Seocho 2013west 376

There is an objective reason that can not be seen as abnormal in the exchange between third parties from the viewpoint of a reasonable economic person.

It is reasonable to view that there was an objective reason that cannot be viewed as unfair from a reasonable economic perspective in light of the fact that the shares issued by C in the shares transaction between the shareholders of A company and B were owned by the shareholders of A company and the shares of C company were not significantly different from the economic aspect.

Article 35 of the Inheritance Tax and Gift Tax Act (Donation of Benefits from Transfer at Low or High Price)

2014Guhap53759 Revocation of Disposition of Imposition of Gift Tax

LAA and 6

○ Head of tax office

October 31, 2014

December 19, 2014

1. Details of the disposition;

A. The Plaintiffs were shareholders of the business start-up investment company AA (hereinafter “A company”) established on December 21, 2001, and held the shares issued by A company as shown below at the time of the establishment of A company.

(State, Won)

Name of shareholder (Plaintiff)

Number of Stocks

Capital

○ ○

100,000

500,000,000

00

60,000

300,000,000

Gangwon ○

100,000

500,000,000

○ ○

100,000

500,000,000

South ○

56,000

280,000,000

○ ○

60,000

300,000,000

○ ○

58,000

290,000,000

B. On July 15, 2005, the plaintiffs participated in the allocation of forfeited shares to C (hereinafter referred to as "ownership of forfeited shares") held by C Co., Ltd. (hereinafter referred to as "C Co., Ltd. (hereinafter referred to as "C Co., Ltd.") as of the time of the instant case; on May 21, 2008, the company changed its trade name into C Co., Ltd. after the merger into D Co., Ltd. (hereinafter referred to as "Co., Ltd.") and received the allocation of forfeited shares to C Co., Ltd. (hereinafter referred to as "ownership of forfeited shares"); on August 17, 2005, after participating in the allocation of forfeited shares to a third party's new shares issued by C Co., Ltd. (hereinafter referred to as "third party allocation"); on September 12, 2005, after acquiring a sales contract with B Co., Ltd., Ltd., a total of 534,000 shares of A Co., Ltd. (hereinafter referred to as "stock purchase price") and received C Co. 25.

C. From October 23, 2012 to December 21, 2012, the director of ○○ Regional Tax Office assessed the amount of KRW 20,000 per share prior to the increase of C company shares as a result of investigation with respect to the Plaintiffs, the allocation of forfeited shares as of July 15, 2005, and the excess allocation to a third party as of August 17, 2005, and assessed the value of KRW 20,000 per share prior to the increase of the C company shares as of KRW 20,00,00, and calculated the theoretical share value after the increase of the capital pursuant to Article 29(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 19333, Feb. 9, 2006; hereinafter referred to as the “Act”) and assessed the market value of KRW 30,000 per share as of December 30, 206; the Plaintiffs calculated the market value as of KRW 30,50130,7010.70

D. Accordingly, the Defendants determined and notified the Plaintiffs of the gift tax of KRW 1,282,473,60 on the said gift profits.

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on September 23, 2013, but the Tax Tribunal dismissed the Plaintiff’s appeal on February 25, 2014.

Facts that there has been no dispute over recognition, Gap's 14 through 22, Eul's 1 (including both household numbers), the purport of the whole pleadings.

2. The plaintiffs' assertion

A. It is unreasonable that the Defendants recognized the transaction example as the market price merely because it was unilaterally set at the transaction between ○○ and the interested parties, which is the representative director of C company and the major shareholder of B company.

B. The allocation of forfeited shares is nothing more than that of the Plaintiffs, a shareholder of the company A, bypass in accordance with the equity ratio of the company A to avoid spreadings that may arise in the process, such as financing, the calculation of contingent remuneration, and the exchange ratio, when the share swap ratio for the acquisition and merger between Company A and Company B was already determined. Since the Plaintiffs received the notification of allocation from Company A and received the notification of allocation from Company A, and there was no direct allocation of forfeited shares from Company A, such as directly remitting the payment of forfeited shares to Company A, it is unlawful to impose gift tax on the Plaintiffs following the allocation of forfeited shares, even if the gift tax on the transfer of forfeited shares without consideration

C. The third party allocation is based on the agreement that the C company gives the shareholders who suffered high risk and participated in the capital increase with the capital increase as of April 13, 2004 to the shareholders who participated in the capital increase with the capital increase as of April 13, 2005. As such, it is concluded in accordance with the equal condition (5,000 won per share) as agreed in advance, and it is not deemed that the C company’s other shareholders or third parties were disadvantaged. Nevertheless, the gift tax imposed pursuant to Article 39(1)(c) of the Act is unlawful.

D. In September 12, 2005, the transaction is an all-inclusive share swap transaction following the acquisition and merger, and the actual transaction standard is not a share appraisal price, but a share exchange ratio between shares. It is unlawful for the Defendants to calculate the exchange ratio of the Plaintiffs without investigating the rationality and objectivity of the calculation of the exchange ratio of the Plaintiffs, and impose tax on the Defendants based on the appraisal price per share based on acquisition.

E. Also, since the donation profit did not reach the loss incurred on September 12, 2005, there is no taxable gift value.

3. Relevant statutes;

Attached Form is as shown in the attached Form.

4. Determination

A. Determination on allocation of forfeited stocks

1) Facts of recognition

A) On May 13, 2005, the board of directors of C company held capital increase of 3,000 common shares (one stock issue price: 5,000 won, total paid-in KRW 15,000,000,000). The board of directors of C company held capital increase to the shareholders listed on the register of shareholders as of June 17, 2005 through the allotment of new shares at a rate of 0.143937426 shares per stock, and the payment date of stock price was July 15, 2005, and the remaining shares below the subscription result was decided to be dealt with separately by the board of directors.

B) On July 12, 2005, the C company board adopted a resolution on the forfeiture of the A company’s forfeited rights after the subscription through the shareholder allocation method to treat A company and its investment association or its designated person as a third party allocation method.

C) On July 15, 2005, Company A acquired 308,017 shares of Company A in total according to Company A’s equity ratio. The Plaintiffs acquired 308,017 shares of Company C in accordance with Company A’s equity ratio.

D) On July 15, 2005, Company A notified the Plaintiffs that it would give up subscription from the capital increase, and that it would distribute shares to shareholders and partners from July 13, 2005 to July 14, 2005. The Plaintiffs deposited shares, etc. into Company A’s account in accordance with the above notification.

1. Guidance on the payment of forfeited stocks;

(a) Details;

(a) Type of forfeited stocks: Registered ordinary stocks; and

(b) The issue value of forfeited stocks: 5,000 won per share;

3. Method of allocating forfeited stocks: Allotment at a rate of 0.143937426 per stock owned.

(4) The subscription date for forfeited stocks: from July 7, 2005 to July 8, 2005

5) forfeited share subscription agency: Samsung-dong, Gangnam-gu, Seoul, 159-9 downtown Airport A, 2304

(b) Guidance on the subscription procedures;

1) Two copies of the forfeited share offer are removed from the company.

(d) Account receipt: Account holder: A;

E) Meanwhile, the sales cases of C company before and after July 15, 2005 are as follows, and Ma○ is a person who does not fall under the special relationship between B company and Article 26 of the Enforcement Decree.

The date of transfer and the unit price of transfer (the prime cost) and the transfer value (,000 won) and transferee.

B. B. 5.20,003,00060,000 on July 2005 ○○

B. B. 6.20,0025,00050,000 on July 2, 2005 stuffed ○○

B, 14.20,005, 500110,000 leap○ on July 14, 2005

B, 14.21,002,0002,0042,000 leap○○ on July 14, 2005

B, 18.16,4045709, 350 Kim○○ on July 16, 2005

B, 19.20,0010,0020,000 Gangwon on July 1, 2005 ○○

B. B. 19.20,005,00010,0000 on July 19, 2005

Evidence adopted in front of the basis of recognition, Gap evidence 8 to 12, and Eul evidence 10

2) Determination

A) In light of the following circumstances acknowledged by the above facts, that is, even if the plaintiffs received the notification of the procedure for acquiring new shares from A company and paid the price for the shares to A company, the company stated that the plaintiffs will accept the "actual rights of A" of the company waived by A company to the plaintiffs, and the documents and the payment of the price for the shares through A will only be for the convenience of the plaintiff's acquisition procedure, and the board of directors of the company as of July 12, 2005 explicitly stated that A shall give up the subscription of new shares and accept the forfeited shares, it is reasonable to deem that the forfeited shares were allocated to the plaintiffs. Thus, the plaintiffs' assertion that the plaintiff merely acquired shares from A company and did not receive the allocation of forfeited shares is without merit.

B) Meanwhile, Article 60(2) of the Act provides that "the market price shall be the price which is deemed to be normal in the event of free trade between many unspecified persons, and includes the price which is deemed to be the market price under the conditions as prescribed by the Presidential Decree, such as the expropriation, public sale price, appraisal price, etc." In accordance with delegation, Article 49(1) of the Enforcement Decree of the Act provides that "the sale price of the relevant property shall be recognized as the market price" under Article 60(2) of the Act means, where there is a transaction of the relevant property during a period of not more than six months before or after the base date of appraisal (three months in the case of donated property; hereinafter in this paragraph, the evaluation period shall be three months; hereinafter in this paragraph, the same shall apply) and Article 60(2) provides that if the transaction price is deemed to be the market price under the provisions of paragraph (1), the sale price shall not be deemed to be the one which is the most close to the market price before and after the base date of appraisal.

The plaintiffs asserted to the effect that the transaction from July 14, 2005 was inappropriate at the market price because they were transferred to the transferor, but the market price is "value deemed to be normal when a free transaction is made between many unspecified persons." Article 49 (1) of the Enforcement Decree merely means that the market price is excluded from the case where the value is objectively unfair, such as a transaction between a related party and a related party, and it does not mean that all transaction prices as a party to a transaction are excluded from the market price. Accordingly, this part of the plaintiffs' assertion is without merit.

B. Determination as to the third party allocation

1) Facts of recognition

A) On July 25, 2005, the board of directors of C company approved the third party allocation for the following reasons: (a) on April 13, 2004, the board of directors of C company adopted a resolution for capital increase with a capital increase of KRW 20 billion; and (b) on the ground that it decided to give the shareholders participating in the pertinent capital increase with an opportunity to participate in the capital increase with a capital increase of KRW 10 billion to be made in 2005

1. Relationship with the third party allocated;

- - 462 persons subject to third party assignment

- The number of persons who have participated in the increase of 20 billion won by a resolution of the board of directors dated April 13, 2004

- The third party selection process: The third party selected by the board of directors on April 13, 2004 is the number of persons participating in a series of capital increase in an amount of 20 billion won implemented by the resolution of the board of directors on April 13, 2004, and the third party is selected by giving the number of persons participating in the capital increase in order to promote the active participation of shareholders in the capital increase in an amount of 50 billion won which is planned in 2005.

B) According to the above resolution of the board of directors, when the capital increase was made on August 17, 2005, the amount of one share payment per shareholder was 5,000 won, and the number of shares allocated to the plaintiffs when the capital increase was made on August 17, 2005 is as follows:

August 17, 2005

issue of common shares 2,000,000 shares

(Payment at par value 5,00 won)

The total number of shares allocated to plaintiffs

38,073 Shares

○○ 13,430 note

○○ 8,846 note 8

Lee ○ 5,990 Jeju

South ○ 4,500 South

○○ 5,307 Jeju

C) On the other hand, the sales cases before and after August 17, 2005 of C company shares are as follows.

Transfer Date

Transfer Date

Transfer Cost

(won)

Quantity (State)

Transfer Value

(,00 won)

A transferee

Jinay

BG

August 9, 2005

16,404

1,140

18,700

○ Kim

BG

August 9, 2005

16,404

1,140

18,700

○ ○

west ○

August 16, 2005

20,000

422,000

8,440,000

○ Financial Securities (States)

○ ○

August 19, 2005

20,000

123

2,460

door-○

BG

August 19, 2005

2,195

2,260

50,160

○ Kim

BG

August 22, 2005

23,000

3,000

69,000

Kim Dong-ho

BG

August 22, 2005

23,000

2,173

49,979

Lee Young-chul

D) Meanwhile, on August 17, 2005, the Defendants calculated the value of donated property under Article 29(3) of the Enforcement Decree as follows, based on the consideration of the market price under Article 60(2) of the Act as of August 16, 2005 as of the transaction value of the shares traded within three months prior to and after the issuance of new shares, and KRW 20,000 between the transaction value of the shares traded within the three months prior to and after the issuance of new shares, as of August 16, 2005.

Property donated to the Plaintiffs in excess of the allocation of new shares before the date of donation donation (State).

Number of shares (%) per share (%) equivalent to 1,00 won

○○○ ○. 17.53, 7230.2213, 4308, 966.124,176

○○○. 17.35, 4180.158, 8465, 90381,755

○○○. 17.10, 4400.045, 9905, 12370,943

South ○○ 6.8.17.6, 1390.034, 5003, 9905,257

○○○. 17.21, 2500.095, 3073, 54149,045

Evidence adopted before the basis of recognition, Gap evidence Nos. 13, 22, and Eul evidence No. 1

2) Determination

A) Article 39(1)(c) of the Act provides that “Where a shareholder of the relevant corporation obtains profits by directly obtaining new stocks in excess of the number of stocks allocated under equal conditions as a result of the issuance of new stocks to increase capital, the amount equivalent to the relevant profits shall be deemed the value of property donated to the person who acquired such profits.” The purport of the above provision is that where a shareholder of the relevant corporation acquires new stocks at a price below the market price under equal conditions in proportion to the number of stocks owned by him/her, he/she would not have received the same stocks as that of other shareholders, and there is no possibility of undermining the rights of other shareholders, and therefore, there is no need to regulate the acquisition of new stocks as gift tax, but there is no need to regulate the acquisition of new stocks in excess of the market price and the amount equivalent to the

B) Comprehensively taking into account the facts acknowledged earlier in light of the contents and purport of the above provision, even if the allocation to a third party on August 17, 2005 was made for the shareholders who participated in the offering of new shares as of April 13, 2004, pursuant to an agreement with the shareholders who participated in the offering of new shares as of April 13, 2004, the allocation to a third party on August 17, 2005 is not limited to all shareholders of the company, but it is difficult to view that the third party's allocation of new shares was made for only a part of the shareholders of the company, and that the shareholders were entitled to participate in the offering of new shares at the time of the offering of new shares as of April 13, 2004 at the time of the offering of new shares as of April 13, 2004, under the premise that the Plaintiffs exceeded the existing share allocation ratio under Article 39 (1) (c) of the Act, and thus, the Plaintiffs' disposal of new shares can be made in proportion to the interests of the company.

C. Determination on September 12, 2005

1) Facts of recognition

A) As of June 30, 2005, A was a company incorporated on December 21, 2001 and invested only in C, and as of June 30, 2005, KRW 8,230,500,000 (1,526,603 shares) out of total assets of KRW 8.9 billion.

B) Around 2005, the Plaintiffs requested the Company A to take over the Company B, and during which process, the Company B, a related company of the Company C, agreed to take over the Company B’s shares from shareholders of the Company A on September 12, 2005, and, in return, to take the share swap procedure by paying the Company B’s shares according to the share exchange rate.

C) In this process, the Plaintiffs and B concluded a sales contract with respect to all of the 1,526,603 shares of C company owned by A with investments (Provided, That the Plaintiffs agreed to calculate the exchange rate on the basis of their respective equity shares (Provided, That the individual shareholders, the individual shareholders, and the corporate shareholders were to apply the exchange rate of 10%).

1.The present contract shall sell to Company B common shares of KRW 5,00,000 which are held by Company B, while Company B shall enter into with a view to clarifying its rights and obligations in granting shares of KRW 5,00,00, the par value of Company B owned by Company B. The sales value per Company shall be transferred to Company B with the par value of KRW 4,480, and Company B shall deliver the shares of Company B in return for its transfer to the Plaintiffs.

D) The shareholders of A company, including the plaintiffs, acquired the shares of C company held by B according to the following ratio, and B acquired all shares of A company 2,000,000.

Stockholders

Number of Ags

Number of Coins

Exchange Ratio

Each share;

Number of Stocks

(1)

Apportionments of contingent remuneration

(B)

Deduction

Number of Stocks

(1) (1-2)

The number of exchanged stocks

(iv)

Plaintiffs

534,000

407,602

9,146

398,456

358,609

1:0.9

Other personal stockholders

816,000

622,855

13,973

608,882

547,995

1:09

shareholders of a corporation

650,000

496,146

11,131

485,015

485,015

1:1

Total

2,000,000

1,526,603

34,250

1,492,353

1,391,619

E) On August 31, 201, the company, which became a major shareholder of the company A, changed the trade name to the ○○○ Start-up investment (ju), and was absorbed into and merged with the company at issue.

The evidence adopted before the basis of recognition and the statements in Gap evidence 2 to 7

2) Determination

A) The legislative purport of Article 35(2) of the Act is to: (a) where profits equivalent to the difference between the price and the market price are actually transferred without compensation by means of manipulating the transaction price for the benefit of the other party to the transaction; (b) thereby coping with and promoting fair taxation by imposing gift tax on the profits earned by the other party to the transaction. However, since the transaction between the unrelated parties does not coincide with each other; (c) it is difficult to deem that the difference was donated to the other party to the transaction solely on the ground that there is a difference between the price and the market price; (d) Article 35(2) of the Act added the taxation requirement that “for the transaction between unrelated parties, there is no justifiable reason in light of the transaction’s practice.” In full view of these factors, it is reasonable to deem that the transferor, without such reason, has no justifiable reason to believe that the transaction price was at a reasonable price reflecting the objective exchange value of the assets at a low price, and even if there is no objective reason to deem the transferor’s transfer of assets at a reasonable market price from a reasonable economic standpoint, 201.

B) In light of the facts acknowledged earlier and the following circumstances revealed in the argument of this case, i.e., ① stock transaction between the shareholders of A company and B on September 12, 2005, which took place on or around September 12, 2005, does not correspond to the comprehensive share exchange for B and B, ② if A were liquidated not to take over the shares of B, the shares of C company, which can be received by the shareholders of A including the plaintiffs, are the same as the number of shares indicated in the "number of shares held" column in the above share swap ratio calculation sheet, and the share exchange ratio of the individual shareholders was not more than 1:0.9, ③ not less than 90% of the shares of A company was liquidated and the number of shares held by C company was less than 1:0.9, ③ The shares held by A company and the shares held by C company were economically different from the shares held by A company from a reasonable economic perspective, it is reasonable to deem that there was an objective reason to view that the above Defendants cannot be seen as abnormal from a reasonable perspective.

Therefore, it seems that B’s exchanging KRW 4,480 per share of C company stocks with KRW 6,467 per share of KRW 6,467 is justifiable in light of trade practice. Therefore, the instant disposition is unlawful.

5. Conclusion

The plaintiffs' claims are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.