Cho High Court Decision 2016Du4277 (O3.09)

Even if it is legally null and void without permission from the competent authority, if the purchase price is used for a project other than the public interest project, the taxation requirement under Article 48 (2) 4 is satisfied

Even if the acquisition of shares by a public-service corporation is legally null and void because it does not obtain permission from the competent authority, if the real estate purchase price is used for any purpose other than the public-service business, the taxation requirement under Article 48 (2) 4 of the former Inheritance Tax and Gift Tax Act shall be satisfied, and the date on which

Inheritance Tax and Gift Tax Article 48 (Non-Inclusion, etc. in Taxable Value of Property contributed by Public Service Corporation)

2017Guhap6848 Disposition of Revocation of Imposition of Gift Tax

AAAAAAA as a foundation

BB Director of the Tax Office

on 06 October 07, 2018

on 19, 2018

1. The part of the disposition imposing gift tax of KRW 0,000,000,000, which the Defendant imposed on the Plaintiff X. 201 X. X., which exceeds KRW 0,000,000, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s imposition of KRW 0,00,000,000 on the Plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a non-profit incorporated foundation established with a contribution of KRW 00 billion from 199X. XX. hereinafter referred to as “DDD”), which is dissolved by a resolution of the board of directors on X. X. X. 200, and completed liquidation completion registration in X. XX. 200, following liquidation procedures.

나. 원고는 200X. X. XX.경 기본재산에 속하였던 서울 YY구 EE동 XXXX 외 X필지 및 위 지상 건물(이하'EE동 부동산'이라 한다)을 매각하여 그 매각대금 약 000억 원을 주무관청인 서울시의 허가를 받아 기본재산으로 편입한 다음, 서울시의 허가 없이 기본재산인 위 금원으로 아래 <표> 기재와 같이, ① 200X. X. XX. FF인터내셔날 주식회사(이하'FF'이라 한다)로부터 GG서비스 주식회사(이하'GG서비스'라고 한다)의 주식 000,000주에 관한 신주인수권(이하'이 사건 신주인수권'이라 한다)을 000억 원(1주당 00,000원)에 취득한 후 200X. XX. X. 00억 원(1주당 행사가액 00,000원)을 들여 이 사건 신주인수권을 행사하여 GG서비스 발행주식 000,000주를 취득하였고, ② 200X. XX. XX. FF으로부터 GG서비스 발행주식 000,000주를 00억 원(1주당 00,000원)에 취득함으로써 GG서비스 발행주식 합계 000,000주(발행주식 총수 0,000,000주 가운데 약 00.2%, 이하'이 사건 주식'이라 한다)를 합계 000억 원에 취득하였다가 200X년XX월경 DDDDD에 이 사건 주식을 000억 0,000만 원에 양도하였다.

Details of acquisition of shares of this case by the plaintiff

Date

Details of acquisition;

Number of shares (number of shares)

Value per share;

Acquisition value (cost)

200X.X. XX.

The preemptive right of this case

(00,000)

00,000

00,000,000,000

XX.X. X.

The preemptive right of this case

00,000

00,000

0,000,000,000

XX. XX. 200 XX.

Acquisition of Gu Shares

00,000

00,000

0,000,000,000

Consolidateds

00,000

00,000,000,000

C. In light of X. X. 200 X., the Plaintiff transferred all rights and duties regarding residual assets to DDH (hereinafter “DDH”) as an incorporated foundation in the course of liquidation, and CDH’s chief director of DDH substantially exercised control over management, personnel affairs, and funds of the relevant agencies, including the Plaintiff, etc., upon the Plaintiff’s acquisition of the instant shares as above, C delegated a tax investigation to KK, etc., on the basis of Article 48(2)2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2012; hereinafter “former Inheritance Tax and Gift Tax Act”) on the basis of the Plaintiff’s acquisition of the instant shares, the Plaintiff received internal report that KRW 00 billion may be imposed on the acquisition value of shares exceeding 5% of the total number of shares issued by GG services.

D. Recognizing that the subject who acquired the instant shares may not be liable for the said gift tax if it asserts that it is a DDDD, not the Plaintiff, may not incur the said gift tax liability. On October 200, 200, KK reported to III the method of asserting that DDDD was the principal and interest of the loan obligation that DDD paid to the Plaintiff as the purchase price of GG service shares, and the third approved it. Accordingly, III, K, etc. submitted to the National Tax Service a false statement, alteration or false statement of agreement on cash loan, disbursement, minutes of account, ledger of account, and interest amount, etc. which are different from the facts.

E. During the tax investigation of the Plaintiff (hereinafter referred to as the “first tax investigation”), the Director of the Regional Tax Office accepted the Plaintiff’s assertion that the person acquiring the instant shares is DD, not the Plaintiff, in X around X in 200, that the Plaintiff lent KRW 00 billion to DD and thereafter DD paid KRW 600,000 per annum to the Plaintiff KRW 00,000,000,0000,000,000 per annum and KRW 200,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00.

바. 이후 20XX. XX. X. III, KKK, MMM 등은 위와 같은 허위의 금전소비대차약정서 작성 등의 사기 기타 부정한 행위를 통하여 원고에게 구 상속세및증여세법 제48조 제2항 제2호에 따라 부과되었어야 할 증여세 중 00억 0,000만 원에 관하여 DDDHHH가 원고의 제2차 납세의무자로서 부담하는 조세를 포탈하였다는 특정범죄가중처벌등에관한법률위반(조세)죄의 범죄사실로 기소되었다(이하'관련 형사사건'이라 한다). 관련 형사사건의 1심에서는 원고가 주무관청의 허가 없이 이 사건 주식을 취득하였더라도 구 상속세및증여세법 제48조 제2항 제2호에서의'내국법인의 주식등 취득'이 법률상 유효할 필요는 없다는 이유로 위 과세요건이 충족된다고 보아 III 등에게 특정범죄가중처벌등에관한법률위반(조세)죄에 관하여 유죄가 선고되었으나[LLVV지방법원 20XX. X. XX. 선고 20XX고합XXXX, 20XX고합XXX(병합) 판결], 항소심에서는 구 상속세및증여세법 제48조 제2항 제2호의 과세요건이 충족되기 위해서는 원고가 이 사건 주식을'법률상 유효하게 취득할 것'이 요구된다는 이유로 III 등에게 특정범죄가중처벌등에관한법률위반(조세)죄에 관하여 무죄가 선고되었고(LL고등법원 20XX. X. XX. 선고 20XX노XXX 판결), 이에 검사가 상고하였으나, 대법원은 항소심의 판단이 정당하다고 보아 검사의 상고를 기각하여 위 판결이 확정되었다(대법원 20XX. X. XX. 선고 20XX도XXXXX 판결).

G. After the judgment of the appellate court of the relevant criminal case was rendered, the commissioner of the LL Regional Tax Office filed an appeal by the prosecutor, and then investigated the Plaintiff’s financial source, etc. relating to the acquisition of the instant shares from X. X. XX to X. X. of X. of X. of X. of XX., and deemed that the Plaintiff directly acquired the instant shares, and then notified the Defendant of the taxation data by calculating the amount of shares acquired by the Plaintiff exceeding 5/100 of the total number of shares issued with voting rights of GG services, a domestic corporation, as follows, pursuant to Article 48(2)2 of the former Inheritance Tax and Gift Tax Act.

○ 200X. X. Gifted portion

- Value of donated property [00,000 note-(0,000,000 x 5%)] x 00,000 won =0,000,000 won

XX. XX. 200X. 200 XX. Donations

- Value of donated property:00,000 】 00,000 won =0,000,000,000 won

H. Accordingly, the Defendant voluntarily revoked the preceding disposition, and accordingly, imposed a gift tax of KRW 0,00,00,000 on the Plaintiff (=. 0,000,000,000 gift tax of KRW 0,000,000 on X. gift tax of KRW 0,000 +. XX. gift tax of KRW 0,000,000,000 on the preceding disposition, and the remainder of the amount of gift tax of KRW 0,000,000,000 should be imposed on the Plaintiff as of October 20, 200 (the amount of gift tax of KRW 0,000,000,000,000,000 on KRW 0,00,000,00 for the first disposition, and then deducted the amount of gift tax of KRW 00,000,000,000 for the remainder of the amount of gift tax of KRW 0,000,000.

I. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal, but was dismissed on March 9, 2017.

(j) During the instant lawsuit, the Defendant added Article 48(2)4 of the former Inheritance Tax and Gift Tax Act (in the event that property contributed was sold and the proceeds from the sale thereof was used for purposes other than for public interest projects) to the answer submitted in X. XX. during the course of the instant lawsuit.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8, Eul evidence Nos. 1, 2 and 3 (including each number), the purport of the whole pleadings

2. Judgment on the defendant's main defense

A. The defendant's assertion

The Plaintiff stated in the column of the claim of the written adjudication submitted to the Tax Tribunal X. XX. 201X. The Plaintiff stated that “the Defendant shall revoke KRW 0,000,000,000, which was imposed on the Plaintiff on X.” The Plaintiff sought revocation of KRW 0,000,000 in the purport of the claim even when the instant lawsuit was filed, but the Plaintiff revised the purport of the claim to seek revocation of KRW 0,000,000 in X. x. x. x. 201 X. x. x. x. x. x. 200,000,000 among them, the portion of the claim seeking revocation of KRW 0,00,000 should be deemed to have gone through legitimate pre-trial proceedings only with respect to KRW 0,00,000,000, or even with the period of the previous trial proceedings.

B. Determination

In a case where a tax payment notice determines the amount of tax and notifies only the remaining amount of tax by stating that the amount of tax should be deducted from the amount of voluntary payment to the tax payment notice, such disposition shall be deemed a disposition upon which the total amount of the final tax is determined, and shall not be deemed a disposition upon only the remainder of tax (see Supreme Court Decision 9Da4526, Dec. 10, 199

According to Gap evidence Nos. 5-1 through 3, and Eul evidence No. 1, the final tax amount of the instant disposition is KRW 0,000,000 per original gift tax (= KRW 0,000,000,000 for gift tax on X. X. gift tax + KRW 0,000,000 for gift tax on X. X. gift tax on 0,000,000,000 for gift tax). However, it is recognized that the defendant issued the instant disposition by stating that among them, DDH H obtained the remaining tax amount of KRW 0,00,000,000,000 for which DDH paid on X. 20 X.

According to the above facts, when the plaintiff filed a tax appeal, the amount of the disposition tax of this case is specified as KRW 0,000,000,000, which is the notified tax amount. However, in all of the lawsuit of this case, the amount of the disposition tax of this case is specified as KRW 0,000,000, which is the determined tax amount. The purport of the lawsuit of this case is to dispute all of the amount of the disposition tax of this case 0,000,000,000, which is the determined tax amount. Thus, it is clear that the plaintiff filed the lawsuit of this case through the previous trial procedure as to the total amount of KRW 0,00,000,000, which is the determined tax amount.

Therefore, the defendant's main defense that the plaintiff should be viewed as having gone through the pre-trial procedure only with respect to KRW 0,000,000, which is the notified tax amount.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) From X. X. 200 to X. 200 X. XX. 200, the commissioner of LL Regional Tax Office conducted a tax investigation on gift tax for the Plaintiff at around 200 X. X. 200: (a) conducted the secondary tax investigation on the same tax item for the same period of time in 201 X; and (b) based on the result of the secondary tax investigation, the Defendant issued the instant disposition. However, at the time of the secondary tax investigation, at the time of the second tax investigation, the instant disposition cannot be deemed to be “where there is evident evidence to acknowledge the suspicion of tax evasion exceptionally permissible” as it was rendered by the appellate court on the criminal facts of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against the Plaintiff. Accordingly, the instant disposition was based on an unlawful duplicate tax investigation in violation of Article 81-4(2) of the former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016; hereinafter the same).

2) The Plaintiff’s acquisition of the instant shares is legally null and void, since it did not obtain the permission of the competent authority while acquiring the instant shares with a deposit corresponding to the basic property. Therefore, the taxation requirement, “acquisition of shares” under Article 48(2)2 of the former Inheritance Tax and Gift Tax Act, is not satisfied. Thus, the grounds for disposition of the instant case alleged by the Defendant around

3) While the lawsuit in this case is pending, the Defendant asserted that the Plaintiff added the proceeds from sale to the ground for disposition under Article 48(2)4 of the former Inheritance Tax and Gift Tax Act (the sale of the property donated to the Defendant and the use of the proceeds from sale for any purpose other than the public project), which is not identical to the original reason for disposition and basic facts. Even if the acquisition of the shares is legally null and void, so long as the acquisition of the shares in this case is legally null and void, the aforementioned ancillary disposition is unlawful. In addition, even if the taxation requirement under Article 48(2)4 of the former Inheritance Tax and Gift Tax Act is satisfied, the Plaintiff’s imposition period for 15 years has elapsed since the Plaintiff’s acquisition of the new shares from the F of X of X of 200, while acquiring the new shares in this case, and thus, it cannot be taxed (the Plaintiff’s exclusion period and assertion were made through reference documents, or whether the exclusion period and the court ex officio decision are different).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the second tax investigation constitutes an illegal duplicate tax investigation

In light of the provisions and purport of Article 81-4(1) and (2) of the former Framework Act on National Taxes, “where there is clear evidence to acknowledge a suspicion of tax evasion” under Article 81-4(2) of the former Framework Act on National Taxes means cases where the probability of tax evasion is acknowledged based on objective and reasonable data (see, e.g., Supreme Court Decision 2010Du19294, Nov. 29, 2012).

As seen earlier, at the time of conducting the first tax investigation on the Plaintiff around 200 X, the Director of the LL Regional Tax Office: (a) conspired with III, KK et al. to conduct a second tax investigation in order to verify whether the Plaintiff is a person acquiring the instant shares, and thus, deemed that the subject who acquired the instant shares was a DD, not the Plaintiff; (b) later, the first instance court and the appellate court of the relevant criminal case were the Plaintiff; and (c) even though the subject acquiring the instant shares was the Plaintiff, Ⅲ, KK et al. conspired to submit a false or altered monetary loan agreement, disbursement resolution, minutes, and head of the account, etc., as if the acquiring entity of the instant shares was DD; and (d) it was recognized that the facts were found that the Plaintiff was a person acquiring the instant shares.

According to the above facts, the second tax investigation conducted at around 201 X may be deemed to have been conducted upon the Plaintiff’s suspicion of tax evasion, such as the agreement on loan for consumption, disbursement resolution, minutes of the course, and the head of the account ledger, which was presumed to be true in the first tax investigation. Meanwhile, even if the Defendant’s acquisition of shares in this case constitutes a legal assessment that the Plaintiff’s acquisition of shares does not meet the taxation requirement under Article 48(2)2 of the former Inheritance Tax and Gift Tax Act, and such act does not meet any taxation requirement. Thus, in a related criminal case, the facts established in order to avoid gift tax against the Plaintiff, and so long as there is a possibility of meeting one of the other taxation requirements that a public corporation should levy gift tax on the property contributed from the former Inheritance Tax and Gift Tax Act, this constitutes an unlawful disposition based on the Plaintiff’s tax evasion under Article 81-4(2)1 of the former Framework Act on National Taxes.

2) Whether the taxation requirement under Article 48(2)2 of the former Inheritance Tax and Gift Tax Act is satisfied

A) Article 48 (1) of the former Inheritance Tax and Gift Tax Act provides that the value of the property contributed by a public service corporation, etc. shall not be included in the taxable value of the gift tax. Article 48 (2) provides that where the public service corporation, etc. to which the property was contributed under paragraph (1) falls under any of the following subparagraphs 1 through 4 and 5, etc., the head of a tax office, etc. shall immediately impose the gift tax by deeming that the value prescribed by the Presidential Decree was donated by the public service corporation, etc., and uses the donated property for acquiring the stocks, etc. of a domestic corporation, etc. of the domestic corporation, the sum of the acquired stocks, etc. and the stocks, etc. of the same domestic corporation owned by the public service corporation, etc., the contributor in a special relationship with the relevant domestic corporation, etc., exceeds 5/100 of the total number of issued voting stocks, etc. of the domestic corporation, etc. at the time of acquisition, and Article 40 (1) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17459, Dec. 2, hereinafter the same) provides that excess value of the property.

Meanwhile, since the disposition of fundamental property of a foundation requires an amendment of the articles of incorporation, such disposition is null and void as a real right contract without permission of the competent authority, as well as null and void as a bonds contract. If the underlying act does not exist or is null and void, the effect of the transfer of property does not accrue from the beginning (see Supreme Court Decision 2003Do5631, Jun. 10, 2005).

B) Comprehensively taking into account the facts acknowledged earlier and the legislative intent of Article 48(1) and (2) of the former Inheritance Tax and Gift Tax Act, the following circumstances are: ① strict interpretation of the taxation requirements under Articles 38 and 59 of the Constitution should not be expanded without reasonable grounds; ② Article 48(2)2 of the former Inheritance Tax and Gift Tax Act provides that “the total amount of the acquired stocks, etc. and stocks, etc. falling under any of the following subparagraphs exceeds 5/100 of the total number of outstanding voting stocks, etc. issued by the relevant domestic corporation.” The purpose of the legislation is to prevent the operation of a holding company through holding stocks, etc. by using the fact that a public-service corporation is exempt from gift tax on property contributed, which is deemed to be legally effective under the premise of acquiring stocks; ③ Article 48(2)1 and 4 of the former Inheritance Tax and Gift Tax Act should have been applied to “use of the property contributed or contributed to the public-service corporation other than the purpose of public-service business” or “use of the gift tax directly contributed to the public-service business.”

Therefore, the Plaintiff’s acquisition of the instant shares is legally null and void, and the Plaintiff’s taxation requirement under Article 48(2)2 of the former Inheritance Tax and Gift Tax Act is not satisfied, unless the competent authority approves the acquisition of the instant shares, which is the basic property that the Plaintiff acquired by disposing of the EE-dong building.

In regard to this, even if the Plaintiff’s acquisition of the instant shares is null and void, the Defendant asserts that since the Plaintiff sold the instant shares to DDD and took economic benefits, and that the benefits accrued to the Plaintiff as it is impossible to restore them to their original state, the gift tax may be imposed according to the substance over form principle. However, as long as the Plaintiff’s acquisition of the instant shares should be legally effective in order to impose gift tax on the Plaintiff pursuant to Article 48(2)2 of the former Inheritance Tax and Gift Tax Act, the Defendant’s argument that the above provision may be applied on the ground that the Plaintiff acquired the instant shares in the opposite position.

The plaintiff's assertion that there is no primary reason for the disposition of this case is reasonable.

3) Whether the taxation requirement under Article 48(2)4 of the former Inheritance Tax and Gift Tax Act is satisfied

A) If the reasons for the disposition are added or changed

Since the subject matter of a taxation disposition lawsuit is objective existence of the tax amount determined by the tax authority, the tax authority may submit new data that can support the legitimacy of the tax base or amount of tax recognized in the relevant disposition, or exchange and change the reasons within the scope that maintains the identity of the disposition, and it does not necessarily mean that only the data at the time of the disposition should be determined whether the disposition is lawful or that only the reasons for the disposition at the time of the disposition can be asserted (see, e.g., Supreme Court Decision 2009Du1617, Jan. 27, 2011).

All the grounds for the main disposition of the instant disposition and the grounds for the ancillary disposition added during the proceeding of the instant lawsuit are the sales amount of EEdong real estate, which is fundamental property, X. XX. The Plaintiff acquired the instant preemptive right, and converted it to the stocks by exercising it, and the Plaintiff purchased 00,000 shares of GG service on x. x. 200 X. XX. 200..” The Defendant’s ancillary disposition is allowed as being conducted within the scope of maintaining the identity of the disposition, since only the composition and legal assessment of the taxation requirement are different from the objective factual basis, and it does not differ from the taxable unit consisting of the taxpayer, the taxpayer, the tax item, and the taxable period.

B) Whether the proceeds from the sale of the property contributed are used for a purpose other than the public interest project

(1) Article 48 (2) 4 of the former Inheritance Tax and Gift Tax Act provides that where the property contributed by a public-service corporation is sold, and the proceeds from sale are not used for public-interest projects as prescribed by the Presidential Decree within three years from the date of its use or sale, a public-service corporation, etc. shall be deemed to have received a donation, and the gift tax shall be levied immediately. Article 40 (1) 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "The appraised value of the property contributed under the Ministry of Finance and Economy 】 (the amount used for public-interest projects ± the proceeds from sale under Article 38 (4) of the same Decree) ± the value determined by the Presidential Decree" under the main sentence of Article 48 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and Article 13 (1) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (the same before partial amendment by the Ordinance of the Ministry of Finance and Economy No. 288 of Dec. 31, 2002).

Article 48(2)1 and 4 of the former Inheritance Tax and Gift Tax Act provides that “The legislative purpose of the system to exclude the taxable value of donated property by a public-service corporation, etc. under Article 48 of the former Inheritance Tax and Gift Tax Act is to ensure that the taxable value of donated property shall not be included in the policies, on the condition that the public-service corporation, etc. should use the pertinent property or operating income for the purpose of contributing property, in order to prevent any abuse of the means of tax evasion or inheritance by means of tax evasion prior to the public-service projects and any unlawful act of contribution to property. In addition, the imposition of gift tax on the value of donated property by the public-service corporation under the Presidential Decree by the date on which three years have elapsed since the date of its use or sale for public-service projects, or by the date on which its sale was contributed or contributed to the public-service corporation, is to accomplish the legislative purpose as above. Thus, it is reasonable to view that gift tax may be imposed by applying Article 48(2)4 of the former Inheritance Tax and Gift Tax Act, even before three years have elapsed from the date of property contributed or contribution to the public-service.

(A) The purpose of the Plaintiff’s articles of incorporation is to “the morality recovery movement of the Modern Culture and the missionary activity,” and to “the missionary activity through the holding of seminars, the selection and award of persons eligible for the Modern German Culture Award, etc.”

(B) The third ASEAN purchased the preemptive right of KRW 00,000 per share of the 199X. X.G service and sold the above preemptive right of KRW 00,000 per share to the PPPPPP company (hereinafter referred to as "PPP") which is the related agency of DD, in order to overcome its financial difficulties, but upon raising the issue of the PPPPP-related labor dispute, the third POP-related labor dispute raised, the third POP-related labor dispute raised an issue on October 20, 200. XX. The third PE-related labor dispute raised the above KRW 00,000 per share in the name of FF, which is a small business entity of KRW 00,000,000 per share.

(다) OOO은 자신이 원고의 이사장의 직위에 있음을 기화로, 200X. X. XX. 원고의 기본재산인 EE동 부동산을 000억 원에 매도하고 주무관청의 허가를 받아 위 매각대금 약 000억 원을 원고의 기본재산으로 편입하였다. 이후 OOO은 원고로 하여금 기본재산에 편입된 위 금원으로 FF으로부터 200X. X. XX. GG서비스 주식 00만 주에 관한 이 사건 신주인수권을, 200X. XX. XX. GG서비스 주식 00만 주를 각 매수하게 하여 결국 원고가 이 사건 주식 00만 주를 합계 000억 원에 취득하도록 하고, 200X. X. XX. 및 200X. XX. XX. 각 QQ은행 특정금전신탁 계좌를 개설한 후 각 개설일에 위 신주인수권 및 주식 인수대금으로 합계 000억 0,000만 원을 위 QQ은행 계좌를 거쳐 FF 명의 계좌로 송금하였다. FF은 위와 같이 지급받은 주식대금 중 000억 0,000만 원을 PPPPPP에 대한 외상 매매대금으로 지급하여 변제하였다.

(D) At the time of the acquisition of the instant shares, III andOO used the Plaintiff’s basic property as purchase price of KRW 00 billion for the instant shares without the approval of the competent authorities. Considering that the Plaintiff’s remaining basic property of the Plaintiff was leased to the RR Co., Ltd., an investment company controlled by OO without any security of KRW 0 billion, and the Plaintiff’s remaining basic property, the Plaintiff’s loan claim of KRW 0 billion against the RR Co., Ltd., with no possibility of holding and recovering KRW 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00 HD was planned to be the president.

(E) The III andOO implemented the above plan by selling the adequate value of the shares of this case to 00,000 won per share to DoDD in XX in 200 X. The Plaintiff completed the registration of dissolution of X. X. X. 200 X. X. X. X. X. 200, after obtaining approval from the competent authorities, the Plaintiff completed the registration of dissolution of the Plaintiff’s liquidation of the Plaintiff on Oct. 200, after obtaining permission for disposal of residual property, such as the ownership of TRH, donated to DoDH.

(3) The following facts revealed by considering the purport of the entire pleadings, i.e., (i) the Plaintiff’s chief director, the FF, and the Plaintiff’s acquisition of the shares at a significantly higher price than the market price in the process of pursuing their personal interests. It is clear that the Plaintiff’s use of basic assets for the purchase of the instant shares was not for the public interest business, in light of the process of acquisition and trading, and (ii) the third and OOO operated relevant documents in order to conceal the Plaintiff’s unlawful purchase of the shares; (iii) it was planned to transfer the Plaintiff’s losses to practice a series of subsequent measures to liquidate the Plaintiff; and (iv) it is difficult to expect the Plaintiff’s prompt restitution from the date of acquisition of the shares to the date of liquidation; and (iii) it is difficult to view that the Plaintiff’s use of the shares for the purpose of public interest within 20 years after the date of acquisition of the Plaintiff’s new shares to the date of acquisition of the Plaintiff’s new shares, regardless of the legal nature of the Plaintiff’s new shares.

Therefore, the Plaintiff’s act of acquiring shares of this case satisfies the taxation requirement under Article 48(2)4 of the former Inheritance Tax and Gift Tax Act as “the case where the proceeds from the sale of the property received as contribution was used for a purpose other than

C) whether the exclusion period is expired and the calculation of a reasonable tax amount;

According to the proviso of Article 26-2(1)4 of the Framework Act on National Taxes, where a taxpayer evades inheritance tax or gift tax, or obtains a refund or deduction by unlawful means, it may not be imposed after the lapse of 15 years from the date on which the inheritance tax or gift tax is assessable. Any disposition taken after the limitation period for the imposition of national taxes expires (see, e.g., Supreme Court Decision 2007Du24364, May 28, 2009).

As seen earlier, Article 48(2) of the former Inheritance Tax and Gift Tax Act provides that if a public service corporation, etc. to which the property was contributed falls under any of subparagraphs 1 through 4 and 5, the public service corporation, etc. shall be deemed to have received a donation of the value prescribed by Presidential Decree, and the head of the tax office, etc. shall impose gift tax immediately on the date of “use of EE-dong real estate purchase price” in order to acquire the preemptive right and stocks of this case, the date shall be the starting date of the exclusion period of imposition. However, since the Plaintiff’s payment of KRW 00 billion to FF for the acquisition of the preemptive right of this case, the starting date of the exclusion period of imposition under Article 48(2)4 of the former Inheritance Tax and Gift Tax Act shall be the starting date of the exclusion period of imposition under Article 48(2)4 of the former Inheritance Tax and Gift Tax Act.

Therefore, among the instant disposition, the part on which the gift tax is imposed on the Plaintiff’s use of KRW 00 billion as the acquisition price of the instant preemptive right is null and void. In this case, the legitimate tax amount is KRW 0 billion used by the Plaintiff for the exercise of the instant preemptive right on X. X. 200 X. XX. The total amount of gift tax to be imposed on KRW 00 billion used by the Plaintiff for the acquisition of the instant shares is KRW 0,000,000,000 (see, e.g., the reference document of July 18, 2018).

4) Sub-committee

Ultimately, the instant disposition is lawful within the scope of KRW 0,00,000. The portion exceeding the scope of the said recognition is made after the exclusion period has lapsed, and its defect is serious and obvious (see Supreme Court Decision 2013Du16975, Jul. 9, 2015). Since the Plaintiff has a legal interest in seeking revocation in the sense of seeking the invalidation declaration of the instant disposition (see Supreme Court Decision 97Nu2337, Nov. 27, 1998). Of the instant disposition, the part exceeding KRW 0.00,000,000 among the instant disposition should be revoked.

4. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.