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조세심판원 조세심판 | 2019-01-07 | 조심2018서2254 | 상증
【Request Number】

Appellate Court 2018J 2254 (No. 08, 2019)

[세 목]

Certificates of merit

[Types of Decision]

Dismissal

[Summary of Decision]

In light of the fact that the claimant seems to have accrued from the transfer of the right to new stocks to a third party, and that the transfer income tax may be deducted as already paid in calculating the gift tax if the claimant paid the transfer income tax by deeming the right to new stocks as transfer income as the claimant, the claimant did not have any errors in the disposition otherwise imposing gift tax on the claimant for the transfer of the right

[Related Acts]

Article 40 of the Inheritance Tax and Gift Tax Act

【Reference Decision】

early trial 2017west 0972/ early trial 2016west 1536

【Determination following Decision】

Cho 2019,003

[주 문]

The appeal is dismissed.

[이 유]

1. Summary of disposition;

A. In 2016, the claimant transferred 5,750,000 shares of warrant certificates issued by OOO (hereinafter “OOO”) to OO and reported capital gains tax to OO members, as the applicant has been subject to 1 POOs as follows:

OO

B. As a result of an investigation conducted by an OO (hereinafter referred to as “OO”) during the period of September 14, 2017 and October 23, 2017, an OO (hereinafter referred to as “OO”) purchased and transferred from an OO (hereinafter referred to as “OO”) which is a person with a special relationship in the transaction of transfer of preemptive rights (hereinafter referred to as “instant preemptive right”) on the assumption that it is subject to gift tax pursuant to Article 40 of the Inheritance Tax and Gift Tax Act (hereinafter referred to as “the Inheritance Tax and Gift Tax Act”), the agency determined and notified that the sum of the gift tax shall be determined and notified by the applicant, as shown in Table 2 of the following Table 2 of the Inheritance Tax and Gift Tax Act.

OO

C. The claimant appealed and filed an appeal on April 10, 2018.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

(1) The transfer of key preemptive rights is not subject to gift tax under the Income Tax Act.

According to Article 88 of the former Income Tax Act, “stocks or equity shares mean stocks or equity shares, including preemptive rights to new stocks and securities depository receipts prescribed by Presidential Decree.” In addition, Article 94 of the same Act provides for the scope of capital gains and Article 94 (1) 3 of the same Act defines “income accruing from the transfer of stocks, etc. as capital gains,” so the preemptive rights are subject to transfer tax by assets included in stocks

After issuing a separate type of bonds with warrants to the representative director due to the lack of initial investment funds, the representative director is trying to exercise the preemptive rights held by the representative director due to expected operating profits in the future. On the issue of whether to purchase the preemptive rights in the issuing corporation is capital gains due to concerns over the decline in the equity ratio of existing shareholders and the decline in stock value, the National Tax Service interpreted the income accruing from the sale of only the preemptive rights of the relevant bonds with warrants to the corporation that issued the bonds with warrants as capital gains under Article 94 (1) 3 of the Income Tax Act (written property-2585, June 25, 2015).

In other words, if a preemptive right is purchased and transferred from a person with a special relationship such as the claimant, it is subject to capital gains tax, and there is no provision that a tax is imposed by classifying the transfer or donation according to whether the preemptive right is purchased and transferred

If the transfer of preemptive rights is subject to gift tax according to the assertion of the investigating authority, there should be clear provisions such as the taxation of income tax in case of imposing gift tax under the Income Tax Act, but there is no such provision.

Article 4-2(2) of the Inheritance and Gift Tax Act provides that “No gift tax shall be levied on donated property in cases where income tax under the Income Tax Act is levied on the donee.” This provision stipulates that income tax and gift tax shall be levied on transaction where the gift tax may be imposed at the same time. Therefore, even if the transfer of the right to preemptive ownership is subject to gift tax as asserted by the investigator, the transfer of the right to preemptive ownership is subject to gift tax under the Income Tax Act and the gift tax under the Inheritance and Gift Tax Act. At this time, the transfer income tax should be imposed pursuant to

Article 40 (1) 2 (a) of the Inheritance and Gift Tax Act applies only to cases where a claimant acquires a preemptive right from a person with a special relationship, and considers profits therefrom by converting, exchanging, and acquiring the preemptive right, and the investigating authority interpreted it as subject to gift tax based on the provision of Article 40 (1) 2 (a) of the Inheritance and Gift Tax Act (hereinafter referred to as "the value of stocks acquired from a person with a special relationship, such as convertible bonds, by the person who has acquired the convertible bonds, etc. from a person with a special relationship, exceeds the conversion, exchange, or acceptance price (hereinafter referred to as "in this paragraph), of the transaction of the preemptive right purchased and transferred from a person with a special relationship. Article 40 (1) 2 of the Inheritance and Gift Tax Act applies to cases where a person gains profits by acquiring convertible bonds, etc. from a person with a special relationship, and Article 40 (2) 2 of the Inheritance

Article 40(1) of the Inheritance and Gift Tax Act defines "stock conversion, etc." as "conversion, exchange, or acquisition with stocks by convertible bonds, etc." and does not include transfer to "stock conversion, etc.". Article 40(1) of the Inheritance and Gift Tax Act defines "stock conversion, etc." to clarify the interpretation of statutes, and interpret it as "stock conversion, etc." as an illegal interpretation that goes against the principle of no taxation without law, unless there are special circumstances under the principle of no taxation without law. As such, a claimant's transfer of a right to new stocks should be imposed as capital gains pursuant to the Income Tax Act, and a disposition that a gift or transfer is imposed by the investigative agency according to whether a person has purchased or transferred a right to new stocks from a person with a special relationship is an illegal disposition based on the erroneous interpretation of statutes, and thus a disposition

(2) The acquisition of the key right to new shares is a transaction with repurchase agreement through a monetary loan transaction. The actual acquisition of the right to new shares was made by an OO with no special relationship (hereinafter “OO”).

The claimant, as the representative director of the OO, entered into an OO purchase contract located in the OO on September 9, 2013, was in need of the OO's external financing for the business activities of the company. The OO decided to issue a separate type of bonds with warrants by minimizing financial costs, and the OO decided to acquire bonds with warrants. However, the OO determined that the preemptive rights do not have future economic benefits because the OO's share price is low at the time of issuance, and that as a result of the internal investment review, the OO presented additional conditions that the applicant acquired the preemptive rights as the evaluation amount of the external evaluation institution.

In order to grow and operate the OO, the claimant has to take over the preemptive right because of the fact that the external fund has to be raised, but it has been found that the issuance of the bonds with warrants has not been able to raise the total purchase fund of the preemptive rights and that there has been a surplus fund in the OO operated by the claimant's family. On the other hand, the claimant confirmed the fact that there has been a surplus fund in the OO operated by the claimant's family and agreed to use the OO fund on the condition that the claimant can re-purchase the funds at the purchase price if the funds are secured. On July 16, 2013, the claimant purchased the preemptive right once in the name of the OO.

The claimant, as agreed on September 30, 2013, re-purchases an OO at the price purchased from the OO as agreed on September 30, 2013, and the price that the OO purchased from the OO is nothing more than that of the actual purchase and sale, which would result in a lack of economic rationality if the claimant actually purchases and sells it. In light of the process of these transactions, the claimant can be aware that the transaction is not an actual transaction but a transaction that borrowed funds. In full view of these circumstances, the claimant, in the process of raising the acquisition price of preemptive rights, only in the form of borrowing funds from the OO and paying it as the acquisition price, and is only in the name of the OO, and the substance of the transaction is not a repurchase agreement and is not an actual transaction.

A purchase transaction with a claimant and an OO shall be determined by the parties' intention, transaction background, economic rationality, etc. In light of this, the legal substance of the transaction is a transaction with repurchase agreement between the parties for financial transaction, and the purchase of preemptive rights from the OO is determined by considering the form of the transaction without considering the substance of the transaction. As seen earlier, the legal substance of the transaction that the claimant purchased shares from the OO, a person with a special relationship, is a transaction with repurchase agreement arising in the course of financing the acquisition of preemptive rights by borrowing the acquisition fund, and the actual acquisition is made by the OO, a non-specially related person by the claimant. Therefore, the taxation disposition by the O made on the premise that the claimant purchased shares from the OO, a person with a special relationship, is unlawful

(3) The time of acquisition of preemptive rights must be determined in accordance with “the details of the replacement and issuance of preemptive rights by serial number”, which is a document of approval by the board of directors

On September 22, 2015, as the face value has been changed at a temporary general meeting of shareholders of OO, the board of directors, on December 7, 2015, the board of directors divided the category of rights, and the original serial number was changed. The agent who reported the transfer income tax to the applicant asks the OO for the difference between the serial numbers on the transfer contract and the serial numbers on the acquisition contract. At the time, OO notified the agent of the change in the type of rights of preemptive rights and the serial numbers on the transfer contract. At the time of acquisition and transfer of the preemptive rights, the agent notified the agent of the change in the type of rights of preemptive rights and the serial numbers on the transfer contract. After determining the acquisition time by individually identifying the serial numbers at the time of acquisition based on the content, the agent submitted the “the change in type of rights of preemptive rights” as a supplementary document at the time of reporting

When the time of acquisition becomes a key issue at the time of the tax investigation, the OO confirmed the fact that the documents entered in the initial document submitted by the person in charge of the acquisition time are delivered to the tax agent, and submitted the transfer income tax report that "the details of the change of the right to preemptive rights," and submitted the "the details of the replacement of the preemptive rights by serial number," which is the approval document of the board of directors, by explaining the fact of erroneous submission. The applicant's "the details of the replacement of the preemptive rights by serial number," is finally accurately stated in the minutes of the board of directors' meeting following the change of the right to preemptive rights, so the time of acquisition shall

Upon the vindication of the claimant and the submission of "the details of the replacement issuance of preemptive rights by serial number", which is a document approved by the board of directors, the investigating agency visited the OO, conducted on-site investigations, such as visiting documents, date and articles related to the preemptive rights of OO, questioning and investigating the practitioners, etc. The investigating agency received the original "the details of the replacement issuance of preemptive rights by serial number" submitted by the claimant, and requested the OO to make a document appraisal on the time of the preparation of documents, forgery, etc., but it was confirmed that the date of preparation is unclear. However, the investigating agency did not verify whether the documents submitted by the claimant (the details of the replacement of preemptive rights by serial number) for the following reasons.

First, the Investigation Agency has raised a problem about the difference between the meeting minutes and the closing of the board of directors even though the "the details of the replacement issuance of preemptive rights by serial number" was approved by the board of directors. However, the company that delivers more than two different kinds of A4 documents to the OO may not be a clear evidence to suspect the credibility of the date of natural occurrence in the process of delivery and use of more than two different kinds of documents A4. Rather, if the claimant voluntarily made the documents ex post facto and arbitrarily as the doubt of the Investigation Agency, it would not occur using the same A4.Second, even though the "the details of the replacement issuance of preemptive rights by serial number" is approved documents by the board of directors, it is difficult to be considered as the actual meeting documents of the board of directors because there is no seal affixed to the meeting minutes of the board of directors, and the OO approval documents are many other than the "the details of replacement issuance of preemptive rights by serial number," and it did not recognize the issue of replacement of the board of directors' meeting minutes, which is a document that does not recognize the issuance of new documents by the applicant.

Third, the investigative agency has an opinion that "the details of change of the types of preemptive rights" are submitted as a supplementary document to the transfer income tax report and has an effect as an actual official document, so the investigative agency should decide the time of acquisition by individual law in accordance with "the details of change of the types of preemptive rights". However, the claimant consistently explained that it is a document that has been submitted by mistake due to the replacement of the staff in charge, and consistently argued that "the details of change of the types of preemptive rights" was submitted by mistake in

First, the amount of change in the type of preemptive rights is calculated by the board of directors on the document "the amount of change in the type of preemptive rights," which serves as the basis for the determination of the time of acquisition by the OOO or the Investigative Agency. This means that the document prepared in the middle process, not the final document, can be known, and that the document is not approved by the board of directors. Second, the document that does not have the name or seal of the corporation is a document that manages the type of preemptive rights with the approval document of the board of directors, there is no name or seal of the corporation. Rather, the document that the "the details of the change in the type of preemptive rights for each serial number" claimed by the claimant has the name and seal affixed to the name and seal of the corporation. Rather, the document is finally prepared by the board of directors to verify the issue of the "the date of acquisition of each type of preemptive rights for each type of preemptive right," which is the date before July 12, 2016.

Therefore, it is difficult to accept to determine the time of acquisition in accordance with the "amount of change in the right of preemptive right", which is a document submitted by the investigative agency in the course of reporting the transfer tax, and levy gift tax.

(4) If “the details of the replacement of preemptive rights by serial number” is denied, the time of acquisition of preemptive rights shall be deemed unclear and applied to the first in first in first in first in order. Claimant is a major shareholder of listed stocks under the Income Tax Act at the time of transfer of the pertinent preemptive rights, and is obligated to record the transfer and acquisition of outstanding preemptive rights in accordance with Article 115(1) of the Income Tax Act and Article 178 of the Enforcement Decree of the same Act. Claimant asserts that “the details of the replacement of preemptive rights by serial number” can be verified by the documents of approval of the board of directors, but if the Investigative Office does not recognize it, the applicant who is a major shareholder did not record the books

Therefore, since the account book was not kept according to the method prescribed by the law (where a statement of trading is recorded and managed in the account book, it shall be kept separately for each item, and the transaction statement, such as transaction date, transaction quantity, unit price, acquisition value, transfer value, etc. shall be recorded without being omitted by item), the time of acquisition corresponding to the transfer of the right to new stocks shall be deemed unclear, and the acquisition time shall be applied by the first in first in first in first in first in order pursuant to Article 162(5) of the Enforcement Decree of the Income Tax Act. If the “the details of the replacement of preemptive right to new stocks by serial number,” submitted by the applicant, is not considered as evidence of actual acquisition and transfer, the claimant shall be deemed to have failed to keep the account book according to the method prescribed by the Income Tax Act. Therefore, it is improper to levy gift tax by applying the individual law, such as the result of the investigation conducted by the investigative agency,

(b) Opinions of disposition agencies;

(1) Preemptive rights are not subject to gift tax under the Income Tax Act, but subject to transfer income tax, and the share conversion, etc. under Paragraph (1) Item 2 (a) of the Inheritance Tax Act, etc. is limited to the conversion, exchange, and acquisition, etc., and does not include transfer, as the case law (see Supreme Court Decision 2012Du3200, Jun. 14, 2012) (see Supreme Court Decision 2012Du3200, Jun. 14, 201). Therefore, in cases where the tax authorities impose gift tax and transfer tax vary each other, it shall be determined independently in accordance with the substance of each taxation requirement. In order to prevent double taxation when imposing gift tax after paying the transfer income tax, the transfer income tax is imposed on the claimant within the scope not exceeding the transfer margin compared with the transfer income and the transfer margin, and it is not reasonable to claim the amount of transfer income tax and the transfer income tax after deducting the transfer income tax from the transfer income tax as the payment by an OOO (see, e.g., 20175).

Since this case is a stock transfer, not subject to gift tax, but subject to transfer income tax, and Article 40(1)2(a) of the Inheritance and Gift Tax Act is an error arising from understanding the relevant laws and regulations. Article 40(1)2(a) of the same Act provides that a person with a special interest who has acquired convertible bonds, etc. from a person with a special interest shall be imposed as a deemed donation on the profits derived from exceeding the conversion price (the exercise price: 1.00 won), exchange price, or subscription price, etc., and Article 30(1)2 of the Enforcement Decree of the Inheritance and Gift Tax Act provides that the transfer price shall not exceed the conversion profit, i.e., the amount obtained by subtracting the acquisition price from the transfer price of convertible bonds, etc. In the case of transfer of convertible bonds, etc., the transfer price shall be calculated by calculating the conversion price (OOO value) from the date of transfer by the market price, and the transfer price shall be calculated by calculating the gift tax at the time of transfer under the Enforcement Decree of the Inheritance and Gift Act.

(2) The claimant asserted that he/she purchased Preemptive rights under the name of the non-specially related parties under the following conditions: (a) the substance of the transaction is the acquisition of Preemptive rights through a monetary loan transaction; (b) the actual acquisition of Preemptive rights is the transaction through the repurchase agreement; and (c) the claimant acquired them from OO, a non-related party; (d) the claimant was unable to personally raise the total purchase fund for the preemptive rights, and (e) he/she became aware of the existence of surplus funds in OOO, which the claimant's family manages, and (e) he/she paid the loan when securing liquidity funds, and re-purchases the preemptive rights, on condition that he/she would use the OO's funds.

Such content was not an issue at the time when a tax investigation is conducted. Such claim is deemed to have been made in the statement of transactions (B) between related parties under the settlement of accounts in 2013 and that the claimant is required to receive a return from the OO if the funds are insufficient, so the claimant appears to have made a loan to take over the OO. In order to take over the 2013 settlement of accounts, the applicant is deemed to have made an investment in the OO and the OO is deemed to have made an investment in the company specialized in investment (investment specialized company) and the OO is not a repurchase agreement. Even if the facts were to exist, it is deemed that the sales contract, etc. was presented through the OO at the time of the investigation, and that there was no fact at all at the time of the investigation, and such assertion seems to have been false.

(3) The claimant asserted that the time of acquisition of the right to new stocks should be determined according to the “the details of the replacement of the right to new stocks by one-time number,” which is the actual documents approved by the board of directors. However, the claimant initially purchased the OO in a special relationship corporation and transferred it to the investment corporation and others on August 31, 2016, and on November 30, 2016, submitted the certificate of transfer income tax (two copies), securities transaction tax (two copies), a statement of change of the right to new stocks by one-time number on the report, a statement of change of the type of right to new stocks by the number on the report, a sales contract

2015년도 9차 이사회의사록에 권면금액 OOO원 83매(액면분할금액 OOO원 20매 ⇨ OOO원 83매)를 교체하여 발행한다는 의사록을 근거로 작성하였다고 주장하는 일련번호별 신주인수권증권 교체발행 내역을 제시하며 신고한 제출내용을 부인하고 대부분 비특수관계자인 OOO로부터 매입하였다고 주장하였다.

In order to verify the details of the issuance of warrant certificates, the investigative agency made a field business trip, and asked whether there is a computer file, file, etc. on the date of the replacement issuance at the time. The person who prepared the detailed statement of the change is an OO (unretirement) and the data already prepared, and reported the contents of exercise of the right to new stocks to the OO that is directly and directly bound by the agent agent and the OOO. The details of the exercise of the right to new stocks are shown in e-mail. At the time, the shareholders' minutes and the details of the exercise of the right to new stocks are separated and kept separately, and there was no computer original and copy files prepared by the retired agent at the time, and there was no date of preparation. In the case of a listed company, the person who prepared the detailed statement of change is deemed to have failed to present circumstantial evidence at the time of change, and it is deemed to have been prepared after the date of replacement of new stocks issued by the serial number at the time of the issuance of new stocks issued by the board of directors (the serial number at the time of the board of directors).

Examining the contents of the minutes, there is no content that is attached to the statement of replacement of preemptive rights to new stocks, but there is no content that is changed, and there is no content of the content of the changed securities number, and thus, it cannot be an official document. While the entire minutes are inter-delivery, it cannot be an objective document because there is no inter-delivery of the total minutes. The number of new securities submitted by the claimant at the time of filing the transfer income tax, there is a specific content that is referred to as the original issuance number, and the relevant securities sales contract and the modified securities are submitted at the time of filing the tax office. Thus, the only objective evidence is that both the original

If the original issuance number of bearer securities and the new bearer securities are listed on the original issuance number and the new bearer securities, they can be identified as real securities, but they must be verified only by the documents submitted at the time of declaration because they are not marked on the real securities.In the taxpayer's opinion on a serial change case, the total face value of securities submitted at the time of declaration to OO is an OO, but the OOO in the remarks column is stated to be converted before replacement, and the time of preparation in the document appraisal is shown to be non-measurement, so it is difficult to recognize it as objective evidence because the name plates claimed by the claimant as evidence is not officially verified, but can be made at any time as needed.

(4) If the claimant denies “the details of the issuance of preemptive rights by serial number”, the claimant asserts that the time of acquisition of preemptive rights is unclear and that the time of acquisition should be applied to first in first in first in first in first in order. However, the acquisition price is accurately stated in the contract on the acquisition of new stocks, which is submitted by OO in the transfer income tax return, and the acquisition order is opened in detail in order of acquisition.

3. Hearing and determination

A. Key issue

1. (Confluence of Claim) The legitimacy of the claim claim that any disposition on which gift tax was imposed is unreasonable, because the transfer of preemptive rights to issues is subject to capital gains tax under the Income Tax Act.

(B) (Reserve Claim ①) Acquisition of a preemptive right at issue from OO is a transaction with repurchase agreement following a monetary loan, and whether actual acquisition has been made by OO with a non-specially related person.

3. (Preliminary Claim ②) The legitimacy of the petition seeking that the time of acquisition of the key preemptive right shall be determined in accordance with the “Contents of the replacement and issuance of the preemptive right by the number of display number”, the actual documents

(P) If a disposition agency denies “the details of the issuance of preemptive rights by serial number” which is a document approved by the board of directors, the propriety of the claim seeking the first in first in first in first in first in order is unclear when the preemptive rights are acquired.

(b) Relevant statutes;

(1) Income Tax Act;

Article 88 (Definitions) The terms used in this Chapter shall be defined as follows:

1. The term "transfer" means the actual transfer of an asset to a consideration by means of sale, exchange, investment in kind in a corporation, etc., regardless of registration or enrollment on the asset. In such cases, the part equivalent to the amount of debts of onerous donation prescribed by Presidential Decree shall be deemed transfer, and the transfer shall not be deemed transfer in any of the following cases:

(a) Where a land category or parcel number is changed due to a disposition of replotting under the Urban Development Act or other Acts, or appropriated for a reserved land;

(b) Where land is exchanged in accordance with the methods and procedures prescribed by Presidential Decree, such as land partitioning under Article 79 of the Act on the Establishment, Management, etc. of Spatial Data to change the boundary of land;

2. The term "stocks, etc." means stocks or investment shares, including preemptive rights and securities depository receipts prescribed by Presidential Decree;

(b)

Article 94 [Scope of Transfer Income] (1) Capital gains shall be the following incomes, generated in the pertinent taxable period:

3. Income generated from transfer of stocks, etc. falling under any of the following items:

(a) Stocks, etc. of a stock-listed corporation, which fall under any of the following:

1. Stocks, etc. transferred by large stockholders of a stock-listed corporation prescribed by Presidential Decree in consideration of the ratio of stocks owned, total market price;

2) (i) Stocks, etc. transferred by a person who is not a major shareholder under subparagraph (i) not by trading in the securities market (hereinafter referred to as “securities market”) under the Financial Investment Services and Capital Markets Act.

(b) Stocks, etc. of an unlisted corporation;

(2) Inheritance Tax and Gift Tax Act;

(2) Where income tax under the Income Tax Act or corporate tax under the Corporate Tax Act is levied on a donee with respect to donated property under paragraph (1), no gift tax shall be levied. The same shall also apply to cases where income tax or corporate tax is non-taxable or reduced under the Income Tax Act, the Corporate Tax Act or other Acts.

Article 40 [Donation of Benefits Following Conversion, etc. of Convertible Bonds, etc.] (1) Where any of the following profits is acquired by acquiring, acquiring or transferring convertible bonds, bonds with warrant (referring to new stocks as warrant certificates if they are separated) or bonds entitled to convert into or exchange with stocks or to underwrite stocks (hereafter referred to as "convertible bonds, etc." in this Article and Article 41-3), or by converting into or exchanging with stocks or accepting stocks with convertible bonds, etc. (hereafter referred to as "stock conversion, etc." in this Article), an amount equivalent to such profits shall be deemed the value of property donated to the person who has acquired such profits: Provided, That where the amount equivalent to such profits is less than the standard amount prescribed by Presidential Decree,

(b)

2. Any of the following profits acquired on the date of conversion, etc. of stocks by converting, etc. of convertible bonds, etc.:

(a) Profits acquired by a person who has acquired convertible bonds, etc. from a specially related person, etc. by such stocks as exceeding the value of conversion, exchange or acceptance (hereafter referred to as "value, etc. of conversion" in this paragraph);

(b) Profits acquired by the largest shareholder of a corporation which has issued convertible bonds, etc. or a shareholder specially related thereto, who takes over, etc. the convertible bonds, etc. from the relevant corporation in excess of the number of stocks to be allocated under equal conditions in proportion to the ratio of the number of stocks owned, etc. from the

(c) Profits acquired by a specially related person (excluding stockholders of the corporation) of the largest stockholder of the corporation which has issued convertible bonds, etc. from the corporation taking over, etc. the convertible bonds, etc. from the corporation, as the value of stocks issued or to be delivered

(d) Profits acquired by a specially related person of a person who has received stocks as the value of stocks issued by convertible bonds, etc. is lower than the conversion value, etc.

3. Profits acquired by the transferor as the transfer price exceeds the market price on the transfer date of convertible bonds, etc. where they are transferred to a specially related person.

(2) The value of stocks, the method of calculating profits, the date of donation, and other necessary matters under paragraph (1) shall be prescribed by Presidential Decree.

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

Article 30 (Method, etc. of Calculating Benefits Following Conversion, etc. of Convertible Bonds, etc.) (1) The benefits referred to in Article 40 (1) of the Act shall be the amount calculated according to the following classifications:

1. Profits under the items of Article 40 (1) 1 of the Act: The amount obtained by subtracting the acquisition value of convertible bonds, etc. from the market price of convertible bonds, etc. under Article 40 (1) of the Act (hereafter referred to as "convertible bonds, etc." in this Article);

2. Profits under Article 40 (1) 2 (a) through (c) of the Act: The amount calculated by subtracting the interest loss portion calculated, as prescribed by Ordinance of the Ministry of Strategy and Finance, from the value calculated by multiplying the value under item (b) by the number of stocks under item (c), and the profit under subparagraph 1: Provided, That where convertible bonds, etc. are transferred, it shall not exceed the amount obtained by subtracting the

(a) The value of stocks (referring to the value of stocks that shall be delivered pursuant to paragraph (5) 2 where convertible bonds, etc. are transferred) received pursuant to paragraph (5) 1; and

(b) Conversion, exchange, or acquisition value per stock (hereafter referred to as "transfer value, etc." in this paragraph);

(c) The number of stocks issued (referring to the number of stocks issued where convertible bonds, etc. are transferred);

3. Profits under Article 40 (1) 2 (d) of the Act: An amount calculated by multiplying the value obtained by subtracting the value under item (b) from the value under item (a) by the number of stocks under

(a) Conversion value per stock;

(b) The value of stocks received under paragraph (5) 1; and

(c) Number of stocks increased by conversion, etc. ¡¿ Ratio of stocks held by specially related persons of the person who has received the stocks concerned before conversion, etc.

4. Profits under Article 40 (1) 3 of the Act: The value obtained by subtracting the market price of convertible bonds, etc. from the transfer value of convertible bonds, etc.

(2) "Standard amount prescribed by Presidential Decree" in the proviso to Article 40 (1) of the Act means an amount classified as follows:

1. In cases falling under paragraph (1) 1 and 4: The lesser of the following items:

(a) A value equivalent to 30/100 of the market price of convertible bonds, etc.;

(b) 100 million won;

2. Cases falling under paragraph (1) 2: 100 million won.

3. Case falling under paragraph (1) 3: 0 won.

(3) "Large shareholder" in Article 40 (1) 1 (b) and (c) and 2 (b) and (c) of the Act means one person holding the largest number of stocks, etc. among the largest shareholders, etc.

(4) "Cases prescribed by Presidential Decree" in Article 40 (1) 1 (b) of the Act means cases of soliciting pursuant to Article 11 (3) of the Enforcement Decree of the Financial Investment Services and Capital Markets Act.

(5) "Value of stocks received or to be received" in Article 40 (1) 2 of the Act means the value calculated according to the following classifications:

1. Value of stocks received: The value per share, calculated by the following formula, in cases of converting into or exchanging with stocks or accepting stocks with convertible bonds, etc. (hereafter referred to as "conversion, etc." in this Article). In such cases, where a stock-listed corporation, etc. is converted into stocks, etc. and the appraised value per share, etc. after conversion, etc. is less than the value per share, calculated by the following formula (in cases of Article 40 (1) 2 (d) of the

2. Value of stocks to be received: Where convertible bonds, etc. that can be converted into stocks as of the date of transfer are transferred, the value per stock calculated by the following formula in the case of conversion, etc. into stocks as of the date of transfer of the relevant convertible bonds, etc. In this case, where a stock listed corporation, etc. and the assessment value per stock based on the date of transfer

C. Facts and determination

(1) According to the review materials of the disposition agency, the following facts are revealed.

(A) The calculation of the value of donated property following the transfer of the key preemptive right is as follows:

According to the sales contract (OOO(B) of warrant certificates (OO(206.6.29.) on June 29, 2016, the claimant entered into a contract with OOO to sell and purchase the separate type of warrant certificates (No. 4, par value, No. 4 and No. 7) related to the first non-registered private placement of warrant certificates issued by OOO to OOO on June 29, 2016.

(C) According to the sales contract (2013.9.30. 30. 201) of warrant certificates, the OOO transferred the OO's first-time warrant certificates of the separation type of private placement of collateral (OO's total face value, OO's KRW x 5) to the OO's first time on September 30, 2013, and when examining the certificate of acceptance of securities (O's September 30, 2013), the claimant appears to have acquired the same warrant certificates (No. 004 through 008) on September 30, 2013.

(D) According to the sales contract (2013.7.16. 201) of warrant certificates, the OOO transferred the OO of the first type of warrant certificates (in total face value, OOwon, 3 OOO won x 1 x OO won, 1 x 5 x 5) to the OO on July 16, 2013, and the OOO acquired the same warrant certificates on July 16, 2013.

(E) In light of the “Detailed Statement on Transactions (A) between Related Parties” in 2013, the claimant appears to have a fund (OO) that was loaned to OO by the claimant.

(F) According to the statement of the replacement of warrant certificates, the face value of each serial number attached to the meeting of the board of directors, all of the face value of the preemptive rights before and after the replacement, and the preemptive rights prior to the replacement, No. 4 (in face value, OOO) are E and E and E6 (in face value), and the preemptive rights prior to the replacement, No. 10 (in face value, OOO) were changed in the number of units 19 and SO20 (each OO) respectively.

(2) The main contents, such as the statement of reasons and evidence, submitted by the claimant, are as follows.

(A) According to the details of the first and second reports on capital gains tax, the claimant is deemed to have filed a report on capital gains tax when transferring 5,750,000 shares of the warrant certificates issued by OOO to OO in 2016.

(B) If the claimant filed a transfer income tax upon the transfer of the right to new shares and submitted by the serial number, the face value of the right to new shares before replacement is OO in the face value of the right to new shares, the face value of the right to new shares after replacement is OO in the face value of the right to new shares, and the difference of OOO was exercised before replacement, and the right to new shares before replacement is 004(the face value of 003 and 004(the face value of OO) in the face value of Ma heading 003 and 004(the face value of 10(the face value of OO) and the right to new shares before replacement is changed to 19(the face value of O

(다) OOO의 이사회의사록(2015.12.7.) 등에 따르면 동 법인은 2015.12.7. 제9차 이사회를 열어 제7호 의안으로 ‘쟁점신주인수권 교체발행의 건’을 논의하여 2015.9.22. 실시한 액면분할에 따라 2013.7.16. 발행한 쟁점신주인수권을 권종분할(교체전 발행주식총수 2,200,000주, 행사가격 OOO원 ⇨ 교체후 발행주식총수 11,000,000주, 행사가격 OOO원, 액면분할)의 방식으로 교체발행하였고, 그 첨부목록으로는 상기 (나)의 ‘일련번호별 신주인수권증권 교체발행내역’이 첨부된 것으로 되어 있다.

(3) In light of the content of the issuance of warrant certificates by serial number claimed by the claimant and the disposition agency of the issue, most of the particulars of the warrant certificates before replacement are the same.

(4) Comprehensively taking into account the facts above and the relevant laws and regulations:

(A) First, the claimant argues that this disposition imposing gift tax is improper because the transfer of the key preemptive right is subject to capital gains tax under the Income Tax Act.

According to Article 40(1) of the Inheritance and Gift Tax Act, where profits are earned by acquiring, acquiring, or transferring convertible bonds, etc. (referring to warrant certificates, if they are separated) or by converting, exchanging, or acquiring stocks with convertible bonds, etc., the amount equivalent to such profits shall be deemed to be the value of donated property of the person who acquired such profits. The claimant appears to have been reverted to the claimant by transferring the key warrant certificates to a third party before exercising the said rights;

According to the proviso of Article 30(1)2 of the Enforcement Decree of the Inheritance and Gift Tax Act, when convertible bonds, etc. are transferred, the gift tax shall not exceed the amount obtained by subtracting the acquisition value from the transfer value when calculating the gift income. In case where transfer income tax is paid by deeming the transfer income as transfer income as the claimant, the gift tax may be deducted by calculating the gift tax (see Supreme Court Decision 2012Du3200, Jun. 14, 2012). According to Article 2(2) of the Inheritance and Gift Tax Act (see Supreme Court Decision 2012Du3200, Jun. 14, 2012), when the income tax is levied on the donee pursuant to Article 2(1) of the Income Tax Act, the gift tax shall not be imposed, in light of the language and content thereof or the nature of the gift tax as the supplementary tax as income tax. In light of the fact that the disposition office has determined that the gift tax is not imposed when the gift tax is imposed on the donee, and that it does not fall under any special provision excluding the overlapping application of the gift tax.

(B) Next, the claimant's acquisition of a preemptive right from OO is a transaction with repurchase agreement based on monetary loans, and actual acquisition of a preemptive right from non-specially related persons. However, in 2013, the claimant lent OO to OO in accordance with the Statement of Transactions (A) between Specially related persons. If the claimant lacks funds, it would be possible that the claimant would have borrowed funds from OOO in the process of acquiring the preemptive right, and according to the agency's disposition, it is possible that the claimant would have borrowed funds from OOO in the process of acquiring the preemptive right. According to the agency's disposition, it is an investment specialized corporation, such as that there is an OOO's source in the settlement of accounts in 2013 and there is an OO's source in the process of acquiring the preemptive right. Therefore, it is difficult for the claimant to accept the issue of the preemptive right from OO because it was not a repurchase agreement but an investment purpose of the agency's opinion.

(C) Finally, the claimant argued that the time of acquisition of the preemptive right should be determined according to the "the details of the replacement of the preemptive right by serial number," which is the actual documents approved by the board of directors, but when compared to the contents of the replacement of the preemptive right by serial number claimed by the claimant and the disposition agency, it is difficult to understand that there are two of the contents of the preemptive right after the replacement of the warrant right in the same company, and as a result, the investigating agency requested the OO to make a document appraisal on the minutes of the board of directors, the replacement of the serial number attached to the minutes of the board of directors differs from the minutes of the board of directors and the paper of the board of directors, and it is acceptable that the disposition agency raised the possibility of ex post facto preparation of the same documents because the applicant and the disposition agency did not fail to do so.

If a disposition agency denies "the details of replacement issuance of preemptive rights by serial number", the claimant asserts that the first in first in first in first in first in first in first in order should be applied since the time of acquisition of preemptive rights is unclear. However, according to the "the details of replacement issuance of preemptive rights by serial number" submitted at the time of filing a transfer income tax on the transfer of preemptive rights by the claimant, it is determined that the claimant is deemed to have acquired and transferred the same warrant certificates from OO and calculate the donation profits and that the claimant did not have any errors in the disposition of this case imposing gift tax on the claimant, based on the "the details of replacement issuance of preemptive rights by serial number" submitted by the claimant at the time of filing a transfer income tax on the transfer of the preemptive rights.

4. Conclusion

This case shall be decided in accordance with Article 81 of the Framework Act on National Taxes and Article 65 (1) 2 of the same Act on the grounds that the result of the review is groundless.

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