Seoul High Court-2012-Nu-26793 (2013.06.07)

Taxation on donation of profits through transactions with a specific corporation

With respect to "profit from a transaction with a deficit exceeding deficit" or "profit from a transaction with a juristic person other than a juristic person that has no deficit", no gift tax may be imposed on shareholders, etc. unless there are special circumstances, such as where a separate provision exists that is subject to gift tax.

2013Du13297 Revocation of Disposition of Imposition of Gift Tax, etc.

지지지지

○ Head of tax office

The Seoul High Court Decision 2012Nu26793 Decided June 7, 2013

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Relevant statutes;

Article 2 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007; hereinafter referred to as the "Act") provides that gift tax shall be imposed on donated property from another person's donation. Article 2 (3) of the former Inheritance Tax and Gift Tax Act provides that "the act or the name, form, purpose, etc. of the transaction shall, notwithstanding the name, purpose, etc. of the transaction, gratuitously transfer (including the case of transferring at a remarkably low price) tangible or intangible property which can calculate economic values to another person or increase the value of another person's property by directly or indirectly." Article 31 (1) of the Act provides that "The donated property pursuant to the provisions of Article 2 of the Act shall include all articles belonging to the donee and all articles having economic value that can be realized in money and de facto or all de facto rights having property value."

Article 41 (1) of the Act provides that "where a person who has a special relationship with a shareholder or investor (hereinafter referred to as "shareholders, etc.") of a corporation (hereinafter referred to as "specified corporation") who has any deficit or suspended or closed its business, obtains profits from a shareholder, etc. of a specified corporation through transactions falling under any of the following subparagraphs with the specified corporation, the amount equivalent to such profits shall be deemed the value of property donated to the shareholder, etc. of the specified corporation," and subparagraph 1 of Article 41 provides "the transaction of providing the property

In addition to donations under Articles 33 through 41, 41-3 through 41-5, 44, and 45, where profits falling under any of the following subparagraphs and above the standard prescribed by Presidential Decree have been acquired, such profits shall be deemed the value of property donated to the person who has acquired such profits." subparagraph 3 of Article 42 of the Act provides that "the profits acquired through the increase or decrease of the corporation's capital, such as investment, reduction of capital, merger, division, and conversion, acquisition, exchange, etc. of stocks by convertible bonds, etc. under Article 40 (1) (hereinafter referred to as "stock conversion, etc.") or through transactions such as the increase or decrease of the corporation's capital, or the profits acquired through the change of the corporation's capital or price due to the change of the corporation's organization, etc., the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010; Presidential Decree No. 22010, Feb. 3, 2019).

2. Regarding ground of appeal No. 1

원심이 그 판시와 같은 사정을 종합하여, □□□이 임대업에 사용하던 이 사건 부동산을 ♤♤ 주식회사(이하 '♤♤'이라 한다)에 증여(이하 '이 사건 부동산 증여'라 한다)한 것은 단순한 부동산의 증여에 해당할 뿐 법 제42조 제1항 제3호 후단에서 규정한 사업양수도 등에 해당하지 않는다고 판단한 것은 정당하고, 거기에 상고이유 주장과 같이 위 규정의 해석에 관한 법리를 오해하여 필요한 심리를 다하지 아니하거나 논리와 경험의 법칙을 위반하여 자유심증주의의 한계를 벗어나는 등의 위법이 없다.

3. As to the grounds of appeal Nos. 2 through 4

(a) the introduction and limitation of the complete taxation system of gift tax;

(1) The former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003) does not stipulate any unique definition on the concept of "donations", and instead borrows the concept of "donations under the Civil Act," one of the parties expresses his/her intention to grant property to the other party without compensation and approves it by the other party, subject to gift tax in principle. However, with respect to the transfer of a gift without compensation between the parties, the provision on the legal fiction of donation (Articles 32 through 42) was separately prepared and imposed. As a result, in the case of gratuitous transfer of a gift by means of new financial techniques or capital transactions, etc. which are not listed in the regulations on the legal fiction of donation, there was a limit to block the transfer of a gift without any appropriate tax burden.

Therefore, in order to realize fair taxation, the Inheritance Tax and Gift Tax Act amended by Act No. 7010 on December 30, 2003, which was amended by Act No. 7010 on December 30, 2003, comprehensively defines the subject of gift tax, including the concept of donation, the term "the direct and indirect transfer of property" and "the increase in the value of property by another person" as well as the term "the provision on the calculation of value of donated property" (hereinafter referred to as "the provision on the calculation of value of donated property") was introduced by comprehensively defining the subject of gift tax including the concept of donation.

In light of the fact that the concept of comprehensive donation under tax law is introduced to cope with in advance an irregular inheritance or donation, and that the previous provision on deemed donation is uniformly converted into the value calculation provision, in principle, if any transaction or act constitutes the concept of donation under Article 2(3) of the Act, it shall be deemed that gift tax may be levied pursuant to Article 2(1) of the Act.

(2) On the other hand, the conversion of the provision on the calculation of the value of a deemed donation into the provision on the deemed donation changes the title of Section 2 of Chapter 3 from "the legal fiction of donation, etc. to "Calculation of the value of property", and changes the title of the provision on the deemed donation from "the legal fiction of donation" to "the value of property which is the end of each provision" into "the value of property which is donated". Accordingly, the provision on the calculation of the value of individual donation remains as it remains in relation to taxation requirements, such as taxable objects and scope of taxation, which have been regulated in the previous provision on the deemed donation. In other words, the provision on the calculation of the value of donation requires the existence of special relationship between parties to a transaction with a certain type of transaction or the difference between market value, etc. is more than 30% of the market value, and the matters related to such taxable objects or scope of taxation have been amended from time to time to time. This is to ensure predictability of taxpayers and stability of tax relations, and to prevent confusion in the previous provision on the deemed gift taxation.

Therefore, in order to ensure the predictability of taxpayers, in cases where the individual value calculation rule limits only a certain transaction or act as subject to gift tax, and limits the scope of taxation by prescribing the scope and limit of taxation of gift tax, the gift tax may not be imposed even if the transaction or act excluded from the taxable subject or scope of gift tax among the transaction or act governed by the individual value calculation rule is consistent with the concept of gift under Article 2(3) of the Act.

(b) limitations on taxation of profit gifts through transactions with specific corporations;

Article 41(1) of the Act and Article 31(6) of the Enforcement Decree of the Act provide for the calculation of the value of donated property where profits acquired by stockholders, etc. are at least KRW 100 million through transactions, such as gratuitous provision of property to a specific corporation by a corporation having losses (hereinafter referred to as "contributed corporation") and a person having a special relationship with stockholders, etc. of a corporation under temporary closure or permanent closure of business, etc., are subject to gift tax in cases where the profits earned by such stockholders, etc. are at least KRW 100 million. This purport is to impose gift tax on an irregular donation that gives profits to stockholders, etc. of a specific corporation without bearing corporate tax on the donated value by means of offsetting the donated value as losses (see Supreme Court Decision 2008Du6813, Apr. 14, 201). In other words, each of the above provisions provides for the calculation of the value of donated property to the extent of losses for a corporation other

This is clear that the legislative intent of intending to exclude profits acquired by stockholders, etc. from taxable subject to gift tax is based on transactions with corporations that bear corporate tax on assets increase profits, etc. while running a business normally, and it cannot be deemed that such legislative intent has been changed due to the introduction of the full-scale comprehensive taxation system. As such, the limitation should be set up not to impose gift tax on stockholders, etc. with respect to "the portion exceeding losses out of profits from transactions with corporations, or profits from transactions with corporations that do not have losses other than corporations that suspend or discontinue business." Therefore, such profits cannot be taxed on the grounds of Article 2(3) of the Act, unless there are special circumstances such as the provision on gift tax imposition.

C. Determination

원심판결 이유에 의하면, ① 원고는 2006. 2. 27. ♤♤의 발행주식 5,000주 중 548주를 양수한 사실, ② 원고의 외조부인 □□□은 2006. 2. 28. ♤♤에 이 사건 부동산을 증여하고, 2006. 3. 3. 소유권이전등기를 마쳐 준 사실, ③ ♤♤은 이 사건 부동산 증여에 따른 자산수증이익 6,379,127,750원을 익금에 산입하여 2006 사업연도 법인세 1,567,990,230원을 신고ㆍ납부한 사실, ④ 피고는 2011. 7. 1. 이 사건 부동산 증여로 인하여 원고가 그 보유 주식의 가치 증가분 상당의 이익을 증여받은 것으로 보아 법 제2조 제3항, 제42조 제1항 제3호를 적용하여 증여세를 부과한 사실, ⑤ ♤♤은 2006 사업연도 종료일을 기준으로 결손금이 7,896,809원에 그치는 등 이 사건 부동산 증여일 당시 결손금이 없거나 결손금이 있더라도 그 한도 내에서 원고가 얻은 이익이 시행령 제31조 제6항 제1호에서 정한 과세대상에 해당하지 않는 사실 등을 알 수 있다.

이러한 사실관계를 앞서 본 규정과 법리에 비추어 살펴보면, □□□이 ♤♤에 이 사건 부동산을 증여함으로써 간접적으로 ♤♤의 주주인 원고가 보유한 주식 가치가 상승하는 이익이 발생하였다고 하더라도, 이 사건 부동산 증여는 결손금 없는 법인에 재산을 증여하거나 결손법인에 과세대상에 이르지 않는 범위 내에서 재산을 증여한 경우에 해당하고 ♤♤이 그 자산수증이익에 대한 법인세를 부담하였으므로, 그로 인하여 원고가 얻은 이익에 대하여는 법 제2조 제3항 등에 의하여 증여세를 부과할 수 없고, 또한 이 사건 부동산 증여가 법 제42조 제1항 제3호의 '사업양수도 등'에 해당하지 아니함은 앞서 본 바와 같으므로, 결국 법 제2조 제3항, 제42조 제1항 제3호를 적용하여 원고에게 증여세를 부과한 이 사건 처분은 증여세 과세의 한계를 벗어난 것으로서 위법하다고 할 것이다.

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the interpretation and application of Articles 2(3), 41(1) and 42(1)3 of the Act.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.