[1] Where a corporation has a claim that can be recovered as of the evaluation base date, whether such claim is included in the net asset value of the pertinent corporation under Articles 54 and 55 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (affirmative) and the method of calculating the value of such claim

[2] The case holding that Gap company's transfer of shares to the major shareholder with a special relationship at a low price without considering the amount of compensation for losses that Gap company will receive from Eul company constitutes wrongful calculation

[1] According to Articles 54(1), 54(2)1, and 55(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1660 of Dec. 31, 199), non-listed stocks issued by a corporation for less than three years after the commencement of the business shall be assessed based on the net asset value calculated by the formula of the "net asset value/total number of issued stocks of the relevant corporation". In this case, the net asset value as of the base date of appraisal shall be calculated based on the net asset value of the relevant corporation as of the base date of appraisal less liabilities from the value assessed pursuant to Articles 60 through 66 of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 6048 of Dec. 28, 1999). Under each of the above provisions, where a corporation has a claim that can be recovered as of the base date of appraisal, the amount of such claim shall be included in the net asset value as at the time of the base date of appraisal, but the tax authority not specifically determined the amount of compensation.

[2] The case holding that Gap company's transfer of shares to the major shareholder with a special relationship at a low price without considering the amount of compensation for losses that Gap company will receive from Eul company constitutes wrongful calculation

[1] Article 63 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6048 of Dec. 28, 1999); Articles 54(1) and (2)1, and 55(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 16660 of Dec. 31, 199) / [2] Article 52 of the Corporate Tax Act; Articles 8(1)3 and 89 of the Enforcement Decree of the Corporate Tax Act

[1] Supreme Court Decision 89Nu916 delivered on September 12, 1989 (Gong1989, 1509)

Plaintiff Co., Ltd. (Law Firm Pacific, Attorneys Kim Tae-tae et al., Counsel for the plaintiff-appellant)

Head of Pyeongtaek Tax Office

Seoul High Court Decision 2003Nu4456 delivered on May 12, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 2

According to Articles 54(1), 54(2)1, and 55(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1660 of Dec. 31, 199), non-listed stocks issued by a corporation for less than three years after the commencement of the business shall be assessed based on net asset value calculated by the formula of “net asset value/total number of issued stocks of the relevant corporation.” The net asset value at this time shall be calculated based on the net asset value of the relevant corporation as of the base date of appraisal minus the liabilities of the relevant corporation as of the base date of appraisal under Articles 60 through 66 of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 6048 of Dec. 28, 1999). According to each of the above provisions, where a corporation has claims that can be recovered as of the base date of appraisal as of December 31, 199, the net asset value of the relevant corporation shall be included in the net asset value (see Supreme Court Decision No. 96Nu96 of Sep. 16, 19, 19, 1989, etc.).

In the same purport, the court below, inasmuch as it is clear that the non-party company had the claim for compensation at the time, even if the amount of compensation for losses was not determined specifically at the time of the transfer of the shares from Samsung, and as long as the non-party company received compensation for losses from Samsung after 2 months from the date of the transfer of shares, it is proper to determine that the measure of the defendant's evaluation of the value of the shares at issue is justifiable after adding the amount of compensation for losses actually received from the non-party company to the net asset value of the non-party company, and there is no error of law by misapprehending

The cases cited in the ground of appeal by the Plaintiff are different from those of this case, and thus, it is not appropriate to invoke this case.

2. As to the third ground for appeal

Based on its adopted evidence, the court below acknowledged the facts as stated in its holding, and held that even if the non-party company received compensation from Samsung, after undergoing an accounting firm's due diligence in the process of receiving compensation for losses, it was merely one of the criteria for determining the amount of compensation for losses to be paid to the non-party company, and the compensation paid according to such criteria constitutes an active asset, different from the net asset value of the non-party company already assessed, so the defendant calculated the net asset value by adding the amount of compensation for losses to the net asset value assessed at king in calculating the net asset value of the non-party company, on the ground that the defendant calculated the net asset value of the non-party company by adding the amount of compensation for losses in question

Examining the reasoning of the judgment below in light of the records, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the supplementary evaluation methods of unlisted stocks as otherwise alleged in the ground of appeal.

3. As to the fourth ground for appeal

The lower court, citing the reasoning of the first instance judgment, acknowledged the facts as indicated in its holding, and determined that the Plaintiff’s transfer of the instant shares to a major shareholder at a low price that is not taken into account the same compensation as alleged by the Plaintiff, even if considering all of the circumstances asserted by the Plaintiff, was an act that lacks economic rationality in light of sound social norms and commercial practices, and thus, constitutes wrongful calculation, even if the Plaintiff’s transfer of the instant shares to a major shareholder at a low price that is not taken into account, as it was anticipated or anticipated that the non-party company would receive compensation for 71 billion won on the part of Samsung, as the major shareholder of the non-party company was aware of the fact that the non-party company was claiming for compensation for losses.

In light of the relevant laws and records, the above fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding the legal principles as to the omission of wrongful calculation, as otherwise alleged in the ground of appeal.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)