logobeta
본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
arrow
특정법인과의 거래를 통한 이익의 증여 해당 여부
조세심판원 질의회신 | 2018-11-11 | 서면-2016-상속증여-4883 | 상증
Document Number

Document-2016- Inheritance or Gift-4883 ( November 12, 2018)

Items of Taxation

Certificates of merit

Taxpayer Serial Number

Inheritance Tax Division-

요 지

Where a shareholder whose equity ratio of shares of a specific corporation is 100% donates property to the corporation, gift tax under the Inheritance Tax and Gift Tax Act §45-5 is deemed to be self-donation and thus no gift tax is imposed pursuant to the deemed donation of profits through transactions with the specific corporation.

Contents of Answer

In applying Article 45-5 of the Inheritance Tax and Gift Tax Act, if a shareholder whose shareholding ratio in the shares of a specified corporation is 100% donates any property to the corporation, no gift tax shall be levied.

Related statutes

Article 45-5 of the Inheritance Tax and Gift Tax Act

Main text

Article 34-4

【Reference Materials】

1. Factual basis

○ corporation’s assets 2.4 billion won, liabilities 3.5 billion won, and carried forward losses 1.1 billion won (within 10 years from the date of taxation)

○ shareholder (representative director) holding 100% of the equity shares;

○ shareholder1 shall donate listed stocks (1 billion won) of one billion won (100 million won acquisition price) to an inquiry corporation in order to resolve the deficit of the inquiry corporation, etc.

A corporation with ○ quality shall dispose of listed stocks and redeem borrowings.

2. Contents of questioning;

Whether gift tax is levied in cases where a representative director with 100% of the shares ratio of the corporation of ○○ quality donates listed stocks of 1 billion won to a corporation in order to resolve losses, etc.

3. Related Acts and subordinate statutes.

○ Donation of profits through transactions with specific corporations under Article 45-5 of the Inheritance Tax and Gift Tax Act

(1) Where stockholders, etc. prescribed by Presidential Decree (hereafter referred to as "shareholders, etc. of a specific corporation" in this Article) of a corporation falling under any of the following subparagraphs (hereafter referred to as "specific corporation" in this Article and Article 68) and persons in a special relationship prescribed by Presidential Decree make transactions under paragraph (2) with the specific corporation, the date of such transactions shall be deemed the date of donation and the amount calculated by multiplying the ratio of stockholding of stockholders, etc. of a specific corporation by the profits of the specific corporation

1. A corporation that has any deficit prescribed by Presidential Decree;

2. A corporation which is in the state of suspension or closure of business as of the date of donation.

3. A corporation not falling under subparagraphs 1 and 2 as of the date of donation, in which the stockholding ratio of the controlling stockholder under Article 45-3 (1) and his/her relatives is 50/100 or more.

(2) Transactions under paragraph (1) shall be those falling under any of the following subparagraphs:

1. Offering property or services without compensation;

2. Transferring or providing property or services at a significantly low price in light of the ordinary practices of transactions;

3. Transfer or provision of property or services at significantly high prices in light of the ordinary practices of transactions;

4. Other transactions similar to those under subparagraphs 1 through 3, which are prescribed by Presidential Decree.

(3) Determination of the date of donation under paragraph (1), calculation of profits of a specific corporation, the scope of prices significantly low and the prices significantly high and other necessary matters shall be prescribed by Presidential Decree.

○ Donation of profits through transactions with specific corporations under Article 34-4 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act

(1) "Stockholders, etc. prescribed by Presidential Decree" in the main sentence of Article 45-5 (1) of the Act means any of the following persons:

1. In cases of a specific corporation falling under Article 45-5 (1) 1 or 2 of the Act: The largest stockholder, etc. of the specific corporation;

2. In cases of a specific corporation falling under Article 45-5 (1) 3 of the Act: The controlling stockholder, etc. of the specific corporation;

(2) "Person having a special relationship prescribed by Presidential Decree" in Article 45-5 (1) of the Act means any of the following persons:

1. In cases of a specific corporation falling under Article 45-5 (1) 1 or 2 of the Act: The specially related persons of the largest shareholder, etc. of the specific corporation;

2. In cases of a specific corporation falling under Article 45-5 (1) 3 of the Act: Persons in any of the following relationships with the controlling stockholders, etc. of the specific corporation:

(a) Spouse or lineal ascendants or descendants;

(b) The corporation whose largest stockholder falls under item (a);

(3) "Corporation with deficits prescribed by Presidential Decree" in Article 45-5 (1) 1 of the Act means a corporation with deficits under Article 18 (1) 1 of the Enforcement Decree of the Corporate Tax Act until the business year immediately preceding the business year in which the donation date falls.

(4) "Profit of a specific corporation" in Article 45-5 (1) of the Act means the amount computed by subtracting the amount under subparagraph 2 from the amount under subparagraph 1:

1. The amounts classified as follows:

(a) Where property is donated, or a debt of the relevant corporation is exempted, acquired, or repaid: The amount equivalent to the value of donated property or the profits earned by the relevant corporation due to exemption, acquisition, or repayment;

(b) Cases other than item (a): An amount equivalent to the difference between the market price referred to in paragraph (7) and the price;

2. An amount calculated by multiplying the amount under item (a) by the ratio under item (b).

(a) The amount calculated by subtracting the amount of corporate tax deducted, reduced or exempted, from the amount of calculated tax under Article 55 (1) of the Corporate Tax Act (excluding the amount of corporate tax on capital gains on land, etc. under Article 55-2 of the same Act);

(b)the ratio of the profit under subparagraph 1 to the amount of income for each business year under Article 14 of the Corporate Tax Act of a specific corporation (if it exceeds one, it shall be one);

(5) In applying Article 45-5 (1) of the Act, where the amount calculated by multiplying the profits of a specific corporation under paragraph (4) by the ratio under the following classification shall be not less than 100 million won:

1. In cases of a specific corporation falling under Article 45-5 (1) 1 or 2 of the Act: The ratio of stocks, etc. of the largest stockholder, etc. of the specific corporation;

2. In cases of a specific corporation falling under Article 45-5 (1) 3 of the Act: The shareholding ratio of the controlling stockholder, etc. of the specific corporation;

(6) "Which are prescribed by Presidential Decree" in Article 45-5 (2) 4 of the Act means any of the following subparagraphs:

1. Exemption, acquisition, or repayment of the liabilities of the relevant corporation: Provided, That this shall not apply where the relevant corporation is dissolved (excluding dissolution by merger or division), and there is no residual assets to be distributed to stockholders, etc.;

2. Investments in kind in the relevant corporation at a price lower than the market price.

(7) "Price significantly low" and "price at least" in Article 45-5 (2) 2 and 3 of the Act mean the price at which the difference between the market price of the relevant property and services (referring to the total amount of the face value of stocks, etc. issued to the invested property, in cases falling under paragraph (6) 2) is at least 30/100 of the market price or at least 300 million won. In such cases, where money is leased or lent, it shall be the profit calculated by applying mutatis mutandis Article 41-4 of the Act.

(8) In applying paragraph (7), where the market price of the service is unclear, Article 89 of the Enforcement Decree of the Corporate Tax Act shall apply.

3. Related cases;

○ Notarials, Questions, Questions, Written Internet Visit Counseling 4 Team-508, 202.29

In the application of the provisions of Article 41 of the Inheritance Tax and Gift Tax Act, if all shareholders of a specified corporation donate, etc. to the specified corporation, at the same time, the property of equal amount in proportion to the number of their possessed stocks, it shall be exempted from the gift tax.

arrow