early 209 Heavy2126 (Law No. 9. 15, 2009)

Donation of the fund for acquiring stocks;

It is difficult to believe that there is no stock acquisition due to fraudulent use of name with respect to the taxation of gift tax on funds acquired by stocks, but the evidence submitted alone is insufficient.

The contents of the decision shall be the same as attached.

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 gift tax of KRW 865,589,400 against the Plaintiff on January 9, 2009 is revoked.

1. Details of the disposition;

A. AA industry development corporation (hereinafter referred to as "AA industry development") filed a report on corporate tax for 2005, and on June 9, 2005, the Plaintiff filed a report on the acquisition (hereinafter referred to as "acquisition of the instant shares") of KRW 50,000 (10,000 per share value of KRW 10,000 per share) from a newB on June 9, 2005 to a transfer of 50,000 (10,000 per share value of KRW 10,00 per share; hereinafter referred to as "the instant shares"). Upon filing a report on the corporate tax for 2006, the Plaintiff filed a report on the transfer of the instant shares to the KimCC on September 15, 2006, the Plaintiff reported the transfer of the instant shares to KRW 500,00,00 per share (10,000 per share).

B. On January 6, 2009, the defendant presumed that the acquisition price of the shares of this case was donated to the plaintiff pursuant to Article 45 of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Act"), and imposed a gift tax of KRW 131,292,00 (including additional taxes) on the plaintiff (hereinafter referred to as the "first imposition disposition of this case") as the gift tax of KRW 131,292,00 (including additional taxes) on the acquisition price of the shares of this case. ② In addition, according to the supplementary assessment methods pursuant to Article 63 (1) 1 (c) of the Act and Article 54 of the Enforcement Decree of the Act, the acquisition price of the shares of this case shall be KRW 47,490 per share 1, KRW 23,75, KRW 100 per share of net asset value of the shares of this case, KRW 700 per share of KRW 40, KRW 500 per share of net profit and loss for the preceding three years, KRW 3005070 per share of the acquisition price of shares.

C. On April 2, 2009, the Plaintiff, who was dissatisfied with each of the instant dispositions, filed an appeal with the Tax Tribunal on April 2, 2009, but was dismissed on July 15, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 3-1, 2, Eul evidence 1 to 8

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) On September 15, 2006, the Plaintiff’s father KimCC trusted 78,749 shares of 78,749 shares at the time of establishment of AA Industry Development (CD Construction at the time of establishment of DD Construction) to new directors. On November 10, 2004, the Plaintiff transferred 50,000 shares out of the shares in the above newB name without the Plaintiff’s consent on June 9, 2005, but transferred 50,000 shares out of the shares in the above newB name to the Plaintiff under the name of KimCC. Since the Plaintiff did not know the fact that the shares were transferred under his name, upon the request of KimCC, while he did not know the fact that the shares were transferred under his own name. Accordingly, each of the dispositions of this case on the premise of this shall be revoked as it violated the substance over form principle, and thus, should be revoked.

(2) At the time of acquisition of the instant shares, the Defendant assessed the AA Industry Development shares at KRW 47,490 per share. However, the AA Industry Development (hereinafter “AA”) paid-in capital, etc. in installments or paid-in in advance for the purpose of obtaining orders for construction, and the actual company’s capital is 0 won. Therefore, the market price of the said shares is 0 won in substance.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

The following facts shall be acknowledged either in dispute between the parties or in consideration of Gap evidence 1 through 2, evidence 6 through 9, evidence 4-1 through 3, evidence 7 and 8, witness KimCC, and testimony of KimCC as a whole.

0) On November 10, 2004, the Plaintiff’s father KimCC established a AA Industry Development (hereinafter “DD Construction”), and held the title trust of 78,749 shares to seven directors, including title trust with the directors of newB. However, on November 10, 2004, the Plaintiff’s father KimCC transferred all management rights and shares of AAA Industry Development to KimCC.

(2) In 2005, KimCC demanded from the above newB to transfer the above shares 78,749 shares, and the Plaintiff obtained a certificate of seal imprint and a certificate of seal imprint from the newB on June 9, 2005 that the Plaintiff acquired shares 50,000 shares from the newB and transferred the above shares 50,000 shares in the name of the Plaintiff. Since then, on September 15, 2006, the Plaintiff prepared a contract for the acquisition of shares that transferred the above shares to KimCC (Evidence 7) and transferred the above shares under the name of KimCC.

(3) On October 2006, the Plaintiff filed a return on the tax base of transfer income under the name of the Plaintiff and the dispatch of 50,000 shares to the Defendant, stating that the Plaintiff transferred 50,000 shares to KimCC at KRW 500 million.

D. Determination

(1) First, the Plaintiff’s assertion that the Plaintiff did not take over the instant shares without the Plaintiff’s consent is insufficient to acknowledge the Plaintiff’s assertion solely based on the Plaintiff’s statement Nos. 4 through 11-4, witness KimCC’s testimony, and witness KimCC’s testimony. Rather, in light of the following circumstances, the Plaintiff issued his seal impression and a certificate of personal seal impression to KimCC, i.e., the relationship between the Plaintiff and the above KimCC, and the period when shares were transferred under the Plaintiff’s name exceeds one year, the Plaintiff appears to have sufficiently known the transfer of the instant shares under the Plaintiff’s name. Moreover, the Plaintiff’s assertion that the Plaintiff did not take over the instant shares under the Plaintiff’s name to the head office of the AACC, and that the Plaintiff did not take over the Plaintiff’s shares under the Plaintiff’s name after being notified of the confirmation of transfer income tax return and the transfer of the shares under the Plaintiff’s name to the head office of the AACC (see the Plaintiff’s statement). Thus, the Plaintiff’s assertion that the Plaintiff did not take over the Plaintiff’s new shares under the Plaintiff’s name and the transfer of shares.

Next, the plaintiff's assertion as to the value of the shares of this case should be deemed to be the market price if there is an example of transaction which seems to properly reflect the objective exchange value of the shares of this case, which is not listed on the Korea Stock Exchange. However, if there is no such example or it is difficult to calculate the market price by any other means, the price is to be assessed according to the supplementary evaluation method under the law. The market price in this case refers to the objective exchange price formed through a normal transaction in principle. In order to meet the market price at the time of donation, there must be circumstances to view that the transaction price objectively reflects the general and normal exchange value, and there should be no change between the donation and the above transaction date (see Supreme Court Decision 9Du2505, Feb. 11, 200). Thus, it is difficult to recognize that the market price of the shares of this case is 0 won, and there is no other evidence to support the plaintiff's assertion as to the market price by any other method. Thus, the supplementary evaluation method of the plaintiff's shares under Article 63 (1) 54 of this case is justified.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.