Examination Donation 2009-0058 ( October 27, 2009)

Donation as a result of the low-price acquisition of stocks;

Although it is argued that the market price is the market price that reflects the objective exchange value at the time of transaction with respect to low-price acquisition transaction, it is reasonable to dispose of the market price by supplementary evaluation methods because it is difficult to view that the objective

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

Park ○

Head of Sungnam Tax Office

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The disposition of imposition of KRW 202,109,380, which the Defendant rendered to the Plaintiff on April 1, 2009, shall be revoked.

1. Circumstances of the disposition;

가. 원고는 2005. 9. 1. 소외 장AA으로부터 △△드 제조업, 주물사 설비제작업 등을 영위하는 비상장회사인 소외 주식회사 ☐☐(이하 '소외 회사'이라 한다)의 발행주식 30,000주(이하 '이 사건 주식 '이라 한다)를 450,000,000원(1주당 가액 15,000원)에 양수하였다(이하 '이 사건 거래'라 한다).

B. In accordance with Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18989, Aug. 5, 2005), the Defendant assessed the shares of this case as KRW 1,382,940,00 per share (the value of KRW 46,098 per share), and assessed the shares of this case at a low price by deeming that the Plaintiff acquired the shares of this case at a low price pursuant to Article 35(2) of the Act (amended by Act No. 9916, Jan. 1, 2010) on April 1, 2009, the Defendant issued the instant disposition imposing KRW 202,109,380 on the Plaintiff for the gift tax of KRW 205 for the year of 2005.

C. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on October 27, 2009.

[Reasons for Recognition] Gap evidence 1, 2, 4, 10-1, 12-1, and Eul evidence 1

2. Whether the instant disposition is lawful

A. The plaintiff's principal

(1) The value of KRW 15,00 per share at the time of the instant transaction falls under the market price that reflects the objective exchange value as at the time of the transaction, in light of the following: (a) the Plaintiff and the headA did not have a special relationship with each other; (b) the transaction in this case was conducted at the free will of two persons; (c) the headA realized two or more times transfer gains due to the instant transaction; and (d) the transaction of listed stocks issued by the non-party stock company, the non-party company, the company operating the type of business similar to the non-party company, △△△, etc. (hereinafter referred to as △△), which is not a low value compared with the transaction amount. If only the transaction price between comparable multiple and unspecified persons, as in the instant disposition, is recognized as the market price, there is an unreasonable reason to follow an unconditional supplementary assessment method (hereinafter referred to as “

(2) Even if it is deemed that the instant transaction constitutes acquisition at a price significantly lower than the market price, it purchased the instant shares at the Plaintiff’s request of Nonparty ParkB, his father, or ParkB sold the instant shares due to health deterioration where ParkB’s own investment recovery was unstable. However, the Nonparty Company was a company composed of unlisted company and the Plaintiff’s family members and sold the instant shares to the Plaintiff. In addition, the Plaintiff purchased the instant shares for the stable management of the Nonparty Company, and the shares of small and medium-sized unlisted companies were traded at a price lower than the supplementary assessment methods due to the transaction limitation. In light of the fact that the shares of the small and medium-sized unlisted companies are traded at a price lower than the supplementary assessment methods due to the transaction limitation, there is a justifiable reason in the practice of the “transaction” (hereinafter referred to as “principal ②).

(b) Related statutes;

It shall be as shown in the attached Form.

(c) Fact of recognition;

(1) On February 15, 2002, the head of the Dong purchased 6,000 shares issued by the non-party company (50,000 won per share) at KRW 300,000,000, and on December 12, 2003, 34,000 shares issued by the non-party company were allocated to the non-party company as 34,000 shares and owned 40,00 shares, and as seen earlier, sold the shares to the plaintiff.

(2) The financial status and profit and loss status of the non-party company on the settlement of accounts are as follows.

(3) The details of cash dividend received by the head of the AA from the non-party company are as follows.

(4) The Plaintiff acquired the instant shares, thereby increasing its shareholding ratio from 3.33% to 18.33%, thereby becoming a second shareholder of the non-party corporation.

(5) On September 1, 2005, the transaction date of the instant transaction date, the value per share of the shares issued by an enterprise in Do, which is a listed company operating various kinds of internal combustion engines manufacturing and sales business, and manufacturing and sales business of main products, was KRW 3,010. However, on April 16, 2005, the enterprise in △△△△△ has divided the shares into face value of KRW 5,00 and KRW 500 per share.

[Ground of recognition] Unsatisfy, Gap evidence 2, 3 through 7, 12, Eul evidence 2, 3 (if any)

the purpose of each entry, as a whole, of the entire pleadings, including branch numbers

D. Determination

(1) Judgment on the assertion No. 1

(A) Article 35(2) of the Act provides that, in cases of transfer of property between persons other than the related parties, the amount equivalent to the profits prescribed by the Presidential Decree shall be presumed to be donated to the person who has acquired the profits from the property by presumption of the amount equivalent to the difference between the price and the market price without justifiable grounds in light of transaction practices, and Article 26(5) of the Enforcement Decree of the Act provides that "the value which is remarkably low" means the price in cases where there is a difference between the market price of the acquired property and the value which is at least 30/100 of the market price. Meanwhile, in cases of each provision of Article 60(1), (2), and (3) of the Act, the value of the property on which the gift tax is levied is calculated based on the market price as of the donation date, and the market price means the objective exchange price formed through a normal transaction which is deemed ordinarily established if it is difficult to calculate the market price, and in cases where it is difficult to calculate the market price, the price shall be appraised by the method prescribed in Articles 61 through 65.

In the case of unlisted stocks not listed on the Korea Stock Exchange, if there is an example of the transaction that seems to properly reflect the objective exchange values, such price shall be deemed the market price. However, if there is no such example or it is difficult to calculate the market price by any other means, the value shall be assessed according to the supplementary evaluation methods under the Gift Tax Act. Here, the market price refers to the objective exchange price formed through normal transaction in principle. In order for the transaction price to fall under 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 (see Supreme Court Decision 9Du2505, Feb. 11, 2000).

(B) On the premise of such a legal doctrine, the Plaintiff and the head of the Dong shall convert the acquisition value per share of 40.00 per share of the total number of shares held by the head of the Dong as free of charge at the time of the instant transaction into 7,500 won. On the other hand, in the case of 2001, which was the year immediately preceding the business year in which the head of the Dong acquired the instant shares, the net profit ratio of the non-party company was 3.6%, and in the case of 2004, which was the business year immediately preceding the business year in which the head of the Dong transferred the instant shares, the net profit ratio of the non-party company was 7.69%, and the net profit ratio of the above 7,500 won per share was 213%.

However, according to the above facts, 46,098 won per share of the shares of this case according to supplementary valuation methods cannot be seen as an excessive valuation of the shares of this case at a price much higher than 5,262 won per share of the non-party company's net asset value per 2005 business year. The non-party company's sales and net profit per 2002 or 2006 business year increased, and the non-party company's investment rate was higher than an average of 40,000,000 won per year for 3 years, and it is difficult to view that the non-party company's business agent was aware of its financial status as an agent of the non-party company's 32.5% of the above supplementary valuation value per share, and that the transaction value per share of the non-party company was more than an objective valuation value per share value per 27% of the shares of this case, and it is also difficult to view the plaintiff's appraisal value per 10,005,00 won per share before the sale value of the shares of this case.

(2) Judgment on the assertion 2

(A) Whether the case constitutes a “justifiable cause” under Article 35(2) of the Act should be determined by comprehensively taking into account the details of the transaction in question, the relationship between the parties to the transaction, the transaction value, etc.

(B) On the premise of these legal principles, the Plaintiff and the head of the Dong did not have a special relationship at the time of the instant transaction. However, the Plaintiff appears to have taken over the instant shares at a significantly lower price than the market price, and the Plaintiff appears to have a sound financial position since the sales and net income increase before and after the instant transaction, 46,098 won and 15.00 won per share transaction value per share, which are equivalent to 30/100 of the above supplementary assessment value (=46,098 wonx30/100, less than KRW 46,098) higher than 32,269 won (=46,098 won - 13,829 won). Accordingly, the Plaintiff could not readily conclude that the instant shares were traded at a significantly lower price than the net asset value by Nonparty 2’s acquisition of the instant shares until the date of the instant transaction. In light of the above, the Plaintiff could not readily conclude that the instant shares were traded at a lower price than the net asset value of the instant company.

3. Conclusion

Inasmuch as the plaintiff's claim for objection is groundless, it shall be dismissed.