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(영문) 서울행정법원 2012. 02. 23. 선고 2011구합9669 판결
증자 전의 1주당 평가가액을 주식대금 납입일을 기준으로 산정하는 것임[국승]
Case Number of the previous trial

Seocho 201Written 1321 ( October 26, 2011)

Title

the appraisal value per stock before the capital increase is calculated on the basis of the payment date of stock price.

Summary

The board of directors passed a resolution to issue new shares only for 49 persons including the plaintiff, and accordingly the issuance of new shares can not be deemed as falling under "distribution by the method of public offering of securities, which is an exception to the deemed donation due to the increase of capital," and there is no evidence to deem that the non-party company had gone through the solicitation procedure for subscription. Therefore, it is necessary to calculate the appraised value per share before the increase of capital based on the date of payment

Related statutes

Article 39 of the Inheritance Tax and Gift Tax Act

Cases

2011Revocation of revocation of disposition imposing gift tax;

Plaintiff

XX

Defendant

Head of Yongsan Tax Office

Conclusion of Pleadings

December 20, 2011

Imposition of Judgment

February 23, 2012

Text

1. The plaintiff's claim is dismissed.

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

Purport of claim

The Defendant’s revocation of each disposition imposing gift tax on the Plaintiff on March 11, 2011 as stated in the separate sheet, respectively.

Reasons

1. Details of the disposition;

A. On April 10, 2007, KNE Co., Ltd., which is a KOSDAQ-listed corporation, adopted a resolution to issue 4,262,430 shares of registered ordinary shares in 11,50 won per share to 49 members including the Plaintiff in accordance with a third party allocation method.

B. On May 4, 2007, the Plaintiff participated in the above capital increase and accepted 894,740 new shares on May 4, 2007, and paid KRW 10,289,510,000 for the acquisition price on the same day, and 49 of the total amount acquired 4,262,430 shares in total, and paid KRW 49,017,945,000 for the acquisition price.

C. As of May 3, 2007, as of May 3, 2007, the defendant calculated the "value per share before the date of payment of the stock price" and acquired new shares at a price below the market price of the plaintiff because the value was 13,609 won. As a result, the plaintiff deemed that the plaintiff received a donation of KRW 1,887,06,63 in total from the existing shareholders through the above capital increase for consideration, and on March 11, 2011, the defendant issued a notice of the difference in the total amount of gift tax under Article 39 (1) 1 (a) and (c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") to the plaintiff on March 11, 201, as stated in the attached list pursuant to Article 39 (1) 1 (a) and (c) of the Inheritance Tax and Gift Tax Act (hereinafter referred to the "National Fund Calculation Act").

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on March 23, 201, but the Tax Tribunal dismissed the Plaintiff’s appeal on August 26, 2011.

[Ground of recognition] Facts without dispute, Gap 1 to 4, 8, Eul 1 to 3 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) In the event that new shares are allocated by means of a public offering of new shares under Article 2(3) of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007; hereinafter the same), Article 39(1) of the former Inheritance Tax and Gift Tax Act provides that the amount equivalent to profits acquired by being allocated at a price lower than the market price shall be excluded from the gift tax assessment subject to gift tax, however, if new shares are allocated by means of a public offering, the Defendant arbitrarily reduced the amount to be exempt from taxation, thereby, in violation of the principle of tax law or strict interpretation.

2) In calculating the capital increase profits pursuant to Article 29(3)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23591, Feb. 2, 2012; hereinafter referred to as the “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”), the Defendant calculated the “value per share before the capital increase” as of the date of the public notice of the capital increase by calculating the “value per share before the capital increase” as of the date of the public notice of the capital increase, contrary to the practices of the existing national tax administration, the Defendant issued the instant disposition in violation of the principle of prohibition of retroactive taxation and Article 18(3) of the Framework Act on National Taxes,

3) Since Article 39(2) of the former Inheritance Tax and Gift Tax Act is premised on the establishment of a taxation unit by donor, in cases where gift tax is levied as of May 4, 2007, a payment date for shares purchase price, based on the share ownership ratio as of May 4, 2007, the Defendant calculated the amount of gift by donor based on the share ownership ratio, but the Defendant calculated the amount of gift by donor based on the shareholder registry as of December 31, 2006.

4) The Plaintiff acquired shares on condition of rescission by concluding a new shares subscription contract with the non-party company on condition of safeguard, and thus, the Plaintiff evaluated shares acquired by the Plaintiff under Article 65 of the former Inheritance Tax and Gift Tax Act, but the Defendant assessed shares acquired by the Plaintiff under Article 63 of the former Inheritance Tax and Gift Tax

5) As to the shares whose transaction is prohibited on the basis of their protection, the average amount of the Korean Stock Exchange market price published for two months before and after the date of acquisition of shares under Article 63(1)1 (a) of the former Inheritance Tax and Gift Tax Act cannot be deemed as the market price of shares. Although the former Inheritance Tax and Gift Tax Act does not provide for the method of assessment of the shares whose transaction is prohibited on the grounds of protection, the Defendant assessed the shares acquired by the Plaintiff pursuant to the above provision and disposed of

6) The Plaintiff calculated the “value per share before the capital increase” on the basis of the publication date of the capital increase in the method of allocating a third party, based on the practices of national tax administration, and thus, the Plaintiff did not report and pay gift tax because it did not gain any profit from the capital increase as a result of the Plaintiff’s appraisal of the shares acquired on the basis of the publication date of the capital increase. As such, there was a justifiable reason that does not lead to the Plaintiff’s

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination on the first argument

A) Article 39(1)1 (a) and (c) of the former Inheritance Tax and Gift Tax Act provides that where a corporation issues new stocks at a price lower than their market price to increase its capital by directly obtaining profits from the corporation concerned, gift tax shall be levied on the person who has obtained such profits as the value of donated stocks: Provided, That where a stock-listed corporation or Association-registered corporation under the Securities and Exchange Act allocates new stocks by means of public offering of new stocks under Article 2(3) of the former Securities and Exchange Act, the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 2051, Jan. 18, 2008; hereinafter the same shall apply) provides that “public offering of new stocks shall be made through public offering of new stocks under the conditions as prescribed by Presidential Decree”; Article 2-4(1) of the former Enforcement Decree of the Securities and Exchange Act provides that where the corporation obtains profits from the corporation’s issuance of new stocks, the amount equivalent to such profits shall be excluded from the value of donated stocks to the person who has received new stocks within 50 months or more than the past issuance of new stocks.

In light of the above provisions, where a corporation issues new stocks at a price lower than their market price in order to increase its capital, a person who receives allocation shall obtain profits equivalent to the difference between the market price and the gift tax by including the amount equivalent to the value of the property donated under the former Securities and Exchange Act. In the case of the allocation of new stocks through a public offering of new stocks under the former Securities and Exchange Act, a person who obtains profits through a discount shall be exempted from the imposition of gift tax in the case of a public offering of new stocks, and even if a person takes profits through a public offering of new stocks, a stock-listed corporation or Association-registered corporation issues new stocks through a public offering procedure under the former Securities and Exchange Act and other relevant Acts and subordinate statutes, such as the former Securities and Exchange Act, even if the new stocks are issued at a discount, the appropriate value shall be determined again through a fair public offering procedure within the Korea Stock Exchange or Association brokerage market. In addition, in consideration of the fact that a discount is granted to facilitate the financing of a stock-listed corporation or Association-registered corporation under the former Securities and Exchange Act and other relevant Acts and subordinate statutes, even if the price of stocks is lower than their market price.

Meanwhile, Article 2-4 (4) of the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 1508, Feb. 24, 1998) provides that if the issuer issues a single new stock against less than 50 minority members and resells it again to more than 50 persons, etc., it shall not be included in the concept of public offering and shall not be included in the concept of public offering, it is a newly introduced system at the time of the amendment of the above Enforcement Decree to prevent the avoidance of the regulation on public offering of securities for the purpose of protecting investors. Thus, it is consistent with the purpose of Article 39 (1) 1 (a) and (c) of the former Inheritance Tax and Gift Tax Act and Article 2-4 (4) of the former Enforcement Decree of the Securities and Exchange Act (amended by the method of public offering of securities for the purpose of protecting investors.

Furthermore, in order to constitute "distribution by the method of public offering of securities, which is an exception that does not include profits from the issue at a low price under Article 39 (1) 1 (a) and (c) of the former Inheritance Tax and Gift Tax Act in the value of donated property," the procedures for soliciting an offer under Article 2-4 (5) of the former Enforcement Decree of the Securities and Exchange Act, namely, advertisements through newspapers, broadcasting, magazines, etc., the distribution of printed matters, such as notice and publicity leaflets, the holding of an explanatory meeting for investment, or electronic communications, etc. shall not be limited to the methods such as electronic communications, but the fact that securities are issued or sold or the acquisition of securities shall be notified

In addition, inasmuch as the subject matter of taxation itself is changing rapidly and various economic phenomena, and the purpose of various economic policies and social security is carried out, a combined interpretation that takes into account the motive, purport, purpose, etc. of the legislation should be permitted to the extent that it does not undermine the legal stability and predictability oriented by the principle of no taxation without law. As such, construing Article 39(1)1 (a) and (c) of the former Inheritance Tax and Gift Tax Act as mentioned above cannot be deemed as contrary to the principle of no taxation without law or strict interpretation (see, e.g., Supreme Court Decision 2007Du4438, Feb. 15, 2008).

B) Regarding the instant case, as seen earlier, the board of directors passed a resolution on April 10, 2007 that the non-party company should issue new shares only 49 persons including the Plaintiff, and accordingly, the issuance of new shares cannot be deemed as falling under the “distribution by the method of public offering of securities, which is an exception to the constructive gift resulting from the capital increase by issuing new shares under Article 39(1)1 (a) and (c) of the former Inheritance Tax and Gift Tax Act, and there is no evidence to deem that the non-party company had undergone the procedure of soliciting the offer under Article 2-4(5) of the former Enforcement Decree of the Securities and Exchange Act. Thus, the Plaintiff’

2) Determination on the second argument

A) As to the calculation of the gains that are deemed to have been donated at a low price under Article 39(1)1 (a) and (c) of the former Inheritance Tax and Gift Tax Act, Article 29(3)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the calculation of the gains shall be made by multiplying the value obtained by subtracting the subscription price per stock from (the appraised value per stock before capital increase x the total number of issued stocks before capital increase x the number of issued stocks before capital increase x the number of issued stocks increased by capital increase) ± (the total number of issued stocks before capital increase x the number of issued stocks increased by capital increase) ± (a) , the number of forfeited stocks or the number of new stocks allocated by subtracting the subscription price per stock from new stocks (b). Article 29(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended on December 30, 202) provides that the calculation of profits

In full view of the language and purport of the above provisions, the purport of the legislation, and the effect of the acquisition of shares due to the increase of shares by the underwriter of new shares, the value of shares acquired by the underwriter should be calculated as at the time of payment of the shares, barring any special circumstances, as to the method of calculating profits arising from the increase of shares by a third party, the assessment value per share before the increase of shares in the formula provided for in Article 29(3)1 (a) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act shall be calculated not by the resolution of the board of directors on the increase of shares pursuant to Article 29(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, but by using the same as at the day preceding the payment date of shares (see, e.g., Supreme Court Decision 2007Du7949

Meanwhile, the principle of retroactive taxation prohibition under Article 18(3) of the Framework Act on National Taxes applies only to cases where there are special circumstances that, even if the principle of legality is sacrificeed, the protection of taxpayer's trust is deemed to accord with justice. The practice of national tax administration generally accepted by taxpayers under that provision refers to the degree that even erroneous practices are accepted by a general taxpayer who is not a specific taxpayer, and it is not unreasonable for taxpayers to trust such practices. The mere fact that there was an expression of public opinion on the standard of interpretation of tax law does not necessarily mean that such practices cannot be deemed to exist, and the burden of proving such interpretation or practice is the taxpayer (see, e.g., Supreme Court Decisions 91Nu13670, Sept. 8, 1992; 2005Du2858, Jun. 29, 2006).

B) As to the instant case, under Article 29(3)1 through 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the “the value per share before the person who issued the certificate” and “the value per share in the case of listed corporations and KOSDAQ-listed corporations under Article 63(1)1 (b) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act shall be the average value of the closing price of the Korea Securities and Futures Exchange published by the day before the date when the right due to the increase in the capital was created. According to the purport of the entry and pleading in subparagraph 3, it is recognized that the Commissioner of the National Tax Service sent a reply with regard to the question with respect to the above basic rules on June 28, 2004, which is reasonable to regard the date when the fact was published.

However, as seen earlier, insofar as Article 29(4)3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act explicitly stated that the calculation of profits under Article 29(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, which was newly established on December 30, 2002, is based on the payment date of stocks, it is difficult to deem that the practice of national tax administration was established that the assessment value per share before the capital increase was based on the public announcement date of capital increase.

Therefore, the defendant's calculation of "the evaluation value per share before the person concerned" based on the payment date of shares is lawful under Article 29 (4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. Therefore, the plaintiff's assertion on this part is without merit.

3) Judgment on the third argument

A) Facts of recognition

According to the purport of Gap 3, 7, and Eul 2 through 9 (including each number), and the defendant's overall purport of each of the above statements and arguments, as a result of the investigation of the detailed changes in shares from January 1, 2007 to May 4, 2007 by referring to the shareholders' holding and changes which were able to be identified as the basis for reporting and reporting pursuant to the relevant Acts and subordinate statutes based on the list of shareholders on December 31, 2006, it appears that the total number of shares issued by the non-party company was less than 67,740 shares of the non-party company as of December 31, 206 (including "controlling shareholders" hereinafter) and the total number of shares issued by the non-party company was less than 30,740 shares issued by the non-party company as of December 31, 206 (the total number of shares issued by the non-party company was less than 67,740,700 shares issued by the non-party 27.3

B) The Plaintiff asserted that the instant disposition was unlawful since the Defendant did not secure the shareholder registry as of May 4, 2007, and did not reflect only the changes in the shares of shareholders holding not less than 5% of the total number of shares issued by Nonparty Company based on the shareholder registry as of December 31, 2006 and did not reflect all the changes in the shares of shareholders holding less than 5% of the total number of shares issued by Nonparty Company. Thus, the instant disposition violated the substance over form principle and the taxation basis, and did not bear the burden of proof as to the requirements for taxation.

However, according to the above evidence and the purport of oral argument, KimB, ParkCC, and Park DD (this case’s specially related person under Article 200-2(1) of the former Securities and Exchange Act, held not less than 5/100 of the total number of shares issued by the non-party company during the period from January 1, 2007 to May 4, 2007. The remaining controlling shareholders, except the above KimB, Park CC, and Park DD, were still listed in the register of shareholders of the non-party company as of December 31, 207, and all of them were transferred to the plaintiff for 7 years from 2007, and there was no fact that the non-party company’s shares were transferred to the non-party company for 20 years from 7 years from 207 to 30 years from 206 to 30 years from the total number of shares issued by the non-party company and the non-party company’s shares were transferred to the plaintiff.

Therefore, the plaintiff's above assertion on different premise is without merit.

4) Judgment on the fourth argument

Article 65(1) of the former Inheritance Tax and Gift Tax Act provides that the term "conditional right" refers to a right based on the nature and nature of an uncertain fact that the occurrence or extinction of a juristic act is dependent on the future. Therefore, the term "Conditional right" refers to a right for which the fulfillment of a condition has not become final and conclusive, and one of the parties has the expectation or possibility to obtain a certain benefit due to the fulfillment of a condition.

(see Article 149 of the Civil Act)

Comprehensively taking account of the overall purport of the arguments in the statement of evidence Nos. 1 through 3 and 5 as to this case, it can be acknowledged that the Plaintiff had been protected by the Korea Securities Depository for six months after the issuance of 894,740 shares of the non-party company (the name of the Korea Securities Depository around February 4, 2008) on May 4, 2007. This is merely a limited disposition of the above new shares for a certain period under an agreement between the Plaintiff and the non-party company, and thus, it cannot be deemed that the legal effect of the above new shares is dependent on the gender of uncertain facts in the future, and thus the right to the above new shares cannot be seen as a "Conditional right" under Article 65 (1) of the former Inheritance Tax and Gift Tax Act. Thus, this part of the Plaintiff's assertion is without merit

5) Judgment on the fifth argument

In principle, Article 60(1) of the former Inheritance Tax and Gift Tax Act provides that the market value of listed stocks shall be assessed based on the evaluation method stipulated in Article 63(1)1(a) of the same Act; however, in order to exclude arbitraryness and ensure objectivity in evaluation, the legislative purport of deeming the value assessed according to the evaluation method stipulated in Article 63(1)1(a) of the same Act as the market value; and in full view of the structure under Articles 60 and 63 of the former Inheritance Tax and Gift Tax Act as to the evaluation method of listed stocks, and the above provisions, barring special circumstances, it is reasonable to deem that only the average of the final market value of the Korea Stock Exchange every two months before and after the evaluation date computed in accordance with the evaluation method stipulated in Article 63(1)1(a) of the former Inheritance Tax and Gift Tax Act as the market value of listed stocks (see Supreme Court Decision 2008Du470

The Plaintiff asserts that the market price of shares cannot be calculated by applying the provisions of Article 63(1)1 (b) of the former Inheritance Tax and Gift Tax Act to the shares, the transaction of which is prohibited due to safeguard. However, Article 39 of the former Inheritance Tax and Gift Tax Act and Article 29 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act stipulate that gift tax shall be imposed on the profits acquired by a person who is not a shareholder of a corporation by directly receiving new shares from the relevant corporation as the value of donated shares calculated on the basis of “the value of appraisal per share before the person issued the certificate” as of the payment date of the purchase price of shares, and there is no special exception to the shares so protected. Therefore, it is legitimate that the Defendant calculated the market price of shares of the non-party company acquired by the Plaintiff in accordance with the method of assessment under Article

Therefore, this part of the Plaintiff’s assertion on a different premise is without merit.

6) As to the fifth argument

Under the tax law, where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, a taxpayer’s intention and negligence is not considered, but does not constitute justifiable grounds that do not constitute a breach of duty (see, e.g., Supreme Court Decisions 9Du3515, Aug. 20, 199; 2002Du10780, Jun. 24, 2004).

As seen earlier, there was a circumstance that Article 39-292 of the former General Rules of the Inheritance Tax and Gift Tax Act provides that the assessment value per share before the person who acquired the right shall be calculated on the basis of the day preceding the date of the person who acquired the right. However, inasmuch as Article 29(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, which was newly established on December 30, 2002, explicitly stipulates that the calculation of profits under Article 29(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act shall be based on the date of the payment of stock price, it cannot be deemed that there was a justifiable reason that does not constitute a violation of the duty to report and pay taxes by the sole reason alleged by the

4. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

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