Changwon District Court 2012Guhap4041 (27 August 2013)

Cho High Court Decision 2012 Deputy0763 (O6, 2012)

A disposition imposing gift tax on the profits accrued from the acquisition and exercise of preemptive rights is legitimate.

Article 42(1)3 and (3) of the former Inheritance Tax and Gift Tax Act provides that "it is difficult to deem that there exists a justifiable reason in the transactional practice in the acquisition of shares through the acquisition and exercise of preemptive rights in full view of the circumstances such as that the burden of proof for the transactional practice under Article 42(1)3 and (3) of the former Inheritance Tax and Gift Tax Act is not the defendant but the plaintiff, and that

Article 42(1) of the Inheritance Tax and Gift Tax Act

(C)The revocation of the disposition of gift tax assessment;

LAA

Head of Changwon Tax Office

Changwon District Court Decision 2012Guhap4041 Decided August 27, 2013

July 17, 2014

August 21, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court is revoked. The defendant's taxation of gift tax OOOO as to the plaintiff on November 9, 201 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation concerning this case is as stated in the reasoning for the judgment of the court of first instance, except for the dismissal as set forth in paragraph (2) above, since Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act shall be cited as it is.

2. Parts to be dried;

According to Article 42 (1) 3 and (3) of the former Inheritance Tax and Gift Tax Act, in principle, gift tax is imposed on profits acquired from transactions, such as conversion of warrant certificates, regardless of whether there is a special relationship between the parties to the transaction. However, in exceptional cases, if there is no special relationship between the parties to the transaction, and if it is deemed that there is a justifiable reason for transaction practice, gift tax is not imposed, the burden of proof in light of transaction practice is not the defendant, but the plaintiff," and in light of the following facts, whether there is a "justifiable reason in light of the practice of transaction of acquisition of shares due to the exercise of the plaintiff's above preemptive right," and as a whole, whether there is a "justifiable reason in accordance with the practice of transaction of acquisition of shares due to the exercise of the plaintiff's above preemptive right," the written evidence in subparagraphs 1 through 10 of Article 42 (1) of the former Inheritance Tax and Gift Tax Act is insufficient to recognize that there is a justifiable reason in light of the lack

②CC investment securities separated preemptive rights from BB to 4 days, and transferred them to 5 Plaintiff et al.

③ The reasons why the Plaintiff purchased the above preemptive right are as follows: (a) the Plaintiff’s three shareholders and professional managers of DD prior to the merger between DD and BB; and (b) the E (which is the Plaintiff’s husband’s husband’s son’s son’s son’s son’s son’s son’

④ On November 19, 2008, when he/she was in office as the representative director of BB, the EE adjusted the exercise price per share of preemptive right to new stocks in favor of the OOO members, and acquired stocks by exercising the above preemptive right with the Plaintiff, etc.

3. Conclusion

Therefore, the judgment of the first instance court is justifiable, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.