The early 2013 middle 0323

Disposition Revocation of Gift Tax Imposition

Therefore, it cannot be deemed unlawful to calculate the net asset value of the company of this case, considering the value of land and building in the balance sheet that can be seen as the market price or the price adjacent to the market price as of the date of capital increase

2014Guhap31173 Revocation of Disposition of Imposition of Gift Tax

Section AA

■■세무서장

December 1, 2014

on October 08, 2015

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 imposing gift tax on the Plaintiff on October 9, 2012 exceeds KRW 00 million and exceeding KRW 00 million among the disposition of imposing gift tax on the Plaintiff on October 9, 2012 shall be revoked, respectively.

1. Details of the disposition;

A. On April 12, 2010, the KNB Co., Ltd. (hereinafter “instant company”), a unlisted company, owned 29% of the shares of the said company, 51% of the conciliationA, and 20% of the gamblingB, issued capital increase in KRW 00,000 per share.

B. At the time of the above subscription for new shares, the Plaintiff acquired 00,000 won per share of forfeited shares (hereinafter “instant shares”) as the Plaintiff renounced the subscription of each 00,000 shares and 00,000 shareholders (hereinafter “instant new shares”).

C. On August 31, 2012, the Plaintiff reported and paid the gift tax (including additional tax) to the Defendant on August 31, 2012, by deeming the value per share of the instant shares as KRW 00,000,000, which is the difference between the acquisition value and the acquisition value: (b) (00,000 won - 00,000 won) x

D. The Defendant assessed the value per share of the instant shares as KRW 00,000 according to the supplementary assessment method under Article 63 of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”). On October 9, 2012, the Plaintiff deemed that the instant shares were received at a price lower than the market price from ChoA and ParkB and received the donation equivalent to the difference as a result, and imposed and notified the Plaintiff of KRW 00,000,000 (= KRW 00,000,000,000,000,000,000,000,000,000,000,000,000).

E. On December 11, 2012, the Plaintiff appealed and tried on December 11, 2012. On March 24, 2014, the Tax Tribunal rendered a decision that “in assessing the value per share of the instant shares, the amount of KRW 00 million (the sales bond KRW 0 million, the inventory asset KRW 00 billion, and the advance payment expense KRW 0 million) shall be deducted from the asset value, and the tax base and tax amount shall be corrected, and the remainder of the claim shall be dismissed.”

F. On April 8, 2014, the Defendant, upon the decision of the said Tax Tribunal, corrected the gift tax of KRW 00 million from KRW 00 million (i.e., KRW 00 million + KRW 00 million for the portion of ChoAB donations). On the same day, the Defendant notified the Plaintiff of the result of the disposition of request for a trial, and the said notification was served on the Plaintiff on April 14, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 3, Eul evidence No. 1 (including additional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

In order to calculate the value of the shares of this case, which are unlisted stocks, the defendant evaluated the net asset value of the company at AAB-dong 41-3 0,000 square meters and above-ground factories and structures (hereinafter "the land, buildings and structures of this case") owned by the company of this case, and recognized the value on the balance sheet appraised in accordance with the corporate accounting standards. However, Article 55 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the standard market value of the company of this case shall be the book value if the standard market value of the real estate is less than the book value, and the book value refers to the value obtained by subtracting the depreciation cost from the acquisition value. Unlike the wording of the above provision, the book value (the value obtained by subtracting the depreciation cost) of the land and buildings of this case shall be evaluated as the standard market value. In addition, since the company of this case shall evaluate the amount exceeding the standard market value of the company's net asset value on the balance sheet of 2003,000,000 won from the net asset value of this case should be collected.

2) The defendant's assertion

The Inheritance Tax and Gift Tax Act provides that the value of assets can be assessed by reflecting the market price, and the market price of real estate shall be the value of assets if there is no market price, and even if there is no market price, the book value shall be deemed the market price.According to the National Tax Service's regulations, the book value under Article 55 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act refers to the value on the balance sheet prepared by the corporate accounting standards,

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) As of December 31, 2009, the value of the instant land, buildings and structures on the balance sheet as of December 31, 2009, book value asserted by the Plaintiff, and the standard market value of the instant land and buildings are as follows

- - omitted -

2) The value of the instant land and buildings on the balance sheet as of December 31, 2009, as of December 31, 2009, reflects one appraisal value (0 billion won at the time of price, 00 billion won in the instant land, and 0 billion won in the instant building) requested by the new bank to an appraisal corporation for the purpose of appraisal of collateral in order to provide loans to the instant company, and is the amount assessed in accordance with the fair value model according to the corporate accounting standards.

[Reasons for Recognition] Facts without dispute, Gap's entries in Gap's 3 through 7, 9, 10, 11, and the purport of the whole pleadings

D. Determination

1) Article 60 (1) of the Inheritance Tax and Gift Tax Act provides that "the value of the property on which gift tax is levied shall be the market value as of the date of donation, and the shares of a stock-listed corporation shall be the average of the last value of the exchange prices (not based on whether there is any transaction record) that are published every two months before and after the date of donation, shall be deemed the market value." In the application of Article 60 (3) of the Inheritance Tax and Gift Tax Act, where it is difficult to calculate the market value in accordance with the methods provided for in Articles 61 through 65 in consideration of the type, scale, transaction situation, etc. of the property in question, and Article 63 (1) 1 (c) of the Inheritance Tax and Gift Tax Act provides that "where it is difficult to calculate the market value, shares and equity shares that are not listed with the Korea Stock Exchange shall be appraised according to the methods prescribed

On the other hand, Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the value of unlisted stocks shall be the weighted average value of 3 to 2 of the 'net value per share' calculated by dividing 'net profit and loss per share' and 'net asset value per share' of the 'net asset value per share' of the 'net asset value per share calculated by dividing 'net profit and loss per share' into the total number of issued stocks by 'net asset value', and Article 55 of the 'net asset value' separately provides the detailed calculation method for 'net asset value'. According to this, 'net asset value' is the amount obtained by subtracting liabilities from the value appraised under Articles 60 through 66 of the Act as of the evaluation base date, and 'net asset value' is less than the book value (referring to the value obtained by subtracting depreciation costs from the acquisition value).

The purpose of each of the above provisions is to evaluate the net asset value on the basis of the market price as of the date of donation, but if the market price of the donated property is unclear, it is to reasonably estimate the market price of the donated property by reflecting the market price as much as possible in calculating the net asset value even if the value of the donated property

2) First of all, a structure and form, other than a building fixed on the land, should have an independent economic value, which is physically distinguishable from the land (see, e.g., Supreme Court Decision 2006Du11224, May 14, 2009). As seen earlier, the company’s current balance sheet as of December 31, 2009 includes a KRW 00 million. Since the interval between December 31, 2009 and April 12, 2010, the above balance between time and December 31, 2009, are short, and thus, the value of the structure on the balance sheet as of the date of capital increase or is very close to the market price. Thus, it is reasonable to view that the Defendant’s inclusion of KRW 00,000 in the net asset value of the company in the net asset value is lawful.

이에 대하여 원고는, 대차대조표 상 구축물 계정에 포함된 돈 중 일부는 건물의 취득원가에 포함시켜야 하므로 건물과 구축물로 이중으로 평가된 부분을 구축물 가액에서 공제하여야 한다고 주장하나, 증여세과세가액 결정에서 당해 법인의 자산이 대차대조표와 다른 예외적인 사유에 대한 증명책임은 원칙적으로 이를 다투는 납세의무자에게 있다고 할 것인데(대법원 2003. 5. 13. 선고 2002두12458 판결 등 참조), 갑 제8호증의 1, 2, 3의 각 기재만으로는 2009. 12. 31.자 대차대조표의 구축물 계정에 이 사건 건물과 독립된 경제적 가치가 없는 바닥공사, 보일러 및 방열기, 샷시공사, 전기공사, 벽돌・칸막이 공사가 포함되어 있음을 인정하기에 부족하고, 달리 이를 인정할 증거가 없으므로, 위 주장은 이유 없다.

3) Following the appraisal value of the land and building of this case, which can be known from the above facts and purport of pleading. ① Supplementary appraisal methods for unlisted stocks are interest methods to calculate the market price near the market price. As such, the net asset value of a corporation, which serves as the premise for calculating unlisted stocks, should, in principle, be assessed according to the market price. ② Even if supplementary appraisal methods provide for the assessment of net asset value of the relevant corporation, if the net asset value of the relevant corporation is proved by the closing of argument in the lawsuit seeking cancellation of taxation, it shall be determined as to whether the value of the relevant corporation exceeds the reasonable tax amount by calculating the net asset value of the relevant corporation, and then, the value of the land and building of this case, which appears to have been calculated based on the market price of the relevant 0th anniversary of the above valuation method. Since the market price of this case includes the objective exchange value formed by normal transactions, this is also deemed to have been calculated based on the appraisal value of the relevant corporation, which reflects the appraisal value at the time of appraisal and assessment by other reasonable methods.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.