Supreme Court-2015-Du41562 (Law No. 18, 2016)

Seoul High Court-2014-Nu66726 (2015.04.01)

Tax disposition of listing profit gift tax on new shares with compensation is illegal.

Where new stocks are acquired with one's own funds for the purpose of allocating a third party, it may not be taxed under the Regulations on Listing Profit Donation (Article 41-3 of the Act) or the Regulations on the Full Blanket Principle of Gift Tax (Article 2 of the Act

Article 41-3 (1) and (6) of the Inheritance Tax and Gift Tax Act

Article 2(3) of the Inheritance Tax and Gift Tax Act

Seoul High Court 2016Nu61220

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○ Head of Regional Tax Office

Seoul Administrative Court Decision 2013Guhap64004 decided September 26, 2014

Seoul High Court Decision 2014Nu66726 Decided April 1, 2015

Supreme Court Decision 2015Du41562 Decided August 18, 2016

January 20, 2017

February 10, 2017

1. Revocation of a judgment of the first instance;

2. On December 31, 2012, the Defendant’s decision on December 31, 2012, as a gift tax of KRW 000 (including additional tax of KRW 000) on the profits arising from stock listing of the AA Stock Company that was made against the Plaintiff is revoked.

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

1. Purport of claim

On December 31, 2012, the Defendant’s decision to revoke the Plaintiff’s return of KRW 000 (including additional tax of KRW 000) of the gift tax on the profits arising from stock listing of the AA Stock Company that was made against the Plaintiff.

2. Purport of appeal

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

1. Quotation of the reasons for the judgment of the first instance;

This judgment is based on the reasoning of the judgment of the court of first instance, except for dismissal or addition of the following matters, and thus, it is based on Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

(1) The commissioner of the Regional Tax Office of Grade 6 of the third page shall be declared "defendant".

(2) On face 11, the following shall be added to Chapter 17:

Article 41-3(1) of the Act provides that “The disposition of this case is lawful since it satisfies the taxation requirements under Article 41-3(1), Article 2(3) and (4) of the Act.” However, Article 41-3(1) and (6) of the Act provides that “new stocks or the property acquired from a corporation donated to the largest shareholder, etc. from the corporation on the basis of the property donated to the largest shareholder, etc. or acquired from the corporation on the basis of the property donated to the largest shareholder, etc. from the corporation” shall be subject to the application of the new stocks acquired from the corporation on the basis of the property donated to the largest shareholder, etc. from the corporation on the basis of the property donated from the corporation on the basis of the property donated to the largest shareholder, etc. The stocks of this case are the new stocks acquired from the corporation on the basis of the third party allotment method and the new stocks acquired from the corporation on the basis of the new stocks acquired from the corporation on the basis of the capital increase method and the new stocks acquired from the corporation on the basis of the former.”

2. Conclusion

Therefore, the plaintiff's claim of this case is justified, and since the defendant was corrected from 00 to 00 director of the tax office, the judgment of the first instance is revoked, and the disposition of this case is revoked and it is so decided as per Disposition.