Tax Tribunal 2014Seoul Northern1830 (2015.02)

Whether the disposition to apply Article 40 (1) 1 (b), (c), and (b) 2 (c) of the Inheritance Tax and Gift Tax Act to the Plaintiffs is legitimate

If convertible bonds, etc. are acquired or acquired by a third party without being authorized by the Financial Supervisory Commission, it shall be deemed that they were acquired from an underwriter under Article 9 (12) of the former Financial Investment Services and Capital Markets Act.

Donation of profits from the conversion of stocks into convertible bonds, etc. under Article 40 of the Inheritance Tax and Gift Tax Act

2015Guhap59266 Disposition of revocation of refusal to correct gift tax

KimAA and 3

Samsung Head of Samsung Tax Office

on 13, 2016

on July 25, 2016

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

All disposition rejecting to correct gift tax recorded in the attached disposition list that the Defendant rendered to the Plaintiffs is revoked.

1. Details of the disposition;

A. The ○○○○ Co., Ltd. (hereinafter referred to as “○○○○”) was established on August 8, 1987 and manufactured drugs, and

The Plaintiff KimA is a KOSDAQ-listed corporation that runs the sales business. The Plaintiff KimA is the representative director of ○○○○ and the largest shareholder [20.00% prior to October 14, 201 (=0.00% - 0.00%). See evidence 13] of leB, which is the wife of leB, and Plaintiff leCC, leDD, and leE are children of leB.

B. Issuance and sale of bonds with preemptive rights by ○○○○○○, and acquisition of preemptive rights by Plaintiffs

1) On October 14, 201, 200 billion won, ○○○ issued 'the first non-guaranteed private equity loan bonds' (hereinafter referred to as 'the instant bonds with warrants') and among them, 'AAAAAAAAA' (hereinafter referred to as 'AAAAA') took over bonds with warrants of KRW 7 billion in total face value, 'BB Capital Co., Ltd. (hereinafter referred to as 'B Capital') with warrant of KRW 5 billion in total face value, 'CC Capital Co., Ltd. (hereinafter referred to as 'CC Capital'), and 'B Capital Co., Ltd. (hereinafter referred to as 'the instant financial institutions') with warrant of KRW 3 billion in total face value.

“2) On October 14, 201, the Plaintiffs and leB purchased warrant certificates separated from the instant financial institutions and DB from the instant bonds with warrants (hereinafter referred to as “instant warrant certificates”) as listed below (i.e., the unit sale price per share is KRW 000, considering the number of stocks that can exercise warrant rights, considering the number of stocks that can exercise warrant rights, the unit sale price per share is KRW 00).”

BB Capitallion

BB Capitallion

CC glance

CC glance

D Bank

Buyer (Plaintiff)

KimA

PapCC

MadD

MaE

leB

Total face value (won)

0,000,000,000

0,000,000,000

00,000,000

00,000,000

0,000,000,000

Sales proceeds;

00,000,000

00,000,000

00,000,000

00,000,000

00,000,000

Allocation Quantity

00,000

00,000

00,000

00,000

00,000

C. With respect to profits accrued from the acquisition of preemptive rights at a price lower than the market price on May 31, 2012 before the acquisition of the instant warrant certificates, Plaintiff KimA, who was not a shareholder of ○○○○○ prior to the acquisition of the instant warrant certificates, declared and paid the gift tax on October 14, 201, respectively, in the attached disposition list, on the profits accrued from the acquisition of preemptive rights more than the market price lower than the market price on the same day.

D. On January 25, 2013, the Plaintiffs exercised the instant preemptive right at KRW 0,000 per share, thereby accepting the common shares of ○○○○.

E. On April 30, 2013, the Plaintiffs’ exercise of Preemptive Rights in the separate sheet (hereinafter “Preemptive Rights”) as to the profits derived from the exercise of preemptive rights by exceeding the exercise price.

On January 25, 2013, the gift tax was declared and paid respectively, such as the donor, the donee, the quantity of the gift, the value of the donated property, and the amount of the tax paid.

F. Plaintiffs’ request for correction, Defendant’s rejection

1) On September 17, 2013, the Plaintiffs filed a claim for correction with the purport that “The benefits derived from the acquisition of warrant certificates in the instant case and the exercise of the preemptive right to new shares are not subject to gift tax under Article 40(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201 with respect to the gift tax on October 14, 201; each of the gift on January 25, 2013, with respect to the gift tax on donation on December 25, 2013, the Plaintiffs shall not be subject to gift tax under Article 40(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter collectively referred to as “former Inheritance Tax and Gift Tax Act”).

2) On November 15, 2013 and January 14, 2014, the Defendant rejected the Plaintiffs’ request for correction on the grounds that the filing of the initial gift tax return under Article 40 of the former Inheritance Tax and Gift Tax Act is appropriate (hereinafter “instant refusal disposition”).

G. The Plaintiffs were dissatisfied with each of the instant refusal dispositions and filed an appeal on March 14, 2014 ( Plaintiff KimA, MaCC, and MadD filed an objection on November 19, 2013 against the rejection disposition on November 15, 2013, but the Seoul Regional Tax Office rendered a decision to dismiss the Plaintiffs’ objection on December 12, 2013, and the Tax Tribunal dismissed the Plaintiffs’ appeal on January 2, 2015.

[Ground of recognition] Facts without dispute, Gap's entries in Gap's 1, 9, 10, 12, 13, 14, 19, Eul's 1 through 7 (including relevant numbers), and the purport of the whole pleadings

2. Whether the rejection disposition of this case is legitimate

A. The plaintiffs' assertion

Each rejection disposition of this case shall be revoked for the following reasons.

1) The instant financial institution that sold the instant warrant certificates to the Plaintiffs did not obtain authorization from the Financial Services Commission, and thus does not constitute an underwriter under the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013; hereinafter “former Financial Investment Services and Capital Markets Act”). Therefore, Article 40(1)1(b), (c), and 2(b), and (c) of the former Inheritance Tax and Capital Markets Act cannot be a basis for imposing gift tax on the acquisition of the instant warrant certificates and the interest arising from the exercise of the instant warrant rights.

2) The Plaintiffs’ acquisition of the instant warrant certificates from the instant financial institutions is not a bypass transaction to reduce gift tax unfairly. Therefore, applying the substance over form principle under the tax law, the transaction partner of the instant warrant certificates cannot be reconconcepted into ○○. Therefore, Article 2(4) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201); Article 40(1)1 (b), (c), and 2 (b) and (c) of the former Inheritance Tax and Gift Tax Act with respect to the gains from the acquisition of the instant warrant certificates and the exercise of the instant warrant rights.

3) The Plaintiffs acquired warrant certificates of this case from the financial institutions that are not related parties, and thus, the acquisition of warrant certificates of this case and the exercise of warrant rights of this case do not constitute “cases where benefits have been obtained from the related parties.” Therefore, there is no room for applying Article 40(1)3 of the former Inheritance Tax and Gift Tax Act

4) The Plaintiffs’ acquisition of the instant warrant certificates from the financial institutions of this case and exercise of the instant warrant rights are trades between unrelated parties, and there are justifiable grounds in light of transaction practices. Therefore, the benefits accrued by the Plaintiffs from the exercise of the instant warrant rights do not constitute subject to gift tax under Article 42(1)3 of the former Inheritance Tax and Gift Tax Act.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) During 2010, ○○○○’s ○○○’s ○○’s 2010, losses incurred due to the high-maintenance due to the operation of a sun-scale factory, financial costs, and other tangible asset disposal losses, but the sales amount increased by 17% compared to the preceding year. Moreover, ○○ did not establish a large-scale facility and investment plan as of the end of 20

2) In 2010, 00 ○○○ was a research and development of the Teinson’s disease treatment chemicals, stroke treatment chemicals, fastropha treatment chemicals, local surgery, high-level roller’s blood transfusion treatment chemicals, domination prevention and treatment chemicals, thydrosis treatment chemicals, Aydin’s nicotine materials, and bathing treatment chemicals, etc. Of which, most of them would have been expected to move into a new product since 2013 or 2014.

3) On October 13, 201, 201, ○○ announced the decision to issue the instant bonds with warrants, and publicly announced the scheduled sale date of the instant bonds with warrants as October 14, 201, and publicly announced the other party to the sale as “leB” and “specially related persons.”

4) The net loss of ○○○○’s business year 2010 was KRW 2.40 billion, but the net income was KRW 4.80 billion in the business year 2011. However, the net income was KRW 4.8 billion in the business year.

5) On December 1, 2012, 00, ○○○○ made a manufacturing method of lusive sediative refined products, and a patent right under the name of “pathoous products for the prevention and treatment of diversative diseases containing the active ingredients” (hereinafter “instant patent right”), “△△△△ products for the prevention or treatment of △△△ Disease” on April 19, 2012, the patent right under the name of “△△△△△△ product for the prevention or treatment of △△△△△ disease” on September 7, 2012, the patent right under the name of “△△△△△ product manufacturing method for the manufacture of the △△△ product whose active elements are increased, and for the treatment and prevention of △△△△ and △△ risk shock products containing this,” and the patent right under the name of “mark products”, each, acquired and publicly announced.

6) The Plaintiffs’ share price of 0,000 won per share on October 14, 201, the date on which the Plaintiffs acquired the instant preemptive right was KRW 0,000 per share. Meanwhile, the share price of 0,000 per share on January 25, 2013, the date on which the Plaintiffs exercised the instant preemptive right, was KRW 00,000 per share.

[Reasons for Recognition] Unsatisfy, Gap evidence 12, 13, Eul evidence 4, 8, 13 (applicable number distribution)

(2) Each entry and the purport of the whole pleading;

D. Determination

1) A taxation on the gains accrued from the acquisition of warrant certificates of this case and the exercise of the preemptive right of this case under Article 40(1)1 (b), (c), and subparagraph 2 (b) and (c) of the former Inheritance Tax and Gift Tax Act

Whether it is a ground provision

A) Article 40(1) of the former Inheritance Tax and Gift Tax Act provides that "where a person obtains any of the following profits by acquiring, acquiring, or transferring bonds with warrant (referring to warrant bonds if the bonds with warrant are separated) (hereinafter referred to as "convertible bonds, etc.") and obtains any of the following profits, the amount equivalent to such profits shall be deemed the value of property donated to the person who has acquired such profits." Article 40(1)1 of the former Inheritance Tax and Gift Tax Act provides that "for profits acquired by acquiring, acquiring, or transferring convertible bonds, etc., the largest shareholder of a corporation that has issued convertible bonds, etc. (hereinafter referred to as "convertible bonds, etc.") or a person under a special relationship with the largest shareholder of the corporation that has issued the convertible bonds, etc., acquires, or acquires them in excess of the market price (referring to the value assessed in accordance with Articles 60 and 63) at a lower price than the market price of the bonds, etc. from the corporation, the profits acquired by acquiring them (including acquisition and transfer from an underwriter under Article 9(12) of the former Capital Markets Act);

In addition, Article 40(1) of the former Inheritance Tax and Gift Tax Act provides that "if a person acquires any of the following profits by acquiring shares ... through convertible bonds, etc., he/she shall be deemed as the value of the property donated to the person who has acquired such profits." Article 40(1)2 of the same Act provides that "the profits earned by the largest shareholder of the corporation that has issued convertible bonds, etc. or his/her specially related persons, who has acquired shares from the corporation in excess of the number of shares to be allocated under equal conditions in proportion to the number of shares held by the corporation, as the largest shareholder of the corporation that has issued convertible bonds, etc. or his/her specially related persons, acquires shares in excess of the number of shares held by the corporation."

B) Meanwhile, Article 9(12) of the former Financial Investment Services and Capital Markets Act provides that "...." is defined as "person who conducts an act falling under any subparagraph of paragraph (11) in the event of public offering, private placement, or sale of securities." Paragraph (11) of the same Article provides that "an act falling under any of the following subparagraphs shall be conducted in the case of public offering, private placement, or sale of securities" and "an act falling under any of the following subparagraphs" shall be acquired in whole or in part for the purpose of acquiring the securities from a third party under subparagraph 1" and Paragraph (7) of the same Article provides that "an act of acquiring the securities in whole or in part" shall be excluded from the Financial Services Commission" and Paragraph (8) of the same Article provides that "an act of soliciting an investor to acquire the securities newly issued in accordance with the manner prescribed by Presidential Decree" and "an act of soliciting an offering or sale of securities" shall be excluded from the category of "an act of offering or sale" under subparagraph 2 of the same Article.

C) The legislative intent of imposing gift tax on the largest shareholder of a corporation who has issued convertible bonds, etc. under Article 40(1)1 (b) and (c) and subparagraph 2 (b) and (c) of the former Inheritance Tax and Gift Tax Act to the acquisition or acquisition of convertible bonds, etc. from the issuing corporation under Article 9(12) of the former Financial Investment Services and Capital Markets Act, without limitation, is the same as the acquisition or acquisition of convertible bonds, etc. from an underwriter of a corporation in the course of capital transactions, such as capital increase, or as transfer of profits without compensation or at a very low cost by exercising such convertible bonds, so that the economic substance is identical to the acquisition of directly profits from the corporation concerned so that gift tax can be imposed on it. Considering the language and text of the aforementioned provision, it is reasonable to view that the acquisition or acquisition of convertible bonds, etc. from the underwriter of the former Financial Investment Services and Capital Markets Act, which is part of the acquisition or acquisition of the stocks, etc. from the financial investment business entity under Article 9(1)2 (b) of the former Financial Investment Services and Capital Markets Act, which does not require the Financial Investment Services Commission to obtain authorization.

D) However, as seen earlier, ○○○○ announced the scheduled date of sale of the instant warrant right to October 13, 201 as “the date of issuance of the instant warrant right” on October 14, 201, and “the other party to the sale” and “specially related persons.” Since the instant financial institutions sold the instant warrant right to the Plaintiffs on October 14, 201 on the date of acquiring the instant warrant right, the instant financial institutions should be deemed to have acquired the instant warrant right to a third party for the purpose of acquiring the instant warrant right, which is part of them, with the intention of acquiring the instant warrant right to the Plaintiffs, as well as the value of the shares acquired from the Plaintiffs’ wife or the largest shareholder of ○○○○, who is the largest shareholder of the instant warrant right, under Article 40(1) of the former Inheritance Tax and Gift Tax Act, in proportion to the value of the shares acquired from the Plaintiffs’ acquisition of the shares in excess of the market value of the shares acquired from the Plaintiffs or its specially related parties, the Plaintiffs’ acquisition price of the shares in excess of the market value of the shares acquired from 1.

2) Whether Article 2(4) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201); Article 40(1)1(b), (c), and (c) and Article 40(1)3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201); Article 40(1)2(b), and (c), and Article 40(1)3 of the former Inheritance Tax and Gift Tax Act

A) Even if it is difficult to see the instant financial institution as “an underwriter under Article 9(12) of the former Capital Markets Act”, we examine whether the gift tax may be imposed on the acquisition of warrant certificates of this case and the profits accrued from the exercise of the preemptive right of this case by applying Article 2(4) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201); Article 40(1)1(b) and (c) and 2(c) of the former Inheritance Tax and Gift Tax Act; Article 40(1)3 of the former Inheritance Tax and Gift Tax Act.

B) Article 2(4) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 2011) provides that in cases where it is deemed that the inheritance tax or gift tax has been unjustly reduced by indirect means via a third party, or by means of two or more acts or transactions, according to such economic substance, it shall be deemed a direct transaction by the party or a continuous single act or transaction, and thus, Article 2(3) shall be deemed as a gift. In other words, for the purpose of applying Article 2(4) of the former Inheritance Tax and Gift Tax Act, it shall be recognized as "an unreasonably reduced gift tax". The above provision aims to realize the equality of taxation by regulating the act of tax avoidance in order to avoid or reduce the burden of gift tax by taking a transaction form into account the third party or another act or transaction form. Thus, if the general public does not choose any reasonable transaction form as the degree objectively recognized in light of social norms or transaction practices, the application of the above provision shall be determined depending on whether it should be applied.

Meanwhile, Article 40(1)3 of the former Inheritance Tax and Gift Tax Act provides that "where the method and profits are similar to those stipulated in subparagraph 1 or 2 of the same Article by accepting, acquiring or transferring convertible bonds, etc., or converting into or exchanging with stocks or accepting stocks with convertible bonds, etc., and where profits have been acquired directly or indirectly from a specially related person (or from a specially related person) by trading convertible bonds, etc. or converting into stocks with convertible bonds, etc., an amount equivalent to such profits shall be deemed as the value of donated property of the person who has acquired such profits." The above provision provides that where a person having a special relationship with a certain corporation has acquired profits similar to those listed in the former Inheritance Tax and Gift Tax Act by using capital transactions such as capital increase, etc., gift tax shall be comprehensively imposed on the case where he/she has acquired profits similar to those

C) Considering the aforementioned facts and the overall purport of the arguments as seen earlier, considering the following circumstances, the Plaintiffs ought to be deemed to have made by indirect means of acquiring the warrant certificates of this case through the financial institution of this case, a third party, an indirect method of acquiring the warrant certificates of this case, and thus, the Plaintiffs unfairly avoided or reduced the gift tax that would have been borne when acquiring the warrant certificates of this case directly from ○○○○○.

(1) The instant bonds with warrants were issued through private placement rather than through public offering, and leB, the largest shareholder of ○○○○, the representative director, and leB, its wife or son, purchased KRW 008,000,000 (in the case of the number of allocated stocks, KRW 0,000,000 (= KRW 0,000,000 + the Plaintiffs’ 00,000,000), whichever is more than half of the total amount of the face value of the warrant rights derived from the instant bonds with warrants of 00 billion).

(2) On the day before the issuance of the instant bonds with warrants, the sales plan was publicly announced to the Korea Exchange that the other party to the instant bonds with warrants is the largest shareholder and the related party. However, the date when the instant bonds with warrants were issued and foreign exchange banks acquired the instant bonds with warrants separately from the financial institutions of this case. As such, the issuance of the instant bonds with warrants seems to have been scheduled to purchase the instant bonds with warrants.

(3) As the largest shareholder of ○○○○○, the Plaintiff’s husband or father, and the representative director, the Plaintiff’s wife or father, selected the method of issuing the instant preemptive right bonds to raise funds to ○○○○○○○○○○○○○, and established a plan to sell the instant warrant certificates to itself, the Plaintiffs, etc., and appears to have participated in the process of making a series of decisions by ○○○○○○’s decision-making process (in the case of Plaintiff DaD and MaE, the Plaintiff was 20 years of age and 16 years of age at the time of purchase of the instant

(4) In light of the relationship with ○B, the Plaintiffs were in a position to know in detail the internal information, such as the management status of ○○○○ at the time of the purchase of the instant warrant certificates, the progress of the development of medicine, etc., and could have anticipated to increase the value of ○○○○○’s shares in the future. The Plaintiffs exercised the instant preemptive right after the rise of ○○○○○○○ shareholder’s share price following the acquisition of the instant preemptive right by registering patent rights four times thereafter.

(5) In light of the fact that Article 40(1)1(b) and (c) and Article 40(1)2(b) and (c) of the former Inheritance Tax and Gift Tax Act, which are at issue as to whether Article 2(4) of the former Inheritance Tax and Gift Tax Act applies, are applicable as a matter of course to the situation in which the corporation issues warrant certificates, etc. to raise funds, and that the above provision imposes tax on the largest shareholder, etc. without asking for the purpose or cause of acquiring and acquiring warrant certificates, etc. in excess of the share ratio owned by the largest shareholder, etc., even if ○○○ at the time of issuance of the instant warrant certificates, it is difficult to view that such circumstance is important

D) Therefore, under Article 2(4) of the former Inheritance Tax and Gift Tax Act, the Plaintiffs’ acquisition of warrant certificates in this case from ○○○○○○. As such, Article 40(1)1 (b) and (c), 2 (b) and (c) of the former Inheritance Tax and Gift Tax Act shall apply to the gains derived from the acquisition of warrant certificates in this case and the exercise of warrant rights in this case. Furthermore, the acquisition of warrant certificates in this case and the exercise of warrant rights in this case are similar to the methods and interests prescribed in Article 40(1)1 (b) and (c), 2 (b) and (c) of the former Inheritance Tax and Gift Tax Act, and thereby, the Plaintiffs indirectly gain profits from the acquisition of warrant certificates in this case and the exercise of warrant rights in this case, and thus, the benefits derived from the exercise of warrant certificates in this case constitute subject to gift tax under Article 40(1)3 of the former Inheritance Tax and Gift

3) Whether Article 42(1)3 of the former Inheritance Tax and Gift Tax Act is a provision on taxation on the benefit arising from the exercise of the instant preemptive right (family determination)

A) Even if the benefit derived from the exercise of the instant preemptive right does not fall under either Article 40(1)1(c) and 2(c) of the former Inheritance Tax and Gift Tax Act or subparagraph 3 of the same paragraph, the issue of whether gift tax may be levied by applying Article 42(1)3 of the former Inheritance Tax and Gift Tax Act.

B) Article 42(1) of the former Inheritance Tax and Gift Tax Act provides that "if profits falling under any of the following subparagraphs, other than donations under Articles 33 through 39, 39-2, 39-3, 40, 41, 41-3 through 41-5, 44 and 45, such profits shall be deemed the value of the donated property of the person who has acquired such profits, which is above the standard prescribed by Presidential Decree, the value of the donated property of the person who has acquired such profits," and subparagraph 3 of Article 42 of the former Inheritance Tax and Gift Tax Act provides that "the profits shall be the value calculated by subtracting the value of stock conversion, etc. from the value of stocks at the time of stock conversion in cases of stock conversion, etc." In such cases, Article 42(3) of the former Inheritance Tax and Gift Tax Act provides that "where a transaction between the parties who are not a specially related person has justifiable reasons under the transactional practice, such profits shall not apply."

Article 42(3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4265, Jan. 2, 2008) provides that “The transaction partner may obtain gift benefits by giving up an opportunity to obtain benefits by himself/herself from the transaction between unrelated parties.” As such, with respect to the transaction between unrelated parties, unlike the gains arising from the transaction between unrelated parties, where there is a reasonable ground to believe that the transaction partner would properly reflect the objective exchange value even if the acquisition of preemptive rights and the exercise of preemptive rights have occurred, or where the transaction under such conditions can be deemed as normal from a reasonable economic standpoint, the taxation requirement does not apply to the transaction under Article 42(1) of the former Inheritance Tax and Gift Tax Act (see, e.g., Supreme Court Decision 200Da14250, Apr. 2, 2008).

다) 원고들은 앞서 본 바와 같이 2013. 1. 25. 이 사건 신주인수권을 행사하여 ○○○의 주식을 인수함으로써 ○○○의 자본을 증가시키는 거래를 하였다. 이 사건 신주인수권의 취득을 특수관계인이 아닌 자간의 거래로 보더라도, 위 2)의 다)항 기재와 같은 사정들과 함께, 앞서 본 사실, 증거에 변론 전체의 취지를 더하여 알 수 있는다음과 같은 사정, 즉 ① 원고들이 2011. 10. 14. 이 사건 신주인수권증권을 취득한 대가는 1주당 000원으로, 당시 블랙-숄즈 옵션가격 모형이론에 따른 이 사건 신주인수권증권의 이론가격인 1주당 1,862원에 비하여 현저히 저렴한 점, ② 원고들은 이 사건 금융기관들이 이 사건 신주인수권부사채를 인수하는 조건으로 ○○○의 최대주주인 윤BB와 원고들을 포함하여 윤BB의 특수관계인들이 신주인수권을 취득할 것을 요구하였다고 주장하나, 이 사건 신주인수권 취득 당시 원고 윤EE은 만 16세, 원고 윤DD은 만 20세, 원고 윤CC은 만 21세에 불과한 점 등을 고려하면, 이 사건 금융기관들이 이 사건 신주인수권부사채를 인수한 당일 원고들에게 이 사건 신주인수권증권을 1주당 000원에 매도한 것은 이해관계가 대립하는 거래당사자 사이의 합리적 거래라고보기 어려우므로 원고가 이 사건 신주인수권증권을 취득하여 이 사건 신주인수권을 행사한 것에 거래의 관행상 정당한 사유가 있다고 인정할 수 없다. 이러한 경우 이 사건 신주인수권증권의 취득 및 이 사건 신주인수권의 행사 경위, 거래조건의 결정 이유 등 에 관한 구체적인 자료를 제출하기 용이한 원고들로서는 이 사건 신주인수권증권의 취득 및 이 사건 신주인수권의 행사를 정상적인 거래로 보아야 할 만한 특별한 사정이 있음을 증명할 필요가 있는데(위 대법원 2013두24495 판결 참조), 원고가 제출한 증거들만으로는 이를 정상적인 거래로 보아야 할 만한 특별한 사정이 존재한다는 점이 충분히 증명되었다고 보기 어렵다.

D) Therefore, gift tax may be imposed on the profits that the Plaintiffs acquired by exercising the instant preemptive right by applying Article 42(1)3 of the former Inheritance Tax and Gift Tax Act. This part of the Plaintiffs’ assertion is without merit.

4) Sub-determination

The benefits arising from the acquisition of warrant certificates of this case and the exercise of the warrant rights of this case shall be subject to the provisions of the former Inheritance Tax and Gift Tax Act as seen earlier. Since there are no materials to deem the tax base and tax amount entered in the tax base return filed by the Plaintiffs to exceed the tax base and tax amount to be reported under the former Inheritance Tax and Gift Tax

3. Conclusion

Since the plaintiffs' claims of this case are without merit, all of them are dismissed, and the costs of lawsuit are assessed against the plaintiffs who have lost. It is so decided as per Disposition.

A