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울산지방법원 2017. 10. 19. 선고 2017구합5632 판결
상장주식의 시가 산정기준일은 잔금청산일이 아니라 매매계약일로 보아야 함.[국승]
Title

The market price basis date of listed stocks shall be deemed as the date of sales contract rather than the date of settling the balance.

Summary

It is necessary to evaluate the listed stocks between related parties as of the date of the sales contract in the transaction by means of off-time transaction within the scope of the Korea Exchange and determine the acquisition level.

Related statutes

Inheritance Tax and Gift Tax Act Article 35(1) of the Inheritance Tax and Gift Tax Act: Donations of profits from transfer at low price

Article 60 of the Inheritance Tax and Gift Tax Act

Cases

2017Guhap5632 Revocation of a disposition, etc. imposing gift tax

Plaintiff

Park 00

Defendant

00. Head of tax office

Conclusion of Pleadings

August 31, 2017

Imposition of Judgment

October 19, 2017

Text

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The imposition of KRW 00 (including additional tax of KRW 04) on the Plaintiff on October 00, 200 and the rejection of correction on KRW 0 (00) on the gift tax on October 00, 200 shall be revoked.

Reasons

1. Details of the disposition;

A. AAAAA corporation, a securities market-listed corporation (hereinafter referred to as the “AAA”), established leB and currently serves as a representative director by the Plaintiff, and leB’s leB’s leB’s leB’s leB’s leB’s president and registration officers, and leB’s leB’s leB’s leB’s leB’s leb

(b) EEE, which is an affiliated company of the FFFF, becomes the largest shareholder by taking over approximately 0% of the AAAA’s shares from leB and its families around 000 and around 000,000.

C. With a view to finding management rights of the AAA, a leap and AD entered into a contract with the EE on October 00, 200 to purchase 04 won (1%) out of 0 shares of the AAA (51%) from the EE on October 00, 200, and purchase 00.00.00 other shares owned by the EE (0%) in 00 won per share (00 won per share) and transfer leapCC, ED or its designated persons (hereinafter referred to as the “instant sales contract”).

D. Pursuant to the instant sales contract, PapCC and ED have designated the Plaintiff as the purchaser of the AAA’s stocks. On October 00, 2000, the Plaintiff paid KRW 0 (0 per share) to EE and acquired the said0 shares (hereinafter “instant shares”).

E. As to the instant shares, the Plaintiff deemed KRW 00,000,000,000,000,000,000,000 per share of the instant shares for the two months before and after the date of the instant sales contract, to be the market price per share of the instant shares, and calculated the amount calculated by multiplying the amount of KRW 00 and KRW 00,000,000,000,000,000,000 per share of the instant shares, multiplied by the number of shares, and reported and paid KRW 0,000,00,000,000 as gift tax.

F. From October 00, 200 to October 00, 200, the Director of the Regional Tax Office conducted an investigation of stock transfer with AAA, and assessed and notified the Defendant of the date of calculating the market price of the instant shares under Article 35 (1) 1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) and Article 26 (8) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 26069, Feb. 3, 2015; hereinafter referred to as the “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”), not the date of the instant sales contract, but the date of the settlement of the price, and each of the two months prior to and after the said calculation date, the date of calculating the market price of the instant shares was 00 won per share calculated by adding 30% of the largest shareholder at the average of the instant shares.

G. Upon the above notice, the Defendant calculated the gift tax base of the instant shares as zero won and imposed a gift tax of ten won (including additional tax of ten won) on the Plaintiff on Oct. 00, 200. On Oct. 00, 200, the Plaintiff filed a claim for correction against the Defendant for refund of ten won already reported and paid, but the Defendant rejected the above claim (hereinafter collectively referred to as “each of the instant dispositions”).

H. The plaintiff was dissatisfied with each of the dispositions of this case and filed an appeal with the Tax Tribunal on October 00, 200, but the above appeal was dismissed on October 00, 200.

[Reasons for Recognition] Unsatisfy, entry in Gap evidence 1 to 6, 9 (including a branch number), pleading

The purport of the whole

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

A. The plaintiff's assertion

1) Claim 1

The price per share of the instant shares determined in the instant sales contract is set at a normal transaction process, and thus falls under the market price stipulated in the main sentence of Article 60(1) and (2) of the former Inheritance Tax and Gift Tax Act, and thus, each disposition of this case on the premise that the said price does not reach the market price is unlawful

2) Claim 2

On the premise that the supplementary assessment method under Article 63 of the former Inheritance Tax and Gift Tax Act applies, and that the market price of the instant shares constitutes the average market price for each two months before or after the appraisal base date, even if the price of the instant shares acquired by the Plaintiff does not reach the above market price, Article 35(2) of the former Inheritance Tax and Gift Tax Act applies to the Plaintiff, who is the transferor, as it is not in the position of a specially related person. Therefore, in order to determine whether the Plaintiff’s acquisition of the instant shares from the EE through the instant sales contract constitutes a low price considered as a gift under Article 35 of the former Inheritance Tax and Gift Tax Act without justifiable reasons, the instant sales contract must determine whether the price of the instant shares was set at a significantly low price under the transaction practice. The instant sales contract was concluded at the end of a comprehensive review of all the financial data and stock price information of AAA for a longer period of one year by both parties, and thus, it cannot be deemed that the price of the instant shares determined in the process is not subject to the gift tax acquisition without justifiable reasons.

3) Claims 3

Even if the existence or absence of “justifiable cause” under the transaction practice as seen earlier by deeming the Plaintiff and EEEE as being a specially related person, the instant sales contract constitutes a transfer or acquisition of shares between an individual and a corporation under Article 89 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 26068, Feb. 3, 2015; hereinafter the same) and Article 52 of the Corporate Tax Act is not applicable, and thus, the application of Article 35 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act concerning the acquisition of shares at low price is excluded pursuant to Article 26(9) of the former Enforcement Decree of the Inheritance Tax and Gift Tax

4) Claims ④

If Article 35 of the former Inheritance Tax and Gift Tax Act applies to the Plaintiff’s acquisition of the instant shares as it constitutes a low-price acquisition, the date of calculating the market price of the instant shares is the issue.

After the conclusion of the contract, the price of the stock in this case increased to an unpredictable degree. This is a case where it is deemed unreasonable to set the date of calculating the price for the settlement of the stock in this case on the grounds corresponding to the " sudden change in exchange rate after the contract of sales" as stipulated in the latter part of Article 26 (8) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. Thus, each disposition in this case should be the date of calculating the price for the stock in this case.

5) Claims 5

Article 63(3) of the former Inheritance Tax and Gift Tax Act provides that the value of the shares held by the largest shareholder, etc. shall be added to a certain percentage in assessing the value of the shares when the shares are donated by the largest shareholder, etc., and that the value of the shares shall be higher than a certain percentage in assessing the value of the shares if the shares are donated by the largest shareholder, etc., and that the purchase of part of the shares held by the EE from the EE on October 31, 201, which was prior to the sales contract of this case, was made by the EEE and the purchase of a part of the shares held by the EEE, thereby making payment for the price of the total management right of the shares held by the EEE. Accordingly, it is improper to apply the certificate to the value of shares acquired by the Plaintiff through the sales contract of this case, and even if the certificate of the largest shareholder is applied otherwise, the number of shares held by AAA at the time of the largest shareholder who transferred the shares of this case does not exceed 50% of the total number of shares issued.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the assertion ①

In principle, Article 60(1) of the former Inheritance Tax and Gift Tax Act shall be based on market price principle concerning the evaluation of listed stocks, but Article 63(1)1 of the former Inheritance Tax and Gift Tax Act shall be excluded in evaluation and securing objectivity.

When comprehensively considering the legislative purport that the value assessed according to the method of evaluation stipulated in item (a) should be deemed as the market price, and the system under Articles 60 and 63 of the former Inheritance Tax and Gift Tax Act on the method of evaluating listed stocks, etc., the market price of listed stocks subject to gift tax under the former Inheritance Tax and Gift Tax Act shall be deemed as only the average market price of the Korea Stock Exchange per day before and after the transfer date calculated according to the method of evaluation stipulated in Article 63(1)1 (a) of the former Inheritance Tax and Gift Tax Act, barring any special circumstances (see, e.g., Supreme Court Decisions 2008Du4770, Jan. 13, 201; 2008Du9140, Sept. 940, 201).

Therefore, as seen earlier, the latter part of Article 60(1) of the former Inheritance Tax and Gift Tax Act and Article 63(1)1(a) shall apply to the instant shares constituting listed stocks. Since the market price of the instant shares is regarded as the average market price of the daily exchange market price published every two months before and after the base date of appraisal, the value of the instant shares determined by the instant sales contract between the Plaintiff and EEE cannot be deemed as the market price of the instant shares, regardless of their decision process and amount rational.

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

2) As to the assertion 2

In light of the text of the former Inheritance Tax and Gift Tax Act, Article 35(2) of the former Inheritance Tax and Gift Tax Act applies to cases where a person who is not a specially related person as prescribed by the Presidential Decree acquires or transfers assets between a person who is not a specially related person, and it is interpreted that Article 35(2) of the former Inheritance Tax and Gift Tax Act applies only to cases where both a transferor and a transferee of the stocks of this case hold multiple shares of AA and control AAA by holding them. As seen earlier, the Plaintiff, a transferee, is in office as an employee representative of AAA, and the Plaintiff is in office as a specially related person as prescribed by Article 12-2(2) of the former Inheritance Tax and Gift Tax Act with respect to EE, and further, Article 35(2) of the former Inheritance Tax and Gift Tax Act does not apply to the Plaintiff as long as the Plaintiff

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

3) As to the assertion No. 3

Article 26 (9) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that Article 35 (1) of the former Inheritance Tax and Gift Tax Act does not apply where a property is acquired or transferred between an individual and a corporation and where the consideration falls under the value under Article 89 of the former Enforcement Decree of the Corporate Tax Act and Article 52 of the Corporate Tax Act does not apply to the transaction of the corporation.

However, "value under Article 89 of the former Enforcement Decree of the Corporate Tax Act" means: (1)

In a similar situation to the transaction, the pertinent corporation’s price of continuous transaction with many unspecified persons other than specially related persons, ② price of transaction with third parties who are not specially related persons, ③ price of transaction with stocks issued by a stock-listed corporation at the Korea Exchange, and ④ price assessed by applying the provisions of Articles 61 through 66 of the former Inheritance Tax and Gift Tax Act mutatis mutandis. The price of stocks paid by the Plaintiff is determined independently from the sales contract of this case, and Article 26(9) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act is not applicable. Thus, Article 35(1) of the former Enforcement Decree

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

4) As to the assertion No. 4

Article 26 (8) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act shall be based on the date on which the price of the relevant property is liquidated, and shall cause a sudden change in the exchange rate after the sales contract.

If it is deemed unreasonable to serve as the basis date for calculation, "the date of sales contract shall be the basis date," and "if it is deemed unreasonable to serve as the basis date for calculation" means the case where the market price of the donated property at the time of the settlement of payment is distorted due to sudden changes in factors that can not be predicted or controlled by the parties to a sales contract, such as exchange rates, etc.

However, even if the plaintiff's own assertion, the reason why the price of the shares of this case sharply rise after the conclusion of the sales contract of this case is due to the conclusion of the sales contract of this case, the reason why EE is interested only in dividends of shares of AA prior to the conclusion of the sales contract of this case, and is that the future value of AAA in the stock market was positively assessed by recovery of management right by officers and employees of AAA who actually carried on management management of AAA, and the rapid increase in the price of shares of this case is attributable to the purpose and contents of the sales contract of this case itself. Thus, it is reasonable to calculate the market price on the basis of the date of settlement of price in accordance with the former part of Article 26 (8) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

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

5) As to the assertion 5

Where the transferred shares are listed shares owned by the largest shareholder or largest investor, or shareholders or investors in a special relationship with them, the amount calculated by adding the premium rate under Article 63(3) of the former Inheritance Tax and Gift Tax Act shall be deemed the market price (see, e.g., Supreme Court Decisions 2008Du4770, 2008Du9140, etc.).

In full view of the purport of the written evidence No. 1, EE was the largest shareholder holding 50% of the total outstanding shares of AA at the time of the conclusion of the instant sales contract, and it is recognized that the employer of AA had 12.03% of the total outstanding shares of EE and 12-2 subparagraph 2 of the former Inheritance Tax and Gift Tax Act. According to the above facts of recognition, AAAA holds more than 50% of the total number of outstanding shares. Thus, since EE and 30% of the total number of outstanding shares are owned by the largest shareholder, the market price of the instant shares is determined by adding 30% of the total number of outstanding shares pursuant to the latter part of Article 63(3) of the former Inheritance Tax and Gift Tax Act, and whether the value of management rights included in the instant shares has already been settled is not any obstacle in the application of the above provisions.

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

6) Sub-determination

Therefore, the market price of the instant shares under the former Inheritance Tax and Gift Tax Act shall be calculated by adding 30% to the average amount of the closing market price in the exchange for the two months before and after April 22, 2014, which is the date of the settlement of the price under the instant sales contract. As such, on the same premise, the gift tax shall be imposed by applying Article 35(1) of the former Inheritance Tax and Gift Tax Act by deeming that the Plaintiff acquired the instant shares at a price lower than the market price, and each of the instant dispositions that rejected the Plaintiff’s request

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Site of separate sheet

public official law, order of law,

▣ 구 상속세 및 증여세법(2015. 12. 15. 법률 제13557호로 개정되기 전의 것)

Article 35 (Donation, etc. of Profits from Transfer at Low or High Price)

(1) When the relevant property is acquired or transferred to any of the following persons, an amount equivalent to the difference between the price and the market price, which is equivalent to the profits prescribed by Presidential Decree, shall be deemed the value of donated property:

1. Where a person takes over property from a third person at a price lower than the market price, the transferee of such property;

2. In case where the property is transferred to another person at a price above the market price, the transferor of such property;

(2) In applying paragraph (1), where property is acquired or transferred between persons who are not specially related persons prescribed by Presidential Decree, without justifiable grounds, by transfer or transfer of property at a price significantly lower than the market price or at a price significantly higher than the market price in light of transaction practices, the amount equivalent to profits prescribed by Presidential Decree shall be presumed to have been donated to the person who has acquired such profits, as

(3) In applying paragraph (2), the scope of significantly low or high values shall be prescribed by Presidential Decree.

Article 60 (Principles, etc. of Appraisal)

(1) The value of property on which inheritance tax or gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as the "date of appraisal"). In such cases, the value (excluding cases falling under Article 63 (2)) appraised by the method of appraisal stipulated in Article 63 (1) 1 (a) and (b)

(2) The market price referred to in paragraph (1) shall be the price generally recognized as a transaction between many and unspecified persons, including the expropriation price, public sale price, appraisal price, and others recognized as the market price, as prescribed by Presidential Decree.

(3) Where it is difficult to compute the market price in applying paragraph (1), the value appraised by any method prescribed in Articles 61 through 65 in consideration of the type, scale, transaction status, etc. of the relevant property shall be deemed the market

(4) In applying paragraph (1), the value of donated property to be added to the value of inherited property pursuant to Article 13 shall be based on the market price as of the date of donation.

Article 63 (Evaluation of Securities, etc.)

(1) Securities, etc. shall be appraised by any of the following methods:

1. Appraisal of stocks and equity shares; . Stocks and equity shares of a stock-listed corporation traded in the securities market prescribed by Presidential Decree, which is the securities market under the Financial Investment Services and Capital Markets Act, shall be the average amount of the last value of the Exchange prices (not based on whether there is a transaction record) published every two months before and after the base date of appraisal: Provided, That in calculating the average amount, the average amount causes of capital increase or merger, etc. occurred during two months before and after the base date of appraisal, and

Where it is inappropriate to do so, the average amount of the periods calculated, as prescribed by Presidential Decree, during two months before and after the evaluation base date, respectively.

(3) For the purposes of paragraphs (1) 1 and (2) and Article 60 (2), the value assessed in accordance with paragraphs (1) 1 and (2) or the value assessed in accordance with Article 60 (2) for stocks, etc. (excluding stocks, etc. prescribed by Presidential Decree, such as stocks, etc. of a corporation with losses under Article 14 (2) of the Corporate Tax Act continuously from a business year that ends within three years before the base date of appraisal) of shareholders or investors who fall under the largest shareholder, largest investors and their specially related persons prescribed by Presidential Decree (hereafter referred to as "major shareholder, etc.

20 percent (10 percent in cases of a small or medium enterprise prescribed by Presidential Decree) of the value thereof shall be added to the value, and where the largest shareholder, etc. holds in excess of 50 percent of the total number of outstanding stocks, etc. of the relevant corporation, 30 percent (15 percent in cases of a small or medium enterprise prescribed by Presidential Decree) shall be added to the value. In such cases, the method of calculating stocks, etc. held by the largest shareholder, etc. shall be prescribed by Presidential Decree.

▣ 구 상속세 및 증여세법 시행령(2015. 2. 3. 대통령령 제26069호로 개정되기 전의 것)

Article 12-2 (Scope of Specially Related Persons)

(1) "Related persons prescribed by Presidential Decree" in the proviso to Article 16 (2) of the Act means persons having any of the following relationships with the principal. In such cases, the person himself/herself shall be deemed a related person of a related person pursuant to the latter part of Article 2 (20) of the Framework Act on National Taxes:

2. Any person, other than an employee (including any employee of a corporation controlled through investment; hereinafter the same shall apply) or employee, who maintains his livelihood with his own property;

Article 19 (Inheritance Deductions of Financial Property)

(2) "Large shareholder or largest investor prescribed by Presidential Decree" in Article 22 (2) of the Act means both one shareholder, etc. and his/her specially related persons, where the aggregate of stocks, etc. held by one shareholder, etc. and his/her specially related persons is the largest.

Article 26 (Calculation Method, etc. of Profits Arising from Transfer of Low Price or High Price)

(1) "The lower price" in Article 35 (1) 1 of the Act means the price where the value (referring to the price assessed under Articles 60 through 66 of the Act; hereafter in this Article and Article 31, the same shall apply) calculated by subtracting the price from the market price (referring to the price assessed under Articles 60 through 66 of the Act; hereafter in this Article and Article 31, the same shall apply) of the property acquired by transfer is at least 30 percent of the market price or the difference is at least

1. convertible bonds, etc. under Article 40 (1) of the Act;

2. Stocks and equity shares of a corporation listed in the Korea Exchange under the Financial Investment Services and Capital Markets Act traded in the securities exchange (excluding those traded in an overtime market under Article 33 (2));

(2) The term "high value" in Article 35 (1) 2 of the Act means the value of the transferred property (excluding those falling under any subparagraph of paragraph (1)) minus the market price, in cases where the market price differs by not less than 30/100 of the market price or the difference is not less than 300 million won.

(3) "Profit prescribed by Presidential Decree" in the part other than the subparagraphs of Article 35 (1) of the Act means the difference between the price calculated pursuant to paragraphs (1) and (2) and the market price, minus the lesser of the following values:

1. Where the value obtained by subtracting the price from the market price is at least 30/100 of the market price or at least 30/100 of the market price, the value equivalent to 30/100 of the market price;

2. Three hundred million won; and

(4) "Related persons prescribed by Presidential Decree" in Article 35 (2) of the Act means those who are in a relationship falling under any subparagraph of Article 12-2 (1) with the transferor or transferee.

(5) For the purpose of Article 35 (2) of the Act, the term "value of the property acquired by transfer (excluding that under each subparagraph of paragraph (1)) is remarkably low means the price calculated by subtracting the price therefor from the market value of the property acquired by transfer from 30/100 or more of the market value.

(6) The term "price significantly high" in Article 35 (2) of the Act means the price where the value of the transferred assets (excluding those falling under any subparagraph of paragraph (1) minus the market price thereof is 30/100 or more of the market price, and such price is determined.

(7) "Profit prescribed by Presidential Decree" in Article 35 (2) of the Act means a price and the market price calculated pursuant to paragraphs (5) and (6).

The amount calculated by deducting 300 million won, respectively, from the difference in the difference.

(8) The base date for calculation of the price and the market price under the provisions of paragraphs (1), (2), (5) and (6) shall be the date of liquidation of the price of the relevant property (referring to the date prescribed in subparagraphs 1 through 3 of Article 162 (1) of the Enforcement Decree of the Income Tax Act in cases falling under the provisions of Article 162 (1) 1 through 3 of the same Act; hereafter referred to as the "base date" in this paragraph), and where it is deemed unreasonable to serve as the base date for calculation due to a sudden change in exchange rates after

(9) In the application of Article 35 of the Act, where the property is transferred or transferred between an individual and a corporation and the price thereof falls under the value provided for in Article 89 of the Enforcement Decree of the Corporate Tax Act and Article 52 of the Corporate Tax Act is not applicable to the transaction of the relevant corporation (including the case where the transaction is made in an overtime market provided for in subparagraph 2 of paragraph (1)), the provisions of paragraphs (1) through (8) shall not apply: Provided, That this shall not apply where the inheritance tax or gift

Article 53 (Evaluation, etc. of Stocks, etc. of Railroad Listed Corporation)

(4) "Large shareholder or largest investor prescribed by Presidential Decree" in the former part of Article 63 (3) of the Act means one shareholder, etc. under Article 19 (2); and "specially related person prescribed by Presidential Decree" means one shareholder, etc. and Article 12-2.

A person who is in a relationship falling under any subparagraph of paragraph (1).

▣ 구 법인세법 시행령(2015. 2. 3. 대통령령 제26068호로 개정되기 전의 것)

Article 89 (Scope of Market Price, etc.)

(1) In applying Article 52 (2) of the Act, where there is a price generally traded between many and unspecified persons other than a specially related person and a third party who is not a specially related person in a similar situation, the price (where stocks issued by a stock-listed corporation are traded at the Korea Exchange, the market price of the relevant stocks shall be the final price on the date of such

(2) In applying Article 52 (2) of the Act, where the market price is unclear, the amount calculated by applying the following order in the following order:

1. Where there is a value appraised by the appraisal evaluation corporation under the Public Notice of Values and Appraisal of Real Estate Act, the value thereof (in case there are not less than 2 appraised values, the average amount of the appraised values): Provided, That stocks, etc. shall be excluded;

2. The appraised value by applying mutatis mutandis Articles 38, 39, 39-2, 39-3, and 61 through 66 of the Inheritance Tax and Gift Tax Act and Article 101 of the Restriction of Special Taxation Act. In such cases, the appraised value of the stocks (limited to stocks issued by a stock-listed corporation) held by a corporation that issues the relevant unlisted stocks in assessing the unlisted stocks pursuant to Article 63 (1) 1 (c) of the Inheritance Tax and Gift Tax Act and Article 54 of the Enforcement Decree of the same Act shall be the final market value for the Korea Exchange on the base date of appraisal, and the immediately preceding six months (three months in cases of stocks, etc. on which gift tax is levied) shall be deemed the last six months, respectively.