Issuance of new stocks by contribution in kind and subject of gift tax;

Unless otherwise provided in the articles of incorporation, a disposition imposing gift tax on an investor in kind on the premise that there is a preemptive right to new shares because the former shareholder does not have a preemptive right to new shares, is unlawful.

Article 416 of the Commercial Act, Article 34-4 of the Inheritance Tax Act

Epicts

the director of the tax office

Each disposition of imposition of gift tax and defense tax on August 19, 1985 by the defendant against the plaintiff on August 19, 1985, as stated in the correction reduction decision column, shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. The evidence of subparagraph 3 (No. 3), the evidence of subparagraph 7 (No. 7-1, 2 (Confirmation of Report of Closure), the evidence of subparagraph 8-1, 2 (Investigation Report, Certification Institute), the evidence of subparagraph 9-1, 2, 3 (No. 1, 2, 1-2 (each certified copy of register), the evidence of subparagraph 13 (No. 13-1 through 12 ( separate notice notice), the evidence of subparagraph 14 (No. 14), Eul, 13 (Notice of Reduction), the evidence of subparagraph 1 through 12 (No. 13 (Notice of Decision), the bill of shareholders’ general meeting), the evidence of subparagraph 14 through 25 (Notice of Correction Decision), the verification of changes in the net asset value of the witness, the net asset value of the evidence appraisal report, the net asset value of No. 27-2 (No. 12), the verification statement of changes in the real estate appraisal and assessment report, the net asset value of the witness, the appraisal statement, the net asset value of No. 2 (No. 1);

(1) The plaintiff operated the non-party company as a shareholder and representative director of the Daok-dong, Yeongdeungpo-gu, Seoul Metropolitan Government 6 as a shareholder and representative director of the Daok-dong 332-3 of the Daok-dong, and at the same place as the plaintiff's personal enterprise;

(2) The above non-party company is KRW 70,00,000 (the total number of shares issued by the non-party company is KRW 70,00,000 per share; KRW 1,000 per share). The plaintiff and 13 shareholders (including the plaintiff) under the special relationship under Article 41(2) of the Enforcement Decree of the Inheritance Tax Act as shown in attached tax invoice 2. On October 15, 1983, the plaintiff, an individual company of the non-party company, made a contract for the transfer of business between the plaintiff, the representative director of the non-party company, and the plaintiff, the above representative director of the non-party company, approved the above consolidation at the above general meeting of shareholders by opening a temporary general meeting of shareholders on the same day, accompanied by the above consolidation, made a resolution to revise the total number of shares issued by the above non-party company to KRW 240,00,000, by opening a board of directors on the same day to issue the new shares of the non-party company to the above company as investment in kind.

(3) The non-party who was appointed as inspector by the Seoul District Court on December 26, 1983 as of December 26, 1983 was investigated and reported to the effect that the value of the assets invested in kind was KRW 857,090,056, the debt amount was KRW 15,531,797, and the amount invested in kind was KRW 841,556,259, and the kind and number of the stocks to be granted to the plaintiff as the investor in kind was KRW 170,000,000, which was the common share value of KRW 170,000, which was the resolution of the board of directors to grant it to the plaintiff.

(4) As to the issuance of new shares 170,00 shares of the above non-party company, the defendant, despite the fact that all 13 shareholders, including the plaintiff, including the plaintiff, have preemptive rights based on their shareholding ratio, shall be allocated to the plaintiff all of 170,00 shares by giving up the preemptive rights. This shall be deemed to fall under Article 34-4 of the Inheritance Tax Act; Article 41-3 of the Enforcement Decree of the same Act; it shall be deemed that 145,690 shares exceeded by the plaintiff were donated to the remaining shareholders who have given up the preemptive rights; it shall be deemed that 3,811 won per share after the contribution in kind were assessed as 3,81 won; the amount calculated by deducting 1,00 won per share value of the above non-party company from the initial assessment value per share as 2,81 won; and the amount calculated by adding 2,811 won per share value per share to the non-party company's initial assessment value per share, and then the amount assessed as 3084,85.198.

2. In relation to the above taxation, the plaintiff, first, because there is no room for the other existing shareholders to acquire new shares equivalent to the value of the investment in kind, since there is no possibility for the plaintiff to acquire new shares, the defendant's taxation in this case is erroneous disposition from the premise of its start, second, if there is payment for the gift (Article 34-2 (1) of the Inheritance Tax Act, Article 41 (1) of the Enforcement Decree of the same Act). The plaintiff's acquisition of the shares of the non-party company at a higher price than 4,950 won per share (Article 84,58,259,259, 1700 won) is not an acquisition of the shares of the non-party company at a very low price than 1,00 won per share, third, the plaintiff did not acquire the above profits from the investment in kind, fourth, the defendant's calculation of the number of new shares renounced due to the investment in kind was made based on the defendant's erroneous calculation of the shares of the non-party company 200 won per share.

First of all, with respect to the issuance of new shares through investment in kind, the Korean Commercial Act adopting the health bond and the authorized capital system provides that the board of directors shall determine the issuance of new shares at the general meeting of shareholders (Article 416 of the Commercial Act), except where the articles of incorporation stipulate that the issuance of new shares shall be decided at the general meeting of shareholders (Article 416 of the Commercial Act), and Article 418 of the former Commercial Act (amended by Act No. 3724 of Apr. 10, 1984) provides that " shareholders shall have the right to receive new shares according to the number of shares they hold, unless otherwise provided in the articles of incorporation."

However, if the preemptive right to new shares is recognized simply to the existing shareholders, the authority of the board of directors on the issuance of new shares is excessively limited, and this is contrary to the original purpose of the authorized capital system in order to secure mobility and convenience in raising capital, so the preemptive right of shareholders is a relative right that is subject to restrictions according to the original purpose of the authorized capital system or the provisions of the authorized capital system.

In this regard, unlike the acquisition of the company's assets, the Korean Commercial Code recognizes the system of contribution in kind exceptionally on the ground that it can be an opportunity to make a contribution in kind to make a contribution in kind to the subscribers holding the goods in kind while it is a principle of the capital adequacy of the company and it is possible to secure a specific property necessary for the company in advance in accordance with the principle of the capital adequacy of the company, and that it can be an opportunity to easily absorb the public capital.

In addition, a person who is entitled to make a contribution in kind is limited to promoters (Article 294 of the Commercial Act) in the case of the establishment of a company (Article 294 of the Commercial Act); however, in the case of the issuance of new shares after the company comes into existence, there is no restriction on the qualifications of investors in kind; Article 416 of the Commercial Act provides that the name of the person who makes a contribution in kind, the kind and quantity of the property which is the object thereof, and the class and number of the shares to be granted to such person shall be decided by the board of directors unless the articles of incorporation are provided. However, the board of directors only

Therefore, the reason for the existence of the investment in kind and the issuance of new shares as above are that a person who is not a shareholder may make an investment in kind, i.e., a person who is not a shareholder, without any restriction on the qualifications of the investment in kind (in the case of the issuance of new shares by investment in kind, a person who is not a shareholder can not make an investment in kind if the former shareholder recognizes the preemptive right to new shares) and that the name of the investment in kind and the kind, quantity, and value of the property which is the object of the investment in kind, and the kind and number of the shares to be given therefor are determined by the board of directors unless otherwise stipulated in the articles of incorporation, the former shareholder

In the case of this case, according to the evidence Nos. 11 and 12 of the above Gap, it can be acknowledged that the above non-party company did not have any special provision as to the issuance of new shares and investment in kind. As seen above, the board of directors of the above non-party company recognized the property recorded in the list of investment in kind in attached Form 3 equivalent to KRW 841,558,259 as 170,000 and decided to allocate the above non-party company's ordinary shares to the plaintiff. Thus, the above non-party company's old shareholders except the plaintiff did not have a preemptive right to new shares issued by the above investment in kind.

3. If so, the defendant's each taxation disposition of this case on the premise that there is a preemptive right to the remaining shareholders other than the plaintiff cannot escape from its revocation because it is unlawful because it is not necessary to examine the remaining arguments of the plaintiff. Thus, the plaintiff's claim for this disposition is justified, and the costs of the lawsuit are assessed against the losing defendant.

Judges KimHun-Un (Presiding Justice)