Suwon District Court 201Guhap694 (2012.02)

early 209 middle 2207 ( November 17, 2010)

employee includes a person in an employment contract other than a commercial employee.

In determining the scope of a special relationship, considering the same situation where it is difficult for a person with a special relationship to avoid tax burden, and even between a person with an employment relationship, it is difficult to autonomously adjust the interests even with the person with an employment relationship, an employee is deemed to include a person with an employment relationship other than a trade employee under the related statutes

2012Nu8016 Revocation of Disposition of Imposition of Gift Tax

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Head of Sungnam Tax Office

Suwon District Court Decision 201Guhap694 Decided February 2, 2012

July 4, 2012

September 5, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposing gift tax amounting to KRW 91,806,960 on the Plaintiff on February 15, 2009 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. The part citing the judgment of the court of first instance

2. The reasoning of the judgment of the court of first instance is as follows: (a) whether the disposition of this case is legitimate; (b) whether the relevant laws and regulations (from the second to the third to the third) are legitimate; and (c) not only are the reasons for the judgment of the court of first instance. In accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

In the second 10th century, "the employee of the company was the director of the company" in the company, and the director of the division was employed in the company, and he was appointed as a "bronman in May 2003."

8th below the third day. The "related laws and regulations" will be added at the end of the judgment in the relevant laws and regulations.

2. Part to be used again; and

C. Determination

(1) Whether the person is a specially related person under Article 35 of the Inheritance Tax and Gift Tax Act

Article 35(1)1 of the Inheritance Tax and Gift Tax Act provides that the transferee shall be deemed as the donee and shall be deemed as having received a donation equivalent to a certain amount of benefit. Paragraph (2) of the same Article provides that the scope of persons having special relations under Article 35(1)1 and 2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and of low value and high value shall be prescribed by the Presidential Decree. According to delegation under Article 35(2) of the Inheritance Tax and Gift Tax Act, Article 26(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that a person in special relationship under Article 35(1)1 and 2 of the Inheritance Tax and Gift Tax Act refers to a transferor or transferee, and that a person who falls under any of the following subparagraphs 1 through 1 is an employee under Article 19(2) 8 of the Inheritance Tax and Gift Tax Act. In this case, “one person, such as a shareholder,” is an employee under Article 19(2)2 and Article 19(2)2 of the Enforcement Decree of the Inheritance Tax Act.

In order to apply the provision on the constructive gift as provided in Article 35 of the Inheritance Tax and Gift Tax Act, a special relationship under Article 26(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act exists between the transferor and the transferee at the time of transfer of the property, and an employee under Article 19(2)2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act which is invoked by Article 26(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act does not have a provision on the separate definition of the Inheritance Tax and Gift Tax Act. The tax law strictly interpretation is that an employee provides labor under an ordinary labor contract and receives compensation, and Article 19(2)2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act does not provide that an employee is a "employee" rather than a "employee under Article 19(2)2 of the Inheritance Tax and Gift Tax Act" and Article 11(2) of the Commercial Act provides that an employee may appoint or dismiss other employee who is not a manager at the time of transfer of the property, and that employee does not have a special relationship with one another's own interests between the parties.

(2) Whether the transferee is the assignee or not

(A) Whether KRW 15,00,00 is the market price of the instant shares

In light of the following circumstances, 15,00 won per share of the purchase price of the instant shares paid by the Plaintiff cannot be deemed to be ordinarily constituted among many and unspecified persons.

① The transaction conducted before and after the acquisition of the instant shares was conducted at least 8 months prior to or after the acquisition of the instant shares as shown in the attached Table. The transaction listed in the No. 1 through No. 4 was purchased by GaD and GaD Construction, a representative director, in order to acquire the management resources of the instant company. In order to acquire the management rights, unlike the general stock transaction, the price of the instant shares is assessed, and the price for acquiring the management rights is not determined but the circumstances other than the value of the instant shares, such as the price for acquiring the management rights, are reflected in the sale of the instant shares. GaD’s net asset value (00 won) / The number of the instant shares (360,000 won) was approximately KRW 00, and GaD and DoD’s officers were 300,000,000 won at the time of the instant transaction, and DoD and DoD were 5,000,000 won at the time of the purchase of the instant shares.

② The first transaction date indicated in the separate sheet of stock transaction was June 10, 2002, and the last transaction was made on May 19, 2005. The sales amount in 2003 under the company’s income statement was reduced by approximately KRW 000, and the net profit per month was reduced by approximately KRW 000, compared to the year 2002 ( subparagraph 3). However, all of the transaction indicated in the table, such as the transaction for which the Plaintiff purchased the instant shares, did not change to KRW 00 per share.

(B) According to Article 60(1) and (3) of the Inheritance Tax and Gift Tax Act, in cases where it is difficult to calculate the market price on the basis of the market price on the date of donation at which the property value on which the gift tax is levied, considering the type, size, transaction circumstances, etc. of the pertinent property, the method of evaluation of securities, etc. is stipulated in Article 61 through 65 of the Inheritance Tax and Gift Tax Act. The method of evaluation of securities, etc. is stipulated in Article 63 of the Inheritance Tax and Gift Tax Act. Since the instant shares are unlisted stocks, it cannot be deemed that free transaction takes place between many and unspecified persons, barring any special circumstance. The acquisition of the instant shares does not have been made within three months before and after the date of the contract, and there is no transaction price before and after the transfer of the instant shares, the market price cannot be recognized as the market price. The instant shares fall

(3) The instant contract for acquisition of shares constitutes a case where the Plaintiff took over shares at a low price between persons with a special relationship and it is difficult to compute the market price. The instant disposition is lawful.

3. Conclusion

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.