Revocation of Disposition Imposing Gift Tax

The issue of this case’s capital increase cannot be deemed as falling under a third party’s capital increase by means of a public offering of new shares, and it is not unlawful to evaluate the donation profits as of the date of payment of shares, and the Plaintiff’s assertion that the instant shares were transferred under the payment agreement and did not actually acquire the instant shares cannot be acknowledged.

Article 39 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007)

2015Guhap2995 Revocation of Disposition of Imposition of Gift Tax

Park*

*The Director of the Tax Office

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of gift tax of KRW 65,070,410 against the Plaintiff on February 14, 2015 is revoked.

1. Details of the disposition;

가. 전AA은 2007. 5. 3. 상장법인인 주식회사 ○○(2007. 6.경 '주식회사 △△△△에너지'로 상호변경되었고, 2011. 9. '주식회사 □□□□□'으로 상호변경되었다. 이하 '이 사건 회사'라 한다)의 기존 대주주 손BB으로부터 위 회사의 경영권을 인수하기로 합의하였다. 같은 날 이 사건 회사는 유전탐사 및 채굴 등 개발업에 진출하기 위하여 전AA이 보유하고 있던 러시아 소재 유전개발업체인 ☆☆☆☆☆사의 지분 24% 상당을 인수하기로 하면서, 그 자금조달을 위하여 제3자 배정방식의 유상증자에 관한 이사회 결의를 하였다.

B. In order to offer securities worth at least two billion won under the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007; hereinafter the same), an issuer shall submit a securities registration statement to the Financial Supervisory Commission in accordance with Article 2(3) and Article 8(1) of the former Securities and Exchange Act and Article 2 of the Enforcement Rule of the same Act (amended by Ordinance of the Prime Minister No. 885 of Aug. 4, 2008; hereinafter the same shall apply). On May 3, 2007, the company of this case submitted a securities registration statement with respect to the third party allotment of new stocks, but was ordered to submit a corrective registration statement to the Financial Supervisory Commission on two occasions on August 1, 2007, the company of this case withdrawn the submission of the securities registration statement on August 1, 2007. After that, the company of this case conducted new stocks offering on the condition that it received deposits for one year.

Class and number of new shares: 91,589,100 shares of registered common shares

0 Purpose of financing: Project funds to promote new projects;

○ Issue price of new shares: 821 won per share (500 won per share)

○ Total amount of new shares issued: 75,194,651,100 won

○ Payment date of subscription money: August 16, 2007

Persons eligible for allocation of new shares: JeonA et al. 51 persons

The full amount of ○ New Stocks issued is expected to be protected by the Korea Securities Depository for one year from August 27, 2007.

C. The Plaintiff participated in the subscription to new shares in the instant case and acquired 400,000 shares of the instant company (hereinafter “instant shares”) at KRW 821 per share.

D. After examining the change of shares with respect to the instant company from April 30, 2012 to June 8, 2012, the commissioner of the Daegu Regional Tax Office: (a) issued new shares with respect to the instant company; (b) notified the Plaintiff of the existing shareholders of the instant company (which was before amendment by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “former Inheritance Tax and Gift Tax”) of Article 39(1)1 Item (c) of the former Inheritance Tax and Gift Tax Act at the time of issuing new shares; and (c) Article 29(3)1 Item (1) and (4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20621, Feb. 22, 2008; hereinafter referred to as the “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”) of the taxation data at KRW 1,466 per share 821 per share x 00% of the pre-existing shareholders of the instant company (CC 150B, 40505.5.4

E. Accordingly, on February 14, 2015, the Defendant decided and notified the Plaintiff of the total amount of KRW 65,070,410 (including additional tax) of the gift tax (hereinafter “instant disposition”).

F. The Plaintiff dissatisfied with the instant disposition and filed an appeal on April 30, 2015, but the Tax Tribunal dismissed the Plaintiff’s claim on July 21, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 2-1 through 3, Eul evidence 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant offering of new stocks constitutes an offering of new stocks to a third party under Article 2(3) of the former Securities and Exchange Act, which is subject to non-taxation. The instant disposition made on a different premise is unlawful.

2) The Plaintiff’s share price to be paid is determined prior to the payment date of the share price, and the Plaintiff could not anticipate the value of the share price as of the payment date, and since the share price has been deposited for one year, the Plaintiff calculated the value of shares as of the date of cancellation of the safe deposits available to dispose of the shares and determined whether to impose gift tax according to the profits actually acquired by the Plaintiff. Considering the fact that the Plaintiff did not actually incur any substantial profit due to the decline in the company’s share price at the time of the transfer of the shares after the lapse of the period of safe deposits and thereafter, the instant disposition that the Defendant calculated the donation profit as

3) A) With respect to the guaranteed obligation of KRW 2.8 billion borne by the Plaintiff’s husband to the Plaintiff’s husband, the Plaintiff and the Plaintiff agreed on August 1, 2007 that the instant company allocated KRW 300,000 of new shares issued by the Plaintiff as new shares issued by the Plaintiff on August 1, 2007, in lieu of the repayment of the said obligation. The remainder of the obligation is extinguished, and the Plaintiff transferred the instant shares to the Plaintiff as a substitute payment to the Plaintiff as a payment to the Periodical. Although the Plaintiff directly participated in the instant shares issued by the Plaintiff on the external form, the Plaintiff’s disposal of the instant shares by the offering of new shares is contrary to the principle of substantial taxation.

B) Even if the Plaintiff actually acquired the instant shares, the amount that the Plaintiff paid to acquire the instant shares ought to be deemed as KRW 2.5 billion, not the value of new shares acquired, but the amount of the claim extinguished by payment in substitutes. The Plaintiff’s profits derived from the acquisition of the instant shares are merely KRW 586,80,000 ( KRW 1,467 x 400,000) and do not reach the extinguished amount of the claim. Thus, the instant disposition based on the premise that the Plaintiff was benefiting from capital increase with new shares was unlawful.

4) The Plaintiff did not know whether the Plaintiff simply acquired the instant shares for the purpose of capital gains on transfer and received deposits for one year on condition of protection. As such, the Plaintiff cannot be deemed to have a cause attributable to the Plaintiff’s failure to report and pay gift tax on the instant shares. Therefore, imposing penalty tax is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Whether the offering of new shares constitutes the offering of new shares through the offering of new shares to a third party by the offering of new shares

A) Article 39(1)1 of the former Inheritance Tax and Gift Tax Act provides that where a corporation issues new stocks at a price lower than the market price of the new stocks, profits earned by a person who is not a shareholder of the relevant corporation shall be subject to gift tax, while where a stock-listed corporation or Association-registered corporation under the Securities and Exchange Act or Association-registered corporation under the Securities and Exchange Act allocates new stocks through a public offering method under Article 2(3) of the same Act, it shall be excluded from subject to taxation. This is not only where new stocks are issued in accordance with the method of public offering of new stocks under the former Securities and Exchange Act, but also where the issuance price should be determined at a price close to the stock price formed at the securities market, etc. (see, e.g., Article 57 of the former Securities and Exchange Act (amended by Act No. 2008-8, Apr. 7, 2008).

Article 2 (3) of the former Securities and Exchange Act provides that "public offering of new securities" in this Act shall be made "as prescribed by Presidential Decree" and Article 2-4 (1) of the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 20947 of July 29, 2008; hereinafter the same shall apply) shall be made 50 persons or more in case of public offering of new securities under Article 2 (3) of the former Securities and Exchange Act; Article 2 (4) of the former Securities and Exchange Act provides that "the public offering of new securities shall be made 50 persons or more"; Article 2 (3) of the former Securities and Exchange Act provides that "the public offering of new securities shall be made 50 persons or more who are subscribed for public offering of new securities without the public offering of new securities under Article 2 (3) of the former Securities and Exchange Act; Article 2 (2) of the former Securities and Exchange Act provides that if an issuer of new securities may be transferred to 50 persons or more within one year after the public offering of new securities is made public offering of new securities.

According to the relevant provisions of the former Securities and Exchange Act, where a listed corporation issues new stocks of at least 2 billion won through a securities offering method, it shall first submit a securities registration statement meeting certain requirements to the Financial Supervisory Commission, and make it possible to offer securities only after the report is received after reviewing the report. Accordingly, the acceptance of the report is naturally premised on the allocation of new stocks through a securities offering. Even after the receipt of the report, it requires strict procedures and methods for the offering of new stocks, and supervision and punishment for the violation are imposed. In light of the purport of the overall provision of Article 39(1)1 A of the former Inheritance Tax and Gift Tax Act, where a listed corporation issues new stocks of at least 2 billion won under the former Securities and Exchange Act, it shall not be deemed that the former securities offering method conducted without the acceptance of the registration statement is not permissible, and it does not constitute a case where the former securities offering method is not deemed a securities offering method subject to the gift tax under the former Securities and Exchange Act.

B) In this case, as recognized in the above 1.1., since the company of this case withdrawn the submission of the securities registration statement to the Financial Supervisory Commission, it appears to have abolished the securities offering method under Article 2(3) of the former Securities and Exchange Act. Rather, it does not constitute deemed public offering since it took protective measures under private placement method for one year from the date of issuance, and there is no sanctions imposed on the grounds that it failed to perform its duty to report on capital increase through public offering by the Financial Supervisory Commission. ② The securities registration statement is submitted and accepted by the Financial Supervisory Commission, and it is possible to invite subscription through public offering procedure. Thus, even if there are 50 or more parties, it cannot be deemed public offering through public offering under Article 2(3) of the former Securities and Exchange Act. ③ In order to constitute public offering method, it cannot be seen that the Plaintiff’s offering of securities through public offering method is excluded from the presentation procedure under Article 2-4(5) of the former Enforcement Decree of the Securities and Exchange Act.

2) Whether it is unlawful to evaluate the gift benefits on the basis of the payment date of stock price

Article 29(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act explicitly provides that "the calculation of profits under paragraph (3) of Article 39 of the Inheritance Tax and Gift Tax Act (the profit accrued from the increase in the capital under paragraph (1) of the same Article) shall be based on the payment date of shares, and Article 423 of the Commercial Act provides that "any underwriter of new shares shall have the rights and duties of shareholders as of the day immediately following the due date for payment when he performs the payment or contribution in kind." The plaintiff becomes a shareholder of the company of this case at the time of payment of shares and also acquired the rights to receive dividends and residual assets at the time of liquidation." Even if the period for protection of the shares acquired by the plaintiff was set upon upon the agreement between the plaintiff and the company of this case, it is reasonable to consider that the disposal of new shares was limited for a certain period of time under the agreement between the plaintiff and the company of this case, and that the acquisition price of new shares was reduced at the time of disposal, and that there was no difference in the value of shares after the increase in the price of shares.

3) Determination as to the assertion relating to payment in kind (as above A-3)

A) No. 3 (Agreement) cannot be admitted as evidence because there is no evidence to acknowledge the authenticity of the agreement. (The plaintiff asserted that the plaintiff voluntarily acquired the shares of this case for the purpose of transfer margin as well as the taxation prior to the disposition of this case and even before the filing of the lawsuit of this case. The above agreement was submitted as evidence after 7 months have passed since the filing of the lawsuit of this case, and one copy of the certificate of seal impression is attached to the signature and seal of this case, but it is not difficult to view that the agreement of this case was normally prepared as a disposal document for the repayment of debt amounting to the agreed amount of KRW 2.8 billion. Considering that there was no evidence to acknowledge that the agreement of this case was not sufficient to acknowledge that the plaintiff's transfer price of shares was 2.8 billion won or more based on the agreement of this case, and that there was no evidence to acknowledge that the agreement of this case was 50 billion won or more based on the content of the agreement of this case's 60 billion won or more.

B) As examined above, considering the fact that it is difficult for the Plaintiff to accept the existence of an accord and satisfaction agreement as alleged by the Plaintiff, and that Article 29(3)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the Plaintiff’s assertion on this part is without merit, considering the fact that Article 29(3)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the value obtained by subtracting the value of new shares per share from the appraised value per “(a)” (b) by the number of new shares allocated

4) Whether the imposition of additional tax is illegal

Under the tax law, penalty taxes are administrative sanctions imposed in accordance with the law in cases where a taxpayer violates a duty to report and pay taxes without justifiable grounds in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, and the taxpayer’s intention and negligence is not considered, and the land or mistake of the law does not constitute justifiable grounds (see Supreme Court Decision 2013Du1829, May 23, 2013).

In this case, since the Plaintiff is deemed to have received the instant shares pursuant to Article 39(1)1(c) of the former Inheritance Tax and Gift Tax Act by acquiring them, the Plaintiff is obligated to report and pay the gift tax, and Article 29(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act explicitly provides that the relevant base date is “the payment date of stocks” with respect to the calculation of the profit accrued from capital increase, and there is no other evidence to deem otherwise that there is an obstacle to the Plaintiff’s fulfillment of the Plaintiff’s liability to pay the gift tax. Thus, it cannot be deemed objectively unreasonable for the Plaintiff to expect the Plaintiff to fulfill the obligation to pay the gift tax. The Plaintiff’s failure to report and pay the gift tax is merely a matter of land or mistake under the law, and it cannot be deemed that there is

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.