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(영문) 청구인들이 특수관계자로부터 쟁점주식을 시가보다 저가에 양수하였다고 보아 증여세를 부과한 처분의 당부
조세심판원 조세심판 | 2016-05-16 | 조심2015중5762 | 상증
【Request Number】

[Request Number] Trial of 2015 medium 5762 ( May 16, 2016)

[Items]

[C] Cancellation of Donation [Types of Decision]

[Summary of Decision]

[Determination] The sales amount of the 20 XX-year X-value added tax period has come to 10% higher than that of the above, and the △△△△△ is deemed to have a difficult condition to continue the management of the OOOO under the Commercial Act on December 1, 2009. In light of the fact that the △△△△△ appears to have a justifiable reason for the transfer of the issue shares to the claimant in face value, the fact that the OOOO has transferred the issue shares to the claimant who has no special relationship with the OOOO to the face value, and that there is a fact that the △△△△△△ has a legitimate reason for the transfer of the shares to the claimant as face value, it is reasonable to recognize *** Won won as the market value, because it is reasonable to deem that the issue shares

[Related Acts]

[Related Acts and subordinate statutes] Article 6 of the Inheritance Tax and Gift Tax Act / Article 35 of the Inheritance Tax and Gift Tax Act / Enforcement Decree of the Inheritance Tax and Gift Tax Act

【Disposition】

1. The imposition of an OO on September 15, 201 by the head of the OO to the claimant OO on November 8, 2011 shall be revoked.

2. The imposition of an OO on September 15, 201 on the gift tax on November 8, 201 and the imposition of an OO on the gift tax on December 30, 201, by the head of OOO on September 15, 201, shall be revoked.

【Reasoning】

1. Summary of disposition;

A. On November 8, 2011, 201, the claimant’s OO acquired OO shares (hereinafter “OO shares”) from OOO pre-transfer representative director (OO employees at the time of transfer).

On November 8, 2011, 201, the claimant's OO acquired OO shares (hereinafter referred to as "OO shares") from OO to KRW 00 per share, and on December 30, 201, the claimant acquired OO shares (hereinafter referred to as "OO shares"; hereinafter referred to as "OO shares in dispute") from OO(OO's auditor; hereinafter referred to as "OO shares in dispute") to KRW 1,2, and 3 shares in dispute.

B. On September 15, 201, 201, a claimant's OOO on the date of acquisition of the outstanding one stock, deemed that it constitutes an OOO and a specially related person as of November 8, 201, and thus, the disposition agency decided and notified OOO of the gift tax on September 15, 201. At the time when the claimantOO acquired the outstanding 2/3 stocks, it constitutes an OO, OO, and a specially related person, and determined and notified OOO of the gift tax on September 15, 201 and OO of the gift tax on the gift of November 30, 201, respectively.

C. The appellant appealed and filed an appeal on November 30, 2015.

2. Opinion of the claimant and the disposition agency;

A. The claimant's assertion

As the former representative director of the OO is bound by drinking-free driving or non-licensed driving, etc., the OO's credit assessment of the customer, which led to the management crisis such as the rapid reduction of sales, etc. due to the low credit transfer of the OO, the OO requested that the mother-friendly OO of the claimant who was provided financial support in the past accept the issues 1/2 shares as face value.

On May 6, 2010, the OO appointed OOO as a liquidator or an OO representative director, and subsequently accepted and normalizeed management rights, but it was less likely that accepting shares after reviewing the project prospects.

POO employs OO as an employee of technical staff of OO in October 2010, and the sales of OO that has been in charge of automobile parts development-related affairs in OOO on July 1, 201 is gradually increasing, there is a concern that there is a management dispute due to the exercise of OO's sovereignty. On November 8, 2011, the 1st issue shares among OO's shares are the OO, the 2nd issue shares are the OO, the OOO of the Claimant, and the 3th issue shares among the O's shares are the OO's transfer to the OO on December 30, 201 and the OO's transfer to the Claimant for substantive management rights.

On July 30, 2005, when the corporation was established on June 22, 2004, the OOO's shareholder purchased and sold shares with the face value by seeking that the OOOO's transfer of shares as a business director, and that the OO's transfer of shares as of the end of 2009, had been neglected for a long time while the corporation was holding the OO's owner at the time of its establishment and worked as the head of the automobile parts development team.

On December 1, 2009, under the Commercial Act, an OO intended to dispose of the shares that it intends to recover as a result of the dissolution of a corporation under the management of the OO on December 1, 2009. However, there is no acquirer, the corporate value was de facto par value. The OO's aid so that the 1 and 2 shares can be sold in face value with the OO's aid so that the 1 and 2 shares can be sold in face value with the OO's certificate of seal impression,

In the crisis of the closure of the OO's business, it is inevitable that OO has given up the right of management and sold shares to collect the investment principal even if they are face value and there is no other way to avoid the credit bad amount of the principal.

Article 60 of the Inheritance Tax and Gift Tax Act provides that the market price shall be calculated based on the market price as of the evaluation base date, and where it is difficult to calculate the market price, the provisions of Articles 61 through 65 shall apply in consideration of the type, scale, transaction circumstances, etc. of property. Thus, gift tax may not be imposed simply on the ground that the transaction price is lower than the market price calculated based on supplementary evaluation methods without any objective proof of the fact that the transaction price is an abnormal transaction lacking economic rationality in light of sound social norms or transaction practices

As in this case, it is necessary to recognize the market price of the transaction in the face value inevitably due to the fall of the market price and the exchange nature. Since there exists a fact that OO's stock transaction is trusted and signed by each other with a certificate of personal seal impression attached between the parties to the transaction who do not have a special relationship, it should be recognized as the market price first, the disposition agency should impose gift tax on the ground that it is lower than the complementary appraised value under the Inheritance Tax and Gift Tax Act without confirming the transaction status of the stocks at issue.

(b) Opinions of disposition agencies;

As of the end of 2010 of the OO's issued stocks, the OOOO or OOOO was owned by the controlling shareholder of a corporation controlled by investment pursuant to Article 12-2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act on November 8, 201, when the management right of the corporation was substantially replaced by May 201, the OO transferred the 2 shares to the OOO, the OO's employees, and the OO's shares were transferred to the OO, and the OO's management right was substantially replaced by the OO's shares was transferred at the time of transfer, according to objective evidence, such as the submission of a report on changes in the shares, since the OO's shares were transferred at the time of transfer, the date of transfer is the date of transfer, and the OO's as of the date of transfer is the controlling shareholder, and the OO's employees are the controlling shareholders.

In addition, among the shares of OO on December 30, 2011, OO directors, OO directors, and OO directors held by OO directors among the shares of OO directors, the third shares are transferred to OO directors at par value to OO directors, but OO directors and OO directors are the employees of corporations controlled by investment pursuant to Article 12-2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act.

With respect to the claim that the transfer value of the shares at issue (the face value) that the claimant acquired by the claimant is an appropriate market price, it is reasonable to view the face value of the shares at the market price for the trade opened on November 8, 201, because the representative director was changed in 2010, the income amount increased from the O members in 2009 to the O members in 2010, and the value of the shares increased by the increase of the value of the shares as an O members in 2011, and the trade between the OO and the claimant that is not a specially related party cannot be regarded as a free trade between many and unspecified persons. Therefore, it is reasonable to conclude that the claim to recognize the face value for the trade opened on November 8, 2011 is not reasonable, and it is reasonable to evaluate the outstanding shares as a supplementary assessment method in accordance with Article 49 of the Inheritance Tax and Gift Tax Act.

3. Hearing and determination

(a) Points in dispute;

The validity of the disposition imposing gift tax on the claimant by denying the transfer value (amount face value) of the stocks at issue as they fall under a specially related person at the time of transferring the ownership of the stocks at issue, and by deeming that the assessed value pursuant to the supplementary assessment method under the Inheritance Tax and Gift Tax Act was low at the market price and the stocks were acquired at low price.

B. Relevant statutes

(1) Inheritance Tax and Gift Tax Act;

Article 35 (Donation, etc. of Profits from Transfer at Low Price or High Price) (1) With respect to any of the following persons, when the relevant property is acquired or transferred, the amount equivalent to the difference between the price and the market price, which is equivalent to the profits prescribed by Presidential Decree, shall be deemed the value of donated property

1. Where a person takes over property from a third person at a price lower than the market price, the transferee of such property;

2. In case where the property is transferred to another person at a price above the market price, the transferor of such property;

(2) In applying paragraph (1), where property is acquired or transferred between persons other than persons having a special relationship without justifiable grounds, and where property is acquired or transferred at a price significantly lower than the market price in light of transaction practices, the amount equivalent to profits prescribed by Presidential Decree shall be presumed to have been donated with the difference between the price and the market price, and the amount equivalent to the profits prescribed by Presidential Decree shall

(3) Persons in a special relationship under paragraph (2), the scope of significantly low or high value shall be prescribed by Presidential Decree.

(2) Enforcement Decree of Inheritance Tax and Gift Tax Act

(10) The stocks, etc. of the same domestic corporation that has contributed by contributors and persons in special relationship with such contributors in Article 16 (2) 2 of the Act to other public service corporations, etc. shall include the stocks, etc. in the possession of another public service corporation, etc. that has contributed property by the heir and persons in special relationship falling under any of the following subparagraphs at

2. Any person, other than an employee (including any employee of a juristic person controlled through investment; hereinafter the same shall apply) or employee prescribed by Ordinance of the Ministry of Strategy and Finance, who maintains the livelihood of an inheritor;

Article 19 (Inheritance Deductions of Financial Property) (2) "Large shareholder or largest investor prescribed by Presidential Decree" in Article 22 (2) of the Act means the relevant stockholder, etc. in cases where the total number of stocks held by one shareholder or one investor (hereinafter referred to as "shareholders, etc.") and persons in any of the following relationships is the largest:

1. The spouse of a relative or a lineal descendant within the second degree of relationship and his/her spouse;

2. Persons other than employees and employees, who maintain their livelihood with the properties of relevant stockholders, etc.;

3. Any person who is deemed to exercise de facto influence over the management of an enterprise group as determined by Ordinance of the Ministry of Strategy and Finance by exercising the right to appoint or dismiss executives of the enterprise group (including executives of the enterprise) and who is in any of the following relationships with the enterprise group, or by determining business policies:

(a) Other companies belonging to an enterprise group;

(b) A person who substantially controls an enterprise group;

(c) Persons with the relationship under subparagraph 1.

4. Non-profit corporations established by one stockholder, etc. and persons under subparagraphs 1 through 3 who form the majority of the directors or contribute assets;

5. Nonprofit corporations in which an officer of an enterprise under the main sentence of subparagraph 3 or (a) is the president.

6. The corporation in which one stockholder and persons under subparagraphs 1 through 5 own 30% or more of the total number of stocks issued;

7. The corporation in which one stockholder and persons under subparagraphs 1 through 6 own 50% or more of the total number of stocks issued;

8. Non-profit corporations established by one stockholder, etc. and persons under subparagraphs 1 through 7 who form the majority of the directors or contribute assets;

Article 26 [Calculation Method, etc. of Profits from Low Price or High Price Transfer] (1) The term "low price" in Article 35 (1) 1 of the Act means the price where the value calculated by subtracting the price from the market price (referring to the price assessed under Articles 60 through 66 of the Act; hereafter referred to as "market price" in this Article and Article 31) of the property acquired (excluding any of the following subparagraphs) is at least 30/100 of the market price or the difference is at least 300 million won:

1. The convertible bonds, etc. under Article 40 (1) of the Act;

2. Stocks and equity shares of a corporation listed in the Korea Exchange under the Financial Investment Services and Capital Markets Act traded in the securities exchange (excluding those traded in an overtime market under Article 33 (2));

(3) "Profit prescribed by Presidential Decree" in the part other than the subparagraphs of Article 35 (1) of the Act means the difference between the price calculated pursuant to paragraphs (1) and (2) and the market price, minus the lesser of the following values:

1. Where the value obtained by subtracting the price from the market price is at least 30/100 of the market price or at least 30/100 of the market price, the value equivalent to 30/100 of the market price;

2. Three hundred million won.

(4) "Person in a special relationship" in Article 35 (2) of the Act means a person who is in a relationship falling under any of the following subparagraphs with a transferor or transferee (hereafter referred to as "transferor, etc." in this paragraph):

1. A person who falls under Article 19 (2) 1, 2, and 4 through 8. In such cases, "one stockholder, etc." shall be deemed "transferee, etc.";

2. Any of the following persons who are an executive of an enterprise group prescribed by Ordinance of the Ministry of Strategy and Finance or an enterprise group:

(a) Other companies belonging to an enterprise group;

(b) A person who substantially controls an enterprise group;

(c) Persons in the relationship under Article 19 (2) 1 with the person under item (b).

3. A person who is deemed to exercise de facto influence over the management of the concerned corporation by exercising the right to appoint or dismiss officers or by determining the course of business.

(8) The base date for calculation of the prices and market prices under the provisions of paragraphs (1), (2), (5) and (6) shall be the date of liquidation of the prices of the relevant property (in cases falling under the provisions of Article 162 (1) 1 through 3 of the Enforcement Decree of the Income Tax Act, referring to the date prescribed in subparagraphs 1 through 3 of the same paragraph, respectively; hereafter referred to as the "base date for calculation" in this paragraph), and where it is deemed unreasonable to serve as the base date for calculation due to sudden changes in exchange rates after a sales contract, it shall be the base

C. Facts and determination

(1) The written confirmation of stock change to the agency’s OO appears as follows.

(A) As set out in Table 1, as of November 8, 201, OO was held as the largest shareholder of OO, the claimant OO and the claimant OO are specially related to the employee of the legal entity. As of December 30, 2011, the applicant OO held as the largest shareholder of OO, and the OO is an employee of the legal entity, and the applicant OO is an employee of the legal entity.

(1) A suspicion against the claimant who is an OOO shareholder

(B) The OOO was dissolved on December 1, 2009, but it was registered as a liquidator on May 6, 2010 by the claimant's OOO and the management right was transferred from OO to OOO. The status of changes in shares of OO is as follows.

The current status of transfer (transfer of title) of OO shares in attached Table 2.

(2) Pursuant to the terms and conditions of the contract, the sales contract for the outstanding shares was prepared between the OO and the claimant OO, the claimantO and the claimant OO, and the contract was entered. According to the terms and conditions of the contract, the OO's shares are transferred to the OO on November 8, 201, and the OO's shares are transferred to the OO(amount face value) on December 30, 201, and the OO's shares are transferred to the OO(value on face value) on December 30, 201, and the OO's shares were reported to be transferred to the OO(value on face value) on December 30, 201. The OO's shares were assessed as the market price on each issue share as the OO

Details of the report and decision on the transaction of OO shares.

(3) The details of the simplified assessment of unlisted stocks appraised by the agency as a supplementary assessment method under the Inheritance Tax and Gift Tax Act are shown as follows:

Value by the supplementary assessment methods of the stocks in question; and

(4) The contents recorded in the certified copy of the OO registry are shown as follows:

5. Descriptions in the copy of the OO copy.

(5) The annual financial status of OO is shown as follows:

Table 6. Status of OO's financial status for each business year.

(6) The facts, such as the process of acquiring the outstanding shares presented by the claimant, appear as follows.

(7) On the grounds delineated below, the claimant asserts that the gift tax imposition is unfair on the grounds that it is lower than the appraised value by deeming the shares as “specially related persons” under Article 35(2) of the Inheritance Tax and Gift Tax Act and Article 26(4)2 of the Enforcement Decree of the same Act, even though the claimant inevitably traded the shares of the issue as face value.

(A) As a representative director prior to the OO, the OO was assessed as lower class from the credit rating of the OO, which is the place of order, due to a criminal act that is bound by drinking or unlicensed driving several times, and the OO was faced with the closure of business in the second period of 2009, as shown in the following table 7, and the negligence of duties was deemed to be a dissolution of a corporation under Article 520-2 of the Commercial Act, and thus it was no longer possible to operate the business.

The trend of changes in sales of OO in the taxable period of the value-added tax.

(B) The claimant's representative director, the representative director of theOO, was able to grasp to some extent the company's business situation after receiving field training on the preparation of the computer design map for the manufacture of automobile parts at the OOO over two times in 2008 and 2009 while attending the OOO's automobile engineering department. In particular, the claimant's mother and OO's representative director appointed the OO's attorney-at-law on April 19, 2009 and the company faced with the crisis of business closure due to a sudden reduction in sales and rehabilitation of the OO who was under the crisis of business after the IO graduated from the university and then appointed the OO as the representative director after the resolution of the company's representative meeting at the temporary general meeting of shareholders who attended the 2nd shareholder, and appointed the OO as the representative director.

(C) On January 29, 2009, and February 23, 2009, the OO was in a bad credit condition (credit information inquiry data) due to overdue payment of the credit card payment amount, and the OO was not repaid, and the sales amount of OO was reduced rapidly, and on December 1, 2009, it was inevitable to dispose of shares because it was impossible to continue to operate the business due to the registration of dissolution of the corporation. However, even if it was intended to dispose of shares, four officers and employees were not marketable and the internal and external underwriters were not able to find the internal and external underwriters, it is settled as the OO members such as the fine paid for the purchase price of shares in consultation with the OO, the attorney fee, etc. The OO was appointed as the representative director on May 6, 2010 as shown below.

Minutes of the extraordinary general meeting of the OO(certificate)

(D) As there is no experience in operating a corporation, the OO representative director claimant for the OO representative director is extremely low in sales performance for the first half-year period in 2010, and he re-enters retired O as technical staff in 2010.10.2, he/she additionally entered the OO which is the applicant's business experience, and received support from the OO on November 22, 2010.

1) The wage and salary income certificate received as an employee of an OO appears to have been earned by up to 2014, including OO won, since the OO has retired its representative director and was employed as an employee of the OO again after the OO has retired.

2) On November 22, 2010, the details of the applicant’s parent-friendly financial transactions of theOO transferred the OO to the OO on November 22, 2010, and the OO appears to have been appropriated for the loan.

3) The president of the accounts of the OO (loan) appears to have borrowed the OO from the OO for the period from January 4, 2008 to May 22, 2008, and the OO was paid as an O bail, etc.

(E) The OO confirms the developments leading up to the transfer of the first and second shares to the claimant as follows.

(F) As a result, the claimant's OO was operated with the intent to continuously develop the business of the OOO and the claimant's OOOO with the best funding, the plaintiff's OOOOO has increased 0% compared to the sales revenue in 2009 by realizing the OOOO in 2010. However, the shareholders of the second shareholders are expected to possess a dispute over management rights, and the name of shares has been changed over twice on December 30, 201.

(G) At the time of the establishment of the OO, the OO invested the OO out of its capital capital, and worked as the head of the automobile parts development team on July 30, 2005, but established the OOE and the OE company on July 30, 2005, and confirmed the details of the transfer of the OO shares as follows.

(h) On November 8, 201, 201, the transaction price of the OO’s stocks inevitably traded between the OOO and the OO’s stocks without a special relationship is extremely high, and the OO’s stocks are the stocks of a small enterprise with four executives and employees, and reflects the fact that “the market price is recognized as the market price for the inevitably traded face value due to the fall of the market price and compatibility” is recognized as the market price as the market price for the stocks of the small enterprise. As shown in the case of adjudication, the OO’s business cannot be operated any longer due to the reduction of sales or the registration of dissolution, and there is no market feasibility even in order to dispose of the stocks, and even if there are no internal employees who can acquire the stocks, the OO’s stocks traded should be deemed to reflect the objective exchange value.

(8) In full view of the facts and relevant laws and regulations, the disposition authority imposed gift tax on the acquisition at a low price by deeming that at the time of the transfer of title to the shares, the claimant is deemed to have acquired the shares at issue and constitutes a related party between the parties to the transaction, and thus, the value assessed as a supplementary assessment method under the Inheritance Tax and Gift Tax Act was

OO appears to have borrowed OO won from the mother of the claimant's OO in 2008, OO was detained for drinking driving on April 19, 2009, and subject to a fine for violation of the Road Traffic Act on July 3, 2009, and OO was subject to a disposition of a fine for violation of the Road Traffic Act, due to the decline in the credit rating of the customer, the sales amount of the second value-added tax taxable period of the value-added tax in 2009 was higher than that of the electrical sales, and OO appears to have been deemed as a corporate dissolution pursuant to Article 520-2 of the Commercial Act on December 1, 2009, and it is difficult for OO to continue the operation of the OO.

In such a situation, the OO appears to have held a special general meeting on May 6, 2010 to appoint the OO as a liquidator at the same time, and at the same time, the OO was appointed as an internal director because the OO was unable to continue its business because there was no one who would have acquired the shares at the time to dispose of them below the face value, and there was no other person who would have acquired the shares at the time to dispose of them below the face value. OO was confirmed to have transferred the shares to the OO that was supported by the previous operation fund at the face value by requesting the transfer of the shares to the OO.OO was employed as a technical position of OOO on October 2, 2010, and received wage and salary income by being employed by the OOOO and the OOO was transferred to the Claimant and the Claimant did not seem to have unilaterally suffered loss by transferring the shares at low price, or there was no intention to transfer any profit, etc. to the Claimant without compensation through sale of the assets.

On May 6, 2010, when an applicant takes office as the representative director of theO and takes office without special relationship with theOO, it seems that the OO actually takes over the management rights. At that time, it seems that there is a justifiable reason for the OO to transfer the 2 shares to the face value. However, it is reasonable to view that the name of the 2 shares was only the name of the 2 shares, but only the name of the O shares was changed to the OO as the OO on November 8, 201, and that it is reasonable to view that the OO that retired from the OO on July 30, 2005 did not leave the person to transfer the O shares, and that the OO transferred the O shares to the Claimant on the 101.18.18.218.18.18.21, 2011.

Therefore, the disposition imposing gift tax on the claimant is deemed to have been erroneous because the claimant acquired the shares at a low price.

4. Conclusion

This case shall be decided in accordance with Article 81 and Article 65 (1) 3 of the Framework Act on National Taxes because the petition for the trial results is well-grounded.

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