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Title
It is reasonable to take over and exercise the preemptive right at a low price to a private equity fund, and it cannot be deemed that justifiable grounds are acknowledged in light of transaction practices.
Summary
The burden of proving that there is no justifiable reason in light of the transaction practices stipulated in Article 42(3) of the former Inheritance Tax and Gift Tax Act, the tax authority may prove that the taxpayer would not engage in such transaction if the taxpayer is a reasonable economic person, and that there are special circumstances to be deemed a normal transaction, such as the transaction circumstances and reasons therefor.
Related statutes
Article 42 of the former Inheritance Tax and Gift Tax Act (Gift of Other Benefits)
Cases
2015Guhap5684 Revocation of Disposition of Imposition of Gift Tax
reasonable consideration to the acquisition of this new shares by acquiring warrant certificates in KRW 200 million.
There is an objective reason acceptable from the perspective of the third party, and after acquiring the new shares of this case
〇〇한텍의 주가가 크게 오르면서 원고가 이 사건 주식을 처분하여 이익을 얻었다고
Even if such circumstance alone does not constitute an abnormal transaction. Accordingly, this case cannot be seen as an abnormal transaction.
Being subject to gift tax because it is deemed justifiable in light of transaction practices.
shall not be required.
B. Relevant statutes
It is as shown in the attached Form.
(c) Fact of recognition;
1) On December 3, 2010, the date of issuance of the instant bonds with warrants, the Plaintiff, on December 3, 2010.
The portion equivalent to five billion won in face value of the instant bonds with warrants between the original company and the original company
The contract was concluded to purchase warrant certificates in KRW 200 million. The above contract was concluded.
On December 5, 2011, Article 3 provides that the Plaintiff shall pay KRW 200 million to the account of the instant private equity fund (Article 3); Article 4 provides that the Plaintiff shall transfer the ownership of preemptive rights when the Plaintiff fully pays the purchase price to the Plaintiff (Article 4); and Article 7(2) provides that the instant private equity fund may terminate the contract unilaterally if the Plaintiff fails to pay the purchase price by the payment deadline (Article 7(2)).
Date of Transaction
Quantity of transactions;
(+purchase, sale - sale)
Unit Price
(unit: Won)
Transaction Amount
(unit: Won)
Details
March 21, 2011
12,336
3,391
41,831,376
Domestic Purchase
March 22, 2011
3,460
3,493
12,085,780
Domestic Purchase
March 23, 2011
4,097
3,646
160,777,662
Domestic Purchase
March 24, 2011
72,094
3,924
282,896,856
Domestic Purchase
June 29, 2011
131,987
0
0
Free capital increase (100%)
November 30, 2012
2,942,900
1,699
4,999,987,100
Exercise of Rights
December 12, 2012
-110,000
4,757
523,270,000
In-flight Sales
December 13, 2012
-90,000
4,733
4,685,670,000
In-flight Sales
May 3, 2013
-1,000,000
5,012
5,012,000,000
In-flight Sales
May 6, 2013
-100,000
5,012
501,200,000
In-flight Sales
Total (current balance)
1,006,874
2) 〇〇한텍이 2010. 12. 3. 이 사건 신주인수권부사채 발행에 관하여 한국거래소
"Matters concerning the public notice of the decision to issue bonds with warrants" reported to the public notice column;
'블랙-숄즈의 옵션가격 결정모형'을 이용하여 신주인수권의 이론가격을 산출한 결과
519 won is stated to have been assessed as the value of preemptive rights.
3) The Plaintiff failed to deposit KRW 200 million into the designated account until December 5, 2011.
4) On January 11, 2012, the Plaintiff again issued the instant preemptive right from the instant private equity fund.
A contract to purchase securities in KRW 200 million was entered into, and accordingly, the warrant certificates of this case 1
주당 약 68원(= 200,000,000원 ÷ 2,942,900주)에 취득하였다. 당시 〇〇한텍의 주가
and the theoretical value of warrant certificates (=2,495 won) per share 796 won (=2,495 won) - Exercise price
1,699 won.
5) 2011. 3. 21.부터 2013. 5. 6.까지 사이에 원고가 보유한 〇〇한텍의 주식내역은 아래 표 기재와 같다. 원고는 2012. 11. 30. 신주인수권을 행사하여 〇〇한텍 주식 2,942,900주(이 사건 신주)를 취득하였고, 2012. 12. 12. 및 2012. 12. 30. 합계 110
1.2 billion Won. The sum of the amounts on May 3, 2013 and May 6, 2013 is about 1.1 billion Won.
55억 원에 처분함으로써 도합 약 70억 원의 차익을 얻었다. 원고는 2015년 8월 기준으로 〇〇한텍 주식 1,006,874주(지분율 5.68%)를 보유하고 있다.
Date of Transaction
Quantity of transactions;
(+purchase, sale - sale)
Unit Price
(unit: Won)
Transaction Amount
(unit: Won)
Details
March 21, 2011
12,336
3,391
41,831,376
Domestic Purchase
March 22, 2011
3,460
3,493
12,085,780
Domestic Purchase
March 23, 2011
4,097
3,646
160,777,662
Domestic Purchase
March 24, 2011
72,094
3,924
282,896,856
Domestic Purchase
June 29, 2011
131,987
0
0
Free capital increase (100%)
November 30, 2012
2,942,900
1,699
4,999,987,100
Exercise of Rights
December 12, 2012
-110,000
4,757
523,270,000
In-flight Sales
December 13, 2012
-90,000
4,733
4,685,670,000
In-flight Sales
May 3, 2013
-1,000,000
5,012
5,012,000,000
In-flight Sales
May 6, 2013
-100,000
5,012
501,200,000
In-flight Sales
Total (current balance)
1,006,874
[인정근거] 다툼 없는 사실, 갑 제22호증, 을 제1 내지 4호증의 각 기재, 증인 정〇〇
testimony, the whole purport of the pleading
D. Determination
1) Whether the taxation under Article 42(1)3 of the former Inheritance Tax and Gift Tax Act is possible
A) Contents of legal provisions
Articles 33 through 41, 41-3 through 41-5, and 44 of the former Inheritance Tax and Gift Tax Act
In addition to donations under Articles 45 and 45, profits falling under any of the following subparagraphs, which are the benefit:
In case of obtaining a benefit above the standard prescribed by Ordinance, the increase of the person who obtained such benefit.
It is stipulated that "the value of such assets shall be the value of such assets," and subparagraph 3 of Article 40 shall be converted into and exchanged for convertible bonds, bonds with warrant (referring to warrant certificates if there is separation of warrant certificates) under the provisions of paragraph (1) of Article 40, or other stocks, or convertible bonds (hereinafter referred to as "convertible bonds, etc.") or convertible bonds, etc. by which a right to acquire stocks is granted.
(C) Any profit derived from transactions which increase or reduce the capital of a corporation, such as such transactions.
In the case of stock conversion, such profits shall be converted from the value of stocks at the time of stock conversion, etc.
The purport of Paragraph (3) of the same Article is that the value shall be deducted, and that Paragraph (3) of the same Article shall be determined by the Presidential Decree.
transaction between persons who are not specially related persons, which is deemed to have a justifiable reason for transaction practice.
In the case of Paragraph 1, Paragraph 1 shall not apply.
On the other hand, Article 40(1) of the former Inheritance Tax and Gift Tax Act provides that "convertible bonds, etc. shall be accepted, acquired or transferred, or convertible bonds
Any of the following subparagraphs by converting or exchanging stocks with stocks or acquiring stocks:
equivalent to such profit, the person making such profit shall be entitled to the equivalent
(1) The Convertible Bonds, etc. referred to in subparagraph (2) shall be deemed to be the value of donated property.
the following acquired by converting or exchanging shares, acquiring shares, or transferring convertible bonds, etc.:
Benefits falling under any of the following items, and the largest of the corporation which has issued convertible bonds, etc. in its item (b)
Large shareholders or their specially related persons who are stockholders possess convertible bonds, etc. from the corporation concerned.
was acquired in excess of the number of shares entitled to be allocated under equal conditions in proportion to the number of shares;
In the case of convertible bonds, the value of the stocks issued or to be issued by them shall be converted, exchanged or
the acquisition value (hereafter referred to as "interest acquired by exceeding the conversion value, etc." in this paragraph) shall be determined.
the Commission.
B) Legislative history and legislative intent of Article 42(1) of the former Inheritance Tax and Gift Tax Act
The previous Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003) prior to its amendment is the opening of "donation".
One of the parties to a contract by borrowing the concept of donation under the Civil Act without providing the unique definition of the concept of donation;
The other party indicates his intention to confer the property free of charge and the other party approves it.
subject to gift tax in principle, provided that the intent to grant property is consistent with us:
Regulations by which a donation is deemed to be made for the free transfer of a father not under a contract between the parties (No. 32)
Articles 4 through 42 have been separately prepared and taxed. As a result, it is not listed in the regulations on deemed donation.
the transfer of shares without compensation by means of any new financial technique or capital transaction, etc.
to block the transfer of a property without adequate tax burden because it is impossible to impose gift tax;
The former had been.
Therefore, the Inheritance Tax and Gift Tax Act, amended by Act No. 7010 on December 30, 2003, comprehensively defined the subject of gift tax and converted the provision on the constructive gift of previous listed methods into the provision on the time of donation and calculation of the value of donated property (hereinafter referred to as the " provision on the calculation of the value of donated property"), thereby introducing the so-called comprehensive taxation system on comprehensive gift tax
In addition, ‘the direct and indirect free transfer of property' which is not directly presented in the provision for calculating the value.
In order to clarify that gift tax can be imposed on the increase in the value of property by the contribution of others, Article 42 of the former Inheritance Tax and Gift Tax Act, which is the comprehensive provision of each type, was newly established.
Article 42(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4271, Jan. 1
(2) In the case of a de facto free transfer of any profit derived from the acquisition and exercise of the principal acquisition right, the transaction
The purpose of legislation that requires gift tax to be imposed on the profits that have been acquired shall be for a modified donation act.
It would be to promote the fairness of taxation.
C) Interpretation
In full view of the contents, legislative history, legislative intent, etc. of the above legal provisions, the old perjury
section 42(1) of the tax law is a supplementary provision in relation to individual valuation regulations,
(1) No evidence shall be applied as a supplementary application to any transaction or act that is not governed by the Regulation for Value Calculation;
It is reasonable to view that it functions as a ground provision for calculating the value of the leisure property.
Article 42(1)3 of the former Inheritance Tax and Gift Tax Act and Article 40(1) of the same Act shall apply to the subject of taxation subject to regulation.
Although the above Article 40 (1) is the same as the other party at the time of acquisition and acquisition of convertible bonds, etc.
Section 42(1)3 above, compared to the fact that the existence of a special relationship is a requirement for the existence of such special relationship.
applicable to transactions other than persons having a special relationship: Provided, That between persons who are not a specially related person
transaction shall not apply if the transaction is deemed to have a legitimate cause under the practice of the transaction.
shall be interpreted in this manner.
In other words, a transaction of a related party with respect to the conversion of convertible bonds into stocks by accepting convertible bonds.
The value of donated property shall be calculated pursuant to Article 40 (1) without asking whether there is any justifiable reason for the transactional practice, but the transaction between persons who are not related with the transaction shall be calculated according to Article 42 (1) 3 where there is no justifiable reason for the transactional practice.
In addition, since the application of the above provisions and the scope of regulation cannot be deemed to be different, the tax amount as a result of the application.
Even if the result comes to vary, it cannot be viewed as going against the taxation-oriented balance.
D) In the instant case:
원고는 〇〇한텍의 최대주주로서 특수관계인에 해당하지만, 〇〇한텍이 아니라 이 사건 사모투자전문회사로부터 이 사건 신주인수권증권을 인수하였으므로, 구 상속세및증여세법 제40조 제1항은 적용되지 않는다. 그러나 거래의 관행상 정당한 사유가 인정되지 않는다면 구 상속세및증여세법 제42조 제1항 제3호에 따라 그 증여재산가액을 산정할 수 있다고 할 것이다.
In addition, Article 42(1) of the former Inheritance Tax and Gift Tax Act and Article 2(3) of the same Act do not coincide with the purport and content of the provision, and thus, they are subject to gift tax among transactions and acts governed by the individual value calculation provision.
However, Supreme Court Decision 2014Du3648 Decided October 15, 2015 that the gift tax cannot be imposed on transactions and acts excluded from the scope of taxation based on Article 2(3) of the former Inheritance Tax and Gift Tax Act is inappropriate to be invoked in this case.
Therefore, Article 42(1)3 of the former Inheritance Tax and Gift Tax Act can be deemed as the basis provision for the disposition of this case.
Since the plaintiff's assertion on this part is rejected.
2) Whether a transactional practice is justified
A) Legal principles
(1) Article 42(3) of the former Inheritance Tax and Gift Tax Act provides that “The transaction between unrelated parties shall obtain gift benefits by waiver of an opportunity for one’s own benefit” with respect to the transaction between unrelated parties. As such, unlike the benefit arising from the transaction between unrelated parties, in cases where there is a reasonable ground to believe that the transaction partner should obtain benefit from the acquisition and exercise of preemptive rights, or where it is deemed that the transaction under such conditions of transaction is a “justifiable reason in light of the transaction practice” as the transaction takes place in light of the objective exchange value, even if the consequence that the transaction partner would obtain benefit from the acquisition and exercise of preemptive rights has occurred, or where it is deemed that the transaction under such conditions of transaction is normal from a reasonable economic person, Article 42(1) of the former Inheritance Tax and Gift Tax Act does not apply. However, even if the transaction is between unrelated parties, there is no reason to adequately reflect an objective value that can be formed between unspecified parties in determining the terms of transaction, and where the transaction partner is able to obtain benefit from the transaction without any justifiable reason, 20.
(2) On the other hand, in an administrative litigation seeking revocation on the grounds of illegality of taxation disposition, taxation disposition in the administrative litigation
Since the burden of proof of legality and the existence of taxation requirement is against the tax authority, the special relationship is whether or not.
In the transaction between the persons without such persons, the practice of the transaction under Article 42(3) of the former Inheritance Tax and Gift Tax Act
It is the principle that the tax authority bears the burden of proving that there is no reason for it.
If the Office is a reasonable economic person as seen earlier, in the circumstances at the time of transaction, such person;
Submission of data on objective circumstances, etc. that they would not have traded under the same terms and conditions of transaction.
that there is no reasonable cause in the practice of the transaction, and if so, there is no such a cause.
Where a circumstance has been proved to a considerable extent, the difficulty or fairness of the certification to reverse it;
In light of the concept, specific data on the details of transactions, reasons for determining transaction terms, etc.
There are special circumstances where a taxpayer who is easy to submit is deemed a normal transaction.
It is necessary to prove that there is a need to prove (Supreme Court Decision 2013Du24495 Decided February 12, 2015).
see, e.g., Supreme Court Decision
B) The following circumstances are revealed by the above facts, i.e., the preemptive right of this case
Sub-bonds were issued through private placement rather than by public offering, and the rights to the warrant certificates of this case were issued.
면금액 100억 원 중 절반에 해당하는 상당한 물량이 〇〇한텍의 대표이사 및 최대주
(2) The Financial Investment Services and Capital Markets Act and other relevant Acts and subordinate statutes shall apply to the State Plaintiff
D. In principle, the private equity fund of this case is within six months from the date of investment
As such, the private equity fund of this case cannot dispose of the distributed securities, etc.
사채가 발행되어 인수한 당일 이 사건 신주인수권증권을 분리하여 〇〇한텍의 대표
The contract was concluded to sell to the plaintiff who is a director and the largest shareholder, and ③ Won
Gohap failed to pay the purchase price to the Plaintiff by December 5, 201, which was the deadline for the initial payment under the sales contract. As such, the instant private equity fund acquired warrant certificates to the Plaintiff.
Although the private equity fund of this case seems to have no contractual obligation, it was before January 11, 2012.
Subject to such terms as the Plaintiff again sold the warrant certificates of this case to the Plaintiff, and the instant company
When a private equity fund exercises its own preemptive right to new stocks, 796 won per share (=2,495 won per share at the time);
행사가격 1,699원) 합계 1,984,348,400원(= 796원 × 2,942,900주)에 해당하는 상당한경제적 이익을 얻을 수 있었음에도 원고와 새로 교섭하거나 다른 거래상대방을 물색하는 등의 노력을 전혀 하지 아니한 채 위와 같은 경제적 이익을 포기하고 원고에게 이사건 신주인수권증권을 양도한 것은 쉽게 이해하기 어렵고, 이 사건 사모투자전문회사가 원고에게 종전과 같은 조건으로 이 사건 신주인수권증권을 양도하여야 할 만한 특별한 사정이 있다고는 보이지 않는 점, ④ 원고가 2012. 1. 11. 이 사건 신주인수권증권을 취득한 대가는 1주당 약 68원으로, 당시 이 사건 신주인수권증권의 이론가격 796원에 비하여 현저히 저렴한 점, ⑤ 원고는 〇〇한텍의 대표이자이자 최대 주주로서
회사의 내부정보를 잘 알 수 있는 위치에 있었고, 〇〇한텍은 2011. 6. 29. 무상증자
the exercise price of the warrant certificates of this case falls below 50% of the initial exercise price.
6. The plaintiff's right to new stocks
From the acquisition of new shares by exercising the warrant certificates, one month after such acquisition;
10,000 shares were disposed of, and 1.1 million shares were disposed of before six months have elapsed, and 2,942,900 shares were disposed of.
The plaintiff made a significant profit by disposing of 2.2 million shares among the states, and the plaintiff made a profit for the purpose of securing management rights, etc.
of this case’s warrant certificates are not deemed to have been acquired, and all circumstances, including the fact that it is difficult to consider them as having taken
In light of the above, the private equity fund of this case 68 won per share of the warrant certificates to the Plaintiff.
(1) The transfer to the Plaintiff is not a reasonable transaction between the parties to the transaction, and the Plaintiff’s new transaction
It can be seen that the practice of trading is justified in accepting and using the State subscription certificate.
There is no other reflective evidence.
Therefore, it is difficult to view that there was any error in the disposition of this case, and the Plaintiff’s assertion on this part also
We cannot accept it.
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.
section 3.
Plaintiff
ZZ
Defendant
YThe director of the tax office
Conclusion of Pleadings
April 21, 2016
Imposition of Judgment
May 26, 2016
Text
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The disposition of imposition of gift tax of KRW 3,056,273,520 against the Plaintiff on June 9, 2014 by the former defendant of the Gu office shall be revoked.
Reasons
1. Details of the disposition;
가. 주식회사 〇〇한텍(종전의 상호는 주식회사 〇〇엔지니어링이었으나, 2012. 3. 16. 현재의 상호로 변경되었다. 이하 '〇〇한텍'이라 한다)은 1995. 1. 12. 산업기계 제작 및 판매 등을 목적으로 설립되어 2008. 7. 16. 협회중개시장(KOSDAQ)에 등록된 법인이다. 원고는 〇〇한텍의 대표이사이자 최대주주(2010. 12. 3. 기준 지분율 2.23%)인 자이다.
나. 〇〇한텍은 2010. 12. 3. 이사회를 개최하여 무보증사모방식으로 1주당 3,774원에 신주를 인수할 수 있는 권리가 부여된 권면금액 100억 원의 분리형 신주인수권부사채(이하 '이 사건 신주인수권부사채'라 한다)를 발행하여 〇〇제일호 사모투자전문회사(이하 '이 사건 사모투자전문회사'라 한다)가 이를 100% 인수하기로 결의하였고, 같은 날 이 사건 사모투자전문회사와 이 사건 신주인수권부사채 인수계약을 체결하였으며, 원고는 '이해관계인'으로서 〇〇한텍의 의무이행을 연대 보증하였다.다. 〇〇한텍은 2010. 12. 7. 위 계약에 따라 아래와 같은 내용의 이 사건 신주인수권부사채를 발행하였고, 이 사건 사모투자전문회사가 같은 날 이를 전부 인수하였다. 표면이자율 3.0% 만기(상환일) 3년(2013년 12월 7일) 상환방법 사채권면 총액의 116.7651% 만기일시상환 인수회사 〇〇제일호 사모투자전문회사 신주인수권증권 행사비율 발행액면 금액의 100% 행사가격 3,774원
라. 〇〇한텍은 2011. 6. 29. 무상증자를 실시하였고, 무상증자를 행사가격 조정사유의 하나로 규정한 이 사건 신주인수권부사채 인수계약에 따라 이 사건 신주인수권부 사채의 행사가격이 1,699원으로 조정되었다. 원고는 2012. 1. 11. 이 사건 사모투자전문회사로부터 이 사건 신주인수권부사채 중 권면금액 50억 원에 해당하는 부분에서 〇〇한텍의 신주 2,942,900주(= 50억 원 ÷ 행사가격 1,699원)를 인수할 수 있는 권리인 신주인수권증권(이하 '이 사건 신주인수권증권'이라 한다)을 분리하여 2억 원(= 신주인수권부사채 권면금액 50억 원 × 4%)에 매입하였고, 2012. 11. 30. 이 사건 신주인수권증권을 행사가격 1,699원에 행사하여 〇〇한텍의 신주 2,942,900주(이하 '이 사건 신주'라 한다)를 취득하였다. 마. 원고는 2013. 2. 28. 이 사건 신주의 취득으로 구 상속세 및 증여세법(2015. 12. 15. 법률 제13557호로 개정되기 전의 것, 이하 '구 상속세및증여세법'이라 한다) 제40조의 규정에 따라 1주당 2,625원(= 신주 발행 후 1주당 가액 4,324원 - 1주당 취득가액 1,699원)의 이익을 얻었다고 보아 7,552,842,955원을 증여재산가액으로 하여 2012. 11. 30. 증여분 증여세 2,858,779,330원을 신고・납부하였다. 바. 원고는 2013. 11. 27. 이 사건 신주인수권증권을 취득한 거래는 상속세및증여세법 제42조 제3항 소정의 거래의 관행상 정당한 사유가 있는 경우에 해당하므로 증여세 과세대상이 아니라는 등의 이유로 당초 신고・납부한 증여세의 환급을 구하는 경정청구를 하였으나, 서울지방국세청장은 2014. 4. 14. 원고에게 세무조사 결과 위 경정청구를 기각한다고 통지하였다. 사. 피고는 원고가 이 사건 신주인수권증권을 취득하여 이 사건 신주를 인수한 거래는 구 상속세및증여세법 제42조 제1항 제3호에 따른 증여세 과세대상이라는 이유로 2014. 6. 9. 증여세 197,464,190원을 추가 고지하였다(원고의 자진 납부 증여세액 2,858,779,330원과 추가 고지분 증여세액 197,464,190원을 합한 3,056,273,520원의 증여세 부과처분을 이하 '이 사건 처분'이라 한다). 아. 원고는 이 사건 처분에 불복하여 2014. 9. 1. 조세심판원에 심판청구를 하였으나, 조세심판원은 2014. 12. 3. 그 청구를 기각하였다.
[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2, 4, 5, 7, 8, 9, Eul evidence 5, and the purport of the whole pleadings
A. The plaintiff's assertion
The instant disposition is unlawful for the following reasons.
1) Article 42 of the former Inheritance Tax and Gift Tax Act is a provision under the taxation system of the complete comprehensive taxation system of the gift tax, and thus, it cannot be applied to the transaction subject to the exclusion of the taxation under Article 40 of the former Inheritance Tax and Gift Tax Act, which is an individual example clause. The taxation of the clear transaction that it does not fall under the object of taxation under Article 42(1)3 of the former Inheritance Tax and Gift Tax Act is not only likely to undermine the predictability and legal stability of the taxpayer, but also the taxation of the donated property under Article 42(1)3 of the former Inheritance Tax and Gift Tax Act may increase more than the donated property under Article 42(1)3 of the former Inheritance Tax and Gift Tax Act from the perspective of the taxation on the grounds that the donated property under
2) Even if Article 42(1)3 of the former Inheritance Tax and Gift Tax Act is applicable to domestic affairs, the plaintiff may do so.