early 2011west 1219 (No. 18, 2015)

It can not be seen as a "distribution by the method of public offering of securities," which is an exception to donation.

Even if a third party’s allocation of forfeited shares was also planned at the time of a shareholder allocation method, and as long as there is no evidence that the third party allocation of forfeited shares is deemed to have been allocated in accordance with the method of public offering of securities under the Securities and Exchange Act, it cannot be seen as an exception to deemed donation.

2011Revocation of revocation of imposition of gift tax, 34474

The AA

The Director of the Pacific District Office

March 21, 2012

April 6, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposing gift tax of KRW 000 on the Plaintiff on December 10, 2010 (hereinafter “ December 9, 2010”) is revoked.

1. Details of the disposition;

A. On October 2, 2007, BBB, an Association-registered corporation, BBB (hereinafter referred to as “E-registered corporation”), made a public announcement of the decision to issue new shares on the website of the Financial Supervisory Service that “the number of shares issued is KRW 1,2 million, and the issue price per share was changed to KRW 000,000, and the subscription period was between November 15, 2007 and November 16, 2007, and the subscription period was between November 19, 2007, and November 20, 2007, each shareholder allocation method was determined as of November 20, 2007, and each shareholder allocation method was conducted, and forfeited shall be cultivated by a third party through a separate board of directors.”

B. The non-party company, as stated in the above notice above, implemented 5,710, and 105 forfeited stocks, and subsequently, on November 20, 2007, by the resolution of the board of directors, determined the issue price per share to the total of 29 persons including the plaintiff (individual 26, and corporate 3), including the plaintiff, as KRW 1,000, the forfeited stocks were cultivated. The plaintiff was allocated 50,000 forfeited stocks on November 207 and paid the stock price.

C. From August 6, 2010 to September 14, 2010, the director of the Seoul Regional Tax Office conducted a stock change investigation against the non-party company, and the 26 individual shareholders, including the Plaintiff, confirmed that the forfeited stocks of the non-party company were allocated at low price to the non-party company (i.e., KRW 000 per share appraisal price - KRW 000 per share appraisal price per one stock after the increase of the value - 000 won per share) and notified the Defendant of the taxation data.

D. On December 10, 2010, the Defendant decided and notified the Plaintiff of KRW 000 (hereinafter “instant disposition”) based on Article 39(1)1(a) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “Inheritance Tax and Gift Tax Act”).

E. On March 9, 2011, the Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal, and on May 19, 201, the Tax Tribunal reviewed whether forfeited stocks were allocated in accordance with the method of public offering of new securities prescribed by the Securities and Exchange Act, and subsequently re-examineed and determined the tax base and the amount of tax according to the result. The Defendant conducted a reinvestigation according to the said re-examination decision, and rendered a decision of re-examination that “No evidence exists to deem that the company outside the country allocated forfeited stocks according to the method of public offering of new securities prescribed by the Securities and Exchange Act, the instant disposition is justifiable.”

[Ground of Recognition] The facts without dispute, Gap evidence 1, 2, and Eul evidence 1 and 2 (including household numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The non-party company also recommended the shareholders to subscribe for forfeited shares when it issued capital increase with the method of allocating shares. Therefore, the allocation of forfeited shares to the third party constitutes the “distribution by the method of public offering of new stocks” under Article 39(1)1 (a) of the former Inheritance Tax and Gift Tax Act.

(2) The non-party company planned to dispose of forfeited stocks through the method of allocating them to a third party, and accordingly allocated forfeited stocks to a third party. Even if the third party did not adopt the method of public offering of new stocks under the Securities and Exchange Act, so long as the subscription of forfeited stocks was made according to the method of public offering of new stocks under the Securities and Exchange Act, it constitutes “distribution by the method of public offering of new stocks, which is the exception to donation due to the subscription of new stocks under Article 39(1)1 (a) of the former Inheritance Tax and Gift Tax Act, as long as the

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Details of disclosure concerning forfeited stocks, etc.

(A) In implementing capital increase with respect to the method of allocating forfeited stocks, the non-party company also published the plan on the method of allocating forfeited stocks, and specific details are as follows.

(B) The non-party company sent the subscription form to shareholders when it grants capital increase with the method of allocating shareholders, and stated that "I will process the subscription form in accordance with the resolution of the board of directors at the back of the subscription form."

(2) Details of reinvestigation

(A) The Defendant received a written confirmation from 26 individuals who were allocated forfeited stocks of the non-party company, to the effect that “the Plaintiff, ParkCC, and DoD invested in the forfeited stocks of the non-party company upon the solicitation of investment from 3 persons (the Plaintiff, and DoD), and did not have received the solicitation of subscription from the non-party company.”

(B) The Defendant received a written confirmation from the Plaintiff, etc. to the effect that “The 22-person, other than the actual offerer, received the solicitation for the offer from the non-party company, and examined whether or not he received the solicitation for the offer from the non-party company, and two of them (EE, EF), “The other party received the solicitation for the offer from the non-party company, but there is no written solicitation for the offer from the non-party company.”

(C) At the time, the Defendant served as a working-level agent of the non-party company, and thisG stated to the effect that “The present documents evidencing the solicitation to subscribe to the land owners do not exist, and the statement submitted by the Plaintiff, etc. is not a document prepared by the principal.”

[Ground of Recognition] The facts without dispute, Gap evidence Nos. 4 through 8 (including household numbers), Eul evidence Nos. 2 and 3 (including household numbers), and the purport of the whole pleadings

D. Determination

(1) As to the first argument

(A) Article 39(1)1 (a) of the former Inheritance Tax and Gift Tax Act provides that, when a corporation issues new stocks at a price lower than the market price of the new stocks in order to increase its capital, and a shareholder of the corporation waives his right to receive the allocation of forfeited stocks, the amount equivalent to the relevant benefits shall be deemed as the value of donated property of the person to whom the forfeited stocks are allocated, and the corporation or Association-registered corporation under the Securities and Exchange Act excludes the allocation of forfeited stocks by means of public offering of new stocks under Article 2(3) of the same Act. Meanwhile, Article 2(3) of the former Enforcement Decree of the Securities and Exchange Act provides that "public offering of new stocks shall be made by inviting subscription for acquisition of new stocks by means of public offering of new stocks under the conditions as prescribed by the Presidential Decree", and Article 2-4(1) of the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 20947, Jan. 18, 2008; hereinafter the same shall apply) provides that "the former Enforcement Decree shall provide that those persons who acquire new stocks or new stocks through public offering of new stocks".

(B) The instant case is health. ① In the process of offering forfeited stocks, the non-party company made an electronic disclosure on the website of the Financial Supervisory Service, entered it in the prospectus, etc., and kept it in its principal office, etc., but it cannot be deemed that the non-party company had undergone the procedure of solicitation for subscription under Article 2-4(5) of the former Enforcement Decree of the Securities and Exchange Act merely stated the forfeited stocks disposal plan that was sent by the non-party company to receive subscription from shareholders, but the non-party company stated the forfeited stocks disposal plan that "after the resolution of the board of directors," but its content merely stated the forfeited stocks disposal plan that "after the resolution of the board of directors," but it is difficult to view that it constitutes solicitation for subscription against shareholders (the director of the company disclosure system of the Financial Supervisory Service did not merely indicate the name or issuance of the issuer, and the general terms and conditions of the subscription, but it is difficult to consider that the non-party company did not receive any recommendation from the non-party company 2 as its source at the time of solicitation."

(2) As to the second argument

(A) Under the principle of no taxation without law, or under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds (see, e.g., Supreme Court Decision 2002Du6781, May 27, 2004).

(B) According to the provisions of Article 39(1)1 (a) of the former Inheritance Tax and Gift Tax Act, and according to the provisions of Article 39(1)1 (a) of the same Act, in order to be exempted from the gift tax at the time of allocating forfeited shares, it is clear that the “actual owner” should be allocated according to the method of securities offering under the Securities and Exchange Act, and whether the offering of new shares by the shareholder allotment method, which serves as the premise thereof, was allocated according to the method of securities offering under the Securities and Exchange Act is not the requirement. Therefore, even if the non-party company planned to allocate new shares by the method of shareholders allotment, it cannot be deemed that the allocation by the third party of forfeited shares was made at the time of the offering of new shares by the method of securities offering under the Securities and Exchange Act, and unless there is any evidence that the allocation by the third party of forfeited

3. Conclusion

If so, the plaintiff's claim is without merit, it is dismissed, and it is so decided as per Disposition.