Whether the computation of the market price at the time of acquisition of forfeited stocks based on capital increase with consideration can be made as the Internet public offering price.

It is reasonable to view the Internet public offering price as the market price in light of the fact that the situation of the non-party company was inferior at the time of the public offering, and thus it cannot be seen as the market price.

The legal fiction of donation in the event of capital increase or decrease under Article 39 of the Inheritance Tax and Gift Tax Act

Article 29 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act; the method of calculating the value deemed donated.

1. The plaintiff's claims are all dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s imposition of KRW 11,857,240 and KRW 9,881,040 against the Plaintiff on January 13, 2007 shall be revoked.

1. Details of the disposition;

A. On July 28, 199, a corporation incorporated for the purpose of online marriage intermediary business (hereinafter “non-party corporation”) owned 19,000 shares of common shares of 5,000 won per face value at the time of its establishment, and the Plaintiff, a representative director, owned 19,00 shares of 5,00 shares of common shares of 5,000 won at the time of its establishment (38%) 20,000 shares of a company, 5,000 shares of directors, and 5,00 shares of directors, and 6,000 shares of auditor.

B. On September 1, 1999, the non-party company decided to hold a board of directors to offer new shares with the price of KRW 440,000 per share of KRW 5,000 per share to be allocated to the non-party company each shareholder of the non-party company and the third party to the OO Co., Ltd. (hereinafter the resolution of this case), but NO and Gangwon did not accept new shares allocated by the above resolution. The plaintiff acquired 227,40 shares [52,80 shares (27,400 shares-40,000 shares) exceeding the plaintiff's share ratio (7,000 shares (740 shares)] with the acquisition price of the shares of this case, and paid for the acquisition price of KRW 10,100,000 per share (740 shares) on October 25, 205, 1992 (7400 shares), and paid for each share of KRW 10,100,000 per share (70 shares).

C. On January 13, 2007, the Defendant: (a) deemed that at the time of capital increase by issuing new shares, the Plaintiff received the allotment of the preemptive right waived by NOO or Gangwon and received the instant shares at a par value lower than the market price; and (b) applied Article 39(1)1(a) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6048, Dec. 28, 199; hereinafter the same shall apply); (c) Article 29(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1660, Dec. 31, 199; hereinafter the same shall apply); and (d) Article 19(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 16660, Dec. 31, 199; hereinafter the same shall apply); and (e) deemed the value assessed per share before the capital increase by the Nonparty’s stocks as the gift price of this case to the Plaintiff.

D. On March 29, 2007, the Plaintiff filed a request for a national tax trial against the Plaintiff’s objection, but the National Tax Tribunal dismissed the request on August 23 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 6, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the disposition of imposition is lawful.

A. The plaintiff's assertion

(1) The non-party company decided to issue new shares of 440,000 shares through the resolution of this case. However, the non-party company decided to issue new shares of 60,000 shares on October 2, 199 as the shareholders did not subscribe to new shares due to poor financial conditions. The plaintiff deposited KRW 1,100,000 with the non-party company as the share price of 220,000 shares on April of the same month. However, the non-party company, who did not pay the share price of 60,000 shares, decided to issue new shares of 1,10,000 shares on May 15, 199, to substitute the above 1,100,000 shares with the share price of 22,80 shares (=60,000 shares) as a matter of course, the plaintiff acquired the share price of 20,200 shares among them.

Therefore, Article 39(1)1(b) of the Act shall apply to the acquisition of the instant shares merely because the acquisition of forfeited shares does not fall under the case of acquisition of forfeited shares, but only some of the shareholders having a special relationship with the Plaintiff renounce their preemptive rights.

(2) The instant disposition considered the assessment value per share prior to the increase of the capital of the instant shares as KRW 10,000,000, which was the general public offering price of October 27, 1999. However, the said general public offering price, when the Internet site members of the Nonparty company take over 50 share shares, determined a higher price than the actual amount by taking into account the benefits that the online member of the Nonparty company would receive a discount of KRW 35,000 or annual fee of KRW 350,000 or KRW 550,000,000, and at the time, the management status of the Nonparty company was very weak.

Therefore, the market price of the shares of this case shall be less than 5,000 won, and this is not so.

In other words, the shares of this case constitute a case in which the market price is not clear, and thus supplementary deliberation is made.

property shall be re-determined by way of any such method.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The resolution of this case was held by both the Plaintiff, NoOO, and KangO, an executive officer of the non-party company, and the main contents of the resolution of this case were allocated 20,000 shares out of 440,000 shares to the non-party company, and the Plaintiff allocated 240,00 shares to the non-party company and 180,000 shares to the non-party, but the remaining 129,00 shares out of 51,00 shares among them are disposed of by the non-party 129,00 shares as well as 20,000 shares to the non-party 129,00 shares forfeited by the well-known group.

(2) On October 9, 199, the non-party company decided to offer new shares with 10,000 won per share by public offering. The non-party company received the subscription for new shares on the Internet from 27th of the same month to 11th of the same year after the non-party company announced it on its website, etc. The 19,000 shares were accepted by 91 general public, and the remaining 80,900 shares were forfeited on November 21, 1999. The non-party company may join the non-party company as a member, but a majority of the above 91 shares were 50 to 1,000 shares per share. After that, the non-party company acquired the shares for each of the 50 to 1,010 common shares for each of the 10th of the 10th of the same month and the 10th of the same October and 10th of the same year respectively.

(3) Meanwhile, the Seoul Regional Tax Office conducted a tax investigation with respect to the non-party company from June 21, 2006 to September 14, 2006, and the Plaintiff stated that the non-party company acquired part of 240,000 shares of the non-party company according to the resolution of this case, who was asked questions about the process of acquiring 220,00 shares of the non-party company. In the course of the tax investigation, the Plaintiff submitted the minutes of each board of directors' meeting as of November 9, 199; the date of the tax investigation; November 3, 1999; the date of November 9, 199; the date of November 21, 199; the date of each board of directors' resolution other than the resolution of this case; and all the contents related to the issue of new shares by means of public offering.

On October 4, 1999, the minutes of the board of directors meeting (Evidence A No. 3-1), the minutes of October 15, 1999 (Evidence A-8), and the minutes of the board of directors meeting (Evidence A-1,100,000,000 of the shares on October 4, 1999 that the Plaintiff paid KRW 1,10,000,000 to the previous shareholders for the purpose of the lawsuit of this case.

[Ground of recognition] Facts without dispute, Gap evidence 3-2, Eul evidence 4-7, 10-11, and the purport of the whole pleadings

D. Determination

(1) The plaintiff asserts that Article 39 (1) 1 (b) of the Act shall apply only to the non-party company's acquisition of the shares of this case allocated by the resolution of the board of directors on October 15, 199, because the shares of this case did not have been cultivated by waiver of the preemptive right allocated by NAO or GangwonO by the resolution of this case, but only to the non-party company's waiver of the preemptive right. However, the plaintiff stated to the effect that the plaintiff acquired the shares of this case allocated by the resolution of this case at the time of investigation of the non-party company, and that the plaintiff submitted the evidence Nos. 3-1, 8, and 9 of the evidence No. 3-1, 8, and 9, and the testimony of the witness Kim Jong-tae was insufficient to believe that the testimony of the non-party company No. 3-1, 8, and 9 and that there was no other evidence to acknowledge it. Thus, the plaintiff's assertion that the non-party company properly accepted the shares of this case by the resolution of the board of directors.

Therefore, it is reasonable to view that some shareholders of the non-party company, such as NoO and KangO, have acquired the instant shares in excess of their share ratio as shares that have waived their preemptive rights, according to the resolution of this case. Thus, the disposition of this case made by the defendant to acquire the instant shares by applying Article 39(1)1 (a) of the Act and Article 29(1) of the Enforcement Decree of the Act

(ii)Determination on the evaluation value per share before capital increase;

(A) According to Article 39(1) of the Act and Article 29(2) of the Enforcement Decree of the Act, the value of deemed donation (the total number of issued stocks before capital increase) + (the number of issued stocks before capital increase by a person X) ± (the total number of issued stocks before capital increase + the number of issued stocks) ± (the number of issued stocks before capital increase by a person who has received allocation in excess of the number of issued stocks under equal conditions) shall be calculated by multiplying the number of new stocks of the person who has received allocation in excess of the number of issued stocks under equal conditions. Article 49(1) of the Enforcement Decree of the same Act provides, with respect to the method of appraisal as to the value of appraisal per stock before capital increase, the term “those recognized as market price under conditions prescribed by the Presidential Decree, such as expropriation, public sale price, appraisal value, etc.” in Article 60(2) of the same Act provides that where the transaction price exceeds the value of the property in question from three months before the base date of appraisal, such transaction price shall be excluded.

(B) In full view of the above provisions, if there is a fact of sale and purchase of the pertinent shares for three months before and after the date of donation, the assessment value per share before and after the capital increase may be based on the transaction amount. The stock price of this case from October 25, 1999 to October 27, 1999 to December 10 of the same year, which is within three months after the date of donation.

The fact that the shares of the non-party company were transferred to the general public by means of public offering of 10,000 won or more is identical to the above facts. As such, it is legitimate for the defendant to evaluate the value per share before the capital increase by deeming that the transaction was made on the nearest day from the date of donation as of the base date of appraisal as above.

(C) On this basis, the Plaintiff asserted that the above KRW 10,00 is the price taken into account the benefits of discounting the membership fee of the non-party company when acquiring 50 shares of the non-party company, and that it cannot be deemed as the market price since the situation of the non-party company was inferior at the time. However, the Plaintiff’s assertion that the testimony of the evidence Nos. 4-1 through 3, 5, 10, and 11 and the witness Kim O is insufficient to recognize it, and there is no other evidence to acknowledge it. Rather, there is a large number of the underwriters, and there is a variety of shares among the subscribers, the number of shares per person per person is 50 to 1,010 shares, and the number of shares per person is 50 to 1,000 shares of the non-party company and the non-party company 10,000 shares each around the above general public offering day. Therefore, the Plaintiff’s assertion also cannot be accepted.

3. Conclusion

그렇다면, 원고의 이 사건 청구는 이유 없으므로 이를 모두 기각하기로 하ㅕ 주문과 같이 판결한다.

public official law, order of law,

○ Inheritance Tax and Gift Tax Act (amended by Act No. 6048 of Dec. 28, 1999)

Article 39 (Presumption of Donation at the time of Capital Increase or Capital Reduction

(1) In the event that the capital or investment amount of a corporation is increased or decreased, the person who receives any benefits falling under one of the following subparagraphs, shall be deemed to have received such benefits as a donation:

1. In case where a shareholder of the relevant corporation (including an investor; hereafter the same shall apply in this Article) has renounced in whole or in part the right to receive new stocks for the purpose of increasing the capital or investment amount of the relevant corporation (hereafter referred to as “new stocks” in this paragraph), benefits under the provisions of the following items (in case where there are not less than 2 minor shareholders who have renounced in whole or in part the right to receive new stocks, it means the benefits which are calculated by deeming that one minor shareholder has renounced his right:

(a) In case where such renounced new shares (hereafter in this paragraph, referred to as the “actual shares”), are again allocated (excluding the case where the public offering method of new shares is allotted under Article 2 (3) of the Securities and Exchange Act), the benefits prescribed by the Presidential Decree from among the benefits acquired by the person who received the allocation of relevant forfeited shares, by obtaining such allocation

(b) In case where forfeited stocks are not allocated again, benefits as prescribed by the Presidential Decree from among those acquired by the majority shareholder by the person who has renounced the subscription of relevant new stocks and who has a special relationship therewith;

Article 60. Principles, etc. of Appraisal

(1) The value of property on which an inheritance tax or a 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 appraised by the method of appraisal stipulated in Article 63 (1) 1 (a) and (b) (excluding cases falling under the provisions of Article 6

(2) The market price under paragraph (1) shall be the price which is considered to be normal in the case of free trade between many and unspecified persons and shall include the expropriation price, public auction price and appraisal price, and others which are recognized as the market price under the conditions

(3) In applying paragraph (1), where it is difficult to compute the market price, the value assessed by the methods prescribed in Articles 61 through 65 in consideration of the type, scale, transaction status, etc. of the relevant property.

Article 68 (Reporting of Tax Base of Gift Tax

(1) A person liable for payment of gift tax under Article 4 shall, within three months from the date of donation, report the taxable value and tax base of gift tax under Articles 47 and 55 (1) to the superintendent of the competent tax office under the conditions as prescribed by

Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 16660 of Dec. 28, 199)

Article 29 (Calculation Method, etc. of Value Deemed Donation upon Capital Increase or Capital Reduction

(2) The term "gains prescribed by the Presidential Decree" in Article 39 (1) 1 (a) of the Act means the amount calculated by multiplying the value calculated under subparagraph 1 minus the value under subparagraph 2 by the number of new stocks under subparagraph 3:

1. [The number of stocks issued prior to the increase of the acquisition price per stock) + (the number of stocks increased by the X-rayer) + (the number of stocks increased by the increase of the acquisition price per new stocks)] ¡À (the number of stocks issued prior to the increase £«

2. The acceptance price per stock of new stocks;

3. The number of new stocks for those who have been allocated in excess of the number of new stocks to be allocated under equal conditions; and

(3) For the purpose of Article 39 (1) 1 (b) of the Act, the term “gains determined by the Presidential Decree” means the relevant amount in case where the amount obtained by deducting the value under subparagraph 2 from the value calculated under subparagraph 1 is different by not less than 30/100 of the value calculated under subparagraph 1, or where the amount calculated by multiplying the value by the number of forfeited stocks calculated under subparagraph 3 is not less

1. [The total number of outstanding stocks before the capital increase] + (the number of increased stocks where the capital increase has been made in an equal proportion to the ratio of the acquisition price per stock before the capital increase) + (the total number of issued stocks before the capital increase + the number of increased stocks where the capital increase has been made in an equal proportion in proportion to the ratio of shares before the capital increase);

2. The acceptance price per stock of new stocks;

3. The ratio of shares held by subscribers of new stocks after the total X-value increase of forfeited stocks;

Number of forfeited stocks of a person specially related to the purchaser of new stocks

The total number of forfeited stocks of X (-----------------------------------------------------)

Article 49 (Evaluation Principles, etc.)

(1) For the purpose of Article 60 (2) of the Act, the term “those recognized as the market price under the conditions as prescribed by the Presidential Decree, such as the expropriation, public auction price, appraisal value, and appraisal value, etc.” means, limited to cases of sale, appraisal, expropriation, auction (referring to an auction under the Civil Procedure Act; hereafter the same shall apply in this paragraph) or public auction during a period of not more than 6 months before and after the standard date of appraisal (3

1. If the fact of sale and purchase of the relevant property exists, the transaction value: Provided, That this shall not include cases where the transaction value is deemed objectively unfair, such as transactions with persons with a special relationship as referred to in Article 26 (4);

(2) Where the value to be considered as the market price under the provisions of paragraph (1) is two or more, it shall be based on the value corresponding to the date of evaluation.