Seocho 2012,0651 (Law No. 15, 2012)

The imposition of gift tax is legitimate because the transaction with the largest shareholder, etc. falls under "trade with a person with a special relationship".

Considering the fact that only part of the shares are taken over, and that the shares are disposed of to others, that the plaintiff's children have taken over at a higher price than the plaintiff, and that the non-exercise of management rights with respect to the delegation of management is due to the fact that the plaintiff has delegated the management right to the plaintiff, it falls under "trade with the largest shareholder, etc." (Contents of judgment)

2012Guhap27831 Revocation of Disposition of Imposition of Gift Tax

literatureA

The Director of Gangnam District Office

May 3, 2013

May 24, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing gift tax of KRW 000 (including additional tax) against the Plaintiff on October 4, 2011 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is the representative director of BB (formerly: BB; BB; hereinafter referred to as BB). On February 26, 2005, the Plaintiff acquired 56,000 shares of BB (hereinafter referred to as “instant shares”) from CCC (hereinafter referred to as “CCC”) holding 80% of shares of B B from 100 won per share. BB was registered with the Korea Securities Dealers Association on January 11, 2006. However, on October 4, 2011, the Defendant is in a special relationship with CCC, the largest shareholder, and the Defendant is7.

“1.1. CCC received 000 won in the instant stock value according to BB’s listing, and subsequently corrected and notified the gift tax amount of KRW 000 (including additional tax) (hereinafter “instant disposition”). The Plaintiff filed an appeal on December 27, 201, but was dismissed on June 15, 201 by the Tax Tribunal.

[Reasons for Recognition] The entire purpose of the arguments, and Gap evidence 1, 2, and Eul evidence 2, 3, and 5

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

OO was leased business funds and registered as BB share holders for the purpose of security. Accordingly, CCC is not the largest shareholder in a position to use information that was not disclosed in connection with BB management, etc., and is not in a special relationship with the Plaintiff, and CCC’s disposition based on the premise that CCC is the actual shareholder of the instant shares is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) According to the "written confirmation on the subscription details for national pension calculation", and the plaintiff is written as the employee of BB from December 1999 to July 200, 199, as CCC, and since July 2000, as each employee of BB.

(2) On July 18, 2000, the meeting minutes of the CCC shall be recorded as follows:

(Ommission of Entry omitted)

(3) On August 14, 200, Internet newspaper articles dated August 14, 200 contain the following descriptions:

(Ommission of Entry omitted)

(4) On February 26, 2005, CCC reported to the Financial Supervisory Commission after acquiring BB stocks, published BB as affiliated companies, and dealt with and published B stocks as investment securities and equity methods. CCC published B B stocks after disposing of BB stocks, “B is excluded from affiliated companies.”

(Ommission of Entry omitted)

(5) At the time of the establishment of BB, the CCC’s DuD and NA were registered as the registration director, and the officers and employees of the Plaintiff and 18 other than the Plaintiff were changed to BB. They held 16,000, and E were holding 8,000 B B stocks. The CCC’s POF served as the registration director from March 29, 2004 to March 29, 2010.

(6) The CCC guaranteed BB’s debt over six occasions from February 1, 2001 to July 30, 2003 (the cumulative guarantee amount of KRW 000). The CCC, on April 4, 2003, set a monthly rent of KRW 000 (value added tax separately) for the purpose of office and manufacture and lease a factory building of KRW 000 (the OOO-type 000) in Yong-si, Young-si. CCC sold a tangible asset, such as the equipment in possession of KRW 00, to B.

(7) On March 26, 2004, in the minutes of the ordinary shareholders' meeting of BB on March 26, 2004, three (386,000 shares) from among five (400,000 shares), including the presence of a representative by the above-mentioned person, have been duly established since three (386,00 shares) attended and met the quorum. The cases of the approval of the fourth balance sheet, the statement of profits and losses, and the statement of earned surplus disposal are stated that the original plan has been approved.

(8) On February 25, 2005, CCC transferred 10,000 shares to KimG and Kim HH, and 4,000 shares to II E. The CCC stated in the resolution of its board of directors on February 25, 2005 that “The CCC shall make a resolution to sell 242,500 shares to 00 won for the enhancement of core capacity as a company specialized in RF due to business growth and for the improvement of its financial structure.” CCC transferred 186,50 shares of BB to 24 persons, such as the GaJ, the Plaintiff (son) on February 26, 2005.

(9) The financial status of the CCC and BB shall be as follows: <1> and <2>

(Sc. Omission of Financial Status of CCC)

(B) The omission of financial status of B in Table 2

(10) In the tax investigation on May 14, 2010, KimO, the representative director of the CCC, prepared and submitted a statement of stock purchase as follows.

(Ommission of Contents)

(11) The plaintiff stated in this court below.

(Omission of Contents of Statement)

[Based on recognition] The statements in Gap evidence 2 to 12, Eul evidence 1, 3, 4, and 6 to 9 (including household numbers), the witness KimO's testimony, the results of the plaintiff's personal examination, and the purport of the whole pleadings

D. Determination

(1) Under Article 41-3(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007, hereinafter the same), gift tax is to be imposed on evaluation marginal profits based on the listing of unlisted stocks, and (1) transaction with the largest shareholder who is deemed able to use undisclosed information on the management, etc. of the company, and (2) transaction with the largest shareholder, etc., and (3) transaction with a person with a special relationship such as the largest shareholder, etc., has been made within five years retroactively from the date of the transaction, and (5) related persons

According to the above facts, it is recognized that CCC had 80% shares in BB, and that BB's earned earnings were 000 won in the business year 2004 and 005, and CCC's shares were sold to 24 other than the plaintiff. However, CCC's relationship between BO and BB was established by dividing CCC's shares into BB and 18 others, and CCC's shares were 0 billion won in the transfer of shares, and CCC's shares were 20 billion won in the transfer of shares, and CCC's shares were 30% in the transfer of shares and 30% in the transfer of shares, and CCC's shares were 18 other than CCC's shares were 50% in the transfer of shares, and CCC's shares were 20% in the transfer of shares and 30% in the transfer of shares, and 30% in the transfer of shares and 30% in the transfer of shares.

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