Articles 23, 37(2), 38, 59, and 75 of the Constitution of the Republic of Korea; Articles 41(1) (see current Article 45-5(1) and (2) (see current Article 45-5(3)) of the former Inheritance Tax and Gift Tax Act (Amended by Act No. 9916, Jan. 1, 2010); Article 2(1) (see current Article 4-2), (3) (see current Article 2-6), 4 (see current Article 4-2), 31(1), 41(1) (see current Article 45-5(1) and (2) (see current Article 45-5(3)); Article 41(4) (see current Article 45-5(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act; Article 51(3) (see current Article 45-41) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act); Article 25130-41 of the former Enforcement Decree of the Inheritance Tax and Gift Act (see current Article 253130-13(4(3)

Plaintiff 1 and 2 others (Law Firm Gyeong, Attorneys Jung-tae et al., Counsel for the plaintiff-appellant)

Head of Yeongdeungpo Tax Office

March 17, 2016

1. The Defendant imposed a gift tax of KRW 112,648,590 on Plaintiff 1 on August 4, 2014 and KRW 176,351,860 on the gift tax of KRW 2010 for the year 2011; imposition of KRW 31,768,010 for the gift tax of KRW 31,768,01 for the year 201 for the Plaintiff 201; imposition of KRW 29,137,080 for the gift tax of KRW 20,137,080 for the year 201; and imposition of KRW 349,905,540 for the joint obligor for payment on Plaintiff 3 on August 28, 2014.

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

Article 31(6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177, Dec. 30, 2003; Presidential Decree No. 25195, Feb. 21, 2014) is in violation of the Constitution.

The same shall apply to the order.

1. Details of the disposition;

A. ASEAN Co., Ltd. (hereinafter “instant company”) is a company established on May 12, 2004 for the purpose of the manufacture, sale, lease, and related service business of electronic, electrical, telecommunication equipment, apparatus, machinery and equipment, and parts thereof.

B. Plaintiff 1 is a shareholder who owns 43.33% of the shares issued by the instant company, Plaintiff 2 is 10%, and Plaintiff 3 is a shareholder who owns 40%, Plaintiff 3 is a representative director of the instant company, and Plaintiff 1 and Plaintiff 2 are children of Plaintiff 3.

C. Plaintiff 3 continuously loaned funds necessary for the instant company’s business to raise funds, and exempted the instant company from interest on loans 1,016,056,238 won in 2010 and interest on loans 1,002,307,762 won in 2011 (hereinafter “the instant debt exemption”).

D. The Defendant deemed that Plaintiff 1 and Plaintiff 2 had been benefited due to the instant debt exemption. According to Article 41(1)4 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 2011; hereinafter “former Inheritance Tax Act”), and Article 31 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 23591, Feb. 2, 2012; hereinafter “former Enforcement Decree of the Inheritance Tax Act”), the Defendant indicated the amount equivalent to the respective share rates of Plaintiff 1 and Plaintiff 2 as the value of donated property, and indicated the amount equivalent to KRW 40, 208, KRW 112,648, 590, and KRW 201, KRW 3816, KRW 2081, KRW 208, KRW 416, KRW 2016, KRW 2016, KRW 20816, and KRW 316,2018, respectively.

E. The Plaintiffs were dissatisfied with each of the instant dispositions and filed an administrative appeal with the Tax Tribunal on November 4, 2014, but the Tax Tribunal dismissed the said administrative appeal on June 24, 2015.

[Basis] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2-1, 2-2, Gap evidence 3, Gap evidence 4-1, 2, 3, and Gap evidence 5, the purport of the whole arguments and arguments

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) Since the legal provisions of this case comprehensively delegate the contents and scope of “interest” stipulated in the Act to subordinate statutes, it is unconstitutional and invalid as it violates the principle of no taxation without law and the principle of prohibition of comprehensive delegation.

2) Since the value of the shares of the company of this case held by the plaintiffs before and after the debt exemption of this case was all incidental (-), there is no profit gained by the plaintiffs through the debt exemption of this case. Therefore, it does not constitute “donation” subject to gift tax under the former Inheritance Tax and Gift Tax Act.

3) Each of the instant dispositions in which Article 41(1) of the former Inheritance and Gift Tax Act applies even where the value of shares of a certain corporation continues to be incidental, is unlawful by excessively infringing on property rights.

4) Each disposition of this case is unlawful in violation of the principle of equality, since it is against the principle of equality, in comparison with the donation of profits from the increase of capital and the dissolution of a corporation without reasonable grounds.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) The total capital, the amount of tax adjustment, the net asset value (the aggregate amount of the reserves of tax adjustment on the balance sheet) and the net asset value per share (the net asset value divided by the total number of issued stocks) on the balance sheet from 2009 to 2014 are as follows:

Table (units: 2009 2010 2010 20112 2013 2012 2018,45,265,687,739-18,813,866,523-18,897,649,213,476,367-23,931,235,235,160,160,874,570,3630,639,639,639,639,6312,60,6064,6238,648,648,620,648,62047,647,639,641,647,2965,747,965,294,265,647,616,294,265,747,294,7,6165

2) The weighted average amount of net profit and loss of the instant company for three years from 2010 to 2014, the net asset value per share, and the value per share of stocks (the value calculated according to the method of calculating unlisted stocks as stipulated in Article 54(1) of the former Enforcement Decree of the Inheritance and Gift Tax Act) are as listed in the following table:

The weighted average amount of net profit and loss per share of 2010 2012 2013 2013 2013 -1,898-5,188-3,262-3,082-3,082-3,481 per share of net asset value-2,685-10,346-30,858-34,488-39 - per share of 00 per share of 20

[Reasons for Recognition] Facts without dispute, Gap evidence 6 through 11, Gap evidence 12-1, 2, Gap evidence 18-1 and 2, the purport of the whole pleadings

D. Determination

1) Whether the legal provision of this case is a violation of the Constitution

A) The legitimacy of legislative purpose

In the event that a donee is a profit-making corporation, corporate tax shall be imposed on the gains from the receipt of assets or the gains from the exemption of liabilities of a profit-making corporation: Provided, That corporate tax shall not be imposed on the gains from the receipt of assets or the gains from the exemption of liabilities; however, in the event that a profit-making corporation receives a donation, it may indirectly bring economic gains from the donation to the shareholders of the relevant corporation, but as income tax is imposed on the shareholders of the relevant corporation at the time of dividend or the transfer of stocks, gift tax shall not be imposed on the shareholders of the corporation generally donated because the shareholders' gains from the donation have been carried out. Abuse of this, the corporation whose losses carried forward have been accumulated by acquiring real estate from the corporation whose children had been donated to the corporation within the scope of the losses carried forward and then donated real estate or exempted from liabilities to the corporation without bearing the burden

The legislative purport of the instant legal provision is to levy gift tax on an irregular donation that gives profits to shareholders, etc. of a specific corporation without bearing corporate tax on the amount of donation by offsetting the amount of donation with losses (see, e.g., Supreme Court Decision 2008Du6813, Apr. 14, 201). Therefore, the legitimacy of the legislative purpose can be sufficiently recognized.

B) Whether the principle of no taxation without law and prohibition of comprehensive delegation was violated

(1) Contents of the provisions

The legal provision of this case provides that "where a person who has a special relationship with a shareholder or investor of a corporation which has losses or is under suspension or closure of business (hereinafter referred to as "specific corporation") makes any of the following transactions with the specific corporation and thereby the shareholder or investor of the specific corporation obtains profits as prescribed by Presidential Decree, the amount equivalent to such profits shall be deemed the value of donated property of the shareholder or investor of the specific corporation." In each subparagraph, "The transactions that gratuitously provide property or services (subparagraph 1), the transactions that transfer or provide property or services for a significantly low price (subparagraph 2) in light of the ordinary transaction practices, and the transactions that are similar to those under subparagraphs 1 through 3, as prescribed by Presidential Decree (subparagraph 4)", and Article 2 of the same Act provides that "the scope of the amount equivalent to such profits shall be prescribed by Presidential Decree, such as transactions that are substantially low in terms of the ordinary transaction practices."

The legal provision of this case delegates specific requirements, such as specific corporations, persons with a special relationship, calculation of profits, calculation of significantly low prices, and scope of highly high prices, to the Presidential Decree. In addition, Article 2(2) of the same Act delegates specific requirements, such as specific corporations, persons with a special relationship, calculation of profits, and scope of the significantly high prices to the shareholders or investors.

(2) The meaning of “interest prescribed by Presidential Decree” and the scope of delegation

Article 2(1) of the former Inheritance and Gift Tax Act provides that donated property from another person’s donation is subject to gift tax. Article 2(3) of the former Inheritance and Gift Tax Act provides, “The term “The term “donation” means a free transfer (including a transfer at a remarkably low price) of tangible or intangible property (including a transfer at a remarkably low price) in which economic values can be calculated, or an increase in the value of another person’s property by means of a direct or indirect method.” Article 31(1) provides, “The donated property under the provisions of Article 2 includes all things belonging to the donee and all de facto or de facto rights having economic value that can be realized in money.” In light of the above legal provision, it can be known that gift tax can be imposed only on a transfer of property without compensation or an increase in the value of property of another person. In addition, in light of the nature of gift tax on the grounds of taxation without compensation, it is reasonable to deem that only a shareholder, etc. of a specific corporation has gained profits in interpreting and applying the legal provision of this case.”

Ultimately, the legal provision of this case should not be deemed taxable if there is no actual profit gained by the shareholder because it is intended to taxation on the actual profit gained by the shareholder through abnormal transactions (in the case of actual profit acquired by the shareholder of the corporation through an increase in the company's assets, the case of receiving dividends, the case of receiving dividends, and the case of receiving dividends at the time of liquidation, and it is difficult to establish in terms of the concept to receive dividends in the case of the shareholder of the specific corporation. Therefore, it is possible to receive dividends at the time of liquidation or present the case of receiving distributed residual assets at the time of liquidation or raising the value of the shares owned). Furthermore, it can be predicted that subordinate laws and regulations stipulate the type and scope of "profit" within the same scope.

Therefore, even if the legal provision of this case delegated the contents of interest to Presidential Decree and did not specify the scope of delegation, it can sufficiently recognize the inherent scope or limitation of delegation in the above provision.

(3) Sub-decisions

Therefore, the legal provision of this case cannot be deemed to have violated the principle of no taxation without law or the principle of no comprehensive delegation.

C) Legislative circumstances and constitutional interpretation of the law.

(1) The interpretation and application of statutes in a trial of a specific case belongs to the mission of a court as the authority given to the court. As such, the court ought to comply with the constitutional interpretation in interpreting and applying the relevant statutory provisions as a judicial norm. The interpretation of constitutional law is based on the legal principle that the Constitution, which is the highest norm of the State, should be the standard for statutory interpretation, must be the unification of the legal order. As such, there is a limit that does not go beyond the general meaning of the language and text of the legal provision or that it should not be unreasonable to interpret the law in the direction that is prohibited by legislators in light of the legislative purpose of the said provision. However, insofar as it does not go beyond such limit, it is desirable to interpret the law enacted by legislators in conformity with the Constitution in order to maintain the legal effect. Accordingly, if there is a possibility of constitutional interpretation even if there is an unconstitutional element, it is reasonable to interpret the law in the direction that is consistent with the Constitution.

(2) The amendment process and interpretation theory

(1) Article 41(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “former Inheritance Tax Act”) provides that “Where a person who has a special relationship with a shareholder or investor of a corporation (hereafter referred to as a “specific corporation” in this Article) who has any loss, or who has suspended or closed business, obtains profits from the shareholder or investor of the specific corporation through any transaction falling under any of the following subparagraphs with the specific corporation, the amount equivalent to such profits shall be deemed the value of property donated to the shareholder or investor of the specific corporation:

② However, in a case where Article 31(6)(hereinafter “Enforcement Decree of this case”) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177, Dec. 30, 2003; Presidential Decree No. 25195, Feb. 21, 2014; Presidential Decree No. 25195) is invalid because it exceeds the delegation scope of the former Inheritance Tax and Gift Tax Act before the amendment, the Supreme Court en banc Decision 2006Du19693, Mar. 19, 2009 held that Article 41(1) and (2) of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177, Dec. 30, 2003; Presidential Decree No. 2006Du19693, Mar. 19, 209) delegated only the calculation of profits where a corporation actually gains profits by receiving a donation to a corporation, such provision of this case goes beyond the delegation scope of the mother law.

③ After the Supreme Court’s ruling was rendered, Article 41(1) of the former Inheritance and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) was amended as same as the instant legal provision. The main content of the amendment was the addition of the phrase “interest prescribed by Presidential Decree” in front of the “interest.”

In light of such circumstances as above, it may be difficult to interpret the legal provision of this case as entirely delegating the Presidential Decree to determine whether the legal provision of this case can be seen as not only the calculation of profits derived from a specific transaction but also the profits gained by a shareholder in any case.

However, such interpretation is in violation of the principle of no taxation without law and the principle of no comprehensive delegation prohibition even if the delegation illegality is determined by law, and only individual and specific delegation that sets specific scope and standards is permitted, and comprehensive delegation is not permitted.

Rather, delegation to the Presidential Decree under the legal provision of this case is reasonable to see that it is about the specific type and scope of the benefit in a case where a shareholder gains a substantial benefit, and such delegation has an inherent limitation as seen earlier. Such interpretation is constitutional interpretation.

2) Whether the enforcement decree of the instant case is invalid

A) The instant disposition is based on the provision of the Enforcement Decree of the instant case, and the details of the Plaintiffs’ assertion that caused the illegality of the instant disposition can be seen as disputing the validity of the provision of the Enforcement Decree of the instant case. Thus, we examine the validity of the provision of the Enforcement Decree of the instant case.

B) The instant provision provides that the “profit” delegated to the enforcement decree of the instant legal provision shall be the amount calculated by multiplying the profits falling under any of the following subparagraphs by the ratio of stocks or equity shares (if the pertinent amount is at least KRW 100 million, it shall be limited to the case where the pertinent amount is at least KRW 100 million), and subparagraph 1 provides that “the amount equivalent to the value of donated property or the amount equivalent to the profits derived from the exemption, acquisition, or repayment of the pertinent legal entity’s obligation” and subparagraph 2 provides that “the amount equivalent to the difference between the market value and the price in cases other than subparagraph 1.”

Article 31(6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177, Dec. 30, 2003; Presidential Decree No. 20035, Dec. 30, 2003; Presidential Decree No. 20135, Feb. 23, 2008; Presidential Decree No. 2010, Jan. 23, 2008; Presidential Decree No. 20135, Jan. 30, 200; Presidential Decree No. 20135, Feb. 30, 200).

In addition, as in the case of this case, even if it is difficult to deem that the net asset value per share before and after the transaction has increased, it shall be deemed that the profit has been acquired, and the value arising from the transaction, such as the donation value or the amount exempted from debts, shall be divided into the number of stocks and considered as the value of donated property which serves as the

C) The instant enforcement decree is unreasonable in that it is deemed that a shareholder gains profit even if the shareholder did not obtain any substantial benefit. Moreover, deeming the corporate gain as the profit received by the shareholder in proportion to the shareholder’s share ratio is unreasonable in that it is inconsistent with the Korean legal system that differs from the corporation and the shareholder, and it cannot be said that the increase in the company’s profit and the shareholder’s share value cannot be identical. Therefore, the instant enforcement decree is null and void as it goes beyond the inherent delegation scope of the instant legal provision.

D) Article 38 of the Constitution provides that “All citizens shall be liable to pay taxes under the conditions as prescribed by Act.” Article 59 of the Constitution adopts the principle of no taxation without the law by stipulating that “types and rates of taxes shall be determined by Act.” This principle of no taxation without the law means that taxation requirements, etc. shall be prescribed by the law enacted by the National Assembly, which is a representative body of the citizens, and that the relevant law should be strictly construed and applied in its enforcement, and that expansion or analogical application of administrative convenience is not allowed. Thus, it violates the principle of no taxation without the delegation of the law by prescribing matters concerning taxation requirements, etc. by administrative legislation, such as orders or rules, or by establishing interpretation provisions that interpret or expand the contents of the law without the delegation of the law (see, e.g., Supreme Court en banc Decision 2006Du8648, May 17, 207; Supreme Court en banc Decision 2006Du19693, Mar. 19, 2009).

In addition, Article 75 of the Constitution provides, “The President may issue Presidential Decrees on the matters delegated to him/her specifically by Act and matters necessary for enforcing the Act.”

Ultimately, since the enforcement decree of this case created a gift tax requirement beyond the scope delegated by the mother law, it shall not be recognized as being in violation of Articles 38 and 59 of the Constitution of the Republic of Korea and Article 75 of the Constitution of the Republic of Korea, which set the limit of delegated legislation. In addition, according to the enforcement decree of this case, even if the shareholder, etc. proves that he was not able to obtain a real profit, it is possible to impose gift tax, and therefore, it may be deemed as infringing on the property right guaranteed by Article 23 of the Constitution, and there is room to regard it as violation of Articles 23 and 37(2) of the Constitution.

3) Whether the instant disposition is lawful

The instant disposition, based on the provision of the Enforcement Decree of the instant case, is invalid as seen earlier, based on the amount equivalent to the respective equity ratios of Plaintiffs 1 and 2 out of the amount of debt exemption in this case, immediately considered as the value of the donated property of Plaintiffs 1 and 2, and thus, the gift tax was imposed accordingly. As such, the designation and payment notice of the joint and several payment obligor against Plaintiffs 3

As seen earlier, since the value per share of the instant company from 2010 to 2014 calculated pursuant to Article 54(1) of the former Enforcement Decree of the Inheritance and Gift Tax Act, which provides for the method of assessing unlisted stocks, was 0 won before and after the instant debt exemption, and the value per share increased, it cannot be deemed that Plaintiff 1 and Plaintiff 2 gained substantial profits from the instant debt exemption, and therefore, gift tax may not be imposed on Plaintiff 1 and Plaintiff 2.

Therefore, without examining the remaining arguments of the plaintiffs, the instant disposition should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Yoon Gyeong-do (Presiding Judge)