Suwon District Court 2012Guhap7609 ( October 16, 2014)

In the case of unlisted stocks, the transaction value which properly reflects the exchange value can be considered as the market price.

In the case of unlisted stocks, since the transaction value that properly reflects the exchange value can be seen as the market value, it is reasonable to view that the issue value per stock at the time of capital increase with new stocks is the market value that appropriately reflects the objective exchange value.

Article 60 of the Inheritance Tax and Gift Tax Act:

2014Nu6700 Revocation of Disposition of Imposing gift tax

- Appellants

Red ○○ 1

○ Head of tax office

Suwon District Court 2012Guhap7609 ( October 16, 2014)

2015.21

2015.09.01

1. All appeals by the plaintiffs and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

(6) On August 25, 200, the above disposition of KRW 200 (this tax) and KRW 200 (additional tax on March 1, 2013), and KRW 100 (Additional tax on KRW 1) as to KRW 30,00 (No more than KRW 20,000) and KRW 20 (No more than KRW 3,00,00) as to KRW 20 (No more than KRW 1,00) as to KRW 1,00,00, KRW 20,000 (No more than KRW 2,00,000) as to KRW 3,00,00,000, KRW 1,00,00,000, KRW 2,000,00 and KRW 1,00,00 (No more than KRW 1,00,00,00) as to KRW 1,30,00,00).

A. The plaintiffs

Of the part against the plaintiffs in the judgment of the court of first instance, the part regarding the disposition of this case 3, 5, and 6 shall be revoked, and the decision that the defendant revoked the disposition of this case 3, 5 and the disposition of this case 6 against the plaintiff 1 to the plaintiff 1B.

B. Defendant

In the judgment of the court of first instance, the part against the defendant (the part against the defendant in this case 4, 8) is revoked, and the plaintiffs' claims corresponding to the revoked part are dismissed.

1. The purport of appeal by the parties and the scope of adjudication on the party deliberation;

A. The plaintiffs' appeal purport

"(1) As to the three dispositions of this case (the transfer income tax), ① the comprehensive exchange of shares between CCC and DD (the comprehensive exchange1 of this case) on May 31, 2006 (the comprehensive exchange1 of this case) does not constitute transfer subject to transfer income tax. ② Even if the transfer falls under the transfer, the exchange price indicated in the exchange contract cannot be deemed as transfer value of CCC shares. Thus, the three dispositions of this case are unlawful. (2) As to the five and six dispositions of this case ( gift tax) on other premise, ① the actual purchaser of CCC shares issued on August 3, 2005 to the largest E is not the Plaintiff AB, and ② even if the actual purchaser of CCC shares issued on August 3, 2005 did not actually acquire CCC shares on the premise that the purchase price of Plaintiff PCC shares was 000,000,000,0000,000,000,000,000,00,00.

B. The defendant's appeal

As to the disposition of this case 4, as the court of first instance decided, the defendant shall revise the applicable law under Article 39(1)1 (c) of the former Inheritance Tax and Gift Tax Act to Article 42(1)3 of the former Inheritance Tax and Gift Tax Act, and (2) In such a case, the calculation of the gift tax shall be based on Articles 31-9(2)4 and 30(4)1 of the former Inheritance Tax and Gift Tax Act, and the amount of the gift tax calculated under the above provision is identical to the amount of the gift tax that is premised on the defendant’s disposition of this case 4 and 8 (the same shall apply to cases where the calculation of the gift tax is based on Articles 31-9(2)5 (a) and 28 of the former Inheritance Tax and Gift Tax Act, as the

(c) Scope of adjudication on the political party;

Ultimately, with respect to the part concerning the disposition of this case 3, 5, and 6 among the judgment of the court of first instance, the plaintiffs filed an appeal against the part concerning the disposition of this case 4, 8 among the judgment of the court of first instance, and since the defendant filed an appeal against the part concerning the disposition of this case 3, 4, 5, 6, and 8, the subject of the judgment of the party

2. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on the instant case is as follows, except for the addition of items D.2(d) of Item 3, 4, and 8 of this case’s 3, 8 of the reasoning of the judgment of the court of first instance to the part concerning the reasoning of the judgment of the court of first instance, and thus, it can be cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

C) Meanwhile, when the Defendant was in a trial, pursuant to the legal principle of the instant disposition No. 4 and 8, the Defendant changed the statute to Article 42(1)3 of the former Inheritance Tax and Gift Tax Act, and accordingly, the relevant statute was also changed to Article 31-9(2)4 and Article 30(4)1 of the former Inheritance Tax and Gift Tax Act.

Accordingly, the plaintiffs are excluded from gift tax pursuant to Article 42(3) of the former Inheritance Tax and Gift Tax Act, since the comprehensive exchange of this case is conducted through lawful evaluation procedures under the Securities and Exchange Act and there is no special reason between CCC and DD. <2> The calculation of gift tax pursuant to Article 31-9(2)5(a) and Article 28 of the former Inheritance Tax and Gift Tax Act applies to the calculation of gift tax based on the comprehensive exchange of stocks. The comprehensive exchange of this case constitutes a merger with DD and CCC, which is a corporation listed on KOSDAQ, and is excluded from gift tax subject to gift tax pursuant to the proviso of Article 28(1) of the former Inheritance Tax and Gift Tax Act.

First, there is no evidence to acknowledge that the comprehensive exchange in this case is excluded from the subject of gift tax under Article 42 (13) of the former Inheritance Tax and Gift Tax Act, and that there is no special relationship betweenCC and DD under the Inheritance Tax and Gift Tax Act. Thus, if there is a good reason for transactional practice such as calculation of stock exchange rate in the comprehensive exchange in this case, it shall be excluded from the subject of gift tax.

Article 42(1) of the former Inheritance Tax and Gift Tax Act provides that “The legislative intent of Article 42(1) is to cope with and promote fair taxation.” However, in a transaction between unrelated parties, it is exceptional to give up an opportunity for understanding that the relationship of interests does not coincide with one another, and allowing the other party to gain gift benefits by means of giving up his/her opportunity to obtain his/her own benefits. As such, Article 42(3) of the former Inheritance Tax and Gift Tax Act provides that “If there is a reasonable ground to believe that a transaction party would make a transaction with an unrelated party, unlike the interests arising from a transaction between unrelated parties, with due regard to an objective exchange value, or from a reasonable economic standpoint, it is difficult to view that there is no reasonable ground to believe that a transaction partner would make a transaction with such terms and conditions as the case where it can be seen that there is a legitimate reason to believe that the transaction partner would have a transaction with such terms and conditions of trading, such as the case’s provision on comprehensive exchange of stocks at the time of acquisition of stocks.” On the other hand, there is no reasonable ground to prove 2120 G/D’s.

Ultimately, the conclusion that the comprehensive exchange of this case is illegal without any need to further examine the remaining arguments of the plaintiffs, as it is excluded from the subject of gift tax pursuant to Article 43(3) of the former Inheritance Tax and Gift Tax Act.

3. Conclusion

Therefore, the plaintiffs' claims are justified within the scope of the above recognition and the remaining claims are dismissed as they are without merit. The judgment of the court of first instance with the same conclusion is justifiable, and all appeals of the plaintiffs and the defendant are dismissed. It is so decided as per Disposition.