In assessing the value of stocks donated after the increase of listed stocks, the case holding that in case the Korea Stock Exchange is closed from the date following the increase of stocks to the date of donation as the base date for appraisal, the appraisal shall be made as the closing

In assessing the value of stocks donated after a capital increase of listed stocks, the case holding that in case where there is no market value from the date following the date of appraisal of the capital increase to the date of donation which is the base date of appraisal under the main sentence of Article 63 (1) 1 (a) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998), the economic effect of the capital increase should not be calculated on the basis of the average value of the stocks, i.e., the closing price of the stocks for three months before the base date of appraisal, but on the basis of the opening price which is the first price after the capital increase

Article 63 (1) 1 (a) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998)

Plaintiff

The Intervenor joining the Plaintiff

Head of Guro Tax Office

Seoul High Court Decision 2002Nu11679 delivered on April 25, 2003

Each appeal is dismissed. The costs of appeal by the plaintiff are assessed against the plaintiff, and the costs of appeal by the defendant are assessed against the defendant.

1. As to the appeal by the Plaintiff (Appointed Party)

The court below is just in holding that the plaintiff added the claim for the payment of additional refund on the refund of national tax that was not claimed by the court of first instance to the purport of appeal, and that the other party cannot be viewed as legitimate appeal because it did not belong to the head of tax office, not the country to which the plaintiff belongs.

2. As to the defendant's appeal

In full view of the provisions of Articles 60(1) and 63(1)1(a) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582, Dec. 28, 1998; hereinafter “the Act”), the value of the property subject to gift tax shall be based on the market price as of the date of donation (date of appraisal) and the appraisal of stocks traded on the Korea Stock Exchange shall be based on the average value of the final market price of the Korea Stock Exchange published on the three months before the base date of appraisal. However, in the calculation of the average value, where it is inappropriate to be based on the average value of the stocks, due to the occurrence of reasons such as capital increase or merger during the three-month period from the day following the date of capital increase or merger, it shall be based on the average value of the period from the day after the date of merger, etc. to the date of appraisal. In such a case, it shall be considered that such reason has a considerable influence

According to the reasoning of the judgment below, the non-party company, which is a stock listed corporation, issued capital increase on December 29, 197; the plaintiff's assistant participant decided to donate 6,00 shares to the plaintiff (appointed party) and the designated parties (hereinafter "the plaintiff et al.") on December 31 of the same month; the plaintiff et al. registered as a shareholder on December 27, 1997; the Korea Stock Exchange did not have a market price during the period from the day following the date of the capital increase to the date of donation which is the base date of appraisal; the final market price is 2,650 won as at the closing date of the non-party company's shares; the final market price on the opening date is 2,860 won as at the closing date of the capital increase; and it is reasonable to determine that the average price of shares after the closing date of the first 3 months as at the closing date of the capital increase is less than the average price of the 19th day before the appraisal date, not the average price of shares after the closing date.

In light of the above legal principles and records, the above recognition and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the appraisal of the stock value as otherwise alleged in the ground of appeal by the defendant, and the capital increase does not affect the stock value of the listed corporation by the issue of capital increase due to the issue of private placement which is not a public offering, and there is no ground for assessing the value of the gift shares of this case according to the method of

3. Conclusion

Therefore, each appeal is dismissed, and the costs of appeal by the plaintiff are assessed against the plaintiff, and the costs of appeal by the defendant are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)