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Title
If there is no transaction example reflecting the objective exchange value of shares, a disposition that is assessed and assessed by supplementary assessment method is legitimate.
Summary
Even if there are actual examples of transactions, the price formed by a normal transaction that properly reflects the objective exchange value of the donated property, and if the subject matter of the donation is unlisted stocks, the market price is difficult to be calculated, and the value can be calculated according to the supplementary evaluation methods.
Related statutes
Article 35 of the Inheritance Tax and Gift Tax Act
Cases
2013Guhap330 Revocation of Disposition of Imposition of Gift Tax
Plaintiff
KimA
Defendant
Head of Dong Daegu Tax Office
Conclusion of Pleadings
June 26, 2013
Imposition of Judgment
September 13, 2013
Text
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s disposition of imposition of OOO on the gift of June 30, 2009 against the Plaintiff on June 1, 2012 is revoked.
Reasons
1. Details of the disposition;
A. On September 27, 1993, BB Co., Ltd. (hereinafter referred to as “BB”) was an unlisted company established for the manufacture, marketing, sale, export, real estate rental, etc. of automobile parts as its business purpose. The Plaintiff is the largest shareholder of BB and the representative director of the KimCC, and E was the son of BB from April 15, 1989 to October 9, 2008.
B. On June 30, 2009, the Plaintiff purchased 45,000 shares of BB from E (hereinafter referred to as “instant shares”) for the total amount of OO Won (hereinafter referred to as “the instant transaction value”) per share (hereinafter referred to as “instant transaction”).
C. The Defendant deemed that the instant transaction constitutes a transfer at a low price under Article 35 of the Inheritance Tax and Gift Tax Act (hereinafter “the Inheritance Tax and Gift Tax Act”), and evaluated the value per share of the instant shares as an OOO won at the time of the instant transaction according to the supplementary assessment methods stipulated in Article 63(1)1 (c) of the Inheritance Tax and Gift Tax Act, and Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and deemed that the Plaintiff received the gift from OO won, which is the amount obtained by deducting KRW 300 million from the said assessed value and the amount of the instant transaction, from OOO won (=OO won - OOO won), and deemed that the Plaintiff received the gift from E on June 1, 2012.
D. The Plaintiff filed a request for review with the National Tax Service on August 7, 2012, but was dismissed on November 5, 2012.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1 (each number No. 1) and the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
1) In light of the following circumstances, the Plaintiff’s purchase price of the instant shares from E constitutes the market price that adequately reflects the objective exchange value at the time of the instant transaction. Nevertheless, the Defendant’s disposal of the instant shares by applying the supplementary evaluation method, deeming that it is difficult to compute the market price without recognizing the market price, is unlawful.
A) On September 29, 199, the EE acquired and held shares of BB in the OO(OO). On August 22, 2007, the amendment of the provision on payment in kind was discussed. On December 31, 2007, the Inheritance Tax and Gift Tax Act was amended to make payment in kind as non-listed shares, thereby making it impossible to file a return on inheritance tax and payment in kind. However, the EE did not find any purchaser of the shares.
B) In around 2008, E purchased land in Seoul and constructed a new building. Around that time, due to the financial crisis that occurred in the United States, the exchange rate has rapidly increased, the raw materials price decreased, and the domestic real estate price decreased, resulting in difficulties in securing the construction fund for the new building being built.
C) After the financial crisis that occurred in 2008, domestic and foreign automobile-related industries were unlikely to rapidly decline, and the return rate of BB was also anticipated to rapidly decline.
D) At the time of the instant transaction, the Plaintiff was a major shareholder holding BB’s shares 950,000 shares (95%) and was entitled to exercise the management right for the said company, and thus, there was almost no inducement for the instant transaction. However, E, which was a long shareholder of BB, received upon the repeated request of E to purchase the shares. If E demanded a higher price, the Plaintiff would not purchase the shares of this case. Accordingly, E and the Plaintiff were selected to maximize economic interests in their respective given circumstances.
E) Since E was a transaction in which the instant shares were acquired in OO or sold to OOE, it was an economic benefit. There was no reason to avoid economic loss by transferring the instant shares at a low price to the Plaintiff.
2) The Plaintiff and E do not constitute “a person who is in a special relationship” under Article 35(3) of the Inheritance Tax and Gift Tax Act, Article 26(4) and Article 19(2)2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. Thus, the instant disposition is unlawful unless the Defendant proves that there was no “justifiable cause in light of the transaction practice” as to the transaction of the instant shares.
(b) Related statutes;
It is as shown in the attached Table related statutes.
(c) Fact of recognition;
1) Share distribution, total assets, etc. of BB
A) On June 30, 2009, June 30, 2009, and December 31, 2009, after the instant transaction, distribution of the share ratio of the BB total stocks is as follows.
No.
Name or corporate name;
June 30, 2009
December 31, 2009
(Number of shares)
Maximum shares (%)
(Number of shares)
Maximum shares (%)
1
Plaintiff
20,000
2
65,000
6.5
2
FF Kim
20,000
2
20,000
2
3
G Kim GG
20,000
2
20,000
2
4
CC Kim
192,500
19.25
192,500
19.25
5
E
45,000
4.5
0
0
6
HongH
102,500
10.25
102,500
10.25
7
(state)III
5,000
0.5
5,000
0.5
8
DD
595,000
59.5
595,000
59.5
Total
1,000,000
100
1,000,000
100
BB has specialized technology in the field of motor vehicle parts, such as Torque Converted, Engine Pulley, etc., and continues to grow every year while supplying products to major domestic and foreign manufacturers of motor vehicles, such as J-motor vehicles, JJJx and KK.
C) The size of BB shall be the third among the 10 subsidiaries of DD, a holding company, and the total assets, sales, un disposed surplus, etc. from 2007 to 2011 are as follows:
Reference Date
Total Assets
Sales
Unclaimed retained earnings;
December 31, 2007
OOOE
OOOE
OOOE
December 31, 2008
OOOE
OOOE
OOOE
December 31, 2009
OOOE
OOOE
OOOE
December 31, 2010
OOOE
OOOE
OOOE
December 31, 2011
OOOE
OOOE
OOOE
Items
207
2011
Operating Income
OOO
OOO
Income from non-business operations
OOO
OOO
net income
OOO
OOO
D) The total number of shares issued by BB as of June 30, 2009, the transaction date of the instant case, is 1,000,000, capital is OOO, net asset value is OOO, and net asset value per share (i.e., net asset value / total issued value) is OOO, the value per share based on the weighted average amount of net profit and loss during the latest three years, OOOO, and the assessment value per share calculated by supplementary assessment methods is OOO.
(ii) Status, etc. of holding companies and subsidiaries;
Items
207
208
209
2010
Total Assets
OOO
OOO
OOO
OOO
Investment Shares subject to Share Law
OOO
OOO
OOO
OOO
Sales
OOO
OOO
OOO
OOO
Operating Income
OOO
OOO
OOO
OOO
Income from non-business operations
OOO
OOO
OOO
OOO
net income
OOO
OOO
OOO
OOO
Benefits from Appraisal of Equity Interest
OOO
OOO
OOO
OOO
Unclaimed retained earnings;
OOO
OOO
OOO
OOO
A) The total assets of DD, which is a holding company, and its own stocks, sales, and un disposed surplus funds subject to the equity law of non-owned assets items among them are as follows, and in particular, the un disposed surplus funds in 201 reach OO won.
B) As of December 31, 2007, as of December 31, 2007, the major subsidiary companies (hereinafter referred to as the “stock company and limited liability company”)’s business objectives, status of stocks, etc. are as follows.
1) Shares subject to equity law shall mean shares that can exercise a significant influence on another company among those shares, and shall be assessed by equity law. In the case of an investment of 20 per cent or more in another company, where the investment of less than 20 per cent in an ordinary company may exercise a significant influence, then the investment shall be classified into shares subject to equity law.
Name of Company
Business Purposes
(b)joint representative director;
Directors, Auditors
Number of shares (number of shares)
DD Ownership ratio (%)
The face value per share (won)
LLL Co.
Manufacturing, processing, and selling motor vehicles, ships, and industrial machinery parts;
CC Kim
Directors OE 199.6.6.00, 2002.00
5,474,846
26.07
OOO
MM Co., Ltd.
Manufacture, importation, and export of clurbry and masts
CC Kim
Audit RR
1,478,428
45
OOO
NN system, Inc.
Services related to packing and logistics mobility;
CC Kim
Audit RR
10,000
100
OOO
PPP
Sale, import, and export of clurbry and masts
CC Kim
(former Change) Audit RR
270,000
45
OOO
QQQ 주식회사
Manufacture, sale and export of motor vehicle parts
CC Kim
Audit RR
495,000
49.5
OOO
C) On December 31, 2007, LL and MM’s total assets, sales, operating profits, and non-business profits are as follows.
Items
LL
MM
Total Assets
OOO
OOO
Sales
OOO
OOO
Operating Income
OOO
OOO
Income from non-business operations
OOO
OOO
net income
OOO
OOO
3) Case of transaction
A) The transaction cases of BB stocks prior to the instant transaction (hereinafter “the instant transaction cases”) are as follows.
No.
Date of transaction
Number of Stocks
Price per share
Transaction Amount
Transferors
transferee and transferee
1
November 25, 2001
10,000
OOOE
OOOE
E
MaximumS
2
November 25, 2001
10,000
OOOE
OOOE
CC Kim
MaximumS
3
December 27, 2004
20,000
OOOE
OOOE
MaximumS
CC Kim
4
99.22
100,000
OOOE
OOOE
CC Kim
DD
5
May 1, 2008
100,000
OOOE
OOOE
CC Kim
DD
나) 원고의 아버지인 김CC는 자신이 대표이사로 있는 DDD에게 2006. 9. 22. QQQ 주식 10만 주를 1주당 OOOO원 합계 OOOO원에, 2008. 5. 1. BBB 주식 10만 주를 1주당 OOOO원 합계 OOOO원에 각 매도하였다.
4) Acquisition, etc. of E’s stocks
A) From 1986 to 1986, E purchased 67,500 shares of DD (including wife and children’s name shares) from 15% of the shares of DD, a holding company of B, and purchase 67,500 shares of B from 29 September 29, 199 to OE. Meanwhile, E sold all shares of DD (the wife and children’s name shares) to DoD’s major shareholders and KimCC, a representative director, as the representative director.
B) On November 9, 2010, E made efforts to transfer 45,000 shares of BB on several years, and prepared and submitted a written confirmation (Evidence A 6) that “E transferred to the Plaintiff on June 30, 2009 the total amount of OOO Won per share after a price negotiation, while requesting purchase to KimCC, his father, who is the Plaintiff’s father.”
C) At the time of the tax investigation on March 26, 2012, KimCC stated that the purchase price of the instant shares acquired by the Plaintiff from E was determined and traded at will by E, and that E was at a higher price because E knew that E acquired BB shares below OO, the transaction price of the instant case was at a lower price, and that there was no reason to acquire shares at a higher price since E held more than 70% of BB at the time.
D) On June 23, 2008, the E, OT, and EU newly constructed a building of six stories above ground and two stories below ground (hereinafter referred to as the “instant building”) on August 21, 2009 and completed the registration of ownership transfer on July 10, 2008 (EE 3/9 shares, ET 4/9 shares, EU 2/9 shares, EU 2/9 shares), and completed the registration of ownership transfer on August 21, 2009 (hereinafter referred to as the “instant building”).
[Ground of recognition] Facts without dispute, Gap evidence 1 through 7, Eul evidence 1 to 9, the purport of the whole pleadings
D. Determination
1) Whether the Plaintiff and E have a special relationship
Since the Plaintiff and E alleged that they are specially related persons under Article 26 (4) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, Article 26 (4) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the transferor or transferee (hereinafter referred to as "transferor, etc.") and the person who has a special relation under Article 35 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act with an enterprise group as determined by Ordinance of the Ministry of Strategy and Finance refers to one of the following persons:
On October 9, 2008, E was discharged from office as a director of DD and completed the registration of dismissal on October 13, 2008, and thereafter, the Plaintiff and E constituted an executive officer of an enterprise group or a person who actually controls an enterprise group at the time of the instant transaction. Thus, the Plaintiff and E does not constitute a person with a special relationship under Article 26 (4) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.
Next, the defendant asserts that the plaintiff and the EE are in a special relationship under Article 26 (4) 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and Article 26 (4) 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the person who has a special relationship under Article 35 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act refers to the transferor and the person who is recognized as exercising de facto influence over the management of the corporation concerned through the exercise of the right to appoint and dismiss officers or the decision of the business policy with the transferor and the E. Thus, there is no evidence to deem that the plaintiff or E exercises de facto influence over the management of BB through the exercise of the right to appoint and dismiss officers or the decision of the business policy. Thus, the plaintiff
Therefore, the defendant's assertion that the plaintiff and E constitutes a person with a special relationship under Article 26 (4) 2 and 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act is without merit.
2) Whether the transaction price of the instant case can be recognized as the market price
A) Under the provisions of Article 60 of the Inheritance Tax and Gift Tax Act, the calculation of the value of donated property by the supplementary method of assessment as stipulated in Articles 61 through 65 of the same Act is limited to cases where it is difficult to calculate the market value as of the date of donation of donated property, and it is difficult to calculate the market value. Under Article 60(2) of the Inheritance Tax and Gift Tax Act, the tax authority bears the burden of proof to the Defendant, who is the Defendant. The market value refers to the value that is ordinarily established when free transactions are conducted between many and unspecified persons, i.e., the objective exchange value formed through a normal transaction. Thus, even if a transactional example takes place, if the transaction value cannot be deemed to be formed by a normal transaction that properly reflects the objective exchange value of donated property, it shall be deemed difficult to calculate the market value (see Supreme Court Decision 2004Du2271, May 13, 2004). However, even in cases of non-listed stocks, if an objective exchange value is reflected in the market value at that time.
B) In light of the health stand, the evidence as seen earlier, and the following circumstances revealed through the above recognition, it is difficult to view that the Plaintiff’s transaction value per share, the transaction value of the instant shares, which is the market value, reflects the objective exchange value of the instant shares at the time of the instant transaction. Unlike other cases, there is no example of sales that adequately reflects the objective exchange value of the instant shares at the time before and after the instant transaction date, and it is difficult to calculate the market value of the instant shares by any other means. Accordingly, the Plaintiff’s assertion that the transaction value of the instant shares should be deemed the market value is without merit.
(1) BB has specialized technology in the field of automobile parts, such as Torque verted, Engine grassy, etc., and has been growing every year through the sale of the said parts to major domestic and foreign automobile manufacturers, such as JJ cars, KK cars, and JJTex.
(2) In other words, BB’s total assets are considerably increased at the annual rate of 2007, OOO in 2008, 2009, OOOOO in 201, 2010, OOOOO in 2007, 2008, OOOO in 2008, OOOO in 2009, OOOO in 2009, 201, OOOOO in 201, 2011, OOOOO in 207, 2008, OOOOO in 209, 2010, OOOO in 201, 201, and O1.
(3) Meanwhile, from 2007 to 2010, DD’s total assets and investment shares subject to BB’s equity law have increased every year. Despite its business losses, the net income for the net income of at least KRW KRW KRW OO was generated every year due to its large amount of operating income (dividend income) regardless of its total operating losses, and each year, the surplus from the unused profits has rapidly increased and reached KRW OO in 201.
(4) 2007. 7.경부터 시작된 미국의 서브프라임 사태에도 불구하고 QQQ은 2007년부터 2011년까지 거의 매년 매출액, 총자산, 미처분이익잉여금이 지속적으로 증가하였고, 모(母)기업인 DDD 역시 같은 기간 동안 당기순이익, 미처분이익잉여금이 급격히 증가하였는바, 위와 같은 금융위기가 BBB 및 DDD의 자동차 부품 제조 ・ 판매업 등에는 별다른 영향을 미치지 못하였음이 분명하다. 또한 이 사건 거래 시점인 2009. 6.경에는 이미 서브프라임 사태의 실체가 모든 드러난 이후이고, BBB의 그 동안의 실적에 비추어 위 회사의 수익률이 날로 하락할 것으로 예상되는 상황도 아니었다.
(5) As of June 30, 2009, the net asset value per share of BB stocks as of June 30, 2009, the value per share based on the weighted average amount of net profit and loss for the last three years is an OO member, and the assessment value per share calculated by supplementary assessment method is an OO member, an OO member per share between the Plaintiff and EE, etc. is merely 34.8% of the above supplementary assessment value, and thus, there is a significant difference. It does not extend to half of the OO members per share value sold by KimCC to DD on May 1, 2008, which is one year prior to the date of the instant transaction.
(6) The instant shares were non-listed shares and only five transaction cases were made from 2001 to the date of the instant transaction. The No. 1. to 3. was made from the date of the instant transaction to 5 years, and there were many changes in the assets, management status, economic situation, etc. of BB after the said transaction. Thus, it is inappropriate to calculate the market price at the time of the instant transaction as data.
(7) 이 사건 거래사례 중 비교적 최근인 2006년 및 2008년에 이루어진 거래는 BBB 및 DDD의 주주이자 대표이사인 김CC가 자신이 보유한 QQQ의 주식을 특수관계에 있는 DDD(김CC가 30/100 이상의 지분을 보유 함)에게 매도한 것이므로, 상속세및증여세법 시행령 제49조 제1항 제1호 단서 규정에 따라 위 거래가격은 이 사건 거래 당시의 시가로 산정할 자료로 삼기에 부적당하다.
(8) 오EE는 1989. 4. 15.부터 2008. 10. 9.까지 지주회사인 DDD의 이사로 오랫동안 재직하였고, 1986. 6.경부터 2008. 6. 30.까지 DDD 총주식의 14.99%(처, 자녀 명의 주식 포함)를 보유하여 DDD의 주주들 중 자(子)회사인 LLL을 제외하면 원고에 이은 2대주주였으며, 1999. 9. 29.부터 이 사건 거래시까지 오랜 기간 동안 BBB의 주식을 보유하였다. 따라서 오EE는 QQQ 및 DDD의 성장과정, 사업내용, 수익구조, 기업가치, 장래전망 등을 누구보다 잘 알고 있었다.
(9) The Plaintiff, KimCC, and E did not make an effort to evaluate the appropriate value of BB by providing a reliable accounting firm with objective accounting data, and E did not present any objective evidence on whether it attempted to sell the instant shares to a third party.
(10) The Plaintiff, the representative director of BB and the Plaintiff’s father, determined the instant transaction value in consultation with E. However, even according to the statements made by the KimCC and E, there is no trace to deem that the Plaintiff had made reasonable standards to properly reflect the objective exchange value of the instant stocks, or made efforts to maximize their respective interests. Rather, it cannot be deemed as a contract concluded by a general and normal method, since it was based on a special relationship with DD’s director, a holding company for a long time, and a long-standing relationship.
3) Whether the business practices have taken over significantly at a low price without justifiable grounds
A) The legislative purport of Article 35(2) of the Inheritance Tax and Gift Tax Act is to: (a) in a case where profits equivalent to the difference between the price and the market price are actually transferred without compensation by means of abnormal means that manipulates the level of transaction for the benefit of the other party to the transaction; (b) thereby coping with and promoting fair taxation by imposing gift tax on the profits earned by the other party to the transaction. However, since the transaction between the unrelated parties does not coincide with each other; (c) it is difficult to deem that the difference was donated to the other party to the transaction solely on the basis that there is a difference between the price and the market price; and (d) it is difficult to deem that Article 35(2) of the Act added the taxation requirement that “the transaction between the unrelated parties does not have justifiable grounds for the practice of transaction.” Furthermore, in order for taxation disposition under Article 35(2) of the Inheritance Tax and Gift Tax Act to be lawful, the transferor has transferred assets at a price significantly higher than the market price, as well as that there is no justifiable reason under the transaction practice (see, etc.).
Meanwhile, it is reasonable to view that the value assessed by the method under Articles 61 through 65 of the Inheritance Tax and Gift Tax Act pursuant to Article 60(3) constitutes not only the market price that serves as the basis for calculating the value of the property on which the gift tax is levied, but also the market price that serves as the basis for determining whether the property is subject to the gift tax under Article 35(2) of the Inheritance Tax and Gift Tax Act (see Supreme Court Decision 2012Du3200, Jun. 14, 20
B) As to whether the Plaintiff acquired shares at a price significantly lower than the market price, Article 26(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “The value substantially lower than the market price” refers to the price where the value calculated by subtracting the price from the market price of the transferred shares is 30/100 or more of the market price. Thus, although the Plaintiff acquired the shares at an OOE per share, the market price of the shares of this case calculated in accordance with the supplementary assessment method under the Inheritance Tax and Gift Tax Act is as seen earlier.
According to the above facts, it is reasonable to view that the Plaintiff acquired the shares of this case from E at a price significantly lower than the market price, since the amount calculated by subtracting OOO won per share, which is the transaction value of this case, from the market price according to the supplementary assessment methods of the shares of this case, exceeds OO, and the amount exceeds 30/100 of the market price.
C) Next, with respect to whether the Plaintiff acquired the instant shares at a significantly low price without justifiable grounds under the transaction practices, there is no reasonable ground to believe that the Plaintiff and EE trading of the instant shares at a significantly low price and, in light of the following circumstances revealed by the aforementioned facts, there is no reasonable ground to believe the transaction price at a reasonable price reflecting the objective exchange value. In particular, since E, which is the transferor, can be seen as an abnormal transfer from a reasonable economic point of view, it is reasonable to deem that the instant share trading is a case where the Plaintiff received the instant shares at a remarkably low price without justifiable grounds under the transaction practices under Article 35(2) of the Inheritance Tax and Gift Tax Act. Accordingly, the Plaintiff’s assertion on the premise that there exists a justifiable reason under the transaction practices of the instant shares trading, is without merit.
(1) The Plaintiff and the E are not specially related under Article 35(2) of the Inheritance Tax and Gift Tax Act.
However, the Plaintiff did not actually engage in the instant stock transaction, and the Plaintiff’s father, KimCC, the representative director of BB, and the Plaintiff’s father, determined the instant transaction value in consultation with E. The instant transaction was sexually formed based on the special relationship, such as DD’s two major shareholders and directors, which were holding companies for a long time, and thus, cannot be deemed as ordinary transactions between many and unspecified persons whose mutual interests conflict.
(2) From 2007 to 2011, BB increased a large amount of annual margin from total assets and non-dispositionable profits, and sales have also increased every year except for a small amount of decrease in 2009. It is clear that the U.S. S. Western situation that started from July 2007 did not have any particular impact on BB’s business. Furthermore, after the fact that the U.S. Western situation, which was the time of the instant transaction, was revealed in June 2009, was all the substance of the SB’s transactions, it was not expected that the decline in the future rate of profit was anticipated in light of the performance of BB’s transactions.
(3) As of June 30, 2009, the net asset value per share of BB stocks as of June 30, 2009, the value per share based on the weighted average amount of net profit and loss for the last three years is an OO member, and the assessment value per share calculated by supplementary assessment method is an OO member, and the assessment value per share between the Plaintiff and EE is merely 34.8% of the above supplementary assessment value.
(4) 더욱이 원고의 아버지인 김CC는 2008. 5. 1. DDD에게 QQQ 주식 10만 주를 1주당 OOOO원 합계 OOOO원에 매도하였는데, 그로부터 약 1년이 경과한 이 사건 거래 무렵에는 BBB의 총자산, 매출액, 미처분 이익잉여금 등이 모두 증가하였으므로, 특별한 사정이 없다면 이 사건 거래일의 한국 파워트레인의 1주당 가격은 2008. 5. 1.자 1주당 거래가격보다는 높다고 보아야 할 것 이다.
(5) However, KimCC and E set the price per share of the instant shares in the instant transaction as an OOOO on May 1, 2008, the price per share was approximately 44% of the transaction price per year prior to May 1, 2008. There is no reasonable ground to believe that KimCC, E, etc. representing the Plaintiff, properly reflects the objective exchange value of BBB, and it is recognized as an objective reason to deem that E transferred BB’s shares to the said transaction price from a reasonable economic standpoint.
(6) 오EE는 BBB 주식의 4.5%를 소유한 주주였을 뿐 아니라 QQQ의 지주회사인 DDD의 주주이자 이사로서 오랜기간 재직하였고, 그 외에도 계열기업인 LLL의 이사로도 재직하였고, 주식회사 VVV의 주식을 소유하고 있었으므로, BBB의 가치 및 앞으로의 전망 등을 누구보다도 잘 알고 있었을 것임에도 이 사건 거래대금을 산정함에 있어 그러한 사정을 반영하려는 시도나 노력을 전혀 하지 않았다.
(7) The Plaintiff asserted that E had experienced difficulties in securing the instant new construction fund at the time of the instant transaction, but there is no objective evidence to deem that E used E as a new construction fund of the instant building with the sales price of the instant shares, or had experienced difficulties in raising new funds at the time. Rather, according to the KimCC’s statement, etc. that E had been requested to purchase for a considerable period of time from the date of the instant transaction, E did not seem to have any circumstances where E should sell the instant shares at a lower price than the actual value.
(8) The Plaintiff alleged to the effect that E intended to sell the instant shares to a third party, but did not find any purchaser, but there is no objective evidence proving that E had endeavored to sell the instant shares to a third party.
(9) 원고는 이 사건 거래 이전에 이미 BBB의 경영권을 확보하고 있어서 오EE로부터 이 사건 주식을 매수할 유인이 없었다고 주장하나, QQQ의 총자산, 영업이익, OOOO원에 달하는 미처분이익잉여금 등에 비추어 오EE가 이 사건 주식을 제3자에게 매각하는 경우 심각한 경영간섭(배당금 상향 조정 요구, 주주총회 절차 감시 등)을 받게 될 것임은 쉽게 예상할 수 있으므로, 김CC 또는 원고가 이 사건 주식을 매수할 유인이 없다고 할 수는 없다.
(10) The plaintiff asserts that E acquired the shares of this case in OO won per share, and thus, OO won per share is very high. However, E appears to be the early stage of the development of BB in 1999, BB thereafter, and E has been rapidly growing along with the development of the automobile industry. The market price of the shares of this case should be determined by the value at the time of the transaction of this case, not E acquisition price, rather than OE acquisition price, because it is too natural that E should be determined by the market price at the time of the transaction of this case. In full view of the plaintiff's father KimCC, the father, is calculated as the market price at the time of the transaction, not the price it acquired, and sold to OOD in 1, 208, the plaintiff's above assertion that the transaction price of this case is high in light of the acquisition price of E is not persuasive.
(11) The Plaintiff asserts that E does not have any reason to distribute profits to the Plaintiff through a low-price transfer. However, the statutory provision on deemed donation due to a low-price transfer under the Inheritance Tax and Gift Tax Act is a legal provision that, if only the transferor has an intention or purpose of donation to the transferor, regardless of whether the transferor had an intention or purpose of donation, the transferor is deemed to have donated an amount equivalent to such benefit to the transferee. Furthermore, in light of the relationship between the Plaintiff and his father, the Plaintiff’s relationship with E, the instant shares and DD shares transaction, etc., the instant transaction cannot be deemed an ordinary transaction between many and unspecified persons whose mutual interest is inconsistent, and it appears to have been concluded by abnormal methods of manipulating
(12) Therefore, in transferring the instant shares to the Plaintiff at a price significantly lower than the market price, there is no justifiable reason in light of transaction practices.
4) Sub-determination
Therefore, there is no example that the Defendant properly reflects the objective exchange values of the instant shares, and it is difficult to view that the instant transaction properly reflects the objective exchange values, and considering that it is difficult to compute the market price by any other means, it is lawful to assess the value of the instant shares by using supplementary evaluation methods.
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.