National High Court 2013 middle 1743

The validity of determining the base date for calculating profits from stock listing as three months from the listing date, and whether it violates the provisions of the Constitution of the Republic of Korea to guarantee property rights.

It does not violate the provisions of the Constitution on the guarantee of property rights to calculate on the basis of three months from the date of listing in the purport of the benefit donation provision for stock listing.

Inheritance Tax and Gift Tax Act Article 41-3

2013Guhap12844

grandchildren 00

000 director of the tax office

June 26, 2014

August 21, 2014

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 0,000,000,000, which was imposed on the Plaintiff on February 4, 2013, shall be revoked.

1. Details of the disposition;

A. From December 29, 2005, the Plaintiff served as an executive director of a company00 (hereinafter referred to as “non-party company”). On December 26, 2008, the Plaintiff received 16,000 shares of the non-party company from the Kim00, the largest shareholder and the representative director of the non-party company, and thereafter, the shares of the non-party company held by the Plaintiff as of the end of 2009 via par value division and capital increase without compensation were 00,000 shares. Meanwhile, the shares of the non-party company were listed in the securities market on January 28, 2010.

B. The Director of the Daejeon Regional Tax Office, upon investigating changes in shares against the non-party company, received shares from the non-party company from the Kim00 having special relation, and acquired the shares of the non-party company.

The profits not less than the standards prescribed by Presidential Decree, listed on the securities market within five years from the date of listing;

On the ground that it was obtained, it was deemed that there was a donation of profits arising from the listing of shares under Article 41-3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") and notified the defendant thereof.

C. On February 4, 2013, the Defendant decided and notified the Plaintiff of KRW 000 (including additional tax) of the gift tax for the year 2008 (hereinafter referred to as “instant disposition”). On April 9, 2013, the Plaintiff appealed and filed an appeal with the Tax Tribunal (hereinafter referred to as “instant disposition”). However, the Plaintiff filed an appeal with the Tax Tribunal on April 9, 2013, but did not receive the notification of the decision within the period for decision of 90 days. The Tax Tribunal dismissed the said appeal on November 11, 2013, where the lawsuit is pending.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

1) On November 1, 2011, the Defendant decided and notified the gift tax of KRW 000 for the year 2010 on April 28, 201, which is the date of settlement of accounts, and revoked ex officio the decision on December 20, 2012.

A. The plaintiff's assertion

1) Article 41-3 of the former Inheritance Tax and Gift Tax Act (hereinafter referred to as the “instant legal provision”) evaluated the shares of KRW 000 of the finalized public offering price determined at the time of listing including the profits from stock listing at the time of listing as the average amount of the closing prices of the Korea Exchange prices every two months before and after the date of listing, on the basis of the date on which three months have elapsed since the date of listing as the date of settling the accounts, and ② The base date for taxation on income or profits should, in principle, be the date of listing, be the date on which three months have elapsed since the date of listing, rather than the date of listing, and ③ the cases listed within five years from the date of acquisition of stocks, etc. are all subject to taxation. In light of the above, the provisions on property rights guarantee under Article 23(1) of the Constitution were violated.

On the other hand, the final public offering price of 000 won determined at the time of listing of the non-party corporation shall be subject to stock listing.

Since it is the most objective price at the time of listing including the following, the price per stock at the time of settlement shall be determined public offering:

The value of donated property per share shall be KRW 000,000 per share (i.e., value of KRW 00 per share at the time of settlement - KRW 00 per share - KRW 00 per share value increase per share - KRW 00 per share at the time of acquisition), and even when the value of donated property is calculated by multiplying the number of acquired stocks by KRW 000, the value of donated property shall be calculated as KRW 000, the instant disposition for taxation calculated otherwise is unlawful.

2) A final public offering, even if the final public offering cannot be considered as one stock price at the time of settlement of the final public offering.

The price shall be the most objective price indicating the corporate value at the time of listing, and shall be offered from the value of donated property.

because it is confirmed as a "profit resulting from a substantial increase in the value of the enterprise", and in this sense,

Documents or records are included in the "documents confirming a substantial increase in corporate value" under Article 31-6 (6) 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22151, May 4, 2010; hereinafter referred to as the "Enforcement Decree of the Inheritance Tax and Gift Tax Act"). Accordingly, the value of donated property per share is included in the "documents confirming a substantial increase in corporate value."

000 won (=the value per share when the Defendant calculated the settlement of accounts - the fixed public offering price of KRW 00 per share - the fixed public offering price of KRW 00), and even when the value of donated property is calculated by multiplying the number of shares acquired thereby, the disposition of imposition of this case, which calculated the value of donated property differently, is unlawful.

(3) The donation of profits from stock listing under Article 41-3 of the former Inheritance Tax and Gift Tax Act is undisclosed information.

by making use of the listed stocks to obtain enormous profits from market prices arising from the listing; or

In case of acquisition, it is a system to impose appropriate taxes on the benefits of listing.However, the former Inheritance Tax and Gift Tax Act

Articles 31-3(1) and 19(2) 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") include all of the "employee" in the "person in a special relationship who is subject to the application" constitutes an invalid provision beyond the scope or limit of the delegated legislation in light of the above legislative intent. Accordingly, the disposition of this case imposed in accordance with the invalid applicable law is unlawful.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Relevant legal principles

1) The meaning of the provision on donation of profits resulting from the listing of stocks

A large amount of money due to listing or KOSDAQ listing by a person who is entitled to use internal information of a corporation;

A certificate of unlisted stocks prior to listing, etc. to children, etc. and related parties for the purpose of obtaining market profits;

It is intended to donate the market value marginal profits under the listing, etc., but the marginal profits shall be the same.

appropriate taxation on such listing marginal profits as there are problems that cannot be taxed.

On December 28, 199, Article 41-3 was newly established at the time of the amendment of the Inheritance Tax and Gift Tax Act in order to prevent the transfer of a 0-specific father. As a result, where a person who has a special relationship with the largest shareholder, etc. receives stocks of the relevant corporation or has acquired them with compensation, and where the relevant corporation has listed within five years from the date of donation and acquisition, the value of the stocks at the time of donation and acquisition and settlement date increases

gift tax shall be levied on the person who has acquired the relevant profits with the value of donated property where there is a difference in the circumstances.

In addition, it came to be.

The largest shareholder, etc. of an unlisted corporation shall make stocks or shares of the corporation to a specially related person.

Property received by a person with a special relationship under the pretext of a nominal list after the donation of acquisition funds, etc.;

corporation is the value of the unlisted stock or the acquisition fund, or the actual value of the listed stock.

For qualitative donation profits at the first stage of donation of unlisted stocks, etc., the evaluation amount at the time;

The gift tax shall be levied, but Article 41 of the Inheritance Tax and Gift Tax Act shall apply where an increase in value occurs after the listing.

The gift tax shall be imposed by settling the value of donated property after reflecting it according to 3-3.

In other words, Article 41-3 of the Inheritance Tax and Gift Tax Act provides that the listed marginal profit, for which evaluation was reserved at the time of donation of unlisted stocks, shall be calculated and taxed by settling the original amount of donation and the profits from listing marginal profit only when it is possible to evaluate the listed marginal profit.

2) Calculation method of profits from listing stocks and calculation of amount of gift tax

(1) The appraised value per share as of the basic date of settlement (the appraised value under Article 63 of the Inheritance Tax and Gift Tax Act).

[The taxable value of the gift tax per share as of the date of donation of stocks + Article 31-6 of the Enforcement Decree of the Inheritance and Gift Tax Act

The difference between the substantial increase in corporate value per share as provided for in paragraph 5 shall increase the shares.

여받은 날 현재의 1주당 증여세 과세가액'의 100분의 30을 초과하거나, ②�(정산기준일 현재 1주당 평가가액 - 주식을 증여받은 날 현재의 1주당 증여세 과세가액) × 증주식의 상장에 따른 이익 = [① 정산기준일 현재 1주당 평가가액 -�② 주식을 증여받은 날 현재의 1주당 증여세 과세가액(취득의 경우에는 취득일 현재의 1주당 취득가액) + ③ 1주당 기업가치의 실질적 증가로 인한 이익 ~] × 증여받거나 유상으로 취득한 주식수 여받거나 유상으로 취득한 주식수 v - (1주당 기업가치의 실질적인 증가로 인한 이익 ×증여받거나 유상으로 취득한 주식수)의 금액이 3억 원 이상인 경우에는, 주식의 상장에 따른 이익을 당초의 증여세 과세가액(증여받은 재산으로 주식을 취득한 경우에는 그 증여받은 재산에 대한 증여세 과세가액)에 가산하여 증여세 과세표준과 세액을 정산한다(구 상속세및증여세법 시행령 제31조의6 제3항).

Here, the settlement of gift tax is the gift tax imposed at the time of donation of the original non-listed stocks.

An accurate evaluation of the stock value as of the date of settlement on the basis of the settlement after reporting in advance.

by re-calculated the tax base and amount of such tax, stocks as of the date of settlement from the beginning.

This is to obtain the same effect as the value was donated. Accordingly, it is to obtain the same effect as the value.

For a person who has acquired any profit from the listing of stocks, the taxable value of the original gift tax;

in addition to the gift tax base and tax amount shall be settled, and the shares A as of the date of settlement shall be

Where the amount is less than the original taxable value of donated property and there is a difference in the amount exceeding a certain standard;

§ 41 of the former Inheritance Tax and Gift Tax Act is entitled to receive a refund of the amount of gift tax equivalent to the difference.

-3. Paragraph 3 of this Article, in the form of expression, of the benefits arising from the listing of shares, are as follows:

D. Determination on the first argument

Article 41-3 (2) of the former Inheritance Tax and Gift Tax Act provides that the profits accrued from the listing of shares shall be listed.

The calculation shall be made on the basis of the three months from the date of the settlement (hereinafter referred to as the "base date for settlement").

In full view of the following circumstances, the provision of this case cannot be deemed to violate the provision on the guarantee of property rights under Article 23(1) of the Constitution. Therefore, the disposition of this case is calculated as 00 won per share as of the date of settlement of accounts pursuant to Articles 41-3(2) and 63(1)1(a) of the Inheritance Tax and Gift Tax Act, and is lawful as it is based on it.

L. The public offering price of 00 won determined at the time of listing by the corporation shall be assessed per share as of the date of settlement;

The plaintiff's assertion that it should be viewed as an amount is without merit as an independent opinion.

A) The legal provision of this case is to calculate the gift profits from listing of stocks, etc.

"In excess of the taxable amount of gift tax or the acquisition value at the beginning of the party, the standard prescribed by Presidential Decree"

value of the property donated to the person who has acquired such profits at the time of obtaining such profits.

As the above value is the gift tax, the taxable object is entirely different from Article 39 of the former Inheritance Tax and Gift Tax Act, which imposes gains from capital increase by not including "the taxable amount or acquisition value of the first taxable amount of gift tax".

B) For the purpose of obtaining large profits from the listing of stocks, etc. by using internal information of a company, the legal provision of this case provides that where the largest shareholder, etc. donated unlisted stocks to a specially related party prior to listing or transfers stocks for consideration, etc., the size of profits increased due to listing of stocks in the future cannot be properly assessed at the time of donation or transfer of stocks, and can be evaluated after listing, unlike real estate, since the size of profits increased due to listing of stocks in the future can not be assessed at the time of donation or transfer of stocks, unlike in the case of real estate, it is possible to do so after listing. Thus, while imposing evaluation gains calculated based on the value at a certain point after reserving the evaluation of the profits, the donor’s scope is limited to the largest shareholder, etc.

C) The proviso of Article 41-3(3) of the former Inheritance Tax and Gift Tax Act provides that the difference shall be refunded according to the balance between the increase in the value of the shares, even if the value of the shares is reduced due to the listing of shares, etc., and Article 31-6(3) through (5) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the same shall apply to the calculation basis of the "profit above the standard prescribed by the Presidential Decree" and "the difference above the standard prescribed by the Presidential Decree" subject to the refund of gift tax under the proviso of Article 41-3(3) of the former Inheritance Tax and Gift Tax Act, and Article 41-3(2) of the former Inheritance Tax and Gift Tax Act provides that the benefit arising from the substantial increase in corporate value shall

D) Article 60(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6068, Jan. 1, 2

in the evaluation, the former Inheritance Tax and Gift Tax Act shall be applied to the exclusion of arbitraryness and securing objectivity.

Value appraised by the method of evaluation under Article 63(1)1(a), i.e., the evaluation base date;

The average amount of the closing price of an exchange per day, which is published for the two preceding two months and four preceding months, is to be considered as the market price. If the gift gains based on stock listing as stipulated in Article 41-3(1) of the former Inheritance Tax and Gift Tax Act are assessed on the basis of the “listed date”, there is a problem that the last price of an exchange is not secured as much as the period required for the assessment of the value of stocks in accordance with the method stipulated in Article 63(1)1(a) of the former Inheritance Tax

E) Also, the public offering price of the stocks of the non-party company is assessed by experts; and

Although it is determined through the process of a large number of institutional investors' request for demand forecast, the above is not the case.

In addition to the estimate corporate value and demand forecast result, the non-party company and the non-party company taking into account the stock market situation.

Since it is nothing more than the amount determined by consultation with a State-Invested Securities Corporation, it itself does not constitute a “specific majority.”

value, if a transaction is made freely between persons, shall be such value as would normally be established.

It is difficult to see that the new listed shares are subject to underassessment or over-assessment, and the new listed shares are either underassessment or final public offering.

There are many cases where a rapid change in market price can be seen within a short period due to the amount, demand for prices, and speculative deliberation.

F) The legislators have the legislative discretion to choose a method of evaluation close to the market principle within the scope of the appraised value based on the market price principle, which is the method of evaluation of property constitutional (Hun-Gaon June 20, 2006).

Article 41-3(2) of the former Inheritance Tax and Gift Tax Act provides that “The date on which three months have elapsed from the date of listing stocks” shall be determined by the legislators as “the date on which three months have elapsed from the date of listing stocks” under Article 41-3(2) of the former Inheritance Tax and Gift Tax Act, which is the method of assessing the existing value of listed stocks, shall not only obtain the final tax data on the exchange for the new listed stocks for 4 months in accordance with the method of appraisal under Article 63(1)1(a) of the former Inheritance Tax and Gift Tax Act, which is the method of assessing the value of the listed stocks, but also shall not exclude the data on the market price for one month immediately after the listing following the listing that falls short of objectivity. This is difficult to view it as arbitrary or arbitrary because

E. Judgment on the second argument

The latter part of Article 41-3(1) of the former Inheritance Tax and Gift Tax Act shall be calculated on the basis of a donation of profits from stock listing.

corporation value with documents prescribed by Presidential Decree, such as financial statements presented by the taxpayer.

benefits verified by substantial increase in the value of property shall be excluded from the value of property.

shall be listed on the assessment value per share as of the date of settlement as of the date of taxation of gift tax.

corporation's management performance, etc. in addition to including only the increased stock value;

Article 31-6 (6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act excludes the portion of substantial increase in the value of shares. On the other hand, Article 31-6 (6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "where the profit from the substantial increase in the value of the company is confirmed by the documents as prescribed by the Presidential Decree" and "a balance sheet, income statement, and other documents confirming the substantial increase in the value of the company." The fixed public offering price alleged by the plaintiff is merely an amount in consideration of the estimated corporate value, demand forecast result, stock market situation, etc. as seen earlier. Thus, the related documents are merely the amount in consideration of the estimated corporate value, demand

Therefore, the Plaintiff’s assertion on this part is without merit.

F. Judgment on the third argument

1) Article 41-3(1) of the former Inheritance Tax and Gift Tax Act is not disclosed to the public on the company’s management, etc.

(1) The largest shareholder under section 22(2) or

At least 25/100 of the total number of outstanding stocks or the total amount of investment of a maximum investor (subparagraph 1) and a domestic corporation;

The largest shareholder who owns a person prescribed by Presidential Decree as one who is in a special relationship with a person who is in a special relationship with the person;

the corporation’s stocks or equity shares are donated or acquired for compensation by the corporation;

The profits under the chapter shall be regarded as the value of donated property, and Article 41-3(6) of the former Inheritance Tax and Gift Tax Act

The scope of "a person in a special relationship" is delegated to the Presidential Decree with respect to the scope of "a person in a special relationship", and accordingly,

Enforcement Decree (Article 31-6(1) and Article 19(2)2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act)

person who is not an employee or employee as one of the persons in a relationship with such shareholder, etc.

A person who maintains his livelihood refers to a person who maintains his livelihood.

2) The instant legal provisions obtain enormous profits from the listing using undisclosed information.

(2) If the corporation donates or acquires non-listed stocks for the purpose of

For the purpose of the system, ① the scope of the donor is limited to the largest shareholder, etc., and the application is limited.

As seen earlier, the scope of benefits is also limited to a certain amount.

The scope of "user" does not limit the scope of "user", which is ultimately limited to the subject matter, and 2.

person who has an economic relationship with the largest shareholder, including the employee; and

The term "a person who is in a special relationship" is considered to require taxation, and the term "a person who is in a special relationship" means 41.

In addition to Article 3(1) of the Framework Act on National Taxes and the Corporate Tax Act, and the Enforcement Decree delegated by the above Act does not impose any restriction on the scope of "employee" as stated in Articles 31-6(1) and 19(2)2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the provision of this case is deemed to be legitimate within the scope of delegation in order to achieve the legislative purpose of the provision of this case, and thus, it cannot be deemed to have exceeded the delegation scope of the parent law. Thus, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.