Seoul Administrative Court-2014-Guhap-54639 (2016.03)

Seocho 2013west 4701 ( October 23, 2014)

It is reasonable to interpret Article 42 (4) of the Inheritance Tax and Gift Tax Act as "the certificate of listing by merger".

Since it is reasonable to interpret Article 42(4) of the Inheritance Tax and Gift Tax Act as a limitation on "the listing by merger", the taxation of gift tax under Article 42(4) of the Inheritance Tax and Gift Tax Act is illegal if only "merger" is made.

Gift, etc. of other profits under Article 42 of the Inheritance Tax and Gift Tax Act

Gift, etc. of other profits under Article 31-9 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act

2016Nu503

ParkA and one other

○ Head of tax office

on 13, 2010

on October 10, 2017

1. Revocation of a judgment of the first instance;

2. On July 9, 2013, the head of △△ Tax Office imposed a gift tax of 201 (including additional tax of ○○○○○○○) (including additional tax of ○○○○○○) on Plaintiff ParkbB on Plaintiff ParkB on July 10, 2013 and imposed a gift tax of ○○○○ (including additional tax of ○○○○) on Plaintiff ParkB on July 10, 2013.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Quotation of the reasons for the judgment of the first instance;

This judgment is based on the reasoning of the judgment of the court of first instance, except for dismissal or addition of the following matters, and thus, it is based on Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

(1) On face 7, the following shall be added to the third place:

(3) Article 42 (4) of the former Inheritance Tax and Gift Tax Act, which the Defendant’s ground for the instant disposition, provides that where a person, such as a minor, etc., as prescribed by the Presidential Decree, obtains property from another person by gift and obtains profits derived from the increase in the value of the property due to the reasons such as listing and merger of stocks and investment shares within five years from the date of the acquisition of the property, which is above the standard prescribed by the Presidential Decree, it shall be the value of the property donated to the person who obtains such profits. The instant disposition is legitimate.

가) 그런데 위 ②항의 요건과 관련하여 구 상속세및증여세법 제42조 제4항의 '합병'은 단순한 '합병'을 의미하는 것이 아니라 '합병에 의한 상장'만을 의미한다고 해석하여야 하는바, 주식회사 □□는 주식회사 ▲▲▲과의 합병을 통해 상장된 바 없으므로 구 상속세및증여세법 42조 제4항의 과세요건을 충족하였다고 볼 수 없다.

B) In addition, Article 42(4) of the former Inheritance Tax and Gift Tax Act limits the object of gift tax to the extent that there is a causal relationship with the reason for increase in the value of property by stipulating that “the benefit arising from an increase in the value of property arising from an increase in the value of property” and only the method of calculating the same is delegated to the Enforcement Decree of the Inheritance Tax and Gift Tax Act. Nevertheless, Article 31-9(7) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act is included in the subject of gift tax for the portion of increase in the value of property unrelated to the reason for increase in the value of property. Thus, Article 31-9(7) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act exceeds the scope of delegation under Article

(2) On face 12, the following parts shall be added to Chapter 19:

3) Determination on the assertion regarding the meaning of "merger" under Article 42 (4) of the former Inheritance Tax and Gift Tax Act

A) Under the principle of no taxation without law, the interpretation of tax laws shall be interpreted in accordance with the text of the law unless there are special circumstances, and it shall not be permitted to expand or analogically interpret without reasonable grounds. However, where it is necessary to clarify the meaning through mutual interpretation between laws, it is inevitable to make a combined interpretation with the purpose of view to the purpose of legislation and purpose within the scope that does not terminate the legal stability and predictability oriented by the principle of no taxation without law (see, e.g., Supreme Court Decision 2007Du4438, Feb. 15,

B) The meaning of "merger" under Article 42 (4) of the former Inheritance Tax and Gift Tax Act

(1) Article 42(4) of the former Inheritance Tax and Gift Tax Act provides that where a person, such as a minor, etc., prescribed by Presidential Decree, acquires property from another person and acquires such property, such profits shall be deemed the value of property donated to the person who has acquired such property, and gains more than the standard prescribed by Presidential Decree, due to the reason such as execution of development project, change of form and quality, division of common property, authorization and permission of business, listing and merger of shares and equity shares (hereinafter referred to as “reasons for increase of property

(2) As examined below, in light of the contents of the former Inheritance Tax and Gift Tax Act and the legislative background thereof, it is reasonable to interpret that the phrase “mergers” under Article 42(4) of the former Inheritance Tax and Gift Tax Act mean “the listing following a merger” under Article 41-5 of the former Inheritance Tax and Gift Tax Act.

① Article 41-3 of the former Inheritance Tax and Gift Tax Act provides that “the donation of profits from the listing of shares or equity shares, etc.” Article 41-5 of the same Act provides that “the donation of profits from the listing of shares or equity shares, etc.” Article 41-3 of the same Act provides that “the donation of profits from the listing of shares or equity shares, etc.” Article 41-5 of the same Act provides that when the former Inheritance Tax and Gift Tax Act was amended on December 28, 1999, a new provision on Article 41-3 of the same Act provides that “the donation of profits from the listing of shares or equity shares, etc. by the listing of shares of the corporation to which the largest shareholder, etc. belongs, or by the listing of shares of another corporation after the acquisition of shares of the largest shareholder, etc., shall be imposed on the profits from the listing of shares or equity shares under the listing of the former Inheritance Tax and Gift Tax Act, which is the comprehensive taxation of shares under Article 41-3 and Article 41-5 of the former Inheritance Tax and Gift Tax Act.”

② Article 38 of the former Inheritance Tax and Gift Tax Act provides that the gift tax shall be imposed on the profits accrued from the merger where the large shareholders obtain profits from an unfair merger, and Article 28(1) proviso of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act excludes the above Article 38 in cases of a merger where a stock-listed corporation under the Financial Investment Services and Capital Markets Act provides that another corporation and the same fairness as that of a merger under Article 165-4 of the same Act and Article 176-5 of the Enforcement Decree of the same Act are guaranteed. Thus, even if this is seen, the former Inheritance Tax and Gift Tax

③ It can be seen that the merger is linked to the "listed and merger of shares and equity shares" under the law of Article 42 (4) of the former Inheritance Tax and Gift Tax Act. In this case, since the merger of shares is not an appropriate expression, it appears that it is natural expression that read it to the "listed following the merger of shares and equity shares," and the execution of development projects, change of form and quality, division of common property, approval and permission of business, listing, registration of the Korea Financial Investment Association, occurrence of insurance accidents, etc. listed in Article 31-9 (5) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act can be deemed to be all of the causes of increase in the value of property. Therefore, it is difficult to see that the simple merger of the company is ordinarily a reason for increase in the value of property.

④ Even if the provisions of the current Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015) revised after the disposition of the former Inheritance Tax and Gift Tax Act and the instant case were amended, the phrase “merger” is an opportunity for taxation, which is the degree of Article 38 or 41-5 (in the case of a bypass listing through a merger). It is difficult to view that it is evident that the meaning of “listing and merger of shares and equity shares,” which are defined as one of the grounds for increase in the value of property under Article 42(4) of the former Inheritance Tax and Gift Tax Act in light of the principle of interpretation of tax law as seen earlier, is dependent only on the phrase “the listing and merger of shares and equity shares,” which is defined as one of the grounds for increase in the value of property under Articles 38 and 41-5 of the former Inheritance Tax and Gift Tax Act.

(5) In particular, the current Inheritance Tax and Gift Tax Act provides that "the donation of other profits (Article 42, Article 42-2, and Article 42-3 is newly established): The current Article 42 of the Inheritance Tax and Gift Tax Act clearly provides that "the donation of profits as provided in the current Article 42 of the Inheritance Tax and Gift Tax Act shall be classified by separate provisions for each type, and it shall be made clear that it is a provision for each example of donation." The revised Article 42-3 of the current Inheritance Tax and Gift Tax Act (Article 42-4 of the former Inheritance Tax and Gift Tax Act clearly provides that the nature of the case shall be specified by separate provisions) provides that "the listing and merger of shares and equity shares among those as provided in Article 42 (4) of the former Inheritance Tax and Gift Tax Act shall be excluded from the subject of the gift tax, while the previous Article 38 and Article 41-5, which already known "merger" as a taxation instrument, shall be interpreted as "the merger under Article 42-5 of the former Inheritance Tax and Gift Tax Act".

(6) Ultimately, it is reasonable to view that Article 42(4) of the former Inheritance Tax and Gift Tax Act provides that if the value of shares increases as a result of the listing of shares as a result of a merger with another stock-listed corporation after the donee acquired shares from another person by means of any subparagraph of Article 42(4) such as donation, it shall be taxed in cases where the increase

(3) 이 사건의 경우, 앞서 본 바와 같이 원고들이 박CC으로부터 주식회사 □□의 주식을 증여받은 날로부터 5년 이내에 주식회사 ▲▲▲이 주식회사 □□를 흡수합병하였으나 주식회사 □□가 합병에 따라 상장된 경우에 해당하지 않는 이상, 구 상속세및증여세법 제42조 제4항에서 정하고 있는 재산가치증가사유가 발생하였다고 볼 수 없으므로, 이와 다른 전제에 선 이 사건 처분은 위법하다."

(3) A space between pages 12, 20 through 13, shall be deleted.

2. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition with the cancellation of the disposition of this case.