gift Tax Act and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. The Defendant’s evaluation of the value per share of the instant shares based on the balance sheet, net asset value statement, net asset value statement, net income statement, business right evaluation statement, and appraisal balance statement as seen earlier, based on the above supplementary evaluation methods as to the instant shares based on the balance sheet, net asset value statement, net income statement, business right evaluation statement, and appraisal balance statement, etc., are as follows, and this is lawful unless there are special circumstances.

(1) As to this, the Plaintiff asserted that the net asset value of the pertinent corporation was excessively assessed as a result of tobacco failure to reflect the circumstances, such as the ratio of non-performing loans and processed assets and excessive short-term loans, etc., so the burden of proof of special reasons, such as the existence of a claim which cannot be recovered at the time of donation not included in the net asset value of the Ghana corporation, is, in principle, the person liable for duty to pay tax, and there is no sufficient evidence to acknowledge it. Rather, the circumstances alleged by the Plaintiff in light of the fact that the Plaintiff had received adequate opinion at the time of external accounting audit in 2007 and 2008, as it appears to have already been reflected in the assessment of the per share value of the instant stocks, the above assertion is without merit.

(2) The Plaintiff asserts that the net asset value of the 0rd 0rd 1st 1st 0th 0th 0th 0th 0th 0th 0th 0th 0th 0th 0th 0th 0th 0th 00 0th 0th 0th 00 0th 0th 00 0th 0th 0th 00 0th 00 0th 0th 00 0th 000 0th 000 0th 000 0th 000 0th 000 0th 000 0th 100 0th 00 0th 00 0th 100 0th 00 0th 00 0th 100 0th 100 208th 10th 208th 0th 200 0th 1st 2002

(3) Lastly, the Plaintiff asserted that the net asset value per share of the instant shares was excessively assessed, considering the minimum estimated price for public offering in 2007 (00 won per share) and the issue price for new shares in 2009 (000 won per share). However, in light of the following: (a) the difference between the base price for the public offering or the issue price for new shares and the base date for the purchase price for the instant shares; and (b) the public offering price and the issue price for new shares cannot be deemed to have been necessarily reflected in the market price of the relevant shares, the Plaintiff’s above-mentioned value presented by the Plaintiff cannot be deemed to be the market price per share at the time of the purchase of the instant shares; (c)

2) Determination on the assertion of unconstitutionality under Article 35(1) and (2) of the former Inheritance Tax and Gift Tax Act

In light of the above legal principles and the legislative discretion based on legislative discretion, the issue of whether to calculate the value of donated property in relation to the imposition of gift tax is based on the above donated property. Thus, if the legislative purport or interpretation and application of the tax authorities or the court is within a reasonable and reasonable scope in light of the fundamental rights or principles stipulated in the Constitution, the legislative limitation of fundamental rights, and the legislative purpose of the pertinent Act, it cannot be deemed unconstitutional (see Constitutional Court Order 96Hun-Ga22 delivered on August 27, 1998). Thus, the pertinent provision is to effectively regulate and prevent tax evasion and to reduce the burden of gift tax on the basis of high-rate rate, and to realize the legitimacy of the legislative purpose as it is difficult for the taxation authority to prove the economic substance, i.e., transfer of concealed economic benefits to the taxpayer without consideration, and to ensure that the provision on the imposition of gift tax can be easily determined within the market price of the gift tax to the extent that it is unreasonable for the transferee to take over the gift tax without consideration to the extent that it is unreasonable for the acquisition price of gift tax without consideration.

3) Determination on the illegality of imposing penalty tax

Under the tax law, in cases where a taxpayer violates various obligations, such as a return and tax payment, without any justifiable reason, to facilitate the exercise of the right to impose taxes and the realization of a tax claim, the taxpayer’s intent or negligence is not considered (see Supreme Court Decision 96Nu15404, Aug. 22, 1997). Thus, even if the Plaintiff received 400,000 non-listed stocks prior to the purchase of the instant shares from YY non-listed stocks and calculated the market price according to supplementary assessment methods, and reported and paid the gift tax on or around December 2007, she did not know that the Plaintiff’s failure to report and pay the amount equivalent to the difference between the market price and Y's market price as a result of acquisition of the instant shares from MaA with her father F and Y largest shareholder, and the Plaintiff did not know the internal situation of the issuing company of the instant shares, as well as the Plaintiff’s duty to report and pay the instant shares under the objective circumstance that the Plaintiff did not have the duty to report and payment of the instant shares.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.