early 201luminous2037 ( October 26, 2011)

(2) If the issue of management is designated, the shares shall be assessed according to the supplementary assessment method;

The purpose of this case’s stocks is to be subject to the supplementary assessment method if they were designated as the management issues within three months before or after the evaluation base date, considering the fact that the stocks of this case were released from the designation of the management issues in consideration of the reasonable market price reflected within a certain period of time even before or after the designation of the management issues, and that the losses were accumulated at the time of capital increase with consideration should be assessed according to the supplementary

2011Guhap4299 Revocation of Disposition of Imposing gift tax

Kim XX et al.

The director of the Gwangju Tax Office and one other

June 7, 2012

July 5, 2012

1. A. Each gift tax imposed on the Plaintiff KimA, and KimB on April 8, 2011 by the head of the Defendant Gwangju District Tax Office 000 won;

B. On March 4, 201, the head of Seogju Tax Office revoked the imposition of a gift tax of KRW 000 and KRW 000 on the gift tax against Plaintiff Seogdong Co., Ltd. and KRW 000 on the gift tax against Plaintiff KimD.

2. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

1. Details of the disposition;

A. On November 27, 2007, the Plaintiffs participated in the issue of capital increase with respect to the third party allocation method by the third party of XX Holdings Co., Ltd. (O on November 17, 2008, and YAE was changed to YB on November 2, 2010; hereinafter referred to as “non-party company”), which is an Association-registered corporation, and acquired KRW 1,100,918 shares for each common share that occurred in the non-party company and KRW 917,431 shares per share.

B. Meanwhile, the non-party company was designated as a management issue on August 14, 2007 on the ground that the capital erosion ratio was 50% or more, and was cancelled from the designation of the management issue on March 7, 2008 due to the influence of the above capital increase.

C. The Defendants, on August 14, 2007, did not fall under the designation date of the non-party company's management issues and did not fall under the three (3) months prior to the payment date of the above shares issued by the non-party company. Since the market price of the non-party company's shares was formed and traded for two (2) months prior to the payment date of the above shares issued by the non-party company, on November 27, 2007, the market price of the non-party company's shares was determined as the base date of appraisal and then the non-party company assessed 000 won per share, which is the average transaction price for two (2) months thereafter, and issued new shares to the non-party company that is less than the market price and issued the non-party company's shares to the non-party company that is not the market price, the difference between the market price and the issue price of the non-party company's shares [= 00 won per share (=00 won - 000 won per share)].

D. The Plaintiffs appealed and filed an appeal on May 19, 201, but the Tax Tribunal dismissed all of them on August 26, 201.

[Grounds for Recognition] Unsatisfy, entry in Gap evidence 1, 2, and 3 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) The non-party company is designated as the administrative issue on August 14, 2007 and cannot be deemed to have made a normal transaction for three months before November 27, 2007, which is the base date of appraisal. Thus, the non-party company's disposal of shares should be conducted only on the average 0 won of the gift tax under Article 53 (2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621, Feb. 22, 2008; hereinafter the same shall apply) (amended by Presidential Decree No. 8828, Dec. 31, 2007; hereinafter the same shall apply) and Article 54 of the Enforcement Decree of the same Act, because the appraised value of shares does not reach the market value of shares issued by the non-party company for the 0-party company's shareholders, the plaintiffs' disposal of shares at the 20-month market value of shares should not be unlawful even if the plaintiffs' disposal of shares at the 20-month price expires.

3) Even if the obligation to pay gift tax is recognized to the Plaintiffs, it is impossible for the Plaintiffs to determine the shareholders of the non-party company, which is an Association-registered corporation, and to report and pay gift tax by calculating the amount of gift by each shareholder. Therefore, the Plaintiffs’ failure to impose

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) If a person, other than a shareholder of the relevant corporation, issues new stocks directly allocated from the relevant corporation at a price lower than the market price, the gift tax is levied by deeming the amount equivalent to the difference between the market price and the relevant corporation as the donation from a shareholder of the relevant corporation (Article 39(1)1 (c) of the Inheritance Tax and Gift Tax Act). Meanwhile, the method of assessing the market price of stocks is to be determined based on the average amount of the final taxation price of the Korea Stock Exchange (the Association-registered stocks shall be the base price of the securities business association) (Article 63(1)1 (b) of the Inheritance Tax and Gift Tax Act for stocks traded at the Korea Stock Exchange before and after the base date for appraisal in the case of stocks traded at the Korea Stock Exchange (listed stocks or Association-registered corporations) and the supplementary method of assessment in the case of non-listed stocks other than the Association-registered stocks (Article 63(1)1 (c) of the Inheritance Tax and Gift Tax Act). If the stocks of the Association are suspended or designated and publicly notified as the market price before the issuance or public notice is made based on investment 20.

2) Meanwhile, in a case where an Association-registered corporation, etc. is likely to be subject to delisting standards due to its poor liquidity, such as failure to meet the minimum liquidity or aggravation of business performance, etc., investors are required to pay attention to investment by giving such advance notice. For the purpose of granting the company an opportunity to normalize by giving a transitional period, the issue of management may be suspended for a certain period until the cancellation date of the management issue, which is confirmed that the designation of the reasons for the designation as the management issue has been published, and the credit transaction of stocks may be prohibited and may not be used as substitute securities. Accordingly, when the management issue is designated, investors shall not make an investment, but the conclusion of a stock sales contract shall not only be limited to 30 minutes by making it difficult for investors to reflect the proper business value or form a correct market price even if the transaction is maintained, and thus, the Inheritance Tax and Gift Tax Act allows the company’s stocks designated as the management issue to be excluded from the market price based on the transaction price of the company and to make up for the company’s assets or profits and losses.

3) As above, the purport of Article 53(2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act that the supplementary assessment method should be applied when the designation of the management issues was made within three months before or after the evaluation base date, is to exclude the impact of the designation of the management issues on the stock price by reflecting the reasonable market price even if the designation was cancelled after the designation of the management issues, and calculates the appropriate stock value by averaging only the value of the period during which the ordinary transaction is maintained. Thus, the "where the designation of the management issues is made within three months before or after the evaluation base date under Article 53(2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act" does not mean only the case where the designation of the management issues belongs within three months before or after the evaluation base date, but it is reasonable to deem that the designation of the management issues belongs within three months before or after

4) Comprehensively taking account of the overall purport of the pleadings as to this case’s health class and evidence Nos. 1 (including additional numbers), the non-party company was designated as a management issue on the ground that the capital erosion ratio was 50% or more on August 14, 2007, and was cancelled on March 7, 2008, and the non-party company was found to have accumulated losses at the time of issuing new shares, and the non-party company was designated as a management issue continuously for more than three months before and after November 27, 2007, and thus, in order to assess the market price of the non-party company’s shares at the time of issuing new shares, the non-party company should follow the supplementary evaluation method under Article 53(2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, Article 63(1)1 (c) of the Inheritance Tax and Gift Tax Act, and Article 54 of the Enforcement Decree of the same Act.

Therefore, the disposition of this case imposing each gift tax on the plaintiffs by calculating the stocks of the non-party company as the average amount of the base price of the securities business association for two months before and after the base date of appraisal on the grounds that the designation date of the non-party company is three months before and after the base date of appraisal without following the supplementary assessment method as above is unlawful without any further review on the remaining arguments

5) On the other hand, in a lawsuit seeking revocation of a tax disposition, the issue of legitimacy of the disposition is determined depending on whether it exceeds a legitimate amount of tax, and the parties can submit objective tax bases and materials supporting the tax amount until the closing of argument in the fact-finding court. When a legitimate amount of tax to be imposed lawfully is calculated based on such materials, only the portion exceeding the legitimate amount of tax should be revoked, but in such case, the whole amount of the tax disposition should not be revoked, and in such a case, the court does not have the duty to actively and actively calculate reasonable and reasonable methods of calculating the amount of tax and do not have the duty to calculate the reasonable amount of tax, so there is no choice but to revoke the whole amount of the tax disposition (see, e.g., Supreme Court Decision 94Nu13527, Apr. 28, 195).

3. Conclusion

Then, the plaintiffs' claims are justified, and they are decided as per Disposition.