Listing benefits shall not be deemed to constitute donation of other profits.

Disposition is unlawful if the listing profit does not meet the taxation requirements of other profit donation, such as it is sufficient to acquire stocks on its own account in terms of income, property, etc., has acquired stocks with borrowings, and it is not the largest shareholder and a person related to him/her, and it is not recognized that

Article 42(4) of the Inheritance Tax and Gift Tax Act

Article 2(3) of the Inheritance Tax and Gift Tax Act

The Seoul Administrative Court 2016Guhap80588 Such revocation

○ Kim

○ Head of Regional Tax Office

August 31, 2017

October 19, 2017

1. The Defendant’s disposition rejecting to rectify the gift tax of KRW 000 against the Plaintiff on November 11, 2015 is 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. The Plaintiff is a company that was established for the purpose of developing and selling pharmaceutical products on September 25, 2002 by Doddddddddddddddddddddddddddddddd Co., Ltd. (the trade name was changed from 000 to 00 to 22 March 2013, 201; hereinafter referred to as 'AAddddddddddddddddddddd' without distinguishing it from before and after the change).

B. On October 10, 2007, the Plaintiff donated 30,000 shares of AA company (the face value of one share is KRW 500,000, hereinafter referred to as “first shares”) from BD, and reported to the director of the tax office on December 4, 2007 that there was no gift tax amount.

C. Since its establishment, AAA has been mainly engaged in the new drug development project using UU, which is a material used for the treatment of advance donation, and DDR concluded a contract between 500 won per share of the new shares of 3 million Won during the period from November 1, 2008 and December 31, 2009, which includes the fact that AAA company will issue 3 million won new shares of stuff and that is to be taken over by bundddd or bunddddis (hereinafter referred to as "contract between shareholders of this case").

D. On February 10, 2009, AAB issued new shares with a total of 3 million shares under the contract between the shareholders of this case (hereinafter “instant new shares”). The Plaintiff was allocated new shares with a total of 29,499 shares with respect to the 1 shares already owned, and DDR also 2,05,556 shares with respect to the 200,000 shares, but waived the subscription of new shares allocated under the contract between the shareholders of this case. Of the existing shareholders, JJ and GG waived waived the subscription of 9,833 shares and 22,124 shares with respect to the 2,087,512 shares with respect to the 370,501 shares with respect to the above forfeited shares, and the Plaintiff acquired them together with 400,000,09,209,209,209,479,501 shares with respect to the 1 shares.

E. Meanwhile, on January 14, 2009, KimG transferred KRW 200 million to the Plaintiff’s account in the name of 00 bank. On February 4, 2009, the Plaintiff transferred KRW 200 million equivalent to the acquisition price of shares in the instant case to the Plaintiff’s account in the instant money, and on February 9, 2009, ParkD deposited KRW 200 million to the said account in the Plaintiff’s name. The Plaintiff transferred the said KRW 200 million to KimG on the same day.

F. The status of holding AAA’s shares prior to the offering of new shares, the status of allocating new shares due to the above offering of new shares, and the status of holding shares thereafter are as specified in the table below.

Table Omission of the Table

G. Since then, AA company’s shares were listed on the KOSDAQ market on January 20, 2012. On July 31, 2012, the Plaintiff reported and paid KRW 000,000, which is the aggregate of KRW 000,000 and KRW 000,000,000,000,00,000,000,000,000,000,000,000,000,000,000 won, as the taxable value of the gift tax, on the ground that there was a listed interest under Article 41-3(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No.

H. From November 26, 2012 to January 4, 2013, a regional tax office: (a) conducted a tax investigation related to the Plaintiff’s above gift tax return; (b) as a result, there is an error in calculating the Plaintiff’s above listing profit; (c) considering the listing profit of the Plaintiff’s 1 stock and KRW 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,00

I. On September 14, 2015, the Plaintiff filed a request for correction to the Defendant for the refund of the gift tax (=00 won +00 won) already paid on the ground that the pertinent listing profit does not meet the taxation requirements under Article 41-3(1) of the Inheritance Tax and Gift Tax Act, but the Defendant rejected the Plaintiff’s request for correction on the ground that the instant listing profit on November 11, 2015 satisfies the taxation requirements under Article 42(4) of the Inheritance Tax and Gift Tax Act (hereinafter “instant disposition”).

(j) On November 23, 2015, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on November 23, 2015, but was dismissed on January 2, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 10, Eul evidence 1 through 6 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

A) In order to establish a gift tax liability under Article 42(4)1 and 2 of the Inheritance Tax and Gift Tax Act, the donee is recognized to be unable to perform the relevant act on his/her own account on his/her own account in view of his/her occupation, age, income, and property condition. It requires that another person acquired the property itself, or acquired the property related to the pertinent information from another person on his/her own account, by being provided with inside information not disclosed to the public regarding the management, etc. of the company (Article 42(4)1 and 2). The Plaintiff does not constitute a person who is not entitled to acquire the instant shares on his/her own account, but acquired the instant shares by borrowing KRW 200 million from KimG, and the said shares do not have been donated, or there is no fact that there is no internal information not disclosed from the company’s largest shareholder, and thus the listed benefits in this case do not meet the taxation requirement under Article 42(4) of the Inheritance Tax and Gift Tax Act

B) Article 42(4) of the Inheritance Tax and Gift Tax Act provides that only a specific type of transaction and act shall be subject to the gift tax, thereby setting the scope and limitation of the gift tax. As such, insofar as the listing profit of the instant case does not meet the taxation requirement of the said individual provision, gift tax cannot be levied pursuant to Article 2(3

2) The defendant's assertion

The Plaintiff’s listing profit of this case satisfies the taxation requirements under Article 42(4)1 and 2 of the Inheritance Tax and Gift Tax Act, and even if it does not meet the taxation requirements, it satisfies the taxation requirements under Article 2(3) and (4) of the Inheritance Tax and Gift Tax Act.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant provisions

A) Article 2(1) of the Inheritance Tax and Gift Tax Act provides that gift tax shall be imposed on donated property from another person’s donation. Article 2(3) of the Inheritance Tax and Gift Tax Act provides that “In case where the tangible or intangible property (including a case of transferring for a remarkably low price) is transferred to another person without compensation, regardless of the name, form, purpose, etc. of such act or transaction, or where it is deemed that the inheritance tax or gift tax has been unjustly reduced by indirect method via a third party or by means of two or more acts or transactions, it shall be deemed that the party directly trades or by deeming it as a single act or transaction in succession.” In addition, Article 31(1) of the Inheritance Tax and Gift Tax Act provides that “The donated property under Article 2 includes all the tangible or intangible property belonging to the donee and having economic value that can be realized in money and all the de facto or de facto rights that have property value by means of money shall be included.”

B) Meanwhile, Article 42 (4) of the Inheritance Tax and Gift Tax Act provides that "if a person, such as a minor, etc., acquires the property and obtains profits above the standard prescribed by Presidential Decree due to the reasons prescribed by Presidential Decree such as the implementation of development projects, change of form and quality, partition of co-owned property, approval and permission of business, listing and merger of stocks and investment shares, etc. (hereinafter "reasons for increase of property value"), such profits shall be deemed as the value of property donated to the person who obtains such profits." Article 42 (5) of the Inheritance Tax and Gift Tax Act provides that "if such profits are donated to another person under subparagraph 1, such profits shall be deemed as the value of property donated to the person who acquired such profits." Article 42 (4) of the Inheritance Tax and Gift Tax Act provides that "if such profits are acquired on the account of the person in a special relationship under subparagraph 2, such profits shall be deemed as the value of the relevant property as of the date of increase of property value, acquisition value (referring to the taxable value of donated property), ordinary value increase, and increase in value of the person, etc." Article 20 (4) of the above.

2) Whether the taxation requirement under Article 42(4) of the Inheritance Tax and Gift Tax Act is satisfied

A) Requirements for taxation under Article 42(4) of the Inheritance Tax and Gift Tax Act

In order to establish a gift tax liability under Article 42 (4) of the Inheritance Tax and Gift Tax Act, the donee shall meet all the taxation requirements that include ① a person who is deemed unable to perform the relevant act on his/her account on his/her own account in view of his/her occupation, age, income and property status, such as a minor (hereinafter referred to as "main requirement"), ② a person who has received property from another person or has received inside information that has not been published on the management, etc. of an enterprise from a person with a special relationship (hereinafter referred to as "requirements for acquisition of property"), ③ a person who has acquired property related to the relevant information at a cost (hereinafter referred to as "requirements for acquisition of property") within five years from the date of acquisition of the property (hereinafter referred to as "requirements for the increase of the value of property"), and a person who has gained profits by causing an increase in the value of the property acquired, such as the listing of stocks, etc. (hereinafter referred to as "requirements for the increase in value of property"), and the plaintiff appears to have obtained profits above the criteria under Article 42 (4) of the Inheritance Tax and Gift Tax Act and Enforcement Decree.

B) Determination of the subject requirement

However, solely based on the circumstances asserted by the Defendant, such as the Plaintiff’s assertion that the Plaintiff was merely a household owner or the Plaintiff acquired the instant 2 stocks from Park DoD, it is difficult to view that the Plaintiff constituted a person deemed unable to acquire the instant stocks on its own account, and there is no other evidence to acknowledge it otherwise. Rather, the following circumstances, namely, the Plaintiff was an adult aged 40 years or older at the time of acquiring the instant stocks, namely, the Plaintiff’s completion of higher education by graduating from 00 universities to 100,000, as well as the Plaintiff’s acquisition of the instant 100,000,000,000,000,000,000 won as an annual average of 00,000,000,000,000,000,000,0000,000,000,000,000,000,000,00,000,00.

C) Determination on the requirements for property acquisition

(i) Requirements for acquisition of property under Article 42(4)1 of the Inheritance Tax and Gift Tax Act

In light of the above facts, the Plaintiff acquired the instant shares 1 from GabD and there is no dispute between the parties. However, on January 14, 2009, KimG transferred KRW 200 million to the Plaintiff. On February 4, 2009, the Plaintiff transferred KRW 200 million equivalent to the acquisition price of the instant shares to the account of AAAAA, and on February 9, 2009, transferred KRW 200 million to the Plaintiff’s account on the same day. The Plaintiff transferred the said KRW 200 million to KimGGG on the same day by referring to the following circumstances acknowledged by the overall purport of the above facts and arguments, i.e., Article 41-3(6) of the Inheritance Tax and Gift Tax Act provides that the Plaintiff’s acquisition of the instant shares by acquiring new shares by acquiring the shares from the said GabD and Article 41-3(1) of the Inheritance Tax and Gift Tax Act shall not be deemed to include the Plaintiff’s acquisition price of shares by acquiring new shares by Do203G.

B. Requirements for acquisition of property under Article 42(4)2 of the Inheritance Tax and Gift Tax Act

㈎ 상속세및증여세법 제42조 제4항 제2호는 재산취득사유로 '특수관계에 있는 자로부터 기업의 경영 등에 관하여 공표되지 아니한 내부정보를 제공받아 당해 정보와 관련한 재산을 유상으로 취득한 경우'를 규정하고 있고, 이와 관련하여 상속세및증여세법 시행령 제31조의9 제1항 제2호는 '법 제42조 제4항 제2호의 규정에 의한 특수관계에 있는 자: 법 제41조의3 제1항의 최대주주 등과 제19조 제2항 각호의 1의 관계에 있는 자. 이 경우 제19조 제2항 중 '주주 등 1인'은 이를 '이익을 얻은 자'로 본다'고 규정하고 있으며, 상속세및증여세법 제41조의3 제1항에서는 '기업의 경영 등에 관하여 공개되지 아니한 정보를 이용할 수 있는 지위에 있다고 인정되는, 제22조 제2항의 규정에 의한 최대주주 또는 최대출자자 및 내국법인의 발행주식총수 또는 출자총액의 100분의 25 이상을 소유한 자로서 대통령령이 정하는 자'를 '최대주주 등'으로 규정하고 있다.

㈏ 살피건대, 이 사건 제1주식의 경우 원고가 이를 박DD으로부터 증여받았으므로, 그 상장이익은 상속세및증여세법 제42조 제4항 제2호의 재산취득요건에 해당하지 않는다. 나아가 이 사건 제2주식에 관하여 보더라도, 상속세및증여세법 제41조의3 제1항, 상속세및증여세법 시행령 제31조의9 제1항의 문언 내용 등에 의할 때, 상속세및증여세법 제42조 제4항 제2호의특수관계에 있는 자는 상속세및증여세법 제41조의3 제1항의 최대주주 등과 이익을 얻은 자 사 이에 상속세및증여세법 시행령 제19조 제2항 각호의 1의 관계에 있는 자를 의미하는 것으로 보아야 하고, 상속세및증여세법 제41조의3 제1항에서 규정하고 있는 '최대주주 등'이라 함은 주주 등 1인과 위 시행령 규정 각 호 소정의 특수관계에 있는 자의 보유주식 등을 합하여 그 보유주식 등의 합계가 가장 많은 경우의 당해주주 등 1인을 의미하고 여기에는 그와 특수관계에 있는 자는 포함되지 않는다고 해석함이 상당하다(대법원 2012. 5. 10. 선고 2010두11559 판결 참조)고 할 것인바, 이에 의할 경우 원고가 이 사건 제2주식을 취득할 당시 AAA사의 최대주주는 DDDD이고, 박DD은 이에 해당하지 않는데, DDDD은 박DD의 배우자인 원고와는 특수관계에 있다고 볼 수 없다.

㈐ 설령, 피고의 주장과 같이 상속세및증여세법 제42조 제4항 제2호의 특수관계에 있는 자에 박DD이 포함되는 것으로 보더라도, 상속세및증여세법 제42조 제4항 제2호 소정의 '기업의 경영 등에 관하여 공표되지 아니한 내부정보'는 '재산가치증가사유'에 관한 정보로서 일반에 공개가 되지 않은 것이어야 할 것인데, 위 인정사실 및 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정들 즉, DDDD이 막대한 개발비용 및 판매허가 취득의 어려움 등을 이유로 AAA사를 통한 신약개발을 포기하고 AAA사의 경영에서 손을 떼기로 하고 2008. 11. 박DD과 이 사건 주주간 계약을 체결한 것으로 보이는 점, AAA사는 2008 사업연도까지 계속하여 당기순손실이 발생하였고, 2008 사업연도말을 기준으로 자본잠식 상태였으며, 주식 상장을 위한 AAA사의 투자설명서에도 '2008년 말 당사는 라이센싱 아웃을 통한 수익확보가 어려운 상황에서 신약개발을 지속하기 위한 추가적인 자금의 투입이 필요함에 따라 사업의 지속 여부를 결정해야 할 중요한 시점'이었다고 기재되어 있는 점, 원고가 제공받은 내부정보의 구체적인 내용, 제공 시점 및 제공 경위 등에 관한 자료가 전혀 존재하지 않은 뿐만 아니라, 원고가 이 사건 제2주식을 취득한 때로부터 3년 가까이 지나 위 주식의 상장이 이루어진 점 등을 고려할 때, 박DD이 AAA사의 대표이사 겸 주주의 지위에 있었다는 등 피고가 들고 있는 사정만으로, 원고가 박DD으로부터 AAA사의 상장 등에 관한 내부정보를 제공받아 이 사건 제2주식을 취득하였다고 보기 어렵고, 달리 이를 인정할 만한 증거가 없다.

D) Sub-determination

Ultimately, even if the Plaintiff did not meet the subject requirement under Article 42(4) of the Inheritance Tax and Gift Tax Act, and the requirements for the acquisition of the instant shares do not constitute “property donated by a third party” under Article 42(4)1 of the Inheritance Tax and Gift Tax Act. The instant shares do not constitute “property acquired at a cost with respect to the pertinent information by being provided with internal information not published in relation to the management, etc. of an enterprise from a person in a special relationship under Article 42(4)2 of the Inheritance Tax and Gift Tax Act.” Thus, the instant shares do not satisfy the requirements for the acquisition of property under Article 42(4) of the Inheritance Tax

3) Whether gift tax may be levied pursuant to Article 2(3) of the Inheritance Tax and Gift Tax Act

A) In light of the fact that: (a) a comprehensive gift taxation system was introduced in order to cope with an irregular inheritance and gift in advance; (b) a comprehensive gift taxation system was introduced under Article 2(3) of the Inheritance Tax and Gift Tax Act; and (c) the former provision on the calculation of donated property is uniformly converted into a provision on the calculation of donated property (hereinafter “the former provision on the calculation of donated property”); (c) in cases where a certain transaction and act constitutes the concept of gift under Article 2(3) of the Inheritance Tax and Gift Tax Act, taxation of gift tax shall be possible pursuant to Article 2(1) of the same Act. However, in cases where a specific transaction and act are set forth in a regulation on the assessment of gift tax in order to ensure the predictability of taxpayers and promote stability in tax legal relations, where the individual provision on the assessment of gift tax limits only a specific transaction and act set the scope and limit of taxation of gift tax by prescribing the scope of taxation of gift tax, the gift tax cannot be imposed even if the transaction and act excluded from the subject or scope of taxation of gift tax is consistent with the concept of gift under Article 2(3).

B) On the other hand, Article 42(4) of the Inheritance Tax and Gift Tax Act provides that gift tax shall be imposed on the increased value of property only where the conditions such as a certain subject requirement, requirements for acquisition of property, and grounds for increase in the value of property are met. As seen above, among the cases where the value of property increases by a third party’s contribution, only a specific type of transaction and act is limited to the said specific type of transaction and act subject to gift tax, thereby setting the scope and limitation of gift tax. Therefore, the gift tax may not be imposed on the listed profits of this case excluded from the subject of taxation of the said individual provision pursuant to Article 2(3)

4) Sub-committee

Therefore, the defendant's disposition of this case is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.