Appellate Court 2016No4314 (Law No. 11, 2017)

When a public corporation receives more than 5% of the non-taxation (5%) of the stocks, the simple aggregate of the increased stocks of the public corporation and the increased stocks of the public corporation is illegal.

When determining the excess portion of non-taxation (5%) of shares issued by a public-service corporation, it is judged that there is no reasonable method other than the calculation by applying 1/2 weight to 1/2 in the case of adding the increased shares of other faithful public-service corporations (10% non-taxation limit) to the increased shares of the public-service corporations (5% non-taxation limit).

Article 48 of the Inheritance Tax and Gift Tax Act

2017Guhap74429 Revocation of Disposition of Imposition of Gift Tax

00. Docium et al.1

00. Head of tax office

on October 28, 2019

on October 21, 2019

1. The Defendant’s disposition of imposition of each of the gift tax numbers,xx,xx,xxx, andxxxx, which was made against the Plaintiff ○○ Council, on the ground of the following: the Defendant’s disposition of imposition of each of the gift tax numbers,xx,xx, andxxx, which was made against the Plaintiff ○○ Art gallery; and

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiffs are unincorporated organizations or organizations that are deemed corporations under tax law (non-profit corporations that do not engage in profit-making business), and both the Plaintiffs, social welfare foundations, △△△ Foundation (hereinafter referred to as "△△ Foundation"), and the dedicated unit (hereinafter referred to as "dedicated unit") are "public service corporations, etc." under Article 16 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter referred to as "Act").

B. At around 199x, the network △△△△△△△△, a founder of the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the xxx and the xxx (17.46%).

C. The plaintiffs and △△ Foundation (hereinafter referred to as "Plaintiffs, etc.") calculated the sum of the shares received by them x, x, x, and xx (hereinafter referred to as "the shares of this case") as the sum of the shares x, x, x, and x, excluding part of the plaintiff's art gallery x, x, x, and x, the sum of the shares x, xx, x, and x, which are provided for in the proviso to the part other than each subparagraph of Article 48 (1) of the Act (hereinafter referred to as "proviso to Article 48 (1) of the Act"), as the shares of the domestic corporation have been contributed in excess of 5/100 of the total number of shares issued with voting rights of the domestic corporation, and filed a voluntary declaration thereon.

D. After conducting a tax investigation on the plaintiffs, etc. from x.x. from 201x.x.x. from 201x.x.x., the director of the regional tax office determined and notified the defendant of gift tax identical to the details of the plaintiffs, etc., except for the reduction of the value per share of the chip dedicated stocks to xxx, andxxx. Accordingly, the defendant decided and notified the plaintiffs, etc. of gift tax (including refund money and additional tax) as follows.

Table Omission of the Table

E. The plaintiffs et al. appealed against the defendant's disposition of gift tax x. x. x. x. x. x. x. x. x., each of which was filed with the Tax Tribunal, but the Tax Tribunal dismissed all of the above appeals x. x. x. x. 201x.

F. After the filing of the instant lawsuit, it was revealed that the Do dedicated Foundation and △△ Foundation constituted a "faithful public service corporation, etc." under Article 16(2) of the Act. The Defendant revoked ex officio a disposition imposing gift tax on △△ Foundation, and the Defendant notified the Plaintiff of taxation that all of the Do dedicated Stocks X, Xxju 2 excluded from the tax base in the scope of non-taxation in the taxable value (=06% (=5% - 4.94% of the stocks owned by the dedicated Foundation, hereinafter referred to as “%”) should be the ratio compared to the total number of issued stocks, unless there is any separate statement in the taxable value) by deeming that △△ Foundation, which is not the Plaintiff art gallery, received a donation from the Plaintiff, and that the Plaintiff art gallery included the number of stocks issued by the Plaintiff art gallery and the x

G. The Plaintiff’s art gallery is dissatisfied with the Defendant’s notice of taxation, and filed a request for pre-assessment review with the Commissioner of the National Tax Service on x.x. x. x. x. x. x. x. the time for receipt of the Plaintiff’s church, the Plaintiff’s art gallery, and the △△ Foundation is identical to “the same date” and it is reasonable for anyone whose receipt date falls short of 5% of the same date to be calculated based on the ratio of the number of shares issued, as it cannot be first excluded from the taxable value, so it is reasonable for the Plaintiff’s art gallery to calculate the proportional distribution of shares according to the ratio of the number of shares issued. As such, the Plaintiff’s art gallery partially accepted the Plaintiff’s claim as “to calculate the tax base and tax amount by calculating the amount calculated by multiplying the ratio of shares donated to the stocks of this case to be excluded from the taxable value of donated

H. Accordingly, the defendant, on the x.x. x. x. 201x. x. 201x. The taxable value of the gift tax on the plaintiff church was reduced to x, x, xx, and the taxable value of the gift tax on the plaintiff church was adjusted to x, xx, xx, xx, xx (hereinafter referred to as "the disposition of this case, including the disposition of imposition of x. x. x. x. x. 201, on which the decision of increase was made with respect to the plaintiff church and the plaintiff art gallery, for which the decision of increase was made to x. x. x. 201).

[Reasons for Recognition] In the absence of dispute, Gap's evidence Nos. 1 through 6, 16 through 20, Eul's evidence Nos. 1 through 4 (including each number; hereinafter the same shall apply), and the court's inquiry of the fact-finding to the dedicated foundation of this case, the whole purport of the arguments, as a whole

2. Whether the instant disposition is lawful

A. The parties' assertion

1) Defendant

Even if the dedicated trust foundation and △△ Foundation are bona fide public-service corporations, the limit of exclusion from the taxable value of the plaintiffs, who are public-service corporations (hereinafter referred to as "general public-service corporations"), which are not bona fide public-service corporations, shall be 5% in accordance with the principle of calculating the value of donated property by donee. Since 4.94% of the 5% of the 5% of the shares, at the time of X.x.x.x., is already contributed to the dedicated foundation, only x and xx owners (06%) of the shares of this case may be deemed to be within the limit of exclusion from the taxable value of the taxable value. However, since all of the shares of this case are donated on the same day and the period of increase thereof is the same, the number of the plaintiffs, etc. shall be divided in proportion to the shares ratio of the plaintiffs, etc.

2) The plaintiffs

Since the instant taxation disposition is unlawful for the following reasons, a part of the instant taxation disposition must be revoked in its entirety and in its preliminary order.

A) Regardless of the legislative intent of the proviso of Article 48(1) of the Act to prevent major shareholders from abusing a public-service corporation as a means of control, donation of the instant shares made for the pure purpose of returning to society and supporting public-service projects by the deceased is not likely to be used as a means of control, and is irrelevant to the governance structure of the dedicated dedicated to the dedicated to the dedicated to the grant of stocks. Therefore, in principle, gift tax should be exempted from the perspective of constitutional and consistent purpose.

B) The excess portion of stocks, etc. under the proviso of Article 48(1) of the Act, which is to be included in the taxable value of donated property, is calculated by the method prescribed by Presidential Decree (hereinafter referred to as “excess portion of non-taxation”), is limited to the sum of stocks owned by another public service corporation, etc. which received the contribution from the “specially related person of the contributor” under the former part of Article 37(7) and the former part of Article 37(2) of the Enforcement Decree of the Act, and cannot be included in the shares owned by the other public service corporation, etc. which received the contribution from the “Contributor”. Thus, it is unlawful to recognize the excess portion of 4.94% of the shares of the dedicated portion of the Foundation, which is to be included in the taxable

C) The Defendant 201x.x. The imposition of the Defendant’s 201x.x.m. applies 5% of the non-taxation limit to the taxable value to be applied to the general public-service corporation on the condition that the dedicated foundation and △△△ Foundation did not know that they constitute a faithful public-service corporation. However, it cannot be determined whether the ratio of shares issued to the faithful public-service corporation exceeds the non-taxation limit of the taxable value of the gift tax by simply aggregating the shares donated to the public-service corporation and the shares donated to the general public-service corporation. ① Whether the total amount of shares issued to the public-service corporation exceeds the limit of the non-taxation limit of the property value of the general public-service corporation should be determined by considering the difference between the non-taxation limit of the faithful public-service corporation and the public-service corporation. ② Even if the total amount can be determined, whether the limit exceeds the non-taxation limit of the property value of the public-service corporation should be determined by applying the weight of 1/2 times to the number of shares issued by the public-service corporation (or non-taxation limit of the Plaintiff public-service corporation.

D) Even if the general public corporation’s non-taxation limit is uniformly deemed 5% of the taxable value of the pertinent shares in accordance with the agreement between the parties, it shall be determined on the basis of the ratio of shares at the time of “the contribution not to exceed the non-taxation limit of the taxable value of the gift tax” to the Plaintiff’s art gallery. As such, sharesx andxx share (06%) within the non-taxation limit of the gift tax should be reflected in the calculation of the value of the donated property of the Plaintiff’s art gallery (Article 2 preliminary assertion). If the ownership of shares is deemed to have been acquired at the same time solely on the ground that the date of donation is the same as the Defendant and the National Tax Service’s interpretation, it cannot be construed as “contributed shares” acquired on the same day under the interpretation of the law, and if multiple donations exceeding the non-taxation limit of the taxable value were made on the same day, no one is subject to gift tax, and thus, xxx share among the Plaintiffs’ shares

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the main sentence of Article 48(1) is applied

The term "public interest corporation" means a corporation that operates businesses instead of schools, assets, academics, scholarship projects, etc. in a field where the government or local governments have originally performed through financial expenditure but it is not capable of having such ability or ability. Accordingly, in order to actively participate in the public interest projects, the government is exempt from inheritance tax if the private sector contributes inherited property in the public interest projects, and is exempt from gift tax on the premise that the property contributed to the public interest projects is to be used for the public interest projects. However, since high-amount of property, such as repact, etc., was established by contributing to the shares of the shares of the shares of the shares of the shares of the shares of the shares of the shares of the shares of the shares of the shares of the shares of the shares of the shares of the shares of the public interest corporations, and there was a case of abuse of tax avoidance such as inheritance of the shares of the shares of the shares through the public interest corporation without the burden of inheritance tax payment, such as inheritance of the shares of the shares of the shares

Article 48(1) of the Inheritance Tax and Gift Tax Act (wholly amended by Act No. 5193, Dec. 30, 1996) provides that gift tax shall be imposed on the shares of a domestic corporation contributed by the public-service corporation and on the shares of the domestic corporation held by the public-service corporation at the time of contribution exceeding 5/100 of the total number of outstanding shares of the relevant domestic corporation, as calculated by the method prescribed by the Presidential Decree. However, according to this provision, even if the shares of a domestic corporation are shares of the domestic corporation, gift tax may be imposed on the shares of the domestic corporation, and rather, it does not contribute to the original purpose of tax policy, which would hinder the public-service corporation from securing financial resources to facilitate public service. Accordingly, the first proviso of Article 48(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 6301, Dec. 29, 200; 2000.

In conclusion, in a case where shares contributed to a public-service corporation are shares of a "contributed corporation" and those held by a person with a special relationship with the contributor are the largest amount of shares, it is understood that the public-service corporation can be used as a means of controlling the domestic corporation by affecting dividends, etc. based on control over the domestic corporation, but the inheritance tax or gift tax can be avoided by means of stock contribution to such public-service corporation, so such provision has been established to prevent such harm (see, e.g., Supreme Court Decision 2011Du21447, Apr. 20, 201).

Therefore, in order to achieve the legislative purpose of preventing the abuse of the donation culture in stock donation as a means of tax avoidance and inheritance, it is difficult to impose gift tax on the shares of a domestic corporation contributed to a public-service corporation, which exceeds a certain ratio of taxable value under the proviso of Article 48(1) of the Act, by satisfying both the requirement of shareholders and the requirement of largest shareholder, in order to achieve the legislative purpose of preventing the abuse of the donation culture as a means of tax avoidance and inheritance.

According to the purport of the evidence No. 2 and the whole argument, it is recognized that the △△△△△△△△ is not only at the time when the shares of this case were contributed, but also thereafter, the requirements of shareholders and the requirements of the largest shareholder under each subparagraph of Article 13(8) of the Act are met. It is reasonable to calculate the excess portion of non-taxation and its value by summing up the shares of the dedicated foundation, which were already contributed by the Plaintiffs, △△△△△△△△, the investors of the shares

Furthermore, interpreting that the inclusion of non-taxable excess portion in the taxable value is affected by the purpose, intent, and motive of the contributor, etc. is not desirable in light of legal stability, the viewpoint of tax equality, and the principle of strict interpretation of tax law, and it seems difficult to achieve the legislative purpose efficiently based on such subjective criteria. Furthermore, considering the fact that the Plaintiffs, etc., who are public-service corporations, cannot be deemed as a means of control of the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the donation of

2) Whether the value of the shares owned by another public-service corporation to which the property was contributed by the donor is added to the taxable value of donated property

According to the proviso of Article 48(1) of the Act and Article 48(1)2 of the Act, where the sum of stocks, etc. of the same domestic corporation that has contributed to another public service corporation, etc. by the relevant public service corporation, etc. exceeds 5/100 (10/100 in the case of bona fide public service corporation, etc.) of the total number of outstanding voting stocks, etc. of the relevant domestic corporation, the portion in excess shall be included in the taxable value of donated property. As to the "specially related person prescribed by Presidential Decree" of the said contributor, the former part of Article 37(2) of the Enforcement Decree refers to "a person in the relationship falling under any of the subparagraphs of Article 12-2(1) with the contributor.

Therefore, it is clear that “the contributor” under the proviso of Article 48(1) of the Act is determined as to whether the “the percentage (5/100 or 10/100) exceeds the percentage (5/100) of the total of the stocks, etc. of a domestic corporation invested by another public service corporation, etc. of the same domestic corporation.”

However, the proviso of Article 48(1) of the Act stipulates that "the excess portion to be included in the taxable value of gift tax" shall be prescribed as "the excess portion prescribed by Presidential Decree", and Article 37(7) of the Enforcement Decree provides that "the stocks, etc. in the possession of another public service corporation, etc. to which property is contributed from a person who falls under paragraph (2)" shall be calculated by adding up the following stocks, etc. in order to calculate the value exceeding a certain ratio. However, Article 37(7) of the Enforcement Decree of the Act provides that "the stocks, etc. in the possession of another public service corporation, etc. to which property is contributed from a person who falls under paragraph (2)" shall be interpreted within the scope of delegation under the proviso of Article 48(1) of the Act, which is a mother corporation, and Article 48(1) proviso of the Enforcement Decree of the Act shall not be excluded from the scope of "the stocks, etc. contributed by the contributor". Thus, "a person falling under

Therefore, in calculating the value of excess portion to be included in the taxable value of gift tax, the shares in this case as well as the shares owned by the deceased △△△△△, a contributor of the shares in this case, may be added to the shares owned by the dedicated foundation that are contributed to another public-service corporation. Therefore, this part of the claim

(iii)the method of calculating the excess portion of non-taxation where stocks of the same domestic corporation are contributed to a large number of public interest corporations including good public interest corporations

Under the principle of no taxation without law, the interpretation of tax laws shall be interpreted in accordance with the text of the law unless there are special circumstances, and it shall not be permitted to expand or analogically interpret without reasonable grounds. However, where it is necessary to clarify the meaning through mutual interpretation between the laws and regulations, it is inevitable to make a combined interpretation in view of the legislative purport and purpose to the extent that it does not undermine the legal stability and predictability pursued by the principle of no taxation without law (see Supreme Court Decision 2007Du4438, Feb. 15, 2008).

However, it is clear that the Act and the Enforcement Decree of the Act explicitly stipulate the ratio of non-taxation to the calculation method of non-taxation to a large number of public-service corporations including both a conscientious public-service corporation and a public-service corporation at the same time or in succession. However, it is clear that the faithful public-service corporation should also be included in the calculation method of non-taxation to the public-service corporation. The main text of Article 16(2) and the proviso of Article 48(1) of the Act provide that the limit of non-taxation to the taxable value of 5/100 shall be extended to 10/100 only to the bona fide public-service corporation, and it is apparent that the limit of non-taxation to the above non-taxation is not added to 10/100, even if it is apparent that it is not meaningful to add the limit of 10/100 to the non-taxation to the above non-taxation method. Thus, the plaintiffs' assertion that the limit should be determined by adding the non-taxation stocks of the public

However, in full view of all the following circumstances, including the principle of no taxation without representation and the legislative history of the proviso of Article 48(1) of the Act and the purport of the introduction of the public-service corporation, it is reasonable to add up the total amount by applying 1/2 weight to the number of shares issued by other faithful public-service corporations, in calculating whether the total amount of shares issued by one of the public-service corporations exceeds the limit of non-Inclusion of the total amount of shares issued by the public-service corporations, although not explicitly stated in detail, it is reasonable to apply 1/2 weight to the number of shares issued by other faithful public-service corporations, to which

① The restriction on the non-taxation of the taxable value of a faithful public-service corporation is set at 10% as 10% by taking into account the requirements for transparency and accountability as a faithful public-service corporation, rather than merely the size of voting rights to the stocks, etc. Therefore, it is reasonable to determine that determining whether the “the possibility of abusing the property contributed to the public-service corporation” is in excess of the limit on the non-taxation of the taxable value by distinguishing the stocks owned by the public-service corporation and the stocks owned by the public-service corporation, which are different from each other, accords with the purport of the good public-service corporation’s introduction. Thus, it is reasonable to assess the weight of the stocks owned by the faithful public-service corporation as 1/2 times compared to the stocks owned by the public-service corporation (i.e., the evaluation of 10%

② As alleged by the Defendant, a general public-service corporation, regardless of whether the shares owned by another public-service corporation are owned in good faith, applies 5% of the non-taxation limit (hereinafter referred to as “a simple sum method”), is not reasonable as the calculation method of the non-taxation portion is different depending on whether the shares were received at the same time as the general public-service corporation and the faithful public-service corporation have received contributions or received contributions in sequential order. If the faithful public-service corporation first receives 5% contribution, shares that can be received non-taxation by the general public-service corporation thereafter may be entirely nonexistent. Ultimately, in order to fully contribute 10% shares to a faithful public-service corporation as non-taxation, there is an unreasonable result that requires a separate requirement that does not require a law to additionally require that “the shares should be made last contribution to

③ Simple method that does not take into account the difference between the general public interest corporation and the faithful public interest corporation is a simple method that results in irrecoverable discrimination between the general public interest corporation and the faithful public interest corporation that has received the same percentage of stocks, compared to the limit on the non-taxation in taxable value, compared to the limit on the non-taxation in this case.

④ Meanwhile, even in a case where the total amount of simultaneous contributions of a general public-service corporation and a faithful public-service corporation exceeds 10%, the standard is required to determine how to allocate the excess amount to the public-service corporation and a faithful public-service corporation. The simple cumulative method is not consistent with the existing rules of the National Tax Service (property tax-420, June 21, 2010; property tax-235, April 13, 2010).

(5) As a matter of principle, in calculating the value of donated property to each donor and each donee, the Defendant asserts that whether another public service corporation, etc. is a bona fide public-service corporation may not have any influence on the determination of whether it exceeds the non-taxation limit of the general public-service corporation. However, it is clear that Article 48(1)2 of the Act provides for the exception of adding up the value of donated property to the donee by prescribing that the sum of stocks, etc. of the same domestic corporation that contributed to the contributor’s “other public service corporation, etc.” should be included in the taxable value of donated property. Therefore, the taxation principle of each donee cannot be deemed as being applied

(6) Ultimately, the problems of the inclusion of the shares held by the general public corporation and the calculation of the excess portion thereof are determined to be that there is no reasonable method other than the calculation by applying 1/2 weight to the increased shares of the general public corporation, and there is no circumstance to deem that the legislative intent of Article 48(1) of the Act is impaired or that the possibility of abuse of the shares contributed by the public corporation is particularly increased due to such calculation method, and it is also difficult to see a expanded interpretation or analogical interpretation without reasonable grounds.

4) Sub-committee

As seen earlier, the fact that the Reference Foundation, which already holds 4.94% of the dedicated stocks, is holding 0.58% (=0.49% +0.09%) of the Plaintiffs of the general public-service corporations due to the contribution of the instant shares (i.e., e., ○○ 0.29%) and ○.29% of the shares held by △△ Foundation, which is a faithful public-service corporation, is as seen earlier. Accordingly, according to the above aggravated aggregate method, based on the Plaintiffs’ basis, the aggregate of the shares of the non-taxable portion of the dedicated to the dedicated trust at the time of the instant contribution is within the scope of 3.195% [=0.58% + 4.94% + 0.29%)/2] of all the taxable value

Therefore, the instant disposition, based on the premise that the remainder of the shares excluding 2,000 shares among the shares of this case constitutes an excessive portion of non-taxation, shall be revoked as it is unlawful.

3. Conclusion

Therefore, the plaintiffs' claims are reasonable, and it is decided as per Disposition by admitting them.

1) On September 9, 2016, the network △△△△△△△△△ (4.94%) additionally contributed 105,000 shares dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the Fund

2) Of shares that do not exceed 5/100 of the total number of issued and outstanding shares of the dedicated unit, a domestic corporation means shares excluding 4.94% of the shares held by the dedicated unit.

3) Article 13(8) of the Enforcement Decree (amended by Presidential Decree No. 17039 of Dec. 29, 2000, Paragraph 4, current Paragraph 10)

4) From the amendment of the Inheritance Tax and Gift Tax Act by Act No. 15224 on December 19, 2017, the inheritance tax and Gift Tax Act expanded to 20/100.

5) Following the amendment of the Inheritance Tax and Gift Tax Act by Act No. 14388 on December 10, 2016, the “excess portion calculated by the method prescribed by Presidential Decree” in Article 1438 was amended as “excess portion”. Article 37(7) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act was also deleted as of February 7, 2017 by Presidential Decree No. 27835.

6) As alleged by the plaintiffs, 10% of 5% of 5% of 5% of 5% of 15% of 15% of 15% of 15% of 10% of 10% of 10% of 10% of 10% of 200

7) Although the Plaintiffs asserted in preliminary order donation of the instant shares, it is clear that the grounds for the disposition of the instant shares revealed by the Defendant are premised on the simultaneous contribution of the instant shares. Therefore, it is reasonable to determine the legitimacy of the disposition of the instant shares on the premise of simultaneous contribution.

8) For example, if a conscientious public corporation, similar to this case, holds 5% shares in existing shares, additionally contributes 2% to a general public corporation and 4% shares in good faith public corporation, 4/10 of the total non-taxation limit (i.e., the same possibility of abuse of contributed property is the same) shall be the total amount of a general public corporation, and only 1/4 (i.e., 1/4%) of a faithful public corporation shall result in an equal result included in non-taxation excess.

9) Where a person who owns stocks of a domestic corporation simultaneously contributes the above established rules to a large number of public service corporations, there is a view that the shares equivalent to the taxable value of the gift tax of each public service corporation shall be 10% in excess of the maximum permissible non-taxation limit (10% in the case of a bona fide public service corporation, 5% in the case of a bona fide public service corporation), based on the non-taxation limit (10% in the case of a bona fide public service corporation, 5% in the case of a general public service corporation) of each public service corporation, etc. (10% in the case of a bona fide public service corporation, and 2% in the case of a public service corporation. However, such interpretation does not mean that the general public service corporation shall not be included in the non-taxation limit only if there is a bona fide public service corporation’s contribution share, even if it is clear that