early 2009west065 ( October 27, 2009)

Unlisted stocks shall not be deemed unfair if it is reasonable even if they are transferred at a low price to a related party.

Even if unlisted stocks are transferred at a low price to a person with a special relationship, it is reasonable for the Plaintiff to receive a loan claim against a corporation by subsidizing funds to the corporation, and thus, it cannot be deemed the rejection of wrongful calculation due to a low price transfer.

The contents of the decision shall be the same as attached.

1. The Defendant’s imposition of capital gains tax of KRW 34,340,950 against the Plaintiff on November 1, 2008 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

가. 원고는 비상장 회사인 주식회사 ☊☊유통(이하 '소외 회사'라 한다)의 주식 24,000주(이하 '이 사건 주식'이라 한다)를 주당 10,000원에 취득하여 보유하고 있다가 2004. 3. 30. 동생인 김☆☆에게 1주당 1원, 총대금 24,000원에 양도하고 피고에게 양도사실을 신고하였다.

B. As a result of the field investigation of capital gains tax, the Defendant denied the transfer value on the ground that the Plaintiff transferred the instant shares to Dong residents who are specially related parties, and calculated the transfer value of the instant shares at KRW 19,815 per share in accordance with the supplementary method prescribed in Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and issued the instant disposition imposing capital gains tax of KRW 34,340,950 for the year 2004 on November 1, 2008.

[Ground of recognition] Evidence Nos. 1 through 3, Evidence No. 11, Evidence No. 11, Evidence No. 1 through 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) It is true that the instant shares, which are 10,000 per share of acquisition price, are transferred to Dongsi in one won per share. However, in light of the financial status and reasons or circumstances of the non-party company at the time of the transfer of the instant shares, the instant transfer of shares does not constitute an abnormal act lacking economic rationality in light of social norms or transaction practices, and thus, it cannot be deemed as the object of the avoidance of wrongful calculation.

(2) The Defendant calculated the transfer value of the instant shares at KRW 19,815 per share on the basis of the net asset value and net profit and loss value of the non-party company during the period from April 1, 200 to March 31, 2003, which is the three business years immediately preceding the business year to which the date of the transfer of the instant shares belongs, pursuant to the supplementary assessment method stipulated in Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. However, the Plaintiff transferred the instant shares on March 30, 2004, before the end of the business year from April 1, 2003 to March 30, 204, the Plaintiff calculated the transfer value of the instant shares as the net asset value of the non-party company during the period from April 1, 200 to March 30, 204, the market value of the instant shares should be much more than the net asset value of the Plaintiff’s 300-year shares, including the last three business years from April 1, 20001 to March 304.

(b) relevant statutes;

It is as shown in the attached Form.

(c)a recognition;

(1) The non-party company is a corporation that leases one floor among the department stores located in leisuredo-dong Seoul Metropolitan City, Yeongdeungpo-do-dong, in installments, owned by it, from April 1 of each year to March 31 of the following year.

(2) The net income per share for the business year of the non-party company was KRW 6,038 for the business year 200, KRW 2,284 for the year 201, and KRW 5,080 for the year 202. However, during the period from April 1, 2003 to March 30, 2004 for the period from March 30, 2004, the share transfer date of this case was due to the aggravation of performance.

(3) Meanwhile, the net asset value of the non-party company as of March 31, 2003, which was the end of the business year 2002, was -4,838,437,920 won. The net asset value as of March 30, 2004, which was the transfer date of the shares in this case, was -5,249,422,473 won.

(4) If the market value of the shares of this case is calculated based on the net asset and net value of the non-party company for the period from April 1, 200 to March 31, 203, which is the three business years immediately preceding the business year to which the date of the transfer of the shares belongs, based on such financial status, according to the supplementary assessment methods as stipulated in Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act [10%) 19,815 won per share [19,815 won per share [4,00 won per net asset value 0,038 x 1) + 43,077 won (2,284 x 5,080 x 36%) + 10%) net asset value per share 】 20,000 won per share 】 30,000 won per share (30,000 won per share) net asset value per share 】 40,000 won per share.

(5) The Plaintiff had a loan claim amounting to KRW 4.6 billion against the non-party company at the time of the transfer date of the instant shares. Since the transfer date of the instant shares, the Plaintiff loaned funds to the non-party company as a shareholder of the non-party company, as the result of lending the funds to the non-party company on April 12, 2004 and April 19, 2004.

[Reasons for Recognition] Evidence No. 4, Evidence No. 5-1, Evidence No. 5-2, Evidence No. 6, Evidence No. 11, Evidence No. 13, and 14

Evidence Nos. 3 and 4, each entry of evidence Nos. 3 and 4, the purport of the whole pleadings

D. Determination

Article 101 (1) of the Income Tax Act provides that "if an act or calculation by a resident with a special relationship of a resident with a transfer income is deemed to have reduced unreasonably the tax burden on the relevant income due to a transaction with the resident and the related party, the income amount of the relevant year may be calculated regardless of the resident's act or calculation." Even if the act or calculation of the resident is consistent with objective facts and legal validity and legitimate, if the act or calculation falls under the category of transaction which unfairly reduces the tax burden between the related parties under the Enforcement Decree of the Income Tax Act, the act or calculation shall be deemed as objectively reasonable and objectively reasonable and thereby realize fair taxation by supplementing the principle of substantial taxation. Thus, the object of wrongful calculation is insufficient merely by the fact that the person with a special relationship transfers the asset at a price lower than the market price. In light of the social norms and customs of transactions between the related parties, it should be deemed that the tax burden has been reduced unfairly as it cannot be deemed a reasonable transaction (see, e.g., Supreme Court Decision 9Nu737, Jan. 21, 1992).

The Plaintiff’s transfer of this case’s stocks to KRW 19,815 per share of 19,815 are recognized as follows. However, in this case’s stocks were transferred to KRW 200 per share of 10 capital gains by using the above facts as follows: (i) the end of the business year 2003 and the record of the non-party company considerably aggravated during the business year 2003, as calculated by the Defendant, it is difficult to view that the Plaintiff’s transfer of this case’s stocks to KRW 40 per share of 20 capital gains by using the non-party company’s net asset value during the business year immediately preceding the business year to which the date of the transfer of this case’s stocks belongs to 30,00 capital gains from the transfer to March 31, 203, based on the net asset value and net profit and loss value of the non-party company’s 20,000 capital gains from the transfer of this case’s stocks to KRW 30,000 per share of this case’s stocks.

3. Conclusion

Therefore, it is reasonable to revoke the disposition of this case in an unlawful manner, and the plaintiff's claim is accepted for reasons.