Seoul Administrative Court 2009Guhap54192 ( October 16, 2010)

Seocho 209west 2103 (Law No. 9.17, 2009)

Conditions under which the market price can be assessed at the average value of estimated interest per share.

Where a report is filed within the deadline for filing a gift tax base report, the calculation date and the preparation date of the assessment report belong to the deadline for filing the tax base, and only the calculation date and the donation date belong to the same year, the market price can be assessed by the average value of estimated gains per share.

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

1. The plaintiff's appeal is dismissed.

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

The decision of the first instance court is revoked. In the first instance court, each disposition of the gift tax of 292,398,270 won and 43,802,350 won and the sum of 336,200,620 won (including additional tax) against the plaintiff on January 15, 2009 (the date of the disposition written in the complaint, "the date of January 2, 2009," is clear that it is a clerical error) shall be revoked. In the first instance, the defendant's refusal of the application for payment in kind of each gift tax against the plaintiff on March 6, 2009 shall be revoked.

1. Quotation of judgment of the first instance;

This court's explanation on this case is not sufficient to recognize that the transaction value is an objective exchange price only by the testimony of the witness of the HaA of the court of first instance, "the testimony of the witness of the court of first instance is insufficient to say that the transaction value is an objective exchange price". The plaintiff's new argument in the court of first instance is as stated in the reasoning of the judgment, except for addition of the following determination as to the new argument in the court of first instance, this is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act.

2. Additional determination

As of the date of acquiring the shares of this case, it is unreasonable for the Plaintiff to calculate the market price based on the evidence No. 21, which assessed the market price of the shares of this case pursuant to Article 56(1)1 of the Enforcement Decree of the Act, since it is unreasonable to calculate the price of the shares of this case according to subparagraph 1, such as abnormal increase of net profit and loss for the last three years of the non-party company, and the normal sale period for the main types of business stipulated in Article 17-3(1)7 of the Enforcement Decree of the Act is less than three years. Thus, the Plaintiff asserts that the taxation disposition of this case, which assessed the market price of the shares of this case pursuant to Article 56(1)1 of the Enforcement Decree of the Act, should be unlawful, although the market price should be calculated based on the average price of estimated profit per share

In order to assess the market price of the stock in this case as the average value of the market price of the stock in accordance with Article 56 (1) 2 of the Enforcement Decree of the Act, it should be deemed unreasonable for the corporation to make the value under subparagraph 1, such as a temporary and preferred case where the net profit or loss of the corporation in the last three years increases normally due to a temporary and preferred case. However, it cannot be deemed that the net profit or loss amount of the company in the last three years does not constitute an extraordinary cause under Article 17-3 (1) 7 of the Enforcement Rule of the Act. On the other hand, Article 56 (1) 2 of the Enforcement Decree of the Act was reported within the time limit for reporting the gift tax base under Article 68 of the above Act, and the date for calculating the market price of the stock in this case can be evaluated as the average market price of the stock in this case only where the date for calculating the market price falls within the same year and the date for calculating the calculation and the date for calculating the market price of the stock in this case belongs to the same year.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.