Seocho 209west 2237 (No. 21, 2009)

Donation as a result of transfer of stocks at a higher level;

If an accounting firm’s evaluation of the shares of the non-party company based on estimated sales is difficult to be deemed reasonable and objective, and it is considerably higher than the market price.

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

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s disposition of imposing gift tax on the Plaintiffs on February 9, 2009 shall be revoked in entirety.

1. Details of the disposition;

A. On August 12, 2005, LAAA entered into an all-inclusive share swap agreement with the shareholders of the non-party company (hereinafter referred to as the “AA”) to determine the share swap ratio of each company as 4.9549407 shares (amount of 500 won) of the non-party company (amount of 500 won). AAA entered into a share swap agreement with the non-party company to issue shares of the non-party company 9,909,869 shares (ordinary share and par value of 500 won) to allocate the shares of the non-party company to the shareholders of the non-party company (hereinafter referred to as the “the share swap agreement of this case”).

B. On October 28, 2005, the Plaintiffs, the shareholders of the non-party company at the time, were allocated shares of the AA according to the share swap agreement as follows.

C. The director of the Seoul Regional Tax Office, as a result of the investigation of stock change against the non-party company, deemed that the plaintiffs transferred the value per share of the non-party company at a higher price. The director of the Seoul Regional Tax Office assessed the value per share of the non-party company at 569 won according to the supplementary assessment method, and notified the defendants of the investigation data determined by deducting 300

D. Accordingly, the Defendants determined and notified the gift tax on October 28, 2005 to the Plaintiffs as indicated in the attached list.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 6, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The appraisal value of the shares of the non-party company in the share swap contract of this case reflects the objective exchange value based on the stock appraisal value assessed in an objective and reasonable manner by reflecting the market situation at the time, the business prospects of the non-party company, etc. in accordance with the relevant laws and regulations. The aggravation of the market situation at the time, the actual operating profit was lower than the estimated operating profit at the time of appraisal due to the aggravation of the management rights disputes of the AAA, and there is no reason to evaluate the shareholders and management of the non-party company in the share swap contract of this case conducted between the non-party company and the non-party company without special relation to the non-party

Therefore, it cannot be deemed that the Plaintiffs’ transfer of the shares of the non-party company under the instant share swap contract constitutes transfer of the assets at a price significantly higher than the market price without justifiable grounds.

(b) Fact of recognition;

1. Reasons for concluding the stock exchange case

A) AAA was established on August 4, 1997 for the purpose of running the business of manufacturing and selling information and communications devices, and the SI consulting service business, and listed on May 29, 2001 to the KOSDAQ market. The non-party company owned the document processing system technology on October 9, 2003 and manufactured and sold the documents processing machine used by financial institutions, public institutions, etc.

B) AAA decided to incorporate a non-party company into a wholly owned subsidiary by a share swap method in order to seek maximize shareholder value based on diverse profit structure by promoting growth and management rationalization through strengthening of existing projects and diversification of projects.

(C) On August 8, 2005, AA requested a new accounting corporation to assess the adequacy of the share swap and transfer ratio due to the share swap and transfer ratio of AA and the non-party company. On the 12th day of the same month, the selected accounting corporation calculated the appraisal value per share of the shares of each company and determined the share swap ratio based thereon as follows.

D) Meanwhile, under Article 190-2 of the former Securities and Exchange Act, Article 84-7 of the Enforcement Decree of the same Act, and Article 36-12 of the Enforcement Rule of the same Act, Article 82 of the Regulations on Issuance and Public Disclosure, etc. of Securities and Exchange, and Articles 5 through 9 of the Enforcement Rule of the same Act, the new accounting corporation evaluated the stock value of the non-party company as the value assessed by taking an arithmetic mean of the average of the average of the values of the asset value and the earnings value (where it is not possible to compute the commercial

In particular, when assessing the profit value of the above company's business, since it is difficult to estimate the profit on the basis of the market size and market share in the future, through an interview with the business plan and the person in charge of the above company's business plan presented by the above company, the estimated profit was calculated as KRW 1,035,307,00 in the business year 2005 and in the calculation of the profit and loss for the business year 2005 based on the calculation of the profit and loss for the business year 2005 and the estimated profit and loss for the business year 205.

E) AAA and the non-party company entered into the instant share swap contract by setting forth KRW 6,268 per share of the non-party company’s shares and KRW 1,265 per share of the shares of the AA in accordance with the written evaluation of the share swap ratio by the selected accounting firm containing the above contents.

F) Meanwhile, the actual sales and earnings of the non-party company for the 2005 business year and 2006 business year are as follows.

G) AA included the total purchase price (12.536 billion won) of the non-party company’s shares acquired through the instant stock exchange contract in the business year 2005 as investment shares subject to the equity agreement, but determined that the estimated recovery value in the business year 2006 and 2007 falls short of the book value and treated losses due to investment reduction loss, etc. under the equity agreement.

2) Status of markets related to the electronic voting period, etc. at the time of the share swap contract

가) 중앙선거관리위원회는 2005. 1.경 전자투표도입을 위하여 단계별 추진계획이 포함된 '전자투표 추진 로드맴'을 발표하였고, 같은 해 상반기에는 2006년 제4회 전국 동시지방선거의 효율적인 개표를 위하여 투표지 분류기를 추가로 구입하는 방안과 기존 투표지 분류기의 성능을 향상시키는 방안을 검토하였으며, 그 과정에서 기존 투표 지 분류기의 흑백이마지 센서를 컬러이미지 센서로 교체하는 등 투표지 분류기 성능향상 용역에 관한 입찰을 조달청에 의뢰하였고, 그 무렵 화성시장보궐선거 등에서 주식회사 BB시스템에서 무상지원한 컬러투표지 분류기를 시범으로 사용하기도 하였다.

B) In addition, the National Election Commission separately added the budget of KRW 200 million in 2005, and produced the electronic voting file multiple (12,4, and 4,000) product. The electronic election promotion team for the same year was operated from 2006 to 2008.

C) Meanwhile, the National Election Commission’s budget amount related to the introduction of electronic voting among the budget amount in 2006 accounting year was KRW 3.74 billion (the above budget amount seems to be known to the general public on November 2005). The budget amount in 2007 accounting year was reduced on the grounds that the political and social consensus foundation for the introduction of electronic voting and the adjustment of the period of introduction were made for the introduction of electronic voting.

D) After December 2009, BB system, which is the subcontractor of the non-party company, concluded a purchase contract with the National Election Commission to supply the electronic voting system (4 billion won).

E) On the other hand, around August 20, 2005, the Plaintiff supplied 723 check seal forms (name HS-2000, 715770,000) to BB system, and the BB system supplied them to the Ministry of Information and Communications.

(iii) Other circumstances.

A) At the time of the conclusion of the instant share swap contract, KimE, director KimF, auditor KimD held the shares of the non-party company in the name of a third party, but the said shares were exchanged as shares of the AAA according to the said share swap contract.

B) A part of the shareholders of the non-party company transferred the shares of the non-party company to a third party from February 25, 2005 to February 28, 2005, to KRW 5,000 to KRW 5,300 per share (at the time, the face value of the non-party company's shares was KRW 5,00,000, but at the face value was divided on July 10, 2005).

[Ground of recognition] Facts without dispute, Gap's 3 through 12, 15 through 18, Eul's 1 to 5, witness Lee G's testimony, fact-finding results to the National Election Commission, the purport of the whole pleadings

C. Determination

Article 35(2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8139, Dec. 30, 2006; hereinafter "former Inheritance Tax and Gift Tax Act") provides that where a property is transferred between persons other than the related parties, only if the property is transferred at a price significantly higher than the market price without justifiable grounds in light of transaction practices, the amount equivalent to the profits prescribed by the Presidential Decree shall be presumed to be donated to the person who has acquired the profits as the donated property. Article 26(6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Act No. 1933, Feb. 9, 2006; hereinafter "former Enforcement Decree of the Inheritance Tax and Gift Tax Act") provides that the value of the transferred property minus the market price is 30/100 or more of the market price, the market price of the property shall be freely determined by the market price under Article 60(1), (2), and (3) of the former Inheritance Tax and Gift Tax Act.

그런데 신정회계법인이 소외 회사 주식의 1주당 가액을 6,268원으로 평가한 사실은 앞서 본 바와 같으나, 한편으로 앞서 본 인정사실에 나타난 다음과 같은 사정, 즉 2005년 1월부터 7월까지의 실제매출액은 19억 8,000만 원임에도 같은 해 8월부터 12 월까지의 추정매출액은 106억 6,234만 원으로 되어 았고, 2004년 매출액은 49억 6,800 만 원임에도 2005년 추정매출액은 126억 4,200만 원이고, 2006년 추정매출액은 137억 7,500만 원인 점, 위 회계법인이 위와 같은 매출액의 산정근거로 삼은 선거 투ㆍ개표 기와 관련한 매출액에 대하여는 평가 당시 중앙선거관리위원회는 전자투표사업을 도입 하기 위한 전자투표추진로드맴을 발표하고, 기존 투표지 분류기를 교체하는 방안을 검토하는 단계에 있었던 것이지, 전자투표를 시행하기로 하거나 2005년부터 전자투표 관련 기기 등을 매입하거나 기존 투표지 분류기를 교체하기로 결정한 것이 아니었고, 2006회계연도에는 관련 예산이 37억 원 정도에 불과하였으므로, 이를 추정매출액 산정에 그대로 반영할 것은 아닐 뿐만 아니라 그 추정매출액 산정 자체도 과장된 것으로 보이는 점, 그 외 수표인식기 등과 관련한 매출액에 대하여는 정보통신부에 납품한 부분을 제외하고는 위와 같은 추정액을 뒷받침할 만한 객관적인 자료가 없는 점, 실제로 소외 회사의 2005사업연도와 2006사업연도의 매출액이 추정매출액보다 현저히 낮았고, 그 영업이익 또한 추정영업이익보다 현저히 낮았던 점, 위 평가일을 기준으로 불과 6 개월 전인 2005. 2. 25.부터 같은 달 28.까지 사이에 소외 회사의 주식은 l주당 5,000 원내지 5,300원에 거래되었고, 이는 2005. 7. 1. 액면분할된 이후의 금액을 기준으로 환산하면, 1주당 500원 내지 530원으로서 위 회계법인의 평가액의 10분의 1에도 미치지 못하는 점 등을 종합하여 보면, 당시 소외 회사의 사업전망 판단에 대한 위 회계법인의 재량, 추정매출액의 변동가능성, 이 사건 주식교환계약의 체결경위, 불가피한 사정으로 인한 시장 상황의 변화 등을 모두 고려하더라도, 위와 같은 추정매출액을 기초로 한 위 회계법인의 소외 회사 주식에 대한 평가가 합리성과 객관성을 갖추었다고 보기는 어려우므로, 위와 같은 평가를 바탕으로 이루어진 이 사건 주식교환계약은 거래의 관행상 정당한 사유 없이 사가보다 현저히 높은 가액으로 재산을 양도한 경우에 해당한다고 봄이 상당하다.

Therefore, it cannot be said that the instant disposition that the Defendant reported the market price per share of the stocks of Nonparty Company to KRW 569, which was assessed in accordance with the supplementary assessment methods, did not err.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as there is no reason.