The early high-2014-China-3093

Whether the transaction of the instant shares constitutes a gift

The contract of this case was actually paid KRW 200 million as the acquisition price of new shares and accepted the shares of this case. Some of them were transferred to a third party, and it can be deemed that the plaintiff also acquired KRW 500 per share with a face value and obtained a profit equivalent to the difference between the actual value and the actual value. Thus, the disposition of this case is legitimate.

Article 41 of the Inheritance Tax and Gift Tax Act

2015Guhap54865 Revocation of Disposition rejecting to correct gift tax

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BB Director of the Tax Office

oly 23, 2015

November 06, 2016

1. All of the plaintiff's claims are dismissed.

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

1. Details of the disposition;

A. On July 25, 2012, the Plaintiff (hereinafter “instant company”) participated in the capital increase with new shares issued byCC (hereinafter “instant company”) and acquired 400,000 won per share as KRW 500 per share. On November 1, 2012, the Plaintiff reported KRW 51,05,200 on the ground that he/she obtained a benefit from the said capital increase with new shares.

B. On January 13, 2014, the Plaintiff was not in the name of the Plaintiff for the purpose of collateral security.

The defendant filed a claim for rectification for refund of KRW 54,147,610 on the ground that it is excessive, but the defendant filed a claim for rectification.

On February 12, 2014, the disposition of this case was rejected (hereinafter referred to as the "disposition of this case").

C. On May 22, 2014, the Plaintiff filed an appeal with the Tax Tribunal, but was dismissed on November 24, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3 and 4, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Since the Plaintiff did not pay the stock price for the new shares, the new shares issued in this case is null and void, and the Plaintiff acquired the shares in this case for the purpose of security by lending money to the instant company or DD, and decided to transfer the shares to D as it is, no benefit is derived from the acquisition of the shares in this case. Accordingly, the disposition in this case is unlawful.

(b) Fact of recognition;

1) In order to invest KRW 200 million in the instant company at the request of DD around the end of July, 2012, the Plaintiff entered into a contract with D, a shareholder, etc. with D (hereinafter “instant system”).

mb. 'm.'

① The Plaintiff shall subscribe to KRW 500,000 per share of the instant company’s new shares to KRW 500,000, total amount of KRW 200,000 during the capital increase procedure that the instant company would take place in July 2012. To that end, the Plaintiff shall pay the amount of the pertinent new shares to the instant company until July 25, 2012.

② Unless the Plaintiff expressed his/her opposing intent in writing, the Plaintiff shall transfer to DD all the shares acquired by the Plaintiff through capital increase with new shares issued within one year from July 25, 2012, or within three months from the date when the instant company issued 300,000,000 or more stocks or bonds with new shares issued and paid 300,000 or more won to D, whichever comes first.

③ D shall pay to the Plaintiff the interest of KRW 200,00,000, and the interest of KRW 200 within two months from July 25, 2012, to secure the payment of the purchase price of shares or the purchase price of shares.

2) In accordance with the instant contract, the Plaintiff paid KRW 200 million for the acquisition price of the instant shares on July 25, 2012 pursuant to the instant contract.

A. However, DD did not pay KRW 200 million and interest to be paid as security for the transfer of the instant shares even after the lapse of two months thereafter.

3) The Plaintiff transferred 180,00 shares of this case to a third party on February 28, 2013, and up to now thereafter.

Ssat 220,00 shares.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 5, Eul evidence Nos. 1 to 3, the purport of the whole pleadings

C. Determination

According to the instant contract, the Plaintiff’s acquisition of new shares of the instant company in KRW 200 million, and D may take over the instant shares by paying KRW 200 million and interest within a certain period of time, and may not take over the instant shares by expressing its opposing intent. On the other hand, the Plaintiff may refuse to take over the instant shares on the grounds of non-payment of KRW 200 million and interest. However, the instant contract is a contract under which the Plaintiff intended to transfer the instant shares to D during a certain period of time after the Plaintiff acquired the instant shares. However, the Plaintiff reserved the right to object to the said transfer to D, but the Plaintiff intended to receive KRW 200 million and interest as security for the said transfer. The instant contract used the expression “stock acquisition” or “stock acquisition” on the premise of the Plaintiff’s acquisition of the instant shares, and acquired the instant shares by paying KRW 200 million as the purchase price of new shares to a third party. As a result, the Plaintiff also acquired the benefits of KRW 500 per share with the actual value of KRW 100 per share.

In full view of these circumstances, it is difficult to accept the Plaintiff’s assertion that the Plaintiff did not accept or gain profit from the instant shares, and lent KRW 200 million to the instant company or DD and acquired the instant shares as security.