Seoul Administrative Court 201Guhap19451 ( October 14, 2011)

Cho High Court Decision 201Do0501 (Law No. 105,06)

The scope of the largest shareholder when imposing gift tax on profits from listing stocks or equity shares;

It is difficult to see that all of the shareholders who are the largest shareholder and their specially related persons are subject to gift tax on the listing, etc. of stocks or equity shares, because the largest shareholder intends to prevent the transfer of stocks to children and other specially related persons by donating or transferring stocks for compensation.

2011Nu4034 Revocation of Disposition of Imposing gift tax

KimAA et al.

Head of Yongsan Tax Office

Seoul Administrative Court Decision 2011Guhap19451 decided October 14, 2011

April 6, 2012

May 4, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 000 per gift tax imposed on the Plaintiffs on October 1, 2010 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiffs' claims are dismissed.

1. Quotation of judgment of the first instance;

The reason for this decision is that the judgment of the court of first instance is the same as the judgment of the court of first instance, except for the addition of the new arguments and the judgment of the defendant to the corresponding part of the judgment of the court of first instance as follows. Thus, this decision is cited in accordance with Article 8(2) of the Administrative Litigation Act

2. The addition;

A. The defendant's assertion

Article 41-3(1)2 of the Inheritance Tax and Gift Tax Act (hereinafter “the Inheritance Tax and Gift Tax Act”) provides that “a person prescribed by the Presidential Decree who holds 25/100 or more of the total number of outstanding shares or total amount of investment by a domestic corporation” as one of the largest shareholders. Accordingly, Article 31-6(2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “If the total number of shares, etc. owned by a person in a relationship falling under any subparagraph of Article 19(2) is 25/100 or more” refers to the relevant stockholder, etc. who holds 25/100 or more of the total number of shares owned by the person in a relationship falling under any subparagraph of Article 19(2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. To fall under the largest shareholder, the above provision requires that a shareholder who holds 25% or more shares be limited to the largest shareholder, and thus, all of the shareholders who belong to the relevant group can be deemed the largest shareholder.

B. Determination

The Defendant’s assertion is premised on the premise that “the pertinent shareholder” under the Enforcement Decree of the Inheritance Tax and Gift Tax Act refers to not only one shareholder but also all the shareholders with a special relationship with the shareholder. However, in light of the above legislative intent and the fact that there is no reason for different interpretation under Article 41-3(1)1 and 2 of the Inheritance Tax and Gift Tax Act, it is reasonable to reject the Defendant’s argument to the same effect as above in relation to Article 41-3(1)1 of the Inheritance Tax and Gift Tax Act, and it is also reasonable to interpret Article 41-3(1)2 of the Inheritance Tax and Gift Tax Act. In addition, the Defendant’s argument that “one shareholder” under Article 1119(2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is presented to the Plaintiffs, not the KimCC with the largest shareholder holding ratio, even if it can be seen as the largest shareholder, the Plaintiff cannot be seen as holding shares in the instant case’s holding ratio as the largest shareholder under Article 19(2)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act.

3. Conclusion

If so, the plaintiff's claim of this case shall be quoted for the reasons, and the judgment of the court of first instance shall be accepted.

The defendant's appeal is dismissed on the grounds that the conclusion is just.