Plaintiff 1 and three others (Law Firm Pacific, Attorneys Kim Jong-ho et al., Counsel for the plaintiff-appellant)

Head of Sungnam Tax Office et al.

March 7, 2011

Seoul Administrative Court Decision 2010Guhap1569 decided June 17, 2010

1. Revocation of a judgment of the first instance;

2. The imposition of KRW 168,811,280 of the gift tax imposed on Plaintiff 1 on December 15, 2008 and the imposition of KRW 98,977,730 of the gift tax imposed on Plaintiff 2 by the head of Sungnam Tax Office, the imposition of KRW 172,676,960 of the gift tax imposed on Plaintiff 4 on December 12, 2008 by the head of Yong Nam Tax Office, and the imposition of KRW 276,453,820 of the gift tax imposed on Plaintiff 3 on December 6, 2008 by the head of Sungnam Tax Office, respectively.

3. The total costs of the lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the reasoning is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

Since Non-party 1 continued to have suffered losses after its establishment, and part of the aggregate of 3,536 square meters of land in Suwon-dong (number omitted) and 2 parcels, which were purchased for the construction of housing, was incorporated into a road site, and it was impossible to conduct the first purpose business, it was classified from inventory assets as tangible assets, and obtained gains from transfer after selling them in 2003, so the above gains from transfer shall be deemed as gains from disposal of tangible assets. As of the date of trading the stocks in this case, the above gains from transfer shall be deemed as gains from disposal of tangible assets. The above gains from transfer shall be deemed as gains from disposal of tangible assets. As of the date of trading the stocks in this case, Non-party 1 shall have reached 175% of the weighted average amount of gains from disposal of securities and tangible assets and special profits and losses in the last three years before deducting corporate tax for the last three years. Thus, it constitutes a case where the amount exceeds the weighted average amount of gains from disposal of securities and losses in the last three years.

In addition, the non-party 1 falls under the case where the normal sales period is less than three years based on the date of the instant stock transaction, and thus, Article 17-3 (1) 7 of the Enforcement Rule of the Act is applicable.

Therefore, it is unreasonable for Nonparty 1 to apply the weighted average amount of net profit and loss for the last three years per share to the value under Article 56(1)1 of the Enforcement Decree of the Act, due to reasons such as abnormal increase in the amount of net profit and loss for the last three years due to temporary contingency cases. Thus, the weighted average amount of net profit and loss for the last three years per share of the instant shares should be the average amount of net profit and loss for each share calculated in accordance with Article 56(1)2 of the Enforcement Decree. However, the Defendants erred in the value under Article 56(1)1 of the Act.

Furthermore, the Defendants asserted that the average amount of net profit and loss per share for the last three years according to the value under Article 56(1)2 of the Enforcement Decree of the Act cannot be calculated in calculating the value of profit and loss per share, since the Plaintiff did not file a return within the time limit for filing a gift tax return. However, inasmuch as the grounds falling under any of the subparagraphs of Article 17-3(1) of the Enforcement Rule of the Act are acknowledged, it is unlawful to calculate the average amount of net profit and loss per share for the last three years according to the value under Article 56(1)1

Ultimately, each of the instant dispositions by the Defendants is unlawful.

(b) Related statutes;

The former Enforcement Rule of the Inheritance Tax and Gift Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 20 on April 30, 2008) among the attached Acts and subordinate statutes of the court of first instance shall be cited as it is, except for the cases where the attached

C. Determination

The value of property on which gift tax is levied shall be based on the market price as of the date of donation, and if it is difficult to calculate the market price, it shall be based on the value calculated by the so-called supplementary method (Article 60 (1) and (3) of the Act), and net profit and loss per share (the value per share = the weighted average amount of net profit and loss for the last three years years per share ± the interest rate determined and publicly announced by the Commissioner of the National Tax Service in consideration of the rate of circulation of corporate bonds with the maturity of three years guaranteed by the financial institution) and net asset value per share (the value per share ± the net asset value of the relevant corporation ± the total number of issued stocks) by the weighted average ratio of 3 to 2, respectively: Provided, That in cases of a corporation excessively owned real estate, the ratio of net profit and loss per share and the net asset value per share shall be 2 and 3 (Article 63 (1) 1 (c) of the Act, Article

In addition, the weighted average amount of net profit and loss for the preceding three years under Article 54 (1) of the Enforcement Decree of the Act shall be the value under subparagraph 1, namely, the weighted average amount of net profit and loss for the preceding three years = [3) + (net profit and loss for each business year before the base date of appraisal x (2) x (net profit and loss for each business year before the base date of appraisal x (1) x (1) x (1) x 1/6] x where the relevant corporation determines that it is unreasonable to calculate the value under subparagraph 1 due to such reasons as the abnormal increase of net profit and loss for the preceding three years due to a temporary pro rata case, the value under subparagraph 2, namely, where the relevant corporation is stipulated by the Ordinance of the Ministry of Finance and Economy among credit-rating specialized institutions or accounting corporations under the Certified Public Accountant Ordinance of the Ministry of Finance and Economy or accounting corporations under the Certified Public Accountant Act, an average amount of profit and loss for one week calculated according to the standard prescribed by the Ordinance of the Ministry of Finance and Economy within the Ministry of Finance and Economy.

In addition, each subparagraph of Article 17-3 (1) of the Enforcement Rule of the Act provides for "cases determined by the Ordinance of the Ministry of Finance and Economy" under Article 56 (1) of the Enforcement Decree of the Act, and subparagraph 7 of the same Article provides that "where the normal sales period is less than three years in major types of business (referring to the largest value of tangible fixed assets directly used by the relevant corporation among the business operated by the relevant corporation)." Here, "where the sales period is less than three years" is interpreted as "where the sales period is less than three years during the business period before the incorporation of the corporation," it is reasonable to view "where the sales period is less than three years during the business period after the incorporation of the corporation."

In full view of the overall purport of arguments in Gap evidence No. 5-1 through No. 4, Eul evidence No. 5-2, and Eul evidence No. 5, the non-party 1 company operated the financial business, such as factoring finance and short-term financing, with the trade name of "non-party 3 corporation (the Supreme Court decision)" as its main business purpose, and changed housing construction business, etc. around May 17, 1999 to its main business purpose. The sales in 198, prior to the change of business purpose as above, was KRW 24,219,794, but the sales in 1999 through 2001, which was after the change of business purpose, did not have any sales in 202 and the sales in 203, regardless of whether there was a specific amount of land less than 51,000,000, 523,000,000 each of the above shares. According to the recognition of the above shares, the remaining amount of land transferred to 13.4.

Furthermore, even if the Plaintiff did not report the presumption profits per share under Article 56(1)2 of the Enforcement Decree of the Act within the time limit for filing a gift tax base return under Article 68 of the Act, as seen earlier, Nonparty 1 shall not calculate the weighted average amount of net profits and losses per share for the preceding three years as long as it is deemed unreasonable to determine the weighted average amount of net profits and losses per share for the recent three years on the basis of the value under Article 56(1)1 of the Enforcement Decree of the Act because the normal sales period is less than three years (see Supreme Court Decision 2006Du16434, Dec. 11, 2008).

Therefore, according to Article 56 (1) 1 of the Enforcement Decree of the Act, each of the instant dispositions by the Defendants against whom gift tax is imposed is unlawful by calculating the weighted average amount of net profit and loss per share of the instant stocks during the last three years.

3. Conclusion

Therefore, all of the plaintiffs' claims are justified, and the judgment of the court of first instance is unfair with different conclusions, so the appeal of the plaintiffs is accepted in full, and each of the dispositions of this case is revoked, and it is so decided as per Disposition.

[Attachment Form 5]

Judges Kim Chang-suk (Presiding Justice)