2012Guhap2615 (2013.05)

No reasonable ground exists in relation to the exercise of the preemptive right.

In full view of the fact that the acquisition of profits exceeding the standard through the acquisition and exercise of preemptive rights is adjusted favorably to the exercise price per share of the preemptive right when the representative director is employed in relation to the exercise of preemptive rights, it does not seem that there is a justifiable reason in the business practice.

2013Nu8280 Revocation of Disposition of Imposition of Gift Tax

AA

Head of the High Tax Office

Suwon District Court Decision 2012Guhap2615 Decided February 5, 2013

July 3, 2013

August 21, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the imposition of the OOO gift tax on November 8, 201 on the plaintiff on the 2010.

1. cite the judgment of the first instance;

The reasoning of this court's ruling is as follows, and the judgment on the plaintiff's assertion is added in the following paragraphs, and therefore, it is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

〇 3쪽 7째 줄 '2011. 11. 11.'을 '2011. 11. 8.'로 고친다.

〇 5쪽 8째 줄 '등을 종합하면' 앞에 아래 내용을 추가한다.

⑤ The number of preemptive rights taken over by the Plaintiff, the Plaintiff, and the Plaintiff, ASEAN, and DD, reaches approximately 86% of the total number of OOO (in the absence of any dispute, and evidence No. 4-2). The Plaintiff appears to have been in the position to fully informed of the internal information during the process of the merger, and the difference between the appraised value and the conversion value of the stocks acquired by the Plaintiff by exercising preemptive rights reaches OO won (Evidence No. 6-2).

〇 5쪽 10째 줄 '정당한 사유가 있다고 보이지 아니하므로'를 '정당한 사유가 없다고 인정되므로'로 고친다.

2. Additional determination

The Plaintiff asserts that this court is not a person with a special relationship under Article 42(3) of the former Inheritance Tax and Gift Tax Act with respect to the conversion and acquisition of shares. However, considering the circumstances and the following circumstances, the Plaintiff’s assertion is difficult to accept.

① Article 42(1)3 of the former Inheritance Tax and Gift Tax Act provides that the gains from the transactions which increase or decrease the corporation’s capital, such as conversion, acceptance, and exchange of stocks, etc. with convertible bonds, etc. shall be regarded as donation gains, and the relevant gains from conversion of stocks, etc. shall be calculated by subtracting the value of conversion, etc. from the value of stock at the time of conversion of stocks, etc. In such cases, such gains shall be subject to the gift gains accruing from the process of exercising the preemptive right, not from the process of accepting the preemptive right. Therefore, where such gains fall under a specially related person at the stage of exercising the preemptive right corresponding to the “stock conversion, etc.” under the above provision, they

(2) According to Article 42(1)3 of the former Inheritance Tax and Gift Tax Act and Article 31-9(2)4 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, in cases where the amount calculated by subtracting the value of stock conversion, etc. from the value of stocks at the time of stock conversion, etc., and from the value of stocks at the time of stock conversion, etc., is not less than OOO. In such cases, the donee is a person who conducts stock conversion, etc. at a level lower than the value of stocks at the time of stock conversion, etc., and the donor is a company issuing stocks at a level lower than the value of stocks at the time of stock conversion, etc., the donor is a specially related person under Article 42(3) of the former Inheritance Tax

③ Article 42(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5193, Dec. 30, 1996) stipulates that, in addition to donations under Article 40, profits falling under any of the following subparagraphs and above the standard prescribed by Presidential Decree shall be deemed as the value of donated property to the person who has acquired such profits. However, the former Inheritance Tax and Gift Tax Act (wholly amended by Act No. 5193, Dec. 30, 1996) imposes a tax only on the difference between the value of stocks and the conversion value, etc. issued at the time of acquisition of convertible bonds, etc., but the profits gained from convertible bonds, etc. are actually converted even if they are converted, so it is reasonable to impose a tax on the profits from conversion, etc. of convertible bonds, etc. under the provision of Article 40 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301, Dec. 29, 200).

④ Article 42(1)3 of the former Inheritance Tax and Gift Tax Act provides that the profits acquired by conversion, acceptance, exchange, etc. of stocks using convertible bonds, etc. shall be taxed, and Article 42(3) of the same Act provides that the same shall not apply in cases where a transaction between the parties who are not special officials prescribed by Presidential Decree is deemed to have justifiable grounds as a transaction practice. As such, Article 42(3) of the former Inheritance Tax and Gift Tax Act provides that cases where exceptions are not applied, and the risks that may arise from the transaction between the related parties may occur at the time of acquisition and exercise of preemptive rights, and it is reasonable to view that the exception provision under Article 42(3) of the former Inheritance Tax and Gift Tax Act is applicable only when both the acquisition and exercise of preemptive rights should not be the specially related parties (in this case, the Plaintiff was not a specially related party at the time of acquisition of preemptive rights

⑤ As seen earlier, the period for exercising the instant preemptive right is from May 18, 2008 to April 18, 2010, and the Plaintiff served as the representative director from January 7, 2008 to June 27, 201 after NN merger, and there is a re-resolution provision that allows the stock price to be adjusted every six months to 30% when the stock price falls below the exercising price in the instant bonds with warrants. Therefore, the Plaintiff, as the representative director, is able to re-Adjustment by affecting the stock price as a specially related person so that the stock price falls short of the exercising price temporarily (i.e., the exercise price per stock has been adjusted from OOO to OOO won according to the re-resolution in this case). In order to be subject to the former Inheritance Tax and Gift Tax Act, there was a possibility that the exercise price per stock of the preemptive right would have been at the time of exercising the highest benefits by exercising the stock price at a certain time.

(6) Of the provisions of Article 31-9(1)4 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, in cases where the amount calculated by subtracting the value of stock conversion, etc. from the value of stocks at the time of stock conversion, etc. is not less than an OO, the said amount is imposed only on profits exceeding a certain amount by deeming the said amount as the profit. Therefore, there is no need for excessively narrow interpretation of the scope of specially related persons under Article 42(3) of the former Inheritance Tax and Gift Tax Act.

3. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.