[1] The case holding that although external shape Gap, Eul, and Byung were successively traded by shares, it was actually a donation of shares to Byung

[2] In calculating the net asset value of a corporation for the evaluation of unlisted stocks, whether the total estimated amount of retirement allowances should be deducted as a debt (affirmative)

[1] The case holding that Gap's purchase and sale of non-listed shares was substantially a donation to Byung, in light of the fact that Gap and Byung are women, and Eul paid taxes for gains from the transfer of shares by Eul's husband, although non-listed shares were traded in sequence Gap, Eul, and Byung, but less than 1/7 of the sales value of the non-listed shares and earnings value per share calculated from the value of assets and earnings value of the non-listed shares, etc.

[2] Among the elements of the method of supplementary assessment of non-listed stocks or equity shares under Article 5 (5) 1 (b) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 190), the net asset value assessment method, which is an element of other laws and regulations, is based on the so-called liquidation value which assumes the corporation's continued value. Unlike the method of comparative assessment of similar listed corporations, the net asset value assessment method, which is an element of other laws and regulations, is based on the premise of the corporation's continued value. Thus, in a case where the net asset value is calculated based on the liquidation value of the corporation, the total net asset value calculated based on the liquidation value of the corporation's employees at the time of the assessment, is subject to deduction. Article 5 (3) 3 of the former Enforcement Rule of the Inheritance Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1849 of Mar. 9, 191) provides that the taxpayer shall not be included in the principle of no taxation without law.

[1] Article 29-2 of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990) / [2] Article 9 of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990), Article 5 (5) 1 (b) of the former Enforcement Decree of Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 1990), Article 5 (3) 3 of the former Enforcement Rule of Inheritance Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1849 of Mar. 9, 199)

[2] Supreme Court en banc Decision 94Nu16243 delivered on February 15, 1996 (Gong1996Sang, 830) decided January 29, 1980

Plaintiff (Law Firm Dongseo, et al., Counsel for the plaintiff-appellant)

Head of the tax office;

Supreme Court Decision 94Nu13749 delivered on June 9, 1995

1. Of the disposition imposing gift tax on the Plaintiff on August 16, 1991, the part exceeding KRW 1,244,673,90 and KRW 206,529,30, the defense tax amount exceeding KRW 1,244,673,90, and the defense tax amount exceeding KRW 206,262,90 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Two-minutes of litigation costs are assessed against the defendant, and the remainder is assessed against the plaintiff.

The Defendant’s disposition of imposing gift tax amounting to KRW 1,246,272,30, and defense tax amounting to KRW 206,529,300, which was paid by the Plaintiff against the Plaintiff on August 16, 1991 is revoked (after a refund judgment, the Defendant corrected the above amount on June 28, 1995, and accordingly, the Plaintiff’s claim was reduced).

1. Details of the imposition;

The following facts are either disputed between the parties, or acknowledged by the whole purport of Gap evidence No. 1, Eul evidence No. 1-1-1-10, Eul evidence No. 7, Eul evidence No. 13-1, 2, 3, 4, Eul evidence No. 14, and all the arguments No. 14, and there are no objections:

A. On March 5, 1986, the ownership of Nonparty 2 Co., Ltd. (hereinafter “Nonindicted Company”)’s shares 6,000 shares (hereinafter “instant shares”) owned by the Plaintiff’s mother was changed to Nonparty 3 on the register of shareholders, and thereafter, the ownership was changed to Nonparty 3 on May 5, 1989.

B. On November 7, 1989, the Plaintiff received KRW 120,00,00 for the acquisition of the instant shares from the Defendant, and subsequently voluntarily reported and paid KRW 35,482,50 for the gift tax thereon, and KRW 7,096,50 for the defense tax. The Defendant, following a factual investigation, deemed that Nonparty 1 donated the instant shares to the Plaintiff. The value of the instant shares was assessed as KRW 3,418,578,00 for the inheritance tax (amended by Presidential Decree No. 13196, Dec. 31, 190; hereinafter the Enforcement Decree) pursuant to Articles 42, 5(1), and 5(5)1(b) of the Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196, Dec. 31, 190; hereinafter the same shall apply), based on the tax amount assessed as KRW 3,418,578,000 for the Plaintiff on August 16, 1991.

C. However, the Defendant assessed the value of the non-party company’s real estate as non-party 2 as non-party 5’s non-party 2’s non-party 6’s non-party 2’s non-party 5’s non-party 6’s non-party 2’s non-party 5’s non-party 6’s non-party 2’s non-party 5’s non-party 6’s non-party 2’s non-party 5’s non-party 2’s non-party 5’s non-party 5’s non-party 2’s non-party 5’s non-party 2’s non-party 5’s non-party 2’s non-party 5’s non-party 2’s non-party 5’s non-party 2’s non-party 5’s non-party 1’s non-party 5’s non-party 6’s non-party 1’s non-party 5’s non-party 5’s non-party 6’s non-party 9’s property value.

2. Whether to donate stocks;

A. The plaintiff's assertion

The plaintiff sold the shares of this case to the non-party 3 on February 28, 1986 at KRW 90,00,000, and thereafter, the non-party 1 donated the purchase fund to the plaintiff on May 1, 1989 and again purchased the shares of this case from the non-party 3 on May 1, 1989, which is a normal share transaction. The non-party 1 first sold the shares of this case to the non-party 3 for the purpose of donating the shares of this case to the plaintiff, but the disposition of this case, which reported it as gift, should be revoked unlawfully.

(b) Points in dispute;

Therefore, we examine whether the sale and purchase between the above non-party 1 and the above non-party 3 as to the shares of this case and the sale and purchase between the above non-party 3 and the plaintiff are not a normal share transaction but a gift of shares to the plaintiff of this case.

C. Facts

The aforementioned evidence and evidence 5-1 to 5-5, Gap evidence 6-1 to 6-1, 2, 3, Eul evidence 7-1, 2, 8-1, 3, 4, Gap evidence 12-1, 2, Gap evidence 13, 14, 15, Gap evidence 16 through 20-1, 2, 3, Gap evidence 21-1, 25-1, 25-3, Gap evidence 32, Eul evidence 33-1, 2, 2, 3-2, 4-1, 5-1, 2, 3-1, 5-2, 6-1, 3-1, 3-1, 4-2, 3-1, 3-1, 4-2, 3-1, 5-1, 5-2, 5-1, 6-1, 8-1, 2-1, 3-2, 4-1, 3-1, and 3-1-2 of the witness evidence respectively.

(1) The non-party company owns approximately 1,100 square meters of the land site in Jongno-gu Seoul Metropolitan Government (number omitted), and approximately 5,000 square meters of floor buildings, etc., and is an unlisted corporation whose main business purpose is real estate lease. The representative director is non-party 4, and the non-party 1 is his wife, the plaintiff and the non-party 5 and the non-party 6 are children.

(2) The shares of Nonparty Company were 40,000 shares (the face value per share is KRW 5,00, 5,000 shares) and as of February 28, 1986, Nonparty 4 owned the above Nonparty 8,608 shares, and Nonparty 1 owned the above Nonparty 1 11,360 shares, and Nonparty 5 and 6 owned the above Nonparty 8,00 shares, respectively, and the aggregate of shares owned by Nonparty 4’s families was 35,968 shares (the total shares issued). Of the family members, only the Plaintiff did not hold shares.

(3) As of June 30, 1986, the aggregate of the standard market prices of the real estate owned by the non-party company is 4,97,362,265 won, and the net value of the non-party company under Article 5 (5) 1 (b) of the Enforcement Decree is 2,747,687,283 won (total assets 10,615,615,720, 608- Total assets 8,781,09, 912, 976, 060 won, 168-18, 360 won per share, 68-18, 67, 68, 67, 360 won per share) calculated by dividing the above net value by 18-1,500 won per annum, 68,500 won per annum, 68,644,000 won per annum, and the net value of the company's net assets is 16,684,0.8

(4) As of June 30, 1989, the aggregate of the standard market value of the non-party company's real estate is KRW 18,126,286,952; the net asset value of the non-party company under Article 5 (5) 1 (b) of the Enforcement Decree is KRW 13,867,659, 942 (total asset amount is KRW 20,659,67,632- Total assets amount is KRW 6,791,617,690), and the net asset value per share was KRW 346,691, 691, and the net asset value per share was KRW 60.6,000, KRW 165,000 per share divided by KRW 36.6,000 per annum from July 1, 1986, KRW 222,180 per share until June 30, 1987; and the net asset value per share is KRW 165,5,68.18,6,068.

(5) On February 28, 1986, the above non-party 1 and the non-party 3 made a sales contract with the price of KRW 6,000 shares (15% of total issued shares) per share among the shares owned by the above non-party 1 and sold KRW 90,000 per share to the above non-party 3, and accordingly, the above non-party 3 had a transfer of title for the above non-party 3 on the following grounds: (3,360 shares of the remaining shares owned by the above non-party 1 around the same time, 3,360 shares were transferred to the non-party 1,2,00 shares, and thereafter, 3,360 shares in the name of the above 1986, 2,000 shares were transferred to the non-party 1,00 won per share to the non-party 1,000 won per share, and then the transfer price of the above non-party 1,000 won per share to the plaintiff 2,000.

(6) The above non-party 3, even without being aware of the financial status of the non-party company and even of the number of shares issued, was in fact to the above non-party 1, and it did not participate in the management of the non-party company or at the general meeting of shareholders for three years with the shares in this case and did not receive dividends.

(7) As the introduction of Nonparty 8’s new departments, the above non-party 3, who was the head of Chocheon-gu, was aware of the fact that he was the first day of the above non-party 1, who was the head of the above-party 1, who was the head of the above-party 3, and had been employed as the representative director of the non-party 9, whose annual sales amount amounting to KRW 1.2 billion to KRW 1.3 billion.

(8) On February 28, 1986, KRW 30,00,00 from the deposit account of the non-party 3's Sejong Bank's Sejong Bank's Sejong Bank's Sejong Bank's Sejong Bank's Sejong Bank's Sejong Bank's Sejong Bank's Sejong Bank's Sejong Bank's Sejong Bank's 70,000,000 won was deposited in each of the above non-party 1's Hansung Investment Bank's 2nd unit (2nd unit) on the same day. On May 1, 1989, the above non-party 1's Kusung Investment Bank's 0,000 won was deposited in the above 30,000 deposit account of the non-party 3's Sejong Bank's 0,000 won was deposited in the above 50,000,000 won, and the above 30,000,000 won was deposited in the above 30,000 shares in the above 30,005,000 shares of the above 30.

(9) From January 6, 1989 to December 19 of the same year, the Plaintiff was staying in the U.S. as a university’s official book, and was not actually involved in the purchase of the instant shares, and his parents entered into a share purchase contract in the Plaintiff’s name.

(10) After the above non-party 3 entered into a sales contract stating that the shares of this case are sold to the plaintiff, and the transfer of the above shares was made, the above non-party 3 was imposed a total of KRW 30,000,000 from the transfer margin of the shares of this case and KRW 53,256,100 from the total income tax, defense tax and resident tax for the constructive dividend income accrued from the ownership of the shares of this case, the above non-party 3 received the above amount from the above non-party 4 and paid the above amount.

(11) According to the share acquisition agreement (Evidence A No. 12-2), which was presented as evidence that Nonparty 3 sold the shares of this case to the Plaintiff, the date of the sale is indicated as of May 11, 1989, and the date on which Nonparty 1 asserted by the Plaintiff and Nonparty 1 paid the above Nonparty 3 the check amount of KRW 70,000,000 (the first day of the same month). The date on which the Plaintiff reported the voluntary declaration of gift tax was made on November 7, 1989 as of May 1, 1989.

(d) Markets:

According to the above facts, the above non-party 1 and the non-party 3 and the above non-party 1 and the non-party 1 and the non-party 3 who purchased the above shares on the non-party 1's purchase price for the above non-party 1 and the non-party 4's purchase price for the above non-party 8's shares, and the non-party 1 and the non-party 3's sale price for the above non-party 9's purchase price for the above non-party 1 and the non-party 3's purchase price for the above non-party 1 were not 1/7 or 15's purchase price for the non-party 1's shares. The non-party 6's purchase price for the above non-party 1 and the non-party 3's sale price for the above non-party 3's purchase price for the above non-party 1 and the non-party 3's sale price for the above non-party 9's sale price for the above non-party 1.

E. In addition to the above reasons, with respect to the reasons why the above non-party 1 sold the shares of this case, the plaintiff explained that the non-party 6, who was the children of the above non-party 1, tried to invest the funds to establish the non-party 10 stock company after returning to a foreign country, but did not meet such circumstances. However, according to the evidence and the whole purport of oral argument, the above non-party 1 was established on January 18, 1989 and invested by the above non-party 1, the above non-party 6 also owned 8,00 shares of the non-party 1, and the above non-party 6 also owned 8,00 shares of the non-party 1. The non-party 9 was the non-party 1's new shares sales statement to the non-party 1, 1983 to June 30, 1986, the non-party 2, who was a major shareholder of the non-party 1, as well as the above non-party 3's new shares sales statement.

(f) Conclusion

In full view of all the above circumstances, the above non-party 1 sold the shares of this case to the above non-party 3, but the above non-party 3 did not sell them again to the plaintiff. The above series of acts are deemed to be a normal transaction, and since the above non-party 1 sold the shares of this case to the above non-party 3 with a usual friendship for the purpose of donating them to the plaintiff who is his father's father's father, and the above non-party 3 sold them again to the plaintiff, it is deemed to be a donation that the above non-party 3 sold them

3. The calculation of tax amount;

A. According to Articles 34-5 and 9(1) of the Act, the value of donated property shall be based on the current status as at the time of donation, and according to Articles 42 and 5(1) of the Enforcement Decree, the value based on the current status as at the time of donation under the above provision shall be based on the current status as at the time of donation, and if it is difficult to calculate the market price, it shall be based on the method under Article 5(2) through (5) of the Enforcement Decree. Thus, the market price under Article 9(1) of the above Act and Article 5(1) of the Enforcement Decree of the above Act, which provides for the method of appraisal of donated property, refer to the objective exchange price formed through normal transactions in principle, and if there is a sale example, it shall be reasonable to view

B. However, in light of the relationship between the persons involved in the sales contract of the instant shares, the instant shares were sold from the above non-party 1 to the above non-party 3, and the sales price per share of the instant shares falls short of 1/7 or 15 of the value of the instant shares calculated from the assets and earnings of the non-party company, and the fact that the above non-party 3 did not confirm at all the financial status, etc. of the non-party company in the purchase and sale of the instant shares, it cannot be deemed that the amount paid pursuant to the above sales contract between the above non-party 3 and the plaintiff properly reflected the objective exchange price formed through a normal transaction. According to the above evidence, there is no evidence to recognize the exchange price through a transaction of the non-party company's shares, and there is no other supplementary reason to recognize the market price. Thus, the value of the instant shares should be assessed in accordance with Article 5 (5) 1 (b) of the Enforcement Decree.

C. The plaintiff asserts that even if the above non-party 1 is deemed to have donated the shares of this case to the plaintiff on March 5, 1986, the time of donation should be deemed to be the time when the transfer of the shares of this case was made from the plaintiff on March 5, 1986. However, according to the above facts, the above non-party 1's donation of the shares of this case to the plaintiff is merely an intermediate process, and the above non-party 3 was merely a donation of the shares of this case to the plaintiff of this case, a transfer of the shares of this case to the plaintiff of this case was made on May 1989. Thus, the plaintiff's assertion

D. According to Article 5(5)1(b) of the Enforcement Decree, when the value of the instant shares is calculated on or around June 30, 1989 near the said donation, it shall be KRW 1,845,870,00,00 as stated in the value calculation statement of the instant shares. In calculating the value of the instant shares, the Defendant included only 50/10 of the estimated amount of retirement allowance of the non-party company in its liabilities under Article 5(3)3 of the Enforcement Decree of the Inheritance Tax Act (Article 5(3)3 of the Inheritance Tax Act) (Article 5(3)1(b) of the Enforcement Decree of the Inheritance Tax Act (Article 13-3) but the method of supplementary assessment of the non-party-listed shares or equity shares as stipulated in Article 5(5)1(b) of the Enforcement Decree of the Enforcement Decree of the Inheritance Tax Act (Article 5(5)1(b) of the Enforcement Decree of the Inheritance Tax Act) as the premise that the amount of the instant shares would be liquidated value of the corporation should be paid to the employee.

E. If the aforementioned voluntary payment tax is deducted by calculating reasonable gift tax and defense tax based on the value of the shares calculated as above, the remaining gift tax amount shall be KRW 1,244,673,90 for the remaining gift tax and KRW 206,262,90 for the remaining defense tax as stated in the separate tax calculation statement.

5. Conclusion

Therefore, the defendant's disposition of this case is legitimate only for the remaining portion of each remaining tax amount, and the exceeding part shall be revoked illegally. The plaintiff's claim of this case shall be accepted only to the extent that it exceeds the remaining tax amount, and the remainder shall be dismissed as it is without merit. It is so decided as per Disposition by applying Article 8 (2) of the Administrative Litigation Act, Articles 89 and 92 of the Civil Procedure Act to the burden of litigation costs.

Judges Yu Ho (Presiding Judge) Lee Ho-hunon