In calculating the net asset value, the method of calculating the value per share, if the evaluation base date and the settlement date are different;

In order to calculate the net asset value per share on the basis of the net asset value by supplementary evaluation method, the tax authority should prove that there was no change in the net asset value between the evaluation base date and the other date (ordinary settlement date).

1. The Defendant’s imposition of gift tax of KRW 34,585,60 against the Plaintiff on July 1, 2009 and the imposition of KRW 130,453,470, respectively, shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

“A. On October 22, 2001, the State Council established BB department stores Co., Ltd. (the name was changed to CCC department stores Co., Ltd. on May 20, 2004; hereinafter “Non-Party Company”) and registered 40,000 shares in its own name among 4 million shares issued in the non-party company, and registered 180,000 shares in the name of KimE (45% of the total issued shares), 140,000 shares in the name of KimD (35%) and 60,000 shares (15%) in the name of KimF, and 160,00 shares (15%) in the name of the largest 36,00 shares in the name of the non-party company (the total issued shares) and the 84,000 shares in the name of the non-party company, each of which was trusted on April 30, 2002.

C. The defendant applied the provision on constructive gift of nominal trust property under the Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002; hereinafter "Gift") on the ground that according to the result of the survey on the change of stocks conducted by the non-party company from Dec. 29, 2008 to Feb. 9, 2009 by the Seoul Regional Tax Office, the stateA, the founder of the non-party company, re-titled to the plaintiff the stocks of this case trusted to the plaintiff under the name of KimE and KimD according to the result of the survey on the change of stocks conducted by the non-party company. The defendant assessed the value per share of the above stocks to the plaintiff on July 1, 2009 at KRW 5,640,000,000 and the gift tax of KRW 13783,870 against the above 880,000,000,000 (hereinafter referred to as "the remaining part of this case").

D. Accordingly, the Plaintiff filed an appeal with the Tax Tribunal on August 28, 2009, and the Tax Tribunal rendered a decision to revise the instant disposition by evaluating on November 20, 201 as net asset value of KRW 482 [the net asset value of KRW 1,931,810,106 on the balance sheet - KRW 4 million on December 31, 2001 - KRW 4 million on the net asset value of KRW 63(1) (c) and Article 54(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17791, Dec. 5, 2002; hereinafter the same shall apply).

E. Accordingly, on December 24, 2009, the Defendant assessed the value per share of the instant shares of KRW 482,000, and issued a revised and notified of gift tax on KRW 34,585,600 on the said shares of KRW 360,00,00, and KRW 130,453,470 on the said shares of KRW 880,00.

[Grounds for Recognition: The absence of dispute or the purport of the whole pleadings as to Gap evidence Nos. 1 and 3; Gap evidence Nos. 2, 4, 6, 9; Eul evidence Nos. 1-1 through 4; Eul evidence Nos. 2, 5, and 6]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition should be revoked as it is unlawful.

1) Re-title trust of the instant shares that the StateA had entrusted under the name of KimE and KimD to the Plaintiff is not due to the fact that, if the StateA, which was sentenced to a suspended sentence due to a violation of the Door-to-Door Sales Act, remains as a controlling shareholder of the non-party company, the non-party company could not be registered as a multi-level marketing business, but was not for tax avoidance purpose.

2) The non-party company assessed the shares of this case as KRW 482 per share, even though it did not have any assets at the time of title trust with respect to the shares of this case, and even according to the tax settlement statement in 2002, the non-party company did not have any net losses and did not have any value of the shares at the time of title trust.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Whether the purpose of tax avoidance exists

The legislative purport of the provision on constructive gift of title trust property under the Gift Tax Act is to effectively prevent the act of tax avoidance using the title trust system and realize the tax justice, so the proviso of the same provision is applicable only where the purpose of tax avoidance is not included in the purpose of the title trust. In such a case, the burden of proving that there was no purpose of tax avoidance can be proved by proving that there was a purpose of tax avoidance, other than the purpose of tax avoidance (see, e.g., Supreme Court Decisions 2003Du13649, Dec. 23, 2004; 2004Du1223, Jan. 28, 2005). However, the burden of proving that there was no objective and objective purpose of tax avoidance, such as tax evasion, to the extent that there was no objective and objective purpose of tax evasion (see, e.g., Supreme Court Decisions 2004Du7733, May 12, 2006; 2004Du13936, May 25, 2006).

In the instant case, as seen earlier, the State Council: (a) registered the shares issued at the time of incorporation of the non-party company in the register of shareholders; (b) partially owned and owned by it to the KimE, KimD, KimF, KimF, the largestG, etc.; and (c) thereafter, registered a title trust to the Plaintiff some of the shares trusted in the name of KimE and KimD; (b) through such distributed title trust, the State Council avoided secondary tax liability under the Framework Act on National Taxes and the Local Tax Act; (c) avoided the increase in the shares held by the largest shareholder if the shares were transferred and donated; and (d) there is no possibility that the lower tax rate may be applied if the dividend income or capital gains were incurred; and (d) according to the evidence presented by the officer of the Plaintiff during the period of suspension of the title trust (amended by the Act No. 2514, Jul. 26, 200; and (e) there was no reason to acknowledge the fact that the Plaintiff could not be otherwise admitted during the period of suspension of the title trust by the Seoul District Court.

2) Whether evaluation method of stock value is lawful

A) When it is difficult to calculate the market price of donated property as non-listed stocks as provided in Article 63(1)1(c) of the Gift Tax Act, the value shall be assessed according to the supplementary assessment method as provided in Article 54 of the Enforcement Decree of the same Act. Article 54(2) of the Enforcement Decree of the same Act provides that the value per share shall be assessed as the net asset value divided by the total net asset value of the pertinent corporation by the total number of issued and outstanding stocks of the relevant corporation, and Article 55(1) of the Enforcement Decree of the same Act provides that the net asset value per share as of the base date of appraisal shall be the amount calculated by subtracting the liabilities from the value of the assets of the relevant corporation as of the base date of appraisal. Thus, when the supplementary assessment method provides that the net asset value per share is assessed by the above supplementary assessment method, the net asset value of the relevant corporation as of the base date of appraisal shall be calculated. Therefore, in order to calculate the value per share based on the net asset value at a time other than the net asset value as of the relevant corporation as of the base date of appraisal.

In this case, as seen earlier, the Defendant calculated the net asset value of the non-party company as of December 31, 2001 as of December 31, 2001, the non-party company 2 calculated the value of the non-party company as of December 31, 200, by applying the supplementary i evaluation method stipulated in Article 54 (2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act to the non-party 1 as of the date of donation of the non-party 2's non-party 1's non-party 1's non-party 2's non-party 4's non-party 2's non-party 1's non-party 2's non-party 5's non-party 2's non-party 2's non-party 1's non-party 3's non-party 1's non-party 2's non-party 1's non-party 4's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's company's non-party 1'

B) On the other hand, in a lawsuit seeking revocation of a tax disposition, whether a disposition is lawful or not is determined depending on whether it exceeds a legitimate amount of tax. The parties can submit objective tax bases and materials supporting the legitimate amount of tax until the closing of argument in the fact-finding court. When a legitimate amount of tax to be imposed lawfully is calculated based on such materials, only the portion exceeding the legitimate amount of tax should be revoked. However, if not, the entire amount of the tax disposition should be revoked, and in such a case, the court should actively find a reasonable and reasonable and reasonable method of calculating the amount of tax by its authority (see, e.g., Supreme Court Decision 94Nu13527, Apr. 28, 1995).

On December 31, 2001, the value of the shares of the non-party company cannot be assessed based on the net asset value as of December 31, 2001, as seen earlier. The objective tax base of the shares of this case and the amount of legitimate gift tax accordingly cannot be calculated based on the records of litigation in the pleading of this case. Thus, the entire disposition of this case shall be revoked.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for all reasons, and it is so decided as per Disposition.