Whether the market price of the shares of this case is appropriate

It is reasonable to view the average closing price as the market price as of the donation date of the shares in this case until two months from the day following the issuance date of the reason for the increase.

Article 45-2 of the Inheritance Tax and Gift Tax Act

2012 disposition of revocation of imposition of gift tax

DoAA

port of origin

October 29, 2014

December 10, 2014

1. The defendant against the plaintiff:

A. On January 10, 2012, the part exceeding OO won of the principal tax of the gift tax as of January 10, 2012 and the part exceeding OOO won of the principal tax of the gift tax is revoked, respectively.

B. On December 13, 2012, the portion exceeding the OO members of the additional gift tax and the portion exceeding the OO members of the additional gift tax shall be revoked respectively.

2. The plaintiff's remaining claims are dismissed.

3. 3/4 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant revoked each disposition of imposition of gift tax on the Plaintiff, each of the gift tax on January 10, 2012, each of the OOOOO, OOOO, and each of the gift tax on December 13, 2012.

1. Details of the disposition;

A. The KimB purchased 185,00 shares of 185,000 shares of CC, a listed corporation, at the account in the Plaintiff’s name (hereinafter “instant corporation”). On December 31, 2004, the Plaintiff changed the ownership of 185,00 shares on December 31, 2004 (hereinafter “the transfer shares of 185,00 shares”) without distinguishing before and after the mutual change.

B. On March 3, 2004, the instant corporation passed a resolution to issue new shares with a common share of 7,905,000 common shares by the board of directors in a third party allotment, as indicated in the table 1, and announced to the Financial Supervisory Service’s electronic publication system as listed below, and filed a corrective report on January 24, 2005.

Public notice on March 3, 2004

Items

Correction

After Correction

Class and Number of New Shares

common shares 7,905,000

common shares 7,905,000

Method of Capital increase

Third Party Allocation (Public Offering Method)

Allocation by third party (private placement method)

Date of payment for shares;

Subsequent Final Judgment

January 26, 2005

C. On January 14, 2005, the corporation of this case decided on the payment date of the stock price at the board of directors as of March 14, 2005, and on February 11, 2005, 100,000 common share shares as of February 11, 2005, and the subscription date for new shares shall be determined by the method of allocating shareholders, but the forfeited shares and fractional shares shall be determined by the resolution of the board of directors at later time, and on the same day, the corporation announced

D. KimB allocated 1,227,914 shares, which were held in the Plaintiff’s name on February 11, 2005, based on 185,000 shares, and transferred to the Plaintiff on March 15, 2005 (hereinafter the above 1,227,914 shares, which were transferred to the Plaintiff on March 15, 2005; and hereinafter referred to as “the shares of this case”) which were transferred to the Plaintiff on December 31, 2004.

E. On March 12, 2005, the instant corporation passed a resolution to allocate 50,800,000 shares (including single shares 633 shares) related to rights offering as of January 14, 2005 to a third party. On the same day, the corporation announced the electronic publication system of the Financial Supervisory Service on the same day.

F. On January 10, 2012, the Defendant imposed a gift tax (including additional tax) on the Plaintiff as indicated in the following Table 2:

Details of levy of gift tax;

Standard date of appraisal

Method of Assessment

The value per share;

Gift tax (won)

Additional tax (won)

December 31, 2004

The average value of the final market price at the Korea Exchange for two months before or after the evaluation base date;

OOO

OOO

OOO

March 15, 2005

OOO

OOO

OOO

* The OOO members were deducted from the OO members of the gift tax on March 15, 2005.

G. On April 2, 2012, the Plaintiff filed an appeal with the Tax Tribunal on April 2, 2012, but was dismissed on June 29, 2012.

H. Meanwhile, while the instant lawsuit is pending, the Defendant recognized that some errors were found in the initial assessment method, and revised the gift tax (including additional tax) on October 9, 2012 as indicated below, as indicated in the following Table 3 (hereinafter “the disposition imposing the gift tax of this case”).

Details of correction of gift tax; and

Standard date of appraisal

Method of Assessment

The value per share;

Gift tax (won)

Additional tax (won)

December 31, 2004

The average value of the final market price at the Korea Exchange from two months before the evaluation base date ( November 1, 2004) to the date before the date of the termination of rights;

OOO

OOO

OOO

March 15, 2005

The average value of the final market price at the Korea Exchange from the date of termination of rights to two months after the evaluation base date ( May 13, 2005).

OOO

OOO

OOO

* The date of February 7, 2005 falls on a legal holiday from February 8, 2005 to February 10, 2005

* The OOO members were deducted from the OO members of the gift tax on March 15, 2005.

I. In addition, on December 11, 2012, the Defendant revoked ex officio the imposition of penalty tax, and on December 13, 2012, the Defendant imposed and notified the same amount of penalty tax by clarifying the type of penalty tax and the grounds for calculation thereof (hereinafter referred to as the “instant imposition disposition” and “each of the instant dispositions” by referring to the imposition of penalty tax as of December 13, 2012.

[Ground of recognition] Facts without dispute, Gap's 1 to 5, 12 evidence, Eul's 1 to 4 (including additional numbers), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) Non-existence of tax avoidance purpose

Even if KimB acquired the title trust stocks including the instant stocks in its own name, it cannot be deemed that it did not fall under the oligopolistic shareholder of the instant corporation, and thus, did not go beyond the position of the oligopolistic shareholder responsible for secondary tax liability through the said title trust. There is no lack of dividend received from the instant corporation, and there was no fact of evading the progressive tax rate pursuant to the global income comprehensive taxation on dividend income. The transfer of the instant corporation’s stocks to HuE, etc., and the capital gains tax and securities transaction tax were paid in good faith. KimB participated in the capital increase for the rehabilitation of the instant corporation, and traded the stocks of the listed corporation under Article 20-2(1) of the former Securities and Exchange Act (amended by Act No. 8635, Aug. 3, 2007; hereinafter the same shall apply) by participating in the capital increase for the purpose of rehabilitation of the instant corporation. Accordingly, each disposition of this case was unlawful on the premise that it cannot be deemed that the instant corporation’s stocks were held in title trust for the purpose of tax evasion.

2) Mistake in calculating the value of donation

① Even if the purpose of tax evasion is recognized to KimB, the method of assessment varies if the cause of capital increase, merger, etc. occurs within two months before or after the base date of appraisal in the valuation of the value under Article 63(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”) and Article 52-2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621, Feb. 22, 2008; hereinafter referred to as the “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”). In this case, the “date on which the cause of capital increase, merger, etc. occurred” should be the date on which the capital increase, etc. is paid. Thus, each disposition of this case on different premise is unlawful

② Even if the date of the occurrence of reasons such as capital increase, etc., unlike the above assertion, is regarded as the "date of the cancellation of rights", each of the dispositions of this case based on the erroneous valuation of stocks of this case should be revoked, since the reason for the increase of capital during the period of the suspension of transactions is not entirely affected by the price fluctuation of the stocks in question (from January 22, 2005 to March 21, 2005), the formal closing price during the suspension period (from January 22, 2005 to March 21, 2005) should be excluded from the valuation of the stocks of this case.

(b) Related statutes;

Attached Form 1. The entry is as shown in Annex 1.

C. Whether the purpose of tax avoidance exists

1) Facts of recognition

A) The instant corporation, in 2005, was in the state of capital erosion -OO won in the year of 2005, and promoted capital increase with capital increase on January 14, 2005 to resolve these issues.

B) The KimB held the shares of the instant legal entity as indicated in the Schedule 4, 2004, and 2005, and among them, the status of the shares held in title trust is as listed below.

Schedule 4. Shares of KimB (including borrowed-name shares)

Reference Date

Number of shares owned (States)

Total issued shares (States)

Equity ratio (%)

December 31, 2004

Total Stocks

4,400,876

15,066,200

29

name of principal

40,010

2.92

December 31, 2005

name of principal

1,012,768

62,140,740

1.62

No. 5. Current status of title trust shares

No.

title trustee

Transfer Date

Number of shares (number of shares)

Jinay

1

Park F. F

March 15, 2005

2

SongGG

March 15, 2005

3

H

March 15, 200

4

Section II

December 31, 2004

March 15, 2005

December 16, 2005

5

JJ

March 15, 2005

6

YangK

December 31, 2004

March 15, 2005

7

L

December 31, 2004

March 15, 2005

8

MM

March 15, 2005

2,100,000

Third Party Allocation

9

NN

March 15, 2005

2,500,000

Third Party Allocation

10

PP

March 15, 2005

1,500,000

Third Party Allocation

11

최QQ

March 15, 2005

2,700,000

Third Party Allocation

12

RR

December 31, 2004

323,000

Change of Transfer

March 15, 2005

2,123,959

Initial Stockholders

13

S

December 31, 2004

311,500

Change of Transfer

March 15, 2005

2,190,33

Initial Stockholders

14

ICT

March 15, 2005

2,000,000

Third Party Allocation

15

December 31, 2004

85,000

Change of Transfer

March 15, 2005

1,227,914

Initial Stockholders

16

WhiteU

September 15, 2004

430,000

Change of Transfer

February 11, 2005

10,000

Change of Transfer

March 15, 2005

2,260,000

Initial Stockholders

Total

37,956,756

C) KimB reported and paid the transfer income tax and securities transaction tax on the instant corporate stocks sold outside the country without going through the securities market as indicated below.

Details of return and payment of transfer income tax.

title trustee

Number of shares (number of shares)

Transfer income tax (including mits and mits income tax)

Securities Transaction Tax (won)

Date of Payment

Amount (won)

Date of Payment

Amount (won)

최QQ

2,700,000

November 8, 2005

OOO

August 10, 2005

OOO

SongGG

1,500,000

November 30, 2005

OOO

OOO

NN

2,500,000

November 28, 2005

OOO

OOO

MM

2,100,000

November 18, 2005

OOO

OOO

ICT

2,000,000

November 25, 2005

OOO

OOO

H

1,500,000

November 30, 2005

OOO

OOO

JJ

2,000,000

November 10, 2005

OOO

OOO

Total

14,300,000

OOO

OOO

D) However, KimB omitted the return of transfer income tax in relation to the shares of the instant corporation as described in the following Table 7:

Details of omission in filing a return on the transfer income tax;

Title holder

Number of shares (number of shares)

Transfer Value

Acquisition Value

Necessary expenses

Capital gains (won)

The amount paid at a fixed rate;

KimB

4,995,500

OOO

OOO

OOO

OOO

1,412,914

OOO

OOO

OOO

OOO

PP

1,500,000

OOO

OOO

OOO

OOO

KimV KimV

2,700,000

OOO

OOO

OOO

OOO

YangK

1,272,074

OOO

OOO

OOO

OOO

L

1,733,292

OOO

OOO

OOO

OOO

RR

2,514,590

OOO

OOO

OOO

OOO

S

2,529,963

OOO

OOO

OOO

OOO

Park F. F

1,765,957

OOO

OOO

OOO

OOO

WhiteU

2,797,130

OOO

OOO

OOO

OOO

SongG et al. 5

14,300,000

OOO

OOO

OOO

OOO

OOO

Section II

2,245,952

OOO

OOO

OOO

OOO

OOO

Total

39,767,372

OOO

OOO

OOO

OOO

OOO

[Ground of recognition] Unsatisfy, each entry in Gap evidence 3 through 11 (including provisional number), and the purport of the whole pleadings

2) Determination

The legislative intent of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle with the purport of effectively preventing the act of tax avoidance by using the title trust system and realizing the tax justice. Thus, the application of the proviso of the same Article is possible only if the purpose of tax avoidance is not included in the purpose of the title trust, and in this case, the burden of proving that there was no purpose of tax avoidance can be proved by means of proving that there was a purpose other than the purpose of tax avoidance. As such, the nominal owner who bears the burden of proving that there was no purpose of tax avoidance can be proved by means of proving that there was a purpose other than the purpose of tax avoidance. However, the nominal owner who bears the burden of proving that there was an obvious purpose irrelevant to the tax avoidance in the title trust, and that there was no tax avoidance at the time of the title trust or at the time of the future, to the extent that the ordinary person is not suspected (see Supreme Court Decision 2004Du1220, Sep. 22,

In light of the above legal principles, it is recognized that the corporation of this case was in a state of capital erosion at the time of KimB’s participation in capital increase with capital increase, and that KimB paid some transfer income tax and securities transaction tax with regard to the sale of the corporation’s shares.

However, the following circumstances are revealed in addition to the purport of the entire argument in the relevant laws and factual relations, i.e., ① where a stock-listed corporation’s shares are held at least 5% pursuant to Article 200-2(1) of the former Securities and Exchange Act and Article 147(1) of the current Financial Investment Services and Capital Markets Act, the right of disposal of shares owned at least 5% solely by the company’s duty to report to the Financial Services Commission and the Korea Stock Exchange is not restricted. ② KimB was actually holding 29% of the shares of the corporation of this case around the end of 2004, and thus, it is difficult to view the Plaintiff’s shares to be transferred at least 3% of the shares of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) and the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18988 of Aug. 5, 2005) to transfer the shares under the name of the title trustee or the title trust of this case.

Therefore, this part of the plaintiff's assertion is without merit.

D. Article 60 of the former Inheritance Tax and Gift Tax Act provides that the market price of the stocks whose capital has been increased before or after the donation shall be calculated based on the market price as of the date of the donation. The value of the property subject to the gift tax shall be calculated according to the method of assessment under Article 63(1)1 (a) and (b) of the former Inheritance Tax and Gift Tax Act. Article 63(1)1 (a) of the former Inheritance Tax and Gift Tax Act provides that "the market price corresponding to the value of the property subject to the gift tax, which is the standard for the assessment of the gift tax." Article 63(1)1 (a) of the former Inheritance Tax and Gift Tax Act provides that the stocks and equity shares traded at the Korea Stock Exchange shall be the average value of the Korea Stock Exchange per day before or after the evaluation base date, respectively. However, in calculating the average value, where it is inappropriate to determine the average value on the basis of the relevant capital increase or merger during two months before or after the evaluation base date, the average market price during the period before or after the evaluation base date.

As such, the reason why the market price of listed stocks is set at a certain period of 2 months to 4 months, which is the average amount of the closing price of the listed stocks, is determined based on various factors, such as time and daily fluctuation, and considerable time is required to reflect specific factors in the stock price due to the restriction on daily stock price fluctuation, etc. Therefore, it can be said that the market price of the listed stocks should be determined with objective and accurate consideration that reflects various factors affecting the stock price by averageing the closing price of the period specified as the consideration period. Furthermore, in the proviso of Article 63(1)1 (a) of the former Inheritance Tax and Gift Tax Act and Article 52-2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the calculation of the listed stocks by adding only the period from the day after the evaluation date to the day after the date of appraisal before and after the date of appraisal, to the day before and after the date of appraisal, even if the market price has a significant impact on the market price due to such reasons as a merger or merger, etc., even if the market price has not been reflected in the market price.

2) When 'the date on which the reason for the increase occurred' is viewed as 'the date on which the reason occurred.

A) In the case of the allocation of shareholders:

The preemptive right to new shares is extinguished due to the allocation of new shares, and it is necessary to distinguish the previous shares from the shares before and after the issuance of the new shares, because there is a significant impact on the objective value of the shares. As a matter of principle, shares of a listed corporation can be purchased by issuing new shares until two days prior to the date of the conclusion of a contract for stock transaction, so it is possible to participate in the purchase of shares by two days prior to the date of the initial date of the issuance of new shares, and the value of shares per one day prior to the initial date of the purchase of shares that can not be participated in the issue of new shares even if they are purchased by the shares, is lower than the value of shares per two days prior to the initial date of the issuance of the new shares. In light of such circumstances, the Korea Stock Exchange shall reasonably manage the shares with a view to determining the initial price of shares issued by the shareholders prior to the date of the issuance of new shares based on the closing price of the new shares as of the date of the issuance of the new shares (the date of issuance of new shares).

B) In a case where the shareholder allocation and the third party allocation are combined in the capital increase, the shareholders allocation and the third party allocation are conducted simultaneously (as in this case, but the forfeited rights are immediately allocated to a third party), and the number of new stocks and the capital increase related to the capital increase are publicly announced due to the public announcement of the capital increase has already been publicly announced, and even though the resolution of the board of directors for the third party allocation has an impact on the capital increase because the stock price following the stock increase is newly formed due to the purchase of rights by the method of the shareholder allocation, the following day of the date when the financial effect of the capital increase is determined to be reflected in the stock price, barring special circumstances, shall also be deemed to be the “the date when the cause of the capital increase occurs” in accordance with the capital increase by the method of the shareholder allocation, barring special circumstances.

(3) the period of suspension of transaction and assessment of the market price of listed stocks

Furthermore, in light of the purport of the period of consideration as to the suspension of transaction during the process of capital increase, if a transaction suspension measure has been taken with respect to a specific listed stock during the process of capital increase, the period of the suspension of transaction cannot affect the price fluctuation of the relevant stocks during the period of the transaction, and thus, the period should be excluded from the scope of consideration period (in addition to the phrase "the average amount of the final market price of the Korea Stock Exchange" in the method of calculating the appraised value of the stocks at the market price under Article 63 (1) 1 (a) of the former Inheritance Tax and Gift Tax Act ( regardless of whether there is a transaction performance), as long as the final tax amount is published at the Korea Stock Exchange, it cannot be deemed as the basic data of the appraised value of the market, in light of the above legislative intent, etc., it is reasonable to interpret that the transaction is actually permitted on the day, and that it does not include the case where the transaction is not permitted from the beginning due to the suspension of transaction).

4) Application to the instant case

A) Suspension of trading stocks of the instant corporation

In light of the purport of the argument in the instant case, the Korea Stock Exchange established the fact that the total amount of the capital stock of the instant corporation was impaired on January 21, 2005 through the guidance on the investment matters, and it did not prove that the instant corporation’s business report was dissolved by March 31, 2005, which was the last permissible date for submission of the report on the business of 2004, by March 31, 2005. In the event that the instant corporation did not prove that the entire capital stock erosion was resolved, it constitutes a reason for delisting of stocks pursuant to the securities listing provisions, and thus, during the relevant period, the suspension of trading was continued. In fact, the Korea Stock Exchange announced the base price of the instant corporation’s stocks as at January 22, 2005 to March 21, 2005, and the Korea Stock Exchange announced it as at March 22, 2005 as at the base price of the instant corporation’s stocks at issue.

B) According to the above, in the case of a transfer of shares on December 31, 2004, the date when the Plaintiff received the donation of 185,000 shares of this part through a title trust was transferred on December 31, 2004, and since the date when the cause for the increase of shares related to this part occurred on February 6, 2005 when the preemptive right was granted, and the date when the cause for the increase of shares related to this part occurred on February 6, 2005 when the preemptive right was granted, the average of the closing price from November 1, 2004 to February 6, 2005 can be deemed as the market price as of December 31, 204. Since the transfer of shares was ordered from January 22, 2005 to March 21, 2005 to March 21, 2005, the transfer of shares can not be included in the market price as of December 14, 2001.

Nevertheless, as seen earlier, the Defendant assessed the appraised value per share of the stocks of this case as an OOO for the consideration period until February 6, 2005 (excluding holidays, and actual February 4, 2005) including the suspension period for trading the stocks of this case, and calculated the donation amount. Accordingly, each disposition taken on January 10, 2012, OOO of the principal gift tax on the gift tax of this case as of December 13, 2012, and OOOOO of the additional tax on the gift tax of this case as of December 13, 2012, is unlawful, since it was based on the calculation of an erroneous donation amount.

C) According to the review as of March 15, 2005, the date when the Plaintiff received the donation of 1,227,914 shares of this part through title trust was transferred on March 15, 2005. Since the date when the cause for the increase of the capital related to the shares occurred on February 6, 2005, and the cause for the increase of the capital occurred on or before the base date of appraisal, the average closing price from February 7, 2005 to May 15, 2005 can be deemed as the market price as of the date of donation of this part. Since the suspension of trading was taken from January 22, 2005 to March 21, 2005, the period of suspension of trading should be excluded from the period of consideration. Ultimately, since the date when the period of suspension of trading occurred on or before March 22, 2005, the last 20 days following the expiration date of the period of appraisal and the last 20 days following the closing date shall be deemed as the market price.

Nevertheless, the Defendant calculated the donation amount as the consideration period from February 7, 2005 to May 13, 2005 (the holidays from May 14, 2005 and May 15, 2005) and as the consideration period, the donation amount as the assessment value per share during the above period was calculated. Thus, the Defendant’s each disposition of the additional gift tax of December 13, 2012, as well as the additional gift tax of December 13, 2012, based on the calculation of the erroneous donation amount, is illegal.

(e) Scope of due tax amount and revocation;

From November 1, 2004 to January 21, 2005 of the stocks of the instant corporation, the average of the closing price for the stocks of the instant corporation shall be OOOO(beer than won, detailed calculation shall be stated in the average of closing price table of attached Table 2.), the average of closing price for the period from March 22, 2005 to May 21, 2005 shall be OOO(the same as above). When calculating the reasonable tax amount on the basis of the donation amount, the principal tax for the stocks of the instant corporation on December 31, 204 as listed below is calculated based on the gift amount, the gift tax shall be levied on OOO, and the additional tax shall be imposed on OOO (=additional additional tax for negligent payment + OO for negligent payment), and each O of the above additional tax shall be revoked on March 15, 2005 (=additional tax for negligent tax credit for additional tax for additional tax for additional tax for additional tax for additional tax for additional tax for additional tax).

Therefore, this part of the plaintiff's assertion is justified within the above scope of recognition.

Particulars of calculation of justifiable tax amount in accordance with Table 8.

* Transfer shares of December 31, 2004

Classification

Decisions

Details of calculation

Amount of gift tax

OOOE

185,000 note x OO

Tax Base

OOOE

calculated tax amount

OOOE

OOO members x 10%

Additional Tax on negligent tax returns

OOOE

OOO members x 20%

Additional Dues

OOOE

OOO members ¡¿ 3/1000 ¡¿ 2476 days;

* Transfer Shares of March 15, 2005

Classification

Decisions

Details of calculation

Amount of gift tax

OOOE

1,227,914 note 】 OOO

Tax Base

OOOE

OOOwon + OOOO in the amount of re-donations

calculated tax amount

OOOE

OOOwon + (OOOwon -OOO) x 20%

Tax Credit

OOOE

Additional Tax on negligent tax returns

OOOE

(OOOOE – OOO) x 20%

Additional Dues

OOOE

(OOOOE – OOO) ¡¿ 3/1000 ¡¿ 240 days.

3. Conclusion

Therefore, each of the claims of the plaintiff in this case is justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.