(영문) 서울행정법원 2016.7.25.선고 2014구합61552 판결

A. The plaintiff is the chairperson of the Central Daily Co., Ltd. (hereinafter referred to as the "Central Daily") and the Central Daily is the largest shareholder of the Central ○○○○ Co., Ltd. (hereinafter referred to as the "Central ○○○○").

B. On November 20, 2009, the Central ○○○ issued new shares with capital increase. In addition to the acquisition of 30,000 new shares allocated according to its own shares, the Plaintiff additionally accepted 4,60,000 shares of the new shares (hereinafter “instant shares”) that the Central ○○○○○○ issued with capital increase. The current status of shares owned by each shareholder of the Central ○○○○○○○○○○ shareholder before and after the issuance of capital increase is as follows.

A person shall be appointed.

C. On May 25, 2011, 201, ○○○○○○○○○, a listed corporation (the trade name before the merger was APP, but the trade name was changed after the merger with the Central○○○○○○○○○○; hereinafter referred to as “○○○○○○○”). The Plaintiff received the issuance of the instant shares, a merged corporation, to the instant shares. On November 30, 201, the Plaintiff filed a return on KRW 41-5 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter referred to as “Capital Gift Tax Act”) on the instant shares, deeming that Article 41-5 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter referred to as “instant shares”).

D. After that, on February 14, 2013, the Plaintiff filed a request for correction to the effect that “the instant shares are not subject to the application of Article 41-5 of the Inheritance and Gift Tax Act.” However, on the ground that “the instant shares are not subject to the application of Article 41-5 of the Inheritance and Gift Tax Act.” However, on May 6, 2013, the Defendant refused the Plaintiff’s request for correction on the ground that “the shares acquired for compensation by being allocated forfeited shares from the Central ○○○○○○” are subject to Article 41-5 of the Inheritance and Gift Tax Act (hereinafter “instant disposition”).

E. On August 2, 2013, the Plaintiff appealed and filed an appeal with the Tax Tribunal on August 2, 2013, but was dismissed on March 26, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 and 2 (including number Nos. 1 and 2; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Defendant deemed that Article 41-3(6) of the Inheritance and Gift Tax Act, which applies mutatis mutandis pursuant to Article 41-5(3) of the Inheritance and Gift Tax Act, applies to the instant shares, and thus, issued the instant disposition. However, deeming that the Defendant, like the Defendant, all the shares acquired by the pertinent corporation with or without compensation, is subject to Article 41-5 of the Inheritance and Gift Tax Act by stipulating that Article 41-3(6) of the Inheritance and Gift Tax Act is a "in applying Article 41-3(1) of the Inheritance and Gift Tax Act," and disregarding that the requirements prescribed in paragraph(1) are satisfied. If a subscriber, etc. has special relation with the largest shareholder, etc., it is unfair to excessively expand the scope of application of Article 41-5 of the Inheritance and Gift Tax Act, and the reason why Article 41-3(6) of the Inheritance and Gift Tax Act was amended on December 15, 2015.

Therefore, the instant shares should not be subject to taxation pursuant to Article 41-5 of the Inheritance and Gift Tax Act, where (i) the Plaintiff acquired the Central ○○○○○ shares with the property donated by the Central Central Do newsletter pursuant to Article 41-5 (1) of the same Act; (ii) where the Plaintiff acquired the Central ○○ shares with the property donated by the Central Do newsletter; or (iii) where the Plaintiff acquired the shares through the Central ○○○○○○ shares with or without compensation on the basis of the shares acquired in the above two cases. Since the instant shares do not fall under any of the above three cases, the instant disposition is unlawful.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

1) Article 41-3(1) of the Inheritance and Gift Tax Act provides that "a person who is deemed to be in a position to use undisclosed information concerning the management, etc. of a company (hereinafter "the largest shareholder, etc.")" and "a person in a special position (hereinafter "specially related person")"; (1) where the largest shareholder, etc. received a donation of, or obtained a compensation for, the principal shareholder, etc. for, the relevant corporation's stocks from a person who is not the largest shareholder, etc. with property donated by the largest shareholder, etc. (hereinafter "Class 1") or (2) where the stocks of the relevant corporation are acquired from a person who is not the largest shareholder, etc. with property donated by the largest shareholder, etc. within five years thereafter, if the value increases as a result of the listing of the relevant stocks, the increase in value shall be deemed to have been donated from the largest shareholder, etc.

Article 41-3(6) of the Inheritance and Gift Tax Act (hereinafter referred to as "the provision of this case") provides that "in applying Article 41-3(1) of the same Act, the acquisition of new stocks by a corporation shall include new stocks that it has acquired or has received as a result of the issuance of new stocks to increase its capital." The provision of this case shall apply mutatis mutandis to Article 41-5(3) of the Inheritance and Gift Tax Act pursuant to Article 41-5(3) of the same Act. The legislative purpose of Article 41-3(1) of the same Act is to promote tax equality by imposing gift tax on the listed profits of non-listed stocks by imposing a gift tax on the listing profits of the non-listed stocks before the donation or transfer is made free of charge, so the "new stocks" of this case includes not only new stocks based on the original donation or transfer stocks, but also new stocks with compensation (Supreme Court Decision 2013Du1559 Decided October 29, 2015).

2) Meanwhile, Article 39 of the Inheritance and Gift Tax Act provides that where a certain shareholder of a corporation waives his/her right to receive new stocks and another shareholder obtains profits from acquiring such new stocks by acquiring them, the amount equivalent to such profits shall be deemed to be the value of donated property. If the Plaintiff gains profits from acquiring the forfeited stocks of the Central ○○○○○○ at low prices, the taxation of gift tax on such profits would be effective. However, the issue of this case is whether gift tax may be imposed on the forfeited stocks, separately from the taxation on gift profits under Article 39 of the Inheritance and Gift Tax Act, if the value of the stocks increases as a consequence of a merger with a listed corporation having special relation after acquiring the forfeited stocks. Specifically, the issue of this case is whether not only the existing stocks based on the stocks originally donated or acquired by the largest shareholder, etc., but also whether the forfeited stocks are included in the case of acquiring the forfeited stocks due to the largest shareholder, etc.’s failure to subscribe.

3) In full view of the following circumstances, it is reasonable to interpret the instant provision based on the “stocks acquired by meeting the type 1 or 2” rather than on all the cases of acquiring the new stocks of the pertinent corporation as taxation requirement, and it is limited to the new stocks allocated by the method of stockholders allocation while the pertinent corporation conducts capital or capital increase with or without compensation. Accordingly, the instant stocks do not fall under the instant provision. Accordingly, the instant disposition on a different premise is unlawful.

① In light of the language and text of the provision of this case, “in the application of the provision of this case to the Plaintiff,” the part of “in the application of the provision of this case as the Plaintiff refers to the case where a gift tax is levied in accordance with the former or latter part of paragraph (1).” The part of “new shares include new shares” may be deemed to be included in the subject of taxation. The part of “in the application of paragraph (1) like the Defendant’s basic position,” which is “in the application of the provision of this case,” can be interpreted to the effect that “in the case of meeting the requirements of the provision of this case itself, it is an independent requirement for taxation of gift tax.”

② The instant provision was amended by Act No. 6780, Dec. 18, 2002; the purpose of the instant provision is to supplement the deficiencies on the premise that the instant provision satisfies the requirements for taxation of gift tax, such as type 1 or type 2, and thus, it is possible to avoid the application of the said provision by allowing the relevant corporation to issue new shares to a specially related person. (See Supreme Court Decision 2013Du15385, Mar. 24, 2016). The purpose of the instant provision is to supplement the deficiencies on the premise that the instant provision satisfies the requirements for taxation of gift tax, such as type 1 or 2.

③ Types 1 and 2 require a transaction room to presume that a related party receives shares from the largest shareholder or acquires shares for consideration from the largest shareholder or a related party receives funds from the largest shareholder, etc., such as “where a related party receives funds from the largest shareholder, etc.” and “where a related party receives funds from the largest shareholder, etc., a transaction room is required to presume that there is a distribution of profits between the related party and the largest shareholder, etc.” However, the requirement under the instant provision itself alone may be deemed subject to gift tax as follows: (a) there is room to view that both new shares anticipated to be listed or acquired from the listed corporation and the corporation likely to be merged are included in the subject of gift tax; and (b) as a result, the subject of gift tax may be excessively widened. Therefore, there is

④ If the instant provision does not simply relate to the requirements under Article 41-3(1) of the Inheritance and Gift Tax Act, but simply determines the subject of gift tax solely based on the requirements separately stipulated under the instant provision, it shall be included in the subject of gift tax if not only forfeited new stocks but also new stocks acquired by a related party in proportion to shares held previously by the largest shareholder, etc., and new stocks acquired by a related party, such as new stocks acquired by a third party through a third party allocation method, are included in the subject of gift tax. As a result, the requirements under the former part of paragraph (1) are stipulated as “acquisition from the largest shareholder, etc.,” and the latter part of paragraph (1) requirements as “acquisition from the funds donated from the largest shareholder, etc.,” and are inconsistent with

⑤ While the Defendant basically considers the instant provision as a requirement for taxation of gift tax, it may exclude the foregoing unfair result from the scope of application of the instant provision through the interpretation of the legislative intent of the Inheritance and Gift Tax Act or the relevant provision, it cannot be accepted as it is the purport of the Defendant’s interpretation. Rather, interpreting the instant provision in a limited manner related to the type 1 or 2 is an effective method that clarifys the scope of taxation and prevents unfair taxation (the instant provision with the purport of clarifying the foregoing interpretation on December 15, 2015, including cases where a corporation acquired or acquired stocks, etc., and then issued new stocks, etc. upon the issuance of new stocks, etc. in order to raise capital.).

④ In addition, this case’s stocks are subject to taxation based on Article 41-5(1) of the Inheritance and Gift Tax Act. Article 41-3(1) or Article 41-5(1) of the Inheritance and Gift Tax Act requires that “the Plaintiff shall receive or acquire stocks, etc. from the largest shareholder, etc.,” and does not stipulate cases where the forfeited stocks are cultivated, such as Article 39 of the Inheritance and Gift Tax Act. In addition, Article 39 of the Inheritance and Gift Tax Act provides that “the profits acquired from the acquisition of forfeited stocks,” which requires that “stocks be donated or acquired,” is not included in the regular determination under Article 41-3(1) or 41-5(1) of the Inheritance and Gift Tax Act, which requires that “stocks be donated or acquired,” and therefore, the benefits under Article 39 of the Inheritance and Gift Tax Act cannot be recognized.

4) The Defendant asserts that the listing marginal profit of the instant shares is subject to gift tax pursuant to Article 2(3) of the Inheritance and Gift Tax Act. However, in a case where, in order to ensure taxpayers’ predictability, the individual valuation rule limits only certain transaction and act to subject to gift tax, and limits the scope of taxation by prescribing a specific type of transaction and act as subject to gift tax, thereby establishing the above limitation of the crime subject to gift tax, even if the transaction and act excluded from the taxable subject or scope of gift tax among the transaction and act regulated by the individual pricing rule is consistent with the concept of gift under Article 2(3) of the Inheritance and Gift Tax Act, the gift tax cannot be imposed even if it conforms to the concept of gift under Article 2(3) of the Inheritance and Gift Tax Act (see Supreme Court Decision 2013Du13266, Oct. 15, 2015). As seen earlier, so long as the listing marginal profit of the instant shares is not included in the scope of taxation under Article 2(3) of the Inheritance and Gift Tax Act, it cannot be deemed lawful even if the gift tax pursuant to Article 2(3) of the gift Tax Act.

3. Conclusion

The plaintiff's claim is justified, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per the text of the lawsuit.

Judges

Judges and decoration of the presiding judge;

Judges Lee Dong-gu

Judge Lee Jong-hoon

Note tin

1) The Plaintiff acquired by acquiring forfeited shares 460, 431 shares (the instant shares and 431 shares allocated by the Plaintiff according to its shares ratio)

The full amount of KRW 6,265, 888, 365 on the premise that the person did not make an offer and received shares after being allocated again) is a gift tax return and payment equivalent thereto.

Although a request for correction was filed to the effect that reduction would be requested, 460,000 shares of the central ○○○

The Plaintiff asserts that the amount of tax for reduction and correction is KRW 6,265, 886, and 780, by asserting that the State is not subject to gift tax. The Plaintiff’s claim is the Plaintiff.

Pursuant to the purport above, it shall be determined within the scope of KRW 6,265, 886, and 780.

Site of separate sheet

Relevant statutes

▣ 구 상속세 및 증여세법 ( 2011 . 12 . 31 . 법률 제11130호로 개정되기 전의 것 )

Article 41-3 (Donation of Profits Following Listing, etc. of Stocks or Equity Shares)

(1) Where a person, who falls under any of the following subparagraphs (hereafter in this Article and Article 41-5, referred to as "major shareholder, etc.") and is in a position to use undisclosed information concerning the management, etc. of a company, receives a donation of stocks or investment shares of the relevant corporation (hereafter in this Article and Article 41-5, referred to as "stocks, etc.") from the largest shareholder, etc. or acquires such stocks, etc. for a fee, he/she shall not include the date of donation or acquisition, or, where such stocks, etc. are acquired from a person, etc. other than the largest shareholder, etc., within five years from the date of acquisition, if the stocks, etc. were listed on the Korea Exchange (referring to those listed on the securities exchange) and the value of which has increased due to such stocks, etc., if the person who received a donation or acquired for a fee has acquired the stocks, etc. from the largest shareholder, etc., in excess of the actual value of donated stocks, etc. under the Financial Investment Services and Capital Markets Act, profits equivalent to or more than the acquisition value prescribed by Presidential Decree.

1. The largest shareholder or the largest investor under Article 22 (2);

2. The profit under paragraph (1) shall be calculated based on the date on which three months elapse from the date of listing the relevant stocks, etc. (referring to the date of death, donation or transfer where a person who holds the relevant stocks, etc. dies, donates or transfers the relevant stocks, etc. within three months from the date of listing; hereafter referred to as "base date for settlement" in this Article and Article 68) of a domestic corporation.

(3) The tax base and tax amount of gift tax shall be calculated by adding such profits to the original taxable value of gift tax (where the principal food, etc. is acquired with donated property, referring to the taxable value of donated property; hereafter the same shall apply in this Article) on a person who has acquired profits under paragraph (1): Provided, That where the value of stocks, etc. as of the date of settlement is smaller than the original taxable value of gift tax and the difference is above the standard prescribed by Presidential Decree, the amount of gift tax equivalent to such difference (referring to the amount of original gift tax paid at

(4) The listing date under paragraph (1) shall be the first day of the trade of stocks, etc. in the securities exchange under Article 9 (13) of the Financial Investment Services and Capital Markets Act.

(5) In applying paragraph (1), where it is unclear that stocks, etc. are acquired as donated property by mixing the donated property with other property, such stocks, etc. shall be presumed to have been acquired as donated property. In such cases, where stocks, etc. are acquired by borrowing funds, the donated property shall be deemed acquired as donated property.

(6) In applying paragraph (1), the acquisition of stocks, etc. shall include new stocks acquired or allocated by a corporation according to the issuance of new stocks to increase its capital (including the amount of investment).

(7) In cases where convertible bonds, etc. which can be converted to stocks, etc. or other bonds prescribed by Presidential Decree (hereafter referred to as "inception bond, etc." in this paragraph) are donated or acquired at a cost (including cases where they are directly acquired from the issuing corporation), and such convertible bonds, etc. are converted to stocks, etc. within the period (referring to five years) under paragraph (1), the provisions of paragraphs (1) through (5) shall apply by deeming that the converted stocks, etc. are donated or acquired at the time of donation or acquisition of the converted bonds, etc. when they are converted to stocks, etc. In such cases, where stocks, etc. are not converted to stocks, etc. by the due date of settlement, they shall be deemed converted to stocks, etc. on the date of settlement, and where such convertible bonds, etc. are not converted to stocks

(8) Matters necessary for the scope of persons in a special relationship under paragraph (1) shall be prescribed by Presidential Decree.

(9) Article 42 (6) shall apply mutatis mutandis to donations under paragraph (1).

Article 41-5 (Donation of Profits, such as Listing Following Merger)

(1) Where a person in a special relationship with the largest shareholder, etc. has received stocks, etc. of the relevant corporation from the largest shareholder, etc., or acquired stocks, etc. of the relevant corporation from a person other than the largest shareholder, etc., with donated stocks, etc., or acquired stocks, etc. of the relevant corporation from the person other than the largest shareholder, etc., and the value of such stocks, etc. has increased as a result of the merger with a stock-listed corporation under a special relationship with the relevant corporation within five years from the date on which such stocks, etc. were donated or acquired, the amount equivalent

(2) The scope of persons in a special relationship under paragraph (1), the scope of other corporations, and the offender of a stock-listed corporation having a special relationship shall be prescribed by Presidential Decree.

(3) Article 41-3 (2) through (7) shall apply mutatis mutandis to the donation of profits, such as listing following a merger under paragraphs (1) and (2). In such cases, "Listing date" shall be deemed "the date of the registration of the merger."

(4) Article 42 (6) shall apply mutatis mutandis to donations under paragraph (1).

참조조문

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-상속세 및 증여세법 제41조의5

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-상속세 및 증여세법 제41조의5 제3항

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