Busan High Court 2010Nu436 (Law No. 19, 2010)

Cho High Court Decision 2009Da1571 (Law No. 25, 2009)

Where profits from listing stocks, etc. are taxed as gift tax, the scope of the largest shareholder shall not include persons in a special relationship with him/her.

In case where profits from the listing of stocks or investment shares are taxed as gift tax, the scope of the largest shareholder shall be defined in the relevant laws as "the largest shareholder" when defined in the relevant laws, and where combined holding of stocks, etc. by a person with a special relationship is the largest shareholder, etc. and the person with a special relationship is not included in the scope of the largest shareholder.

Article 41-3 of the former Inheritance Tax and Gift Tax Act

Article 19 of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act

2010Du11559 Revocation of Disposition of Imposition of Gift Tax

GAA et al.

Head of Eastern Tax Office

Busan High Court Decision 2010Nu436 decided May 19, 2010

May 10, 2012

All appeals are dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

(1) The provisions of Article 41-3 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act stipulating that the largest shareholder of the relevant corporation shall be the one who is the largest shareholder of the former Inheritance Tax and Gift Tax Act (amended by Act No. 828, Dec. 31, 207; hereinafter referred to as “former Enforcement Decree”) with respect to the inheritance tax and Gift Tax Act or the one who is the largest shareholder of the following persons who shall be entitled to use the information pertaining to the management of the relevant corporation:

B. The court below's decision is justified in holding that the shares of the non-party company 1.8% are not owned by the non-party company's 8,000 shares of the non-party company 1 (hereinafter "the non-party company 1") and the shares of the non-party company 1.8% are not held by the non-party company 1. Even if the plaintiffs are executives of the non-party company 2, the shares of the non-party company 2 cannot be combined by applying Article 19 (2) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. Thus, the non-party 2 cannot be viewed as the "large shareholder, etc." under Article 41-3 (1) of the former Inheritance Tax and Gift Tax Act and Article 19 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act are applicable only to the case where the plaintiffs who acquired the shares of this case acquire shares from the largest shareholder, etc., even if they are not the largest shareholder.

C. The court below did not err in the misapprehension of legal principles as to interpretation and application of the largest shareholder, etc. under Article 41-3(1) of the former Inheritance Tax and Gift Tax Act and Article 19(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act

2. Meanwhile, the argument in the grounds of appeal that the transfer of shares of this case satisfies the taxation requirements under Articles 2(3) and 31(1) of the former Inheritance Tax and Gift Tax Act is subject to gift tax. Since the argument in the grounds of appeal that the transfer of shares of this case is subject to gift tax is acknowledged as being a new argument raised only in the final appeal, it cannot be deemed that the judgment of the court below which

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.