Seoul High Court Decision 2017Seoul High Court Decision (2017.04.19)

It is legitimate to calculate the market price of unlisted stocks according to the complementary valuation method.

Since the transaction example before and after the evaluation base date is a transaction between related parties, it is difficult to recognize it as the market price, and it is reasonable to calculate it according to the supplementary evaluation method.

Article 45-2 of the Inheritance Tax and Gift Tax Act

2017Guhap70489 Revocation of Disposition of Imposition of Gift Tax

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○ Head of tax office

December 22, 2017

February 2, 2018

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing gift tax on the Plaintiff on September 1, 2016 is revoked. The disposition of imposing gift tax on the Plaintiff in 2005 shall be revoked.

1. Details of the disposition;

A. On January 18, 2005, the Plaintiff purchased 43,034 non-listed stocks of the instant company (hereinafter referred to as “the instant stocks”) total of the 43,034 shares (the par value per share 5,000 won per share; hereinafter referred to as “the instant shares”) from CheongO, a registration director of the instant company, for the representative director of the OO Construction Co., Ltd. (hereinafter referred to as “instant company”). (hereinafter referred to as “the instant trade”).

B. As a result of the verification of the written change of stocks in the business year from April 22, 2016 to June 2, 2016 with respect to the instant company, the OOOOOOO shall be deemed to have acquired the instant stocks at a price lower than the market price under the former Inheritance Tax and Gift Tax Act (amended by Act No. 7580, Jul. 13, 2005; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), notwithstanding the fact that the market price per share of the instant stocks was 12,310 won assessed as the supplementary assessment method under the former Inheritance Tax and Gift Tax Act (amended by Act No. 7580, Jul. 13, 2005; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), the Plaintiff shall be deemed to have notified the Defendant of a resolution on the correction of the gift tax for KRW 15,686,531, which was calculated pursuant to Article 35(1) of the former Inheritance Tax and Gift Tax Act. Accordingly, the Defendant issued a notice on September 18 (hereinafter referred to the Plaintiff.

C. On October 11, 2016, the Plaintiff filed an appeal with the Tax Tribunal on December 8, 2016, but was dismissed on April 19, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 8, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Considering the following circumstances, the Plaintiff’s purchase of the instant shares at KRW 5,00 per share on January 18, 2005 does not constitute a low-price acquisition, but calculated the market price of the instant shares at KRW 12,310 per share in accordance with the supplementary assessment method under the former Inheritance Tax and Gift Tax Act, and imposed the gift tax by deeming the amount equivalent to the difference as a donation is unlawful.

1) The case holding that on May 20, 200 before and after the transfer of the shares of this case, KimO made 10,949 shares of this case to LeeO on May 20, 200; 43,034 shares of this case; 3,003 shares of the company of this case to the Plaintiff on May 30, 2005; 72,472 shares of this case; 65,096 shares of this case to LeeO on December 31, 2005; and 9,09,50 shares of this case to the Plaintiff on January 15, 2006; and 00 shares transfer price of this case to the Plaintiff on May 31, 200, regardless of whether this case's shares were transferred to the Plaintiff on January 15, 2006.

2) The Defendant did not regard the instant transfer cases as acquisition at a low price.

3) From May 20, 200 to January 15, 2006, the shares of the instant company did not have dividend income, and there was no person seeking to purchase the shares of the instant company. Since there was no change in the management status of the instant company, the market price of KRW 5,000 per share did not change.

4) The company of this case, upon the resolution of the board of directors on November 26, 2002, decided that the stock price of the company of this case shall be 5,000 won per share and that transactions other than shareholders shall not be recognized, since shareholders of the company of this case shall transfer to 5,000 won per share the stock of the company of this case, on the ground that there is a difficulty in properly grasping the company's corporate value when shareholders transfer their shares.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The details of stock trade of the instant company are as follows.

No.

transferor

A transferee

Details of transfer;

Jinay

Transfer Date

Number of Stocks

Value per share (cost)

1

O KimO

EO

May 20, 200

10,949

5,000

2

O KimO

EO

January 6, 2003

43,034

5,000

3

MaO

January 18, 2005

43,034

5,000

The sales of this case

4

GaO

May 30, 2005

3,003

5,000

5

EO

September 1, 2005

72,472

5,000

6

EO

EO

December 31, 2005

65,096

5,000

7

EO

January 15, 2006

9,009

5,000

2) On November 26, 2002, the board of directors of the instant company decided on November 26, 2002 to determine the issue price and sales price per share of the instant company’s shares as 5,000 won in all since January 1, 2003, on the grounds that there is a need to determine a fair price since the sales price per share of the instant company is not evaluated as fair price, and there is a frequent change in the corporate value among the shareholders’ members.

3) 이 사건 회사의 표준대차대조표상 2005. 12. 31. 현재 자본금은 XX억 원, 이익잉여금은 XXXX원으로 자본총계는 XXXXX원에 이르렀다.

4) The assessment value per share calculated according to the supplementary assessment method under the former Inheritance Tax and Gift Tax Act at the time of the instant sale is 12,310 won (the net profit and loss value per share 9,040 won and the net asset value per share 17,216 won per share, weighted average, 3:216 won per share, and omitted).

[Ground of recognition] Facts without dispute, Gap evidence 6, Eul evidence 3 and 4, the purport of the whole pleadings

D. Determination

1) Article 60(1) and (3) of the former Inheritance Tax and Gift Tax Act provides that the value of donated property shall be calculated based on the market price as of the date of donation and, in cases where it is difficult to calculate the market price, based on the supplementary evaluation methods stipulated in Articles 61 through 65, considering the type, size, transaction situation, etc. of the pertinent property. Meanwhile, Article 60(2) of the former Inheritance Tax and Gift Tax Act provides that “the market price under paragraph (1) shall be the value generally recognized as a transaction if it is freely traded between many and unspecified persons, and shall include those recognized as the market price under the conditions as prescribed by the Presidential Decree, such as acceptance and public sale price and appraisal price.” Article 49(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18903, Jun. 30, 2005) provides that “If there is a sale or purchase price of the relevant property as one of the market price recognized as the market price, it shall not be objectively determined as the market price.

2) In full view of the following circumstances revealed by the facts acknowledged earlier in light of the aforementioned legal principles and the purport of the entire pleadings, the market price of the instant stocks at the time of the evaluation base date is difficult to be deemed KRW 5,000 per share, and the market price is difficult to be calculated, and thus, the instant disposition is lawful for calculating the market price according to the supplementary evaluation method of unlisted stocks under the former Inheritance Tax and Gift Tax Act.

A) Of the details of stock trade of the instant company conducted before and after the instant purchase and sale, it is difficult to view that the transaction details on May 20, 200, among the details of stock trade of the instant company, were appropriately reflected at the market price as of the base date of appraisal because they were either four years and seven months or far away from the date of the instant purchase and sale, and other five transaction details after January 1, 2003 are set at KRW 5,000 according to the resolution of the board of directors of the instant company as of November 26, 2002, and the other party to the transaction was limited to shareholders of the instant company, so it is difficult to recognize the market price ordinarily formed in the event that transactions occur freely between many and unspecified persons. Moreover, it does not appear to have objective evidence to calculate the sales price of the instant stocks at KRW 5,000 in the resolution of the board of directors as of November 26, 2002.

B) On the other hand, the assessment value per share calculated according to the supplementary assessment method under the former Inheritance Tax and Gift Tax Act at the time of the instant transaction is KRW 12,310. This is reasonable to view that the average average amount of the stock price of the instant company is adequately reflected in the market price of the instant company’s stocks in consideration of both the net profit and loss per share and the net asset value per share at the time of the instant transaction. There is no other evidence to recognize that KRW 5,000, which is the trading value of

다) 이 사건 매매가 있었던 사업연도 말 이 사건 회사의 표준대차대조표상 자본금은 30억 원, 이익잉여금은 XXXX원으로 자본총계는 XXXXX원에 이르렀고, 달리 이 사건 회사가 경영상 위기에 있었다고 인정할만한 자료가 없다. 더욱이 원고는 이 사건 회사의 대표이사이자 주주로서 이 사건 회사의 배당 여부 결정이나 이사회결의에 영향을 미칠 수 있는 지위에 있었으므로 이 사건 회사가 이 사건 매매전후 주주에 대한 배당을 실시하지 않았다거나 2002. 11. 26.자 이사회결의에 따라 매매가액을 5,000원으로 정하고 매매 상대방을 이 사건 회사의 주주로 한정하였다고 하여 이 사건 주식의 시가를 산정함에 있어서 고려할 사항은 아니라고 판단된다.

3. Conclusion

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