It can not be viewed as the market price, and there is no justifiable reason in the transaction practice.

If the legitimate reasons for the transaction officer's life are proved to the extent considerable, it is necessary to prove that the taxpayer has special circumstances that it is easy to submit detailed data on the details of the transaction, the reasons for the determination

The donation of profits under Article 39 of the Inheritance Tax and Gift Tax Act

2016Guhap6996 Revocation of Disposition of Imposition of Gift Tax

AA and 5

00. Head of tax office and 3

July 5, 2017

July 19, 2017

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

In the list of the imposition of the attached gift tax, "Defendant" column shall be stated by each Defendants in the same list.

At that date, the imposition disposition of each gift tax (including additional tax) stated in the "Gift tax amount" column for each individual of the plaintiffs shall be revoked.

1. Details of the disposition;

A. Status of the parties

The plaintiffs are entitled to the allocation of new shares or acquire shares so that they are unlisted companies

(hereinafter referred to as "the Company of this case") is a shareholder who holds shares of the Company.

B. Allocation of forfeited stocks on June 28, 2005 to Plaintiff A and B, and imposition of gift tax thereon

Disposition

1) The instant company: (a) the board of directors held on March 20, 2005 held on March 20, 222,500 per share 10,000

The board of directors, held on April 8, 2005, decided to issue the forfeited shares to the Plaintiff AA and B according to the waiver of the subscription of new shares to the existing shareholders and the waiver of the subscription of new shares to D, but decided to issue the certificate of KRW 20,000 per share for the discrimination with the existing shareholders (hereinafter “instant issuance of new shares”). According to the above resolution, Plaintiff A and B B shared the forfeited shares each 1,000 shares for the forfeited shares, and the instant company completed the registration of change of the subscription of new shares following the issuance of new shares on June 28, 2005.

2) Defendant 00 Head of the tax office and △△ Head of the tax office are the former Inheritance Tax and Gift Tax Act.

(B) On November 12, 2015, the head of the competent tax office determined and notified that the forfeited shares were allocated to the lower value than KRW 123,855,00, which was assessed according to the supplementary evaluation method stipulated in the former Inheritance Tax and Gift Tax Act before amendment on December 31, 2007 (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act before amendment”), and that the forfeited shares were accrued from the increase of capital, Defendant 00 director of the competent tax office decided and notified the Plaintiff AA and B of KRW 24,839,00,000, including each additional tax, on November 4, 2015 (hereinafter referred to as the “instant imposition disposition”).

C. Plaintiff EE, F, GG, and H’s acquisition of shares on March 28, 2012 and April 3, 2012

Imposition of gift tax on this;

1) Plaintiff EE and F: from March 28, 2012, Plaintiff E and F each of the instant Company’s shares 4,000

Note 50,00 per share, and Plaintiff GG and H have acquired KRW 50,00 per share from II on April 3, 2012

"The acquisition of shares of the instant company at KRW 80,00 per share (hereinafter "the instant acquisition of shares"), the head of △△△, the head of △△△, the head of △△, the head of △△△, and the head of △△△, by taking over shares of the instant company from Plaintiffs EE, F, G, H, and II, before being amended by Act No. 1357, Dec. 15, 2015; hereinafter "former Inheritance Tax and Gift Tax Act before amended on December 15, 2015"), the value assessed according to the supplementary assessment method stipulated in the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter "the former Inheritance Tax and Gift Tax Act") was lower than the value of KRW 296,337,00 per share and gains profits from the acquisition of shares at KRW 30,000 per share; on November 4, 2015, the head of △△ was included in Plaintiff 16.

(d) Results of filing an appeal;

The Plaintiffs appealed and filed an appeal with the Tax Tribunal on February 1, 2016, but they were subject to taxation.

On May 30, 2016, the Tribunal dismissed all the above appeals.

[Ground of Recognition] Unsatisfy, Evidence No. 1-2, Evidence No. 2-1, No. 2, Evidence No. 3, A

The purpose of Gap evidence 4-1 to 4, Eul evidence 5-1 to 4, Eul evidence 6-1, 2, Eul evidence 1-1 to 6, Eul evidence 2, Eul evidence 3-1, and Eul evidence 3-2, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

1) As to the first disposition of this case, the head of the tax office 00 and the head of the △△ Tax office of this case

There is an example of transactions that properly reflects the objective exchange value of the Company's shares;

On December 31, 2007, the value calculated by the supplementary evaluation methods stipulated in the former Inheritance Tax and Gift Tax Act before the amendment shall be deemed as the market price, and thus, the error of taxation No. 1 of this case shall be deemed as having been

2) As to the second disposition of this case, Defendant 1, △△ Head of the tax office, △△ Head of the tax office, and Southern ○ Tax Office

Secretary General shall be responsible for a transaction that properly reflects the objective exchange value of the shares of the Company in this case.

Although there were precedents, the Plaintiff EE, F, G, H and the transferor, who was the assignee, did not have any reasonable ground for believing the transaction price at a normal price that properly reflects the objective exchange value, or the Plaintiff’s acquisition of shares at a reasonable economic point of view was an abnormal reason from a reasonable economic standpoint, even if the acquisition of shares was based on the supplementary evaluation method stipulated in the former Inheritance Tax and Gift Tax Act before December 15, 2015, and thus, was deemed the market price and thus, subject to the second disposition of this case. Even if the acquisition of shares constitutes acquisition at low price, the lower court erred by misapprehending that the Plaintiff EE, F, G, H, and H, and II, who was the assignee, did not have any justifiable ground for believing that the transaction price was at a normal price that was appropriately reflected in the objective exchange value, and that the acquisition of shares at the transaction price was at a reasonable economic point of view.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Relevant legal principles

A) Article 60(1) and (3) of the former Inheritance Tax and Gift Tax Act before the amendment on December 31, 2007 (see, e.g., Article 60(1) and (3)

Amount of money shall be calculated on the basis of the market price as of the date of donation and in cases where it is difficult to calculate the market price,

The supplementary evaluation methods prescribed in Articles 61 through 65 in consideration of the type, scale, transaction situation, etc.

Article 60 (2) of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18989 of Aug. 5, 2005) provides that "the market price under paragraph (1) of the same Article shall be the value which is generally accepted in the event of free trade between many and unspecified persons and which is recognized as the market price under the conditions as prescribed by Presidential Decree, such as the expropriation, public sale price, appraisal price, etc." The main text of Article 49 (1) 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18989 of Aug. 5, 2005) provides that "if there is a fact that the property is traded at the market price, the transaction price shall be deemed as the market price, and the proviso of Article 60 (2) of the former Inheritance Tax and Gift Tax Act provides that "if there is a fact that the property

Therefore, even in the case of unlisted stocks with low market feasibility, there is a fact of sale.

The value of shares shall be appraised by considering the transaction value as the market price, and it shall not be assessed by the supplementary evaluation method stipulated in the former Inheritance Tax and Gift Tax Act before the amendment on December 31, 2007. However, since the market price means the objective exchange price formed by the ordinary and ordinary transaction, in order to be recognized as the market price, the circumstances that can be seen as properly reflecting the objective exchange value at the time of the donation should be recognized by the relevant transaction made in a general and normal manner (see, e.g., Supreme Court Decision 2010Du26988, Apr. 26, 2012).

B) The legislative intent of Article 35(2) of the former Inheritance Tax and Gift Tax Act prior to the amendment on December 15, 2015 is the transaction counterpart.

The difference between the price and the market price by abnormal methods that manipulate the transaction price for the benefit of the protection;

in the case of a de facto gratuitous transfer of any benefit equivalent to that of the other party to the transaction.

by imposing gift tax, it is intended to cope with and promote the fairness of taxation.

In the transaction between unrelated parties, however, the mutual interest does not conflict.

because it is general that there is a difference between the price and the market price, the difference is traded solely on the basis of the difference.

Article 35(2) of the former Inheritance Tax and Gift Tax Act prior to the amendment of December 15, 2015 adds the taxation requirement that “no justifiable ground exists for transaction between unrelated parties,” as to transaction between unrelated parties, unlike transaction between unrelated parties. In full view of these, it is reasonable to deem that there exists a reasonable ground to believe the transaction price at a normal price that reflects the objective exchange value, as well as the transfer of property at a low-price price from a reasonable economic standpoint even if the transferor did not have any objective reason to deem that the transfer of property at a reasonable market price was an abnormal reason from a reasonable economic standpoint (see, e.g., Supreme Court Decision 2013Du5081, Aug. 23, 2013).

Meanwhile, taxation under Article 35(2) of the former Inheritance Tax and Gift Tax Act before the amendment on December 15, 2015 has been imposed.

subsection (1) of this section, the transferor shall be entitled to

tax authorities as well as the transfer of such property to the State, even if there is no justifiable reason for transaction practice.

The burden of proof ought to be proved (see, e.g., Supreme Court Decision 2011Du22075, Dec. 22, 2011): Provided, that the tax authority may, if a reasonable economy is the economy, prove that there is no justifiable reason in light of the practice of trading by submitting the data on objective circumstances, etc. that the transaction did not have been traded under such conditions as at the time of the transaction. If such circumstances were proved to a considerable extent, it is necessary to prove that a taxpayer who is easy to submit specific data on the details of the transaction, reasons for determining the terms and conditions of transaction, etc. is deemed an ordinary transaction (see, e.g., Supreme Court Decision 2013Du2495, Feb. 12, 2015).

2) Determination as to the allegation on the first disposition of this case

The issuance of new shares in this case to the existing shareholders of the company of this case in 10,000 won per share

In fact, on June 28, 2005, nearest to the date of the issuance of new shares of this case on April 30, 2005, the fact thatCC transferred 2,000 shares of this case to J 10,00 won per share price of 10,000 won can be recognized by the statement of evidence No. 2 of this case or there is no dispute between the parties concerned. However, the preemptive right is granted to prevent the infringement of existing shareholders' interests due to the issuance of new shares, and thus, the value of new shares issued to the existing shareholders is formed by normal transactions.

not be considered as an objective exchange price, and by the description of the evidence in subparagraph B(4)

In other words, the J is one of the major sales offices ofCC, and it is difficult to view that there is no evidence to know the developments leading up to the stock transaction or the process of determining the price of the instant company, and thus it is a transaction conducted in a general and normal manner or an objective exchange value is properly reflected. In fact, in light of the fact that the J received a disposition of gift tax on the profits accruing from the transfer of the said transaction and paid all of it when it was not adopted, the above recognition alone is insufficient to recognize the issue price or transfer price as the market price, and there is no other amount to be recognized as the market price. Thus, it is reasonable to view that the value calculated by the supplementary evaluation method stipulated in the former Inheritance Tax and Gift Tax Act before December 31, 2007 is the market price for the issuance of the instant shares, since it is difficult to calculate the market price for the forfeited stocks allocated to Plaintiff A and B due to the issuance of the instant shares. The above plaintiffs' assertion is without merit.

3) Determination as to the assertion on the second disposition of this case

A) First, we examine the propriety of the valuation by the supplementary valuation method. The Plaintiff EE and F’s instant meeting from K on December 29, 201, prior to the date of the instant stock acquisition, also on December 29, 2011.

사 주식을 1주당 가액 50,000원에 양수한 사실, LL, MM, NN, OO이 원고 EE, FF의 이 사건 주식양수와 같은 날 같은 가액에 같은 양도인으로부터 이 사건 회사 주식을 양수하였고, PP, QQ, RR도 원고 GG, HH의 이 사건 주식양수와 같은 날 같은 가액에 같은 양도인으로부터 이 사건 회사 주식을 양수하였으며, 위 주식양수일이 서로 근접한 사실은 을 제2호증의 기재에 의하여 이를 인정할 수 있거나 당사자 사이에 다툼이 없다. 그러나 을 제2, 8, 9, 10호증의 각 기재 및 변론 전체의 취지에 의하면, 원고 EE, FF은 이 사건 주식양수일을 기준으로 이 사건 회사 대표이사이자 대주주인 SS의 자녀들인 사실, KK, II는 과거 이 사건 회사 이사였고, LL, MM, NN, OO은 이 사건 회사 직원들인 사실, PP은 이 사건 회사 매출처인 EOS 주식회사의 대표자인 사실을 인정할 수 있는바, 이와 같은 사정에 비추어 보면 위 인정사실과 갑 제7, 8호증의 각 기재만으로는 위 거래 당사자들 사이에 이 사건 회사 주식 거래가 이루어진 경위나 가격 결정 과정을 알기 어렵고 달리 이를 알 수 있는 아무런 객관적 자료가 없어 위 양도 가액들을 시가로 인정하기에 부족하고, 달리 시가로 인정할 가액을 찾아볼 수 없으므로, 이 사건 주식양수에 있어 원고 EE, FF, GG, HH이 양수한 주식은 그 시가를 산정하기 어려운 경우에 해당하여 2015. 12. 15. 개정 전 구 상속세및증여세법에서 정한 보충적 평가방법에 의하여 산정한 가액을 시가로 봄이 타당하다. 위 원고들의 위 주장은 이유없다.

B) Next, as to the existence of justifiable reasons for transaction practice

2. According to the purport of the evidence Nos. 6-2 and 7-2 of the evidence Nos. 6-2 and 7-2, the company of this case, as of December 31, 201, immediately before the date of acquiring the shares of this case, reached approximately KRW 41.6 billion of assets, earned surplus of KRW 16.1 billion. Section II held 12.97% of the company's shares and held 54.45% of 20.74% of the company's shares, and ES's spouse holding 20.74% of 20.74% of the company's shares, it is reasonable to view that Plaintiff EE and FF as the representative director of the company of this case and SS's children holding shares of this case with the acquisition of the shares of this case, and it is difficult to find that there is no reasonable ground to view that there was a lack of objective reasons to acknowledge that there was a lack of reasons to view the plaintiffs' transfer of shares in this case's 27.

3. Conclusion

Since the plaintiffs' claims are without merit, all of them are dismissed. It is so decided as per Disposition.