Cho Jae-2015- Daejeon-4497 ( November 13, 2015)

The Plaintiff’s acquisition and exercise of the preemptive right to new stocks of this case cannot be deemed as justifiable.

The Plaintiff’s acquisition and exercise of the preemptive right to new stocks of this case cannot be deemed as justifiable.

Article 42 of the former Inheritance Tax and Gift Tax Act

2016Guhap1018 Revocation of Disposition of Imposition of Gift Tax

The acquisition of warrant certificates was about KRW 1,500 to KRW 5,000 per share from April 8, 2008 to March 2009.

F) The Plaintiff exercised the warrant certificates of this case on July 21, 2009, October 23, 2009, and October 20, 2010

4. The market price of shares AA as of 20.20 was KRW 19,673 per share, but the Plaintiff was the initial exercise price.

AA at KRW 2,877 per share of the event price subject to an adjustment according to the decline in the market at KRW 4,110 per share;

The 139,032 shares of this objection were accepted. The above exercise price is the issue and public notice of securities.

section 1(1) months prior to the date of the resolution of the board of directors for the issuance of the bonds with warrant;

Average closing price, average closing price per week, and the value obtained by taking an arithmetic mean of the most recent closing price, and the most recent closing price and payment;

It is determined that the closing price is higher than the highest one before the three trading days of the day.

G) Meanwhile, AA on December 12, 2006 before the issuance of the instant bonds with warrants.

(1) The Corporation may issue a new bond with warrants, and such issuance was made on June 1, 2006 with respect to the shares from the Hansung Securities.

In the issuance of limit bonds, the review report on matters, etc. to be considered in relation to the issuance of limit bonds is received and submitted on October 2006.

AA’s shares to be reported as preliminary investigation for listing on the KOSDAQ market from the authority, etc.

Securing and managing the equity ratio of cC, the largest shareholder, representative director, and cc, the representative director, in promoting the listing of the Common Market.

This study reviewed the right defense measures, whether gift tax is subject to gift tax.

[Ground of Recognition] Unsatisfy, Gap evidence 2 through 4, Gap evidence 5-1, Eul evidence 2 through 9

Each entry of evidence, the purport of the whole pleading

4) Determination

In light of the legal principles as seen earlier, the facts of the recognition and the entire pleadings as to the instant case

Considering the following circumstances recognized by the purport of the above, the above facts of recognition and the Defendant

The evidence alone presented that transaction conditions, such as exercising price of the warrant certificates of this case, are objective;

It is not adequately reflected in any exchange value or it is intended for AA to maximize its interest;

The plaintiff shall give up an opportunity to gain his/her profit easily without doing so, and shall be the plaintiff

The AA cannot be deemed to have obtained profits from the acquisition and exercise of the preemptive rights.

If the plaintiff is a reasonable economic person, such terms and conditions as such in the circumstances at the time of transaction shall apply.

Recognizing that objective circumstances, etc. that would not have traded have been proven to a considerable extent;

The disposition of this case is insufficient and there is no other evidence to prove it. Accordingly, the former Inheritance Tax and Gift Tax Act No. 42

The basis of Paragraph 1(3) of this Article is not legitimate.

1. AA needs to raise funds at the time of issuing the instant bonds with warrants.

The money actually procured by issuing the instant bonds with warrants was offered by AA. The money actually procured by issuing the instant bonds with warrants is offered by AA

It was used as zero capital.

② The instant bonds with warrants were issued and the Plaintiff issued warrant certificates.

AA’s share price for a considerable period of time after acquisition of the warrant certificates of this case

The plaintiff set up the price of the warrant certificates of this case within about one year and three months from the date of transfer.

(1) AAA’s share price fluctuations during the above period.

In light of the foregoing, the Plaintiff whose terms and conditions of the exercise price of the warrant certificates of this case are the assignee.

that does not adequately reflect an objective exchange value in favor of the person.

There is no other issue of this case’s bonds, or the Plaintiff’s warrant certificates.

AA’s share price increase at the time of acquisition is anticipated to increase.

neither is the case.

③ The zzz bank shall have 26% of the instant warrant certificates to the general public, including the Plaintiff.

10% was sold to eacht Securities.

(4) AA shall enter into a contract with a financial institution in accordance with the intention of the new stocks.

AAA's issuance of subscription bonds, compared to other companies in a situation similar to AA.

There is no reason to deem the terms and conditions of the contract regarding the issuance of the instant bonds with warrants as peculiar.

5. AA and ccc, its representative director, shall issue the instant bonds with warrants.

(2) AAA’s shares under review and reporting by the Korean Commercial Code; and

The cC's equity ratio, means to defend management rights, and gift tax, while promoting the listing of the cC market;

After examining the subject matter, cc acquired the warrant right of this case.

One, i) The above review report and preliminary inspection report of the Korean Commercial Code shall be placed on KOSDAQ and shall be placed on KOSDAQ and shall be cC.

It appears that cc has been placed on the means of defending management rights, etc. and that cc has been placed on such means.

It is readily concluded that the purpose of obtaining economic benefits through the transaction of warrant certificates.

It is difficult to secure management rights in corporate management (the method of securing management rights in corporate management) as a very important part.

It is extremely natural to consider the listing and review it, and it is only obvious to the extent of this case’s new information.

In that there was a part of the securities sold to the Tt Securities without finding the purchaser among the securities with preemptive rights; and

The issuance of warrant certificates was promoted for the purpose of defending management rights and offering profits of cC.

ii) any content of the review report and preliminary inspection report of the foreign currency securities is difficult to be seen by AA.

It was considered and reflected in the decision-making process to issue the instant bonds with warrants.

There is no particular assertion or proof as to whether the warrant certificates of this case (the exercise price, etc. of the warrant certificates of this case)

The foregoing review report and the report of preliminary inspection shall not be deemed to have been made on the basis of such report.

In light of such circumstances, the terms and conditions of transaction, such as exercising price of the warrant certificates of this case, etc.

failure to adequately reflect appropriate exchange values, or AA attempts to maximize its interest;

The employer, without making any effort, gave up the opportunity to obtain the benefit easily.

shall not be subject to an appeal.

6. The Plaintiff’s preemptive right to new shares

In contrast, AA appears to have acquired rights through the transaction of warrant certificates of this case.

There is no ground to deem that there was any motive or incentive to obtain the gift profit from the Plaintiff.

3. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and it is so ordered as per Disposition by admitting it.

shall be ruled.

】 】

○ Head of tax office

November 24, 2016

January 12, 2017

Text (Change)

1. On May 1, 2015, the Defendant revoked each disposition of imposition of KRW 332,958,010 as gift tax for the year 2009, and KRW 769,322,480 as gift tax for the year 2010.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. AAA Co., Ltd. (hereinafter referred to as "AAAA") was changed from "aa" corporation on March 2007, and was listed on the KOSDAQ market on October 25, 2007, when it was established as of April 28, 199 as a company specializing in the production and supply of self-explosion weapons used as lighting sources, etc. of mobile phones (hereinafter referred to as "EMC").

B. On April 8, 2008, the Plaintiff is a member of the BB. AA entered into an underwriting agreement with the Korea Pozzz bank (hereinafter referred to as the “Pozz bank”) and a privately placed bonds with warrants (Separation type), and on the same day, the Plaintiff issued to the zzzz bank a second bearer domestic privately placed bonds with warrants (hereinafter referred to as the “instant bonds with warrants”) with the total face value of KRW 5 billion.

D. On April 8, 2008, the zzz bank separated the bonds and preemptive rights from the bonds with warrant in this case, and sold the total face value of KRW 4.5 billion from the separated warrant certificates (hereinafter referred to as “instant warrant certificates”) to cc (representative director of the AA), d (Registration Director of the AA), e (employee of the ELB), e (Objection) and the Plaintiff.

E. Upon the recommendation of BB, on April 8, 2008, the Plaintiff acquired KRW 500 million in total face value from the zzzz bank in total from KRW 15,000,000,000 among the face value of the instant warrant certificates, and thereafter, transferred KRW 100 million in total to the Plaintiff’s Gangseo-ro name (the spouse of more than AA’s staff member) who is the Plaintiff’s seat. (f) The Plaintiff acquired KRW 3,00,000 in total from among the face value of the instant warrant certificates on July 21, 2009. The remainder of the instant warrant certificates was exercised on April 20, 201 (the exercise price of KRW 2,877 per share) and acquired KRW 300,139,032 in total from AA’s ordinary share.

G. From February 25, 2015 to April 10, 2015, the Director of the Daejeon Regional Tax Office: (a) conducted an integrated investigation into AAA from February 25, 2015 to April 10, 2015; and (b) as a result, the Plaintiff notified the Defendant to the effect that the Plaintiff would impose tax by applying Article 42(1)3 of the Inheritance Tax and Gift Tax

H. Accordingly, on May 1, 2015, the Defendant decided and notified the Plaintiff of KRW 32,958,010, and KRW 769,32,480, which was calculated pursuant to Article 31-9 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, on the ground that the Plaintiff was given a gift equivalent to KRW 19,673 won at the time of the exercise of the warrant certificates (the difference between KRW 19,673 and KRW 2,877,00 at the time of the exercise) based on the exercise of the warrant certificates of this case. The Plaintiff was dissatisfied with the instant disposition and received a request for a judgment from the Tax Tribunal on July 24, 2015 (hereinafter referred to as “instant disposition”). The Plaintiff was subject to a decision of dismissal on July 24, 2015 (the first instance judgment).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, Gap evidence 5-1, Eul evidence 1, 2, 8, 9, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The defendant's assertion

As the Plaintiff gains profits from the transaction of acquiring shares in accordance with the warrant certificates of this case, the disposition of this case is lawful in accordance with Article 42(1)3 of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”).

2) The plaintiff's assertion

Article 42(1) of the Inheritance Tax and Gift Tax Act is not applicable pursuant to Article 42(3) of the Inheritance Tax and Gift Tax Act, because the transaction of the Plaintiff’s warrant certificates falls under justifiable grounds for transaction practice among those who are not specially related. Therefore, Article 42(1)3 of the Inheritance Tax and Gift Tax Act cannot be the grounds for the instant disposition.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Review, etc. of ground regulations

Article 42(1)3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") provides that where profits are acquired from the transactions that increase or decrease the capital (including the amount of investment) of a corporation, such as the conversion, acquisition, and exchange of stocks by convertible bonds, etc. pursuant to Article 40(1) (hereafter referred to as "stock conversion, etc." in this Article), such profits shall be deemed the value of donated property to the person who has acquired such profits. In such cases, such profits shall be the value calculated by subtracting the value of stock conversion, etc. from the value of stocks at the time of stock conversion, etc. In such cases, in the case of stock conversion, etc., the fact that the Plaintiff

However, Article 42 (3) of the former Inheritance Tax and Gift Tax Act provides that " Paragraph (1) shall not apply where it is deemed that there is a justifiable reason as a transactional practice among the parties who are not in a special relationship." Article 31-9 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010; hereinafter referred to as "former Enforcement Decree of the Inheritance Tax and Gift Tax Act") provides that "a person having a special relationship under Article 42 (3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act refers to a person under one of the following classifications." Article 19 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "one shareholder, etc. among those under Article 19 (2) shall be deemed a person who has a special relationship under Article 19 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and Article 19 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "an employee (employee)" and a special relationship under subparagraphs 1 through 30 through 6.

The legislative purport of Article 42(1) of the former Inheritance Tax and Gift Tax Act stipulating that gift tax shall be imposed on the other party to a transaction without consideration when a transaction partner transfers gains from the acquisition of preemptive rights and the exercise of such rights in an abnormal manner is to cope with an altered donation act and promote fair taxation. However, it is an exceptional reason to allow the other party to obtain gift benefits by waiver of an opportunity to obtain such benefits in the general and easy manner. As such, Article 42(3) of the former Inheritance Tax and Gift Tax Act provides that if the transaction partner does not have any special relationship, unlike the benefits arising from the transaction between the specially related parties, it is difficult to view that there exists a reasonable reason to believe that the other party to the transaction would have made an adequate transaction by reflecting the acquisition of preemptive rights and the exercise of such rights, or from a reasonable economic standpoint, that such transaction under such conditions cannot be seen as having been conducted without reasonable grounds, even if there are no reasonable reasons to believe that the transaction partner would have any specific transaction terms and conditions under the former Inheritance Tax and Gift Tax Act to the extent that it does not have been subject to taxation.

The facts of recognition (see Supreme Court Decision 2013Du24495 decided February 12, 2015)

A) AA was a company whose most part of the sales of the mobile phone package weapons products were 1.3 billion won in sales around 2004. However, around 2005, AA had rapidly grown KRW 6.8 billion in sales around 2005, and around 38.1 billion in sales around 2006, and was listed on the KOSDAQ market on October 25, 2007.

B) In 2008, AA had a sudden increase in sales in the first half of 2008, due to the KAO currency option contract concluded to avoid exchange rate fluctuations, approximately KRW 4 billion in the second half of 2007, and approximately KRW 7.6 billion in the first half of 2008, a short-term net loss of KRW 7.6 billion in the first half of 2008, and the cash liquidity was insufficient, and the financial institution was in need of raising operating funds. However, the financial institution was in a situation where AA’s financial status has deteriorated and it is likely that additional losses have occurred in the second half of 2008.

C) On April 8, 2008, AA concluded a joint bonds acquisition contract with the following content on the condition that he/she purchases warrant certificates separated from the bonds with warrants or seeks to find the purchaser.

A separate type means a type that can be transferred by separating "securities with preemptive rights" that indicate a right to request issuance of new stocks from the bonds, and the non-Separate type refers to a form that can not be transferred separately from the bonds and can be transferred by combining them.

Article 1 Conditions of Issuance

1. Name of the debentures: Type II bearer domestic bonds with warrants; and

2. Type of bonds: Unregistered private placement bonds with warrant.

3. Total face value of the bonds: 5.00 million won (5,000,000,000). The issue value of the bonds; 100% of the face value.

6. The interest rate of the bonds: 7.40% per annum; 10. The date of redemption of the bonds: April 8, 2011;

1. Conditions for exercising the preemptive rights;

(b) Exercise price: In cases of listed companies with 4,110 won (amounted to 500 won), the average monthly closing price per week retroactive from the date of the resolution of the board of directors for the issuance of bonds with warrants pursuant to the Regulations on the Issuance, Public Disclosure, etc. of Securities, shall be at least the higher of the closing price per month prior to the date of the resolution of the board of directors for the issuance of bonds with warrants, the average closing price per week, and the average closing price per week, and the amount of the latest closing

3. Period for exercising preemptive rights: From April 8, 2009 to March 8, 2011;

D) Of the warrant certificates in this case, 50% of the 50% of the instant warrant certificates was purchased by cccc and 14% by d d d d d d di d d d d d d d d d d d d d d d d d d d d d d 26% of the employees (purchase by the Plaintiff) sold to the general public (the remainder 10

E) The share price (based on the closing price) of AA listed on October 25, 2007 was KRW 7,650 per share on October 29, 2007, but was later 7,650 per share on October 29, 2007, and thereafter, the Plaintiff appeared to have brought about a decline in the future by repeating rash.