Whether an act of low-price transfer while liquidation of a special relationship constitutes a transaction subject to unfair calculation;

The point of time of determining whether a person is a specially related person is at the time of the occurrence of the cause of taxation under the legal principles of taxation, such as substantial taxation or fair taxation, and it is not different from the case of liquidation of a specially related person itself.

Article 35 of the Inheritance Tax and Gift Tax Act as deemed donation at the time of transfer

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of KRW 124,345,200 against the Plaintiff on February 6, 2007 shall be revoked.

1. Details of the imposition;

가, 주식회사 ㅇㅇ스프링(상호변경 전 주식회사 엠제이ㅇㅇ, 이하 '소외 회사'라 한다)은 1999. 8. 5. 광고 대행업, 옥외 광고업 등을 목적으로 설립되었는데. 소외 회사의 대표이사인 장ㅇㅇ는 2003. 7.경 소외 회사의 발행주식 총수 20,000주(자본금 1억 원)의 79%인 15,800주를 소유하고 있었고, 장ㅇ안은 4,000주, 장ㅇ윤은 200주를 각 소유하고 있었다.

나. 장ㅇㅇ는 2003. 7. 8. 원고와 윤ㅇㅇ 이ㅇㅇ, 김ㅇㅇ(이하 '원고 등'이라 한다)에게 소유하고 있던 주식 15,800주를 아래 표의 기재와 같이 1주당 27,000원에 양도하였다(이하 '이 사건 양도'라 한다)

A transferee

Transfer at the time of transfer

In the case of a non-party company

Status

Number of shares (number of shares)

Stock price (cost)

Equity ratio (%)

윤ㅇㅇ

Directors

5,000

135,000,000

25

이ㅇㅇ

Executive Officers

5,200

140,400,000

26

김ㅇㅇ

Staff members

3,800

102,600,000

19

Staff members

1,800

48,600,000

9

Total

15,800

426,600,000

79

다. 서울지방국세청장은 2006. 12.경 원고 등이 장ㅇㅇ의 출자(79%)에 의하여 지배하고 있는 소외 회사의 사용인으로서 상속세 및 증여세법(2003. 12. 30. 법률 제7010호로 개정도기 전의 것, 이하 '법'이라 한다) 제35조에서 정한 '특수관계에 있는 자로부터 시가보다 낮은 가액으로 재산을 양수한 경우'에 해당한다고 보아, 법 제63조, 법 시행령(2003. 12. 30. 대통령령 제18177호로 개정되기 전의 것) 제54조, 제56조의 규정에 의한 보충적 평가방법을 적용하여 주식의 시가를 1주당 357,050원3)으로 평가한 증여세 과세가액4)등 과세자료를 피고에게 통지하였다.

D. Accordingly, on February 9, 2007, the Defendant imposed a gift tax of KRW 124,345,200 on the Plaintiff (hereinafter “instant disposition”).

(In fact that there is no dispute, Gap 1, 2, Eul 1, Eul 2-2, Eul 3 and 7, each entry, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The special relationship stipulated in Article 35 of the Act is limited to the case where the special relationship continues to exist before and after the point of time of transaction, and such special relationship may have abnormal influence on the transaction price between the parties to the transaction. However, the special relationship cannot be applied where it cannot affect the transaction price by transferring the entire shares owned by one party to the special relationship, such as the transfer of this case

2) 27,00 won per share, which the Plaintiff, etc. acquired stocks, is higher than the market price or higher than the market price at the time of the transfer of stocks, and thus, cannot be deemed to be a lower price than the market price. On the contrary, the Defendant’s 357,050 won per share of the stocks calculated under the premise of the instant disposition, as the net profit and loss value of 310,488 won is equal to three times the net asset value of 110,173 won, and the difference is larger. In addition, in calculating the net profit and loss value, the net profit per share of the non-party company for the business year 202, which is reflected with a large share in the household in calculating the net profit and loss, is significantly distorted the real value of the stocks subject to the transfer of this case, and it shall not be recognized as the market price as it is, as it is, in light of the circumstances

3) Therefore, the Defendant’s disposition of this case, based on the premise that the Plaintiff, etc. acquired shares at a price lower than the market price, is unlawful, by applying Article 35 of the Act.

B. Relevant statutes

【Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003)

Article 2 Gift Tax Taxables

(1) Where any donated property falls under one of the following subparagraphs as of the date of donation due to a donation by a third party (excluding a donation becoming effective due to death of a donor; hereinafter the same shall apply), gift tax shall be levied, as prescribed by this Act, on such donated property:

1. Where a person who acquires property by donation from a third party (hereinafter referred to as " donee") is a resident (including a non-profit corporation, the head office or main office of which is located in Korea; hereafter the same shall apply in this paragraph and Articles 54 and 59), all the donated property received, as a donation, by the resident;

Article 35 (Presumption of Donation at Time of Low Price or High Price Transfer)

(1) Where a person falling under any of the following subparagraphs acquires or transfers the property concerned, he shall be deemed to have received a donation of the amount equivalent to the difference between the price and the market price, and the profits determined by the Presidential Decree

1. The transferee of the property, in case where he takes over the property from a person having a special relationship at a price below the market price;

2. In case where the property is transferred to a specially related person at a price above the market price, the transferor of such property;

(2) Persons having special relationships referred to in paragraph (1) 1 and 2, low-value and the scope of high-value shall be prescribed by Presidential Decree.

Article 60. Principles, etc. of Appraisal

(1) The value of property on which an inheritance tax or gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as the "date of appraisal"). In such cases, the value (excluding cases falling under the provisions of Article 63 (2)) appraised by the method of appraisal stipulated in Article 63 (1) 1 (a)

(2) The market price under paragraph (1) shall be the price which is considered to be normal in the case of free trade between many and unspecified persons, and shall include the price of expropriation, public auction, appraisal price, etc. which is recognized as the market price under conditions

(3) In applying paragraph (1), where it is difficult to compute the market price, the price assessed by the methods prescribed in Articles 61 through 65 shall be based on the types, scale, transaction conditions, etc. of the relevant property.

(4) In applying paragraph (1), the value of the donated property added to the value of the inherited property pursuant to Article 13 shall be based on the market price as of the date of donation.

Article 63 (Appraisal of Securities)

(1) The appraisal of securities, etc. shall be made by the methods provided for in the following subparagraphs:

1. Appraisal of stocks and investment shares:

(c) Stocks and equity shares not listed on the Korea Stock Exchange other than those under item (b) shall be appraised by the method as prescribed by the Presidential Decree in consideration of corporate assets and revenues

(1) Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Act No. 18177, Dec. 30, 2003)

Article 13 (Method of Contribution to Property Invested by Public Interest Corporations)

(6) The stocks, etc. of the same domestic corporation that contributors and persons in a special relationship with them contribute to another public service corporation, etc. under Article 16 (2) 2 of the Act shall include the stocks, etc. in the possession of another public service corporation, etc. which has contributed property

2. Workers and other employees determined by the Ordinance of the Ministry of Finance and Economy who make their living with the property of the inheritor;

Article 19 Inheritance Deductions of Financial Property

(2) For the purpose of Article 22 (2) of the Act, the term “major stockholder or largest investor as prescribed by the Presidential Decree” means the relevant stockholder, etc. in case where the total sum of stocks held by one stockholder or one investor (hereinafter referred to as the “shareholders, etc.”) and persons having relations falling under any of the following subparagraphs is the largest:

2. Persons other than employees and employees, who maintain their livelihood with the property of such stockholders, etc.;

6. The corporation in which one stockholder and persons under subparagraphs 1 through 5 own 30% or more of the total number of stocks issued;

Article 26 (Scope of Low Price and High Price Transfer and Related Persons)

(1) For the purpose of Article 35 (1) 1 of the Act, the term “low price” means, in case where the price (referring to the price assessed under Articles 60 through 66 of the Act; hereafter in this Article and Article 31, referred to as “market price”) of the acquired property (excluding that falling under any of the following subparagraphs is 30/100 or more of the market price, or the difference is 100 million won or more:

1. The convertible bonds, etc. under Article 40 (1) of the Act;

2. Stocks and investment shares of a corporation listed on the Korea Stock Exchange or registered with the Korea Securities Dealers Association under the Securities and Exchange Act, which are traded on the Korea Stock Exchange or Association brokerage market (excluding part-time trading under Article 33 (1));

(3) For the purpose of the text of Article 35 (1) of the Act, the term “profit as prescribed by the Presidential Decree” means the difference between the price calculated under paragraphs (1) and (2) and the market price, minus the smaller amount of the following subparagraphs:

1. Where the value obtained by subtracting the price from the market price is at least 30/100 of the market price or at least 30/100 of the market price, the value equivalent to 30/100 of the market price;

2. 10 million won.

(4) The term "person in a special relationship" in Article 35 (1) 1 and 2 of the Act means a person who is in the relationship falling under any of the following subparagraphs with a transferor or transferee (hereafter referred to as a "transferor, etc." in this paragraph):

(5) The base date for calculation of the price and market price under paragraphs (1) and (2) shall be the date of liquidation of the price of the relevant property (referring to the date stipulated in Article 162 (1) 1 through 3 of the Enforcement Decree of the Income Tax Act in cases falling under Article 162 (1) 1 through 3 of the same Decree; hereafter referred to as “base date for calculation” in this paragraph), and where it is deemed unreasonable to serve as the base date for calculation due to a sudden change in exchange rates after the

C. Determination

(1) Article 35(1)1 of the Act provides that "where the property is acquired by transfer from a person in a special relationship at a price lower than the market price, when the pertinent property is acquired by transfer or transferred, it shall be deemed as having been donated an amount equivalent to the difference between the price and the market price, and equivalent to the benefits prescribed by Presidential Decree," and does not require that the transaction price between the parties should have an abnormal influence on the transaction price. In addition, if the property is deemed a person in a special relationship, it shall be the same relationship as at the time of the occurrence of taxation in light of the legal principles of taxation principles, such as substantial taxation or fair taxation (see, e.g., Supreme Court Decision 92Nu5546, Jul. 28, 1992).

이 사건에서 앞서 본 바와 같이 과세원인 발생인 이 사건 양도 당시 원고 등은 최대주주인 장ㅇㅇ가 출자에 의하여 지배하고 있던 소외 회사의 사용인으로서 법 제35조에서 정한 특수관계에 있었다고 본 피고의 조치는 정당하고5) 이와 전제를 달리하는 원고의 이 부분 주장은 이유 없다.

(2) The "market price" stipulated in Article 60 (2) of the Act refers to an objective exchange price formed through normal transactions in principle, and there should be circumstances to deem that the transaction price falls under the market price at the time of donation as of the date of donation that the transaction price reflects the general and normal exchange price in an adequate manner, and there should be no change in the price between the date of donation and the date of the transaction (see Supreme Court Decision 99Du2505 delivered on February 11, 200).

그런데, 을 3, 7호증의 각 기재에 의하면, 장ㅇㅇ는 2001. 7. 136. 그 남편인 김@@으로부터 소외 회사의 주식 3,800주를 증여받은 사실이 인정되고, 장ㅇㅇ의 2003. 7. 8.자 윤ㅇㅇ, 이ㅇㅇ 김ㅇㅇ에 대한 객관적인 거래가격으로 거래되었음을 인정할 자료가 없는 점 등의 사정을 고려하면, 이 사건 양도는 시가를 산정하기 어려운 경우에 해당하므로 법 제63조, 법 시행령 제54조, 제56조의 각 규정에 따른 보충적 평가방법을 적용하여 주식의 시가를 평가한 피고의 조치도 정당하다.

Therefore, it cannot be deemed that the value per share that the Plaintiff acquired was higher than the market value or higher than the market value, and it cannot be deemed unlawful to calculate the market value of shares of KRW 357,050 per share calculated by the supplementary evaluation method as above. Therefore, the Plaintiff’s assertion on this premise is without merit.

(3) Therefore, the defendant's disposition of this case by applying Article 35 of the Act to the supplementary evaluation method is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is rejected as it is without merit, and it is decided as per Disposition.

* Note *

3. Net asset value of 2,203,456,559 won, and net asset value of each share: 110,173 won, and net profit or loss per share by weighted average amount of the last three years: 310,488 won, the appraised value per share: 310,488 won, and the appraised value per share of the largest shareholder: 357,050 won;

* Note *

4) 윤ㅇㅇ : 1,550,250,000원｛(357,050원-27,000원)×5,000주-100,000,000원)｝, 이ㅇㅇ : 1,616,260,000원｛(357,050원-27,000원)×5,200주-100,000,000원｝, 김ㅇㅇ : 1,154,190,000원｛(357,050원-27,000원)×3,800주-100,000,000원｝, 원고 : 494,090,000원｛(357,050원-27,000원)×1,800주-100,000,000원｝

* Note *

5) 한편, 을 4호증의 3, 4, 을 5, 6호증의 각 1, 2의 가재에 의하면, 장ㅇㅇ는 소외 회사로부터 이 사건 양도 이후인 2004.에 합계 1,042,786,065원, 2005.에 합계 1,821,410,398원의 급여를 수령한 사실이 인정된다.