early 2012west 3504 ( December 11, 2012)

(b) is not subject to high-priced transfer because it constitutes a transaction with legitimate grounds;

If a free transaction is made by the parties with sufficient information, there is a substantial difference between the market price at the time of the transaction and the actual transaction price at the time of the transaction after the fact objectively and objectively, it shall not be readily concluded that the transaction

2013Guhap5159 Revocation of Disposition of Imposition of Gift Tax

The AAA and 3 others

Head of Sungbuk Tax Office

June 21, 2013

July 5, 2013

1. The Defendant’s imposition of gift tax of KRW 000 (including additional taxes), gift tax of KRW 000 (including additional taxes), gift tax of KRW 000 (including additional taxes), gift tax of KRW 00 (including additional taxes), and gift tax of KRW 000 (including additional taxes) granted to Plaintiff JeongO on January 10, 2012 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. Status of the plaintiffs

From June 9, 1986, "Plaintiffs held 7,690,980, and 980 shares (37.72%) among the total shares issued by BB(B) corporation, a corporation listed in KOSDAQ, engaging in leather manufacturing business, 2,690,064, and 37.72%).

"(1) At the time of April 14, 2008 and June 9, 2008, the plaintiffs and RedCC concluded 20.2DB 200 and DB 200, 980 shares owned by the plaintiffs (hereinafter referred to as "D") and BB 7,592 shares, including RedCC, and transferred 00 shares and transfer of management rights to 00.00 shares. The plaintiffs agreed that 20D 1350 shares and management rights were transferred to 200,000 shares and 2000 shares were transferred to 20,000 shares, and that 30D 20,000 shares were transferred to 30.0,000 shares and management rights were transferred to 20.0,000 shares and 00,000 shares were transferred to 20,000 shares, and the others agreed that 30D 20,000 shares were transferred to 20,000 shares.

(c) Details of disposition;

(1) As to the transfer of shares of this case, the director of the Central District Tax Office: (a) calculated the market price of the shares of this case as KRW 000 or KRW 000 under Articles 35(2) and 60(1)1(b) of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”) by deeming that the transfer of shares of this case constitutes the transfer of shares between non-specially related persons; and (b) notified the Defendant of the taxation data presumed to have been donated the amount equivalent to the difference between KRW 000 and the market price of KRW 000.

"(2) Accordingly, the defendant imposed a gift tax of KRW 000 (including additional tax), gift tax of KRW 000 (including additional tax), and gift tax of KRW 000 (including additional tax), and KRW 000 (including additional tax), and ② KRW 000 (including additional tax) on January 10, 2012 on the plaintiff HaOOO on each of the following items (hereinafter referred to as the "disposition in this case")." (The grounds for recognition).

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiffs, as a major shareholder of BB, transferred the instant shares to DD seeking to enter into the KOSDAQ through bypass listing in order to resolve managerial difficulties, and the transfer value reflects EE (including approximately KRW 000), the subsidiary company, the stocks of BB Indones, and the stocks of BBbe Nam, the listed profits, and the management rights premium ($ 000). Accordingly, even if the shares were transferred at a price higher than the market price traded in the open market due to transaction practices, there are justifiable grounds, and they are not subject to gift tax.

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Determination

(1) Article 35(2) of the Inheritance Tax and Gift Tax Act provides that where a property is acquired or transferred between persons who are not in a special relationship without any justifiable reason and without any justifiable reason, if the property is transferred at a price significantly higher than the market price in light of transactional practice, the amount equivalent to the difference between the price and the market price shall be presumed to have been donated. Article 26(6) of the Enforcement Decree of the same Act provides that "The price of the transferred property is the price calculated by subtracting the market price from the price of the transferred property where there is a difference between 30/10 and 30/100 or more of the market price. In general, in light of the fact that the burden of proving the taxation requirement is in the taxation authority, and the text, content, and form, etc. of Article 35(2) of the same Act, the taxation authority shall prove that not only the transferor transferred the property at a price significantly higher than the market price to a person other than in a special relationship, but also there is no justifiable reason for transactional practice (see Supreme Court Decision 207Du15Du15, Dec. 212, 2015.

(2) The issue of whether the transfer of stocks in this case constitutes a transfer at a price considerably higher than the market price without a justifiable reason in light of the transaction practice, and ① if the parties are free to trade with sufficient information, and there are differences from the market price at the time of the transaction by objectively evaluating them later, and it cannot be readily concluded that the transfer of stocks in this case appears to be a normal transaction based on free will between the parties. ② Since the transfer of stocks in this case appears to be a normal transaction based on free will between the parties, it has the advantages of raising the company funds through the stock market, and there are significant differences in the evaluation of the market value, and even if the existing business portion after the transfer of stocks in this case is divided into physical division, it should be deemed that only the transfer of the stocks in this case is made, and the management rights and profits of B are transferred, and the transfer of the stocks in this case should be deemed to be more than the transfer price to be more than the transfer price, and the transfer price of the stocks in this case should be deemed to be less than the transfer price to the KOSDAQ without any justifiable reason.

(3) Therefore, the instant disposition based on the premise that it is a high-priced transfer without justifiable grounds is unlawful.

3. Conclusion

Thus, the claim of this case is reasonable, and it is decided as per Disposition.