Revocation of Disposition Imposing Gift Tax

It shall be calculated in accordance with the method provided in Article 63(1) of the Inheritance Tax and Gift Tax Act and Article 52-2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act on the evaluation of securities, etc. as of the time immediately preceding the capital increase.

The contents of the judgment are the same as attachment.

2013Guhap2830 Revocation of Disposition of Imposition of Gift Tax

Kim*

The superintendent of the tax office

October 23, 2013

on 15, 2014

1. Each evidence stated in the column of “the initial notified tax amount” in attached Form 1, which the Defendant issued to the Plaintiff on October 1, 2011.

Each "justifiable tax amount" in the imposition of such tax shall be revoked in excess of the stated amount.

2. The plaintiff's remaining claims are dismissed.

3. 7/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The disposition of imposing each gift tax on the Plaintiff on October 1, 201 as stated in attached Form 1, which the Defendant rendered to the Plaintiff on October 1, 201, shall be revoked.

1. Details of the disposition;

A. AA Co., Ltd. (hereinafter referred to as the “instant corporation”) which is a KOSDAQ-listed corporation has passed a resolution on the capital increase with a third party allocation method twice as listed in Table 1 below, and has announced it publicly (hereinafter referred to as “the first capital increase,” “the second capital increase for convenience of division”).

B. On July 9, 2009, according to each of the above capital increase resolutions, MediationCC and AD paid shares on July 21, 2009. On July 21, 2009, the Plaintiff paid 7 billion won (16,200 won per share) and acquired 432,100 shares of common shares (hereinafter “instant shares”).

C. On July 8, 2009, ParkB, etc., the largest shareholder of the instant corporation, concluded a contract to transfer stocks and management rights to the Plaintiff, etc. to transfer KRW 800,000 of the instant corporation’s stocks to KRW 20 billion ( KRW 25,000 per share) and exchanged on August 19, 2009 through public notice on July 9, 2009. Accordingly, the instant corporation was changed to a pre-development of the stem cell treatment system.

D. The director of the Seoul Regional Tax Office: (a) as a result of investigation of stock fluctuation against the corporation of this case, the plaintiff

Before the amendment of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) that received food allocation

(1) The gift of any profit arising from the increase of capital under Article 39 (1) 1 of the Inheritance Tax and Gift Tax Act (hereinafter referred to as "the Inheritance Tax and Gift Tax Act").

Considering that taxation data is reasonable, the defendant was notified of the taxation data.

E. Accordingly, the Defendant considers “the appraised value per share before the second capital increase” as KRW 46,693 on the basis of the average of the closing price from the day following the payment date of the second capital increase to the day preceding the payment date of the second capital increase ( July 10, 2009) to the day preceding the payment date of the second capital increase ( July 20, 2009), and accordingly, the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (Presidential Decree of February 18, 2010).

Article 29(3)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by 22042; hereinafter referred to as the "Enforcement Decree of the Inheritance Tax and Gift Tax Act").

"The assessment value per share after the second capital increase" under item (a) is calculated as 36,825 won, and on October 1, 201, the Plaintiff imposed gift tax of KRW 8,912,062,50 in total as stated in the "the first notice tax amount per disposition" column in attached Form 1 on the Plaintiff on October 1, 201 (hereinafter "each disposition of this case").

F. On November 11, 201, the Plaintiff dissatisfied with each of the dispositions of this case, filed an appeal with the Tax Tribunal for adjudication on November 11, 201

However, the decision of dismissal was made on December 31, 2012.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 9, Eul evidence 1 and 2 (including paper numbers)

Statement, the purport of the whole pleading

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Each of the dispositions of this case shall be revoked in an unlawful manner as follows.

1) The appraised value per share after the second capital increase (Article 29(3)1 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act)

A person shall be appointed.

* The theoretical value = [(46,693 won per stock before the second capital increase 】 the total number of outstanding stocks before the second capital increase 1,290,234 note) + (the value per new stocks subscribed per stock).

16,200 won ¡¿ (617,284 shares increased due to the second capital increase) ¡À (1,290,234 shares issued prior to the second capital increase + 2

617,284 Shares of Shares increased due to the increase in the capital

1) Article 29(3)1(a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “The appraised value per share before the person who has increased his/her income”

any delegation or provision of the Inheritance Tax and Gift Tax Act or other relevant Acts and subordinate statutes shall apply mutatis mutandis to the calculation method.

Although the defendant did not have any provision of the Inheritance Tax and Gift Tax Act, Article 63 of the same Act and Article 52-2 of the Enforcement Decree of the same Act

By interpreting the trend, the "value per share before the expansion" was calculated in accordance with the above provisions.

2) Even if Article 63 of the Inheritance Tax and Gift Tax Act applies, ① The second and the second increase in capital is mutually economical room.

Not only the same quality but also the evaluation period under the proviso of Article 63 (1) 1 (a) of the Inheritance Tax and Gift Tax Act.

If there is a cause of capital increase, merger, etc. during the period of two months before the corresponding day, there is a cause of capital increase, etc.

apply only where a change in the share price occurs, and the share price of the corporation of this case shall be the name of the corporation

Since the rise in the capital increase is caused by the acquisition of permanent jurisdiction, the primary capital increase has almost little impact on the share price.

Therefore, even if there was a primary capital increase immediately before the secondary capital increase, the proviso of Article 63(1)1 (a) of the Inheritance Tax and Gift Tax Act cannot be applied, and pursuant to the provisions of the main sentence of the same item, the average of the closing prices per share before the secondary capital increase should be regarded as the "an assessment value per share before the secondary capital increase."

(b) Related statutes;

2. Attached Table 2. It shall be as listed in relevant statutes;

C. Determination

1) As to the first argument

A) Article 39(1)1 (c) of the Inheritance Tax and Gift Tax Act is a new share for the increase of capital by the corporation.

in the issuance of shares or shares, if the new shares are issued at a price below the market price,

Benefits that a person who is not a shareholder of a corporation receives by directly allocating new stocks from the corporation concerned.

section 29(3)(1) and (4) of the Enforcement Decree of the same Act provides that the amount shall be donated, and the above interest shall be based on the date of payment of stock price.

】 Total number of issued stocks before the increase 】 (the value of subscribed stock per stock 】 the increased stocks due to the increase of capital.

[2] Calculation in the formula of ± (the total number of issued and outstanding shares before increase + the number of shares increased by increase in capital)

(1) The value per stock of new stocks shall be the lesser of the appraised value per stock after the increase in the capital;

(1) The provisions of the Inheritance Tax and Gift Tax Act, which provide that the amount of the shares allocated shall be calculated by multiplying the number of new shares

The value of the property on which inheritance tax or gift tax is levied under the Inheritance Tax and Gift Tax Act shall be assessed below.

The method is defined as follows.

B) Benefits arising from the increase of capital under Article 29(3)1 and (4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act

Article 63(1) of the Inheritance Tax and Gift Tax Act and Article 52-2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provide for the method of calculating the value of the property assessed under the Inheritance Tax and Gift Tax Act, and provides for the method of assessing the value of the property assessed under the Inheritance Tax and Gift Tax Act. Thus, even if the said Enforcement Decree does not expressly provide for the method of assessing the value of the property per share before the person who has increased his/her capital, the method of assessing the value of the property shall be calculated by the method stipulated in the relevant provision and text as of the time immediately before the person has increased his/her capital (see Supreme Court Decision 2007

1. The calculation is an expansion or analogical interpretation and cannot be deemed as a violation of the principle of no taxation without the law. Therefore, the Plaintiff’s assertion on a different premise cannot be viewed as a violation of the principle of no taxation without the law.

The above argument is without merit.

2) As to the second argument

A) Article 63(1)1(a) and (b) of the Inheritance Tax and Gift Tax Act provides that the method of appraisal of stocks of any KOSDAQ-listed corporation shall be the average market price of securities, etc., by applying mutatis mutandis the method of appraisal of stocks traded on the Korea Securities and Futures Exchange. However, in the calculation of the average amount, where it is inappropriate to apply to the average amount due to the occurrence of causes such as capital increase or merger during two months before and after the base date of appraisal, the average amount of the period calculated as prescribed by the Presidential Decree during two months before and after the base date of appraisal. Article 52-2(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the average amount of the period from the day following the base date of appraisal to two months after the base date of appraisal shall be regarded as the market price of securities, etc. In case of capital increase or merger before and after the base date of appraisal, merger, etc.

As above, the proviso of Article 63(1)1 (a) of the Inheritance Tax and Gift Tax Act and Article 52-2 of the Enforcement Decree of the same Act require the appraisal value of listed stocks from the date following the date when such cause occurs in cases where new stocks are issued on the grounds of capital increase or merger, etc., and the transfer of rights and subsequent share prices are changed. Accordingly, the causes such as capital increase or merger, etc. have a considerable impact on the formation of future stock prices (see Supreme Court Decision 2003Du5358, Jan. 13, 2005). In other words, stocks of a securities market-listed corporation shall be assessed by reflecting the average closing price for the previous two months and four months after the appraisal base date after the total of four months following the appraisal base date, and it shall be deemed that the stocks subject to appraisal as of the date of appraisal before and after the increase or merger are identical, and it shall be deemed that the average average price after the increase or merger have been equal to the market price.

2) The term "acquisition of rights" means that when a stock company increases its capital, the right to receive new shares due to the increase of its capital is extinguished, and such shares that have occurred due to the increase of rights are referred to as "ordinary shares of ex-rights" and "the shares prior to the occurrence of ex-rights".

B) In light of the following circumstances acknowledged by the aforementioned laws and regulations and evidence as above, ① the primary and secondary capital increase was made through a separate resolution of the board of directors, not only the participants, the issue price, the date of payment of stock price, and the conditions of restriction on resale, ② as alleged by the Plaintiff, it is difficult to deem that the above capital increase is identical to the economic substance of the above capital increase, as long as the capital increase was made with different procedures and conditions for one acquisition of management rights as alleged by the Plaintiff, ③ it is difficult to interpret only the case where the "in the event of the increase of stock price" under the proviso of Article 63(1)1 (a) of the Inheritance Tax and Gift Tax Act is caused by the increase of the capital, not only the case where there is no legal basis, but also the case where the increase of the capital increase has been caused by the increase of the capital increase, not only the case where the increase of the capital increase was made by the second consecutive stock increase, but also the case where the increase of the new stock price has an influence on the actual stock price before the increase of the second stock price.

3) On the other hand, capital increase with new shares allocated by a third party is to be acquired by a third party, not a shareholder.

Since the effect of dilution of shares has a significant impact on shareholders' rights, it is limited to cases where it is necessary to achieve the company's managerial objectives, such as the introduction of new technology, improvement of financial structure, etc. (see Article 418(2) of the Commercial Act). Therefore, since capital increase with new shares allocated by a third party has a significant impact on the price formation of shares, it shall be deemed that the date of resolution and public announcement of the board of directors' meeting should be deemed as the date of occurrence of causes such as increase in the number

In short, in order to calculate the "value per share after the second capital increase" under Article 29 (3) 1 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the "value per share before the second capital increase" under the above formula shall be calculated, and in consideration of the purport of the proviso of Article 63 (1) 1 (a) of the Inheritance Tax and Gift Tax Act, and Article 52-2 (1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, if the first capital increase had not been made, the period before the second capital increase, which is the evaluation base date, has been the evaluation period. However, since the second capital increase has been separate from the second capital increase, the evaluation period from the resolution and public notice date related to the first capital increase to the evaluation base date shall be the evaluation period (the payment date under Article 29 (4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is merely the evaluation base date, and the initial date for the evaluation under Article 52-2 of the Enforcement Decree of the same

However, in calculating the appraised value per share before the second capital increase, the defendant started on July 10, 2009, which is the day following the date of the payment of the first capital increase. According to the above legal principles, this part is unlawful and should be the initial date of the evaluation period on July 8, 2009, which is the day following the date of the resolution of the first capital increase or the date of the public notice. Ultimately, the appraised value per share before the second capital increase shall be 42,17 won, which is an average of the closing price from July 8, 2009 to July 20, 209 (refer to paragraph (1) 9, which is less than KRW 33,700, KRW 270, KRW 370, KRW 370, KRW 270, KRW 370, KRW 27, KRW 370, KRW 370, KRW 370, KRW 47, per share after the above evaluation period.

3. Conclusion

Then, the plaintiff's assertion is justified within the above scope of recognition, and the remainder is accepted.

The claim is dismissed as it is without merit. It is so decided as per Disposition.