Seocho 2012west 1952 (Law No. 112, 2012)

If there has been a right, the average value of the final market price shall be assessed from the date following the date of such right to the date two months from the evaluation base date;

In assessing the nominal trust shares, since there has been ex-right based on the shareholder allotment method and capital increase with consideration within two months before the appraisal base date, the average amount of the final market price of the Korea Stock Exchange shall be from the date following the date of the ex-right to the date on which two months have passed after the

2012Guhap25484 Revocation, etc. of Disposition of Imposition of Gift Tax

LAAA

Head of the District Tax Office

February 1, 2013

February 22, 2013

1. The Defendant’s imposition of KRW 00,00, among the imposition of KRW 000,000, and penalty tax of KRW 00,000 on January 2, 2013, each of which exceeds KRW 00,00, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the plaintiff, and the remainder by the defendant.

The Defendant’s imposition of KRW 00,00, and KRW 000,00,00,000,000,000,000,000,000,000,000,000,00,000,000

1. Details of the disposition;

A. BBB, a listed corporation, (hereinafter “BBB”), adopted a resolution on March 3, 2004 to allocate common shares 7,905,000,000 shares to a third party by the board of directors, and made a revised report on January 24, 2005.

(No. 3. 3. 3. 3. 1) Public disclosure of the subscription for new shares issued on March 3, 2004

B. On January 14, 2005, BB made a resolution at the meeting of the board of directors on the following: “BB made the payment date on March 14, 2005, and the new stocks allocation date on February 11, 2005, through a later resolution of the board of directors that allocates 100,000,000 common shares to shareholders, and forfeited or fractional shares, and announced it to the electronic publication system of the Financial Supervisory Service on the same day. BB made a resolution to allocate forfeited shares to a third party on March 12, 2005; BB announced this to the electronic publication system of the Financial Supervisory Service on the same day. KimCC made payment of stock price under the name of the Plaintiff on March 14, 2005; and made a transfer to the Plaintiff on March 15, 2005.

C. On January 10, 2012, the Defendant imposed a gift tax (including additional tax) on the Plaintiff as indicated in Table 2 as follows (hereinafter “instant disposition”). On the other hand, the average amount of the final market price at the Korea Stock Exchange is KRW 226,00 for two months from the day following the date of revocation of rights ( February 8, 2005) to the day before and after the evaluation base date.

(2) The details of imposing the gift tax shall be omitted.

D. The Plaintiff filed an appeal on April 2, 2012, and received a decision of dismissal from the Tax Tribunal on June 29, 2012.

E. On January 2, 2013, the Defendant revoked ex officio the imposition of additional gift tax, and re-assessment and notification of additional gift tax on the same amount to the Plaintiff.

[Reasons for Recognition] In the absence of dispute, Gap evidence 1 to 5, evidence 11, 12, 16, 19, and 20, evidence 22 (including household numbers), and Eul evidence 1 to 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Purpose of tax avoidance

The KimCC shall participate in the capital increase for the rehabilitation of BB, and when the listed company holds more than 5/100 shares, it shall report the changes in shares to the Securities and Futures Commission and the Korea Stock Exchange. Therefore, it is unlawful to dispose of the shares in this case otherwise on the ground that: (a) the title trust was made to avoid the reporting obligation; (b) the KimCC did not have any fact that it went out of the status of oligopolistic shareholders by title trusting the shares; (c) transferred the shares during a single period; (d) the transfer income tax and securities transaction tax on part of the capital gains; and (e) KimCC faithfully paid the capital gains tax for the purpose of evading the capital gains tax beyond the requirements of a major shareholder; and (b) the possibility that KimCC may avoid the capital gains tax beyond the requirements of a major shareholder is only the result of tax reduction that may occur after the title trust; and (c) the KimCC does not serve as the basis for determining whether there was the tax avoidance purpose at the time of the title trust; and (c) even if the requirements of a major shareholder were exceeded from the title trust, the stocks were not subject to be subject to taxation.

(2) Method of calculating the value of donation

Since the prior meaning of capital increase is "the increase of company's capital by issuing shares", the concept nearest to the capital increase is "the payment date of the company's capital increase", and when calculating the distribution profit by the third party's low price allotment, it is reasonable to view that the date of capital increase is the payment date of the stock price, and that the date of the cause of capital increase is the date of the transfer of shares, and that in the case of shares on December 31, 2004 when the date of the transfer of shares is the date of the transfer of shares on March 31, 2004, if the date of the transfer of shares is deemed the cause of donation, the actual capital increase was calculated as of January 16, 2005, and that the price increase after the date of the transfer of shares was made on March 15, 2005, and that the date of capital increase is the date of the transfer of shares. Therefore, the disposition of this case is unlawful.

(3) Imposition of additional tax

(A) Justifiable reasons

Considering the fact that KimCC exercises the right to dispose of the shares transferred not through the transaction at the Stock Exchange, and that the transfer price belongs to KimCC, and that KimCC did not recognize that it was a gift to title trust the shares, there is a justifiable reason that does not cause any error in the failure to pay gift tax on the shares. Therefore, the imposition of penalty tax on each gift tax is illegal.

(b) Defect in the notice of imposition

The imposition of additional tax on each gift tax without notifying the kind of and the basis for calculation of additional tax is illegal.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The KimCC held BB’s shares as indicated in Table 3 below, 2004, and 2005. The status of the shares held in title trust by KimCC is as listed in Table 4 below. BB had the total capital amount of -000 won in 2005, and the stock transaction was suspended from January 24, 2005 to March 21, 2005. BB promoted capital increase with capital increase on January 14, 2005 to solve the problem of capital transfer.

(Omission of Status of Possession of Stocks)

(No. 4. Omission of the status of the shares held in title trust)

(2) The KimCC transferred BBB stocks as listed in Table 5 below, and paid the transfer income tax as listed in Table 6 below. The transfer of stocks in the name of sulfurD, tearA, E, E, AF, and EH was not subject to the transaction at the Stock Exchange.

(Transfer of KimCC’s Stocks and omission of Payment Status of Transfer Income Tax)

(Omission of Return and Payment Details of Transfer Income Tax)

(3) The KimCC omitted the report of transfer income tax on BB stocks as described in the Table 7 below.

(Omission of Report on Transfer Income Tax and Omitted Contents)

[Ground of Recognition] The non-contentious facts, Gap evidence 5 to 10, and evidence 16, and the whole purport of the pleading

D. Determination

(1) As to the purpose of tax avoidance

Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") provides that the legislative purpose of Article 45-2(1) is to effectively prevent tax avoidance by using the title trust system and realize tax justice. Therefore, only if the purpose of tax avoidance is not included in the title trust, the proviso of the same Article can be applied, and in this case, the burden of proving that there was no other purpose of tax avoidance. Therefore, the title holder who bears the burden of proof can prove that there was no other purpose of tax avoidance, but it is difficult to view that there was no clear purpose of tax avoidance in the title trust, and that there was no possibility of tax avoidance in the name of the said shareholder, and that there was no possibility of tax avoidance at the time of the title trust, and that there was no possibility of tax avoidance at the time of the transfer of shares in the name of KimCC (see Supreme Court Decision 200Du920, Feb. 14, 200).

(2) As to the method of calculating the gift value

(A) The purpose and reflection time of the statute

In addition to Article 60(1) and Article 63(1)1 of the former Inheritance Tax and Gift Tax Act, the market price of stocks of a listed corporation shall be the average daily market price (it shall be unclear whether there is a transaction record) of the Korea Stock Exchange every two months before and after the base date of appraisal, and where it is inappropriate to adopt the average amount of the relevant capital increase or merger during the above period, the average amount of the period calculated under the conditions as prescribed by the Presidential Decree during two months before and after the base date of appraisal shall be the market price, and Article 52-2 subparag. 1 and 2 of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 20621 of Feb. 22, 2008) shall be "in case of a cause such as increase or merger, etc., before and after the base date of appraisal, it shall be 0 months after the base date of appraisal, and it shall be 30 days after the issuance of new stocks from the date of appraisal to the date before the base date of appraisal, and it shall be 30 days after the above.

(b)Principles and exceptions

In the case of a public announcement of capital increase, the party who trades stocks takes into account the price decline due to the increase in stocks, and in principle, it should be deemed that the price has a significant impact on the formation of the stock price from the date of the public announcement of capital increase. However, in the case of stock allocation, there is no choice but to determine the price of rights to determine the base date of allocation, and at this time the right to receive new stocks or new stocks granted to the old stock is lost. On the other hand, in the case of capital increase (including oil and free shares), the price of stocks reduced as much as the capital increase occurred (e.g., 00 won = 00 won increase before the date of stock increase). In the case of a public announcement of capital increase, there is no difference between 0% of the rights and 100 won after the date of the public announcement of capital increase and 20% of the stock increase under the premise that the new stocks increase increase is made under the premise that the new stocks increase is made under the premise that (3) stock price decrease is made under the premise that there is no more than 1) stock price decrease.

(C) Where the allocation of shareholders and the allocation of third parties are mixed;

In the case of a capital increase, where the allocation of a shareholder and the allocation of a third party are conducted simultaneously (in this case, the allocation of a shareholder shall be made, and in the case of the allocation of a third party with respect to the actual right, the announcement of capital increase has affected the formation of the present share price, and the new share price is formed by the ex-right, and the third party is at the time of the date of the termination of rights. Meanwhile, in the case of the allocation of a third party, it is not affected by the old share price (in the case of the allocation of a third party, there is no ex-right in the case of the allocation of a third party), and it shall be deemed that the share price is formed at the time of the announcement of the increase (in the case of the allocation of a third party, there is no ex-right in the case of the allocation of a third party). Therefore, the resolution of the board of directors on the allocation of a third party made after the ex-rights of rights does not affect the already formed share price (in the publication, it does not affect the formation of a new share price, which does not affect the allocation of a third party.

(D) Application of this case

In light of the fact that there was the ex-rights arising from the shareholder allocation method as of January 14, 2005 within two months before the evaluation base date, the average amount of the last market price of the Korea Stock Exchange (226 won) from the date following the date of the ex-rights ( February 8, 2005) to the date on which two months have elapsed after the evaluation base date. Therefore, the instant disposition was unlawful since it was calculated with the average amount of the last market price at the Korea Stock Exchange (00 won) for two months before and after the evaluation base date.

(3) As to the imposition of additional tax

(A) Justifiable reasons

A person who is deemed to have been donated and is obliged to pay gift tax is not KimCC, but the plaintiff's above assertion based on the premise that KimCC bears the duty to pay gift tax is without merit.

(b) Defect in the notice of imposition

According to Gap evidence No. 2, the defendant, and the defendant did not state the type of and basis for calculation of additional tax on each gift tax imposed and notice of Jan. 10, 2012. However, according to the evidence No. 22, the defendant must cancel the imposition of additional tax on each gift tax ex officio, and it can be recognized that the defendant issued a second imposition and notice of additional tax on each gift tax by stating the type of and basis for calculation of additional tax on January 2, 2013, and the plaintiff's above assertion is without merit.

(4) Scope of revocation

From the date of termination of rights ( February 7, 2005) to the date when two months elapse from the evaluation base date, calculating a reasonable tax amount by calculating the gift amount as the average value of the last market value of the Korea Stock Exchange (226 won), and as indicated below, the gift tax amount of KRW 000 and additional tax of KRW 000 as stated below (=additional tax of KRW 000 + additional tax of additional tax for unfaithful return + 000 won). Therefore, the imposition of gift tax and additional tax must be revoked to the extent that it exceeds the above money.

(Omission of Calculation of Justifiable Tax Amount)

3. Conclusion

Therefore, the plaintiff's claim is reasonable within the above recognized scope, and the other claims are dismissed as there is no reasonable ground, and it is so decided as per Disposition.