Supreme Court-201-Du-21447 (Law No. 2017.04, 2017)

It shall not be deemed that a public-service corporation has received stocks of a domestic corporation having special relation with the contributor.

A person who establishes a nonprofit corporation by contributing property means a person who contributes property to establish a nonprofit corporation and exercises dominant influence over the establishment of a nonprofit corporation, such as preparation of the articles of incorporation and appointment of directors.

Article 48 of the Inheritance Tax and Gift Tax Act (Non-Inclusion, etc. in Taxable Value of Property contributed by Public Service Corporation)

2017Nu154 Revocation of Disposition of Imposing gift tax

AA

Head of Suwon Tax Office

October 25, 2017

December 1, 2017

1. The defendant's appeal is dismissed.

2. The defendant bears the total costs of the lawsuit after filing the appeal.

1. Purport of claim

The Defendant’s disposition of imposing KRW 14,041,937,00 on the Plaintiff on September 3, 2008 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation, etc. of judgment in the first instance;

The reasoning of this court's judgment is as stated in the reasoning of the judgment of the first instance except for the modification of the pertinent part of the judgment of the first instance as follows 2. Thus, it is acceptable to accept it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of

2. Revised parts

○ 3 Doz. Witness JYH’s Witness’s Witness’s Witness’s Witness’s First Instance 11

○ 4 up to 10 pages 12 up to 10 up to

[1] Relevant legal principles

(A) Criteria for determining the existence of a special relationship between the contributor and the pertinent public interest corporation

In full view of the provisions of Article 48(1) and the proviso of Article 16(2) of the Inheritance Tax and Gift Tax Act, even if the shares of contributed domestic corporation exceed 5/100 of the total number of shares issued by that domestic corporation, in order to impose gift tax on the shares contributed, the special relationship between the contributor and the domestic corporation should be

In this regard, Article 13(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177, Dec. 30, 2003; hereinafter referred to as the "Enforcement Decree of the Gift Tax Act") provides that "a domestic corporation that does not have a special relationship with the contributor of the relevant public-service corporation" under the proviso of Article 16(2) of the Gift Tax Act refers to a domestic corporation that does not fall under any of the following subparagraphs 1 and 2, and subparagraph 1 provides that "a contributor or a person who has a special relationship with the contributor (referring to a person who has a relationship under any of the subparagraphs of paragraph (6) with the contributor, but excluding the relevant public-service corporation) is a stockholder or a person who has a special relationship with the contributor (hereinafter referred to as "shareholders requirement") and a person who has a special relationship with the contributor (referring to a person who has a relationship under any of the subparagraphs of paragraph (6) with the contributor and the person who has a special relationship with the contributor."

Therefore, it can be seen that there is a special relationship between a contributor and a domestic corporation meeting both the above requirement of shareholders and the largest shareholder requirement, and only in such a case, gift tax can be imposed on the shares of a domestic corporation contributed to a public-service corporation.

Furthermore, in case where the shares contributed to a public-service corporation are the shares of a domestic corporation whose aggregate amount of shares held by the contributor and a person having a special relationship with the contributor (hereinafter referred to as the "Contributor, etc.") is the largest amount of shares, such shares can be affected by the public-service corporation through the influence of dividends, etc. based on control over the domestic corporation, and thus, the inheritance tax or gift tax can be avoided by means of stock contribution to such public-service corporation. Therefore, it is understood that this provision has been established to prevent such harm. Therefore, whether the shares fall under the largest shareholder requirement should be determined at the point of time after the shares were contributed, rather than at the time of contribution. Even if shares were the largest shareholder before the contribution, the contributor cannot affect the public-service corporation based on control over the domestic corporation and can not use the public-service corporation as a means of control over the domestic corporation.

The proviso of Article 16(2) of the Act, which is a non-taxable requirement for excluding the application thereof, should also be deemed to be determined at the time of contribution. Therefore, the 'large shareholder requirement' as a standard for determining whether a contributor and a domestic corporation are in a special relationship should be determined at the time of contribution, not at the time of contribution, at the time of contribution.

On the other hand, in order to receive non-taxation benefits upon stock contribution, the contributor, etc. should not be the largest shareholder of a domestic corporation. In determining the largest shareholder at the time after stock contribution was made, the "public-service corporation that received the stock of the domestic corporation" should be considered as the person in a special relationship with the contributor. In this regard, Article 19 (2) 4 of the Enforcement Decree which applies mutatis mutandis pursuant to Article 13 (6) 3 of the Enforcement Decree (hereinafter "the Enforcement Decree of this case") provides that "non-profit corporation that established the stock contributor, etc. by either forming a majority of the directors or making the contribution of the property as the person in a special relationship with the contributor."

According to the language and text of the above provisions, “the pertinent public interest corporation” is included as a matter of course in a non-profit corporation, so if the requirements of the above provisions are met, it can be seen as a “non-profit corporation in a special relationship with the contributor.” Article 13(4)1 of the Enforcement Decree provides that the scope of persons related to the requirements for the largest shareholder shall include the pertinent public interest corporation. Therefore, if “the stock contributor, etc. constitutes a “public interest corporation established with the contribution of the pertinent public interest corporation by the relevant public interest corporation” or “the pertinent public interest corporation established with the contribution of the assets,” it shall be determined whether the contribution constitutes the largest shareholder by including not only the stocks held by the pertinent public interest corporation but also the stocks of the domestic corporation already owned by the pertinent public interest corporation at the time of the contribution (see Supreme Court Decision 2011Du21447, Apr. 20, 2017)

(B) The meaning of "non-profit corporation established with the contribution of property by a stock contributor, etc."

Considering the principle of interpretation and legislative purport of tax laws, the legislative history of the provisions of the Enforcement Decree of this case, the contents of other tax laws prescribing the scope of a non-profit corporation having a special relationship, the preparation of the articles of association or the influence on the process of the operation of a public-service corporation, etc., the "person who establishes a non-profit corporation by contributing property under the provisions of the Enforcement Decree of this case" shall be deemed to mean a person who actually exercises a dominant influence over the establishment of the non-profit corporation in the course of making the articles

Furthermore, this study examines the specific meaning of the establishment of a public-service corporation. Unless otherwise provided in the articles of incorporation, the performance of affairs by a public-service corporation is determined by the majority of directors (Article 58 of the Civil Act). In the event that a stock contributor, etc. forms a majority of directors of a public-service corporation, a stock contributor may exercise dominant influence over the public-service corporation. The provision of this case provides that a person who is entitled to exercise dominant influence over a non-profit corporation shall be determined by the person who is in a special relationship with the non-profit corporation. Therefore, the text of the “non-profit corporation established by the stock contributor,

In light of the fact that the articles of incorporation at the time of establishment, the appointment of directors, etc., have a critical influence on the establishment of a non-profit corporation in the process of preparing the articles of incorporation, and the appointment of directors, etc., a person who actually exercises a dominant influence on the establishment of a non-profit corporation shall be deemed to be in a special relationship with the non-profit corporation.

However, whether a share contributor exercises a dominant influence over the establishment of a non-profit corporation is not necessarily limited to cases where he/she participated in the preparation of the articles of incorporation or the appointment process of directors in the position of promoters, etc., but should be determined based on the substance, such as the degree of involvement of the contributor in the preparation of the articles of incorporation or the appointment of directors. It may be inferred through the behavior, etc. of a share contributor after the establishment (see Supreme Court Decision 201Du21447, Apr. 20, 201).

(2) Whether the contributor of this case constitutes “a person who establishes a nonprofit corporation by contributing property”

The Defendant asserts to the effect that since the domestic corporation established the Plaintiff and the instant contributor granted differential dividends to the Plaintiff and the instant contributor, the Plaintiff’s directors have friendly relations with the instant contributor, and the instant contributor exercised substantial influence over the establishment of the Plaintiff, such as participating in the appointment of the Plaintiff’s director, etc., so the instant contributor constitutes “a person who has established a nonprofit corporation by contributing property” and thus, the instant disposition is justifiable.

As seen earlier, "a person who establishes a nonprofit corporation by contributing the property stipulated in the Enforcement Decree of the instant case" means a person who actually exercises the dominant influence over the establishment of a nonprofit corporation in the course of making the articles of incorporation, appointing directors, etc.

Considering the following facts and circumstances as a whole, the instant contributor cannot be deemed to have established by exercising substantial influence in the process of preparing the Plaintiff’s articles of incorporation, appointing directors, etc. Accordingly, the instant disposition that differs from this premise is unlawful. In view of the following facts and circumstances, comprehensively taking account of the evidence Nos. 6, 7, 9, and 13, 16, and 18 (including the number of branch numbers), the evidence Nos. 16, and the evidence Nos. 16, and the evidence Nos. 16, and the evidence No. 16, which may be acknowledged by the purport of the testimony

◎ 이 사건 출연자는 2002. 7. 15. 학교법인 DW학원 AJ대학교(이하 'AJ대학교'라 한다)와 사이에 자신이 보유한 이 사건 내국법인의 주식 중 85.71%와 그의 6촌 동생 HMS이 보유한 이 사건 내국법인의 발행주식 전부를 기부하기로 약정하였다가 현행법상 AJ대학교가 이를 직접 기부받는 것이 불가능하여 재단법인을 설립하기로 하되 재단법인이 설립되어 정상적인 주식인수절차가 마무리되고 이 사건 내국법인의 운영계획이 수립될 때까지 이 사건 내국법인의 운영권한을 이 사건 내국법인의 대표이사에게 위임하기로 하였다.

◎ 원고의 설립발기인은 SSY를 대표로 한 AJ대학교 소속 교직원 8인이고, 이들 발기인은 2002. 8. 20. 원고의 최초 정관을 작성하고 서명날인한 후 전원 찬성으로 재단의 최초 정관을 의결하였으며, SSY가 이사장이 되는 등 임원을 선임하는 과정을 거쳤으나, 이 사건 출연자는 설립발기인이 되거나 정관 작성에는 관여하지 아니하였다.

◎ 이 사건 출연자는 2005. 12. 5. AJ대학교 총장이 원고의 이사장을 겸직하는 것을 우려한 그 대학교 교수들의 권유에 따라 원고의 이사장으로 취임하기 전까지 그 운영에 관여한 적이 없다.

◎ 원고의 이사회에서 배당금의 포기가 정식 의결된 적은 없으나 장학사업이라는 목적사업을 수행하기 위하여 적정한 금액을 먼저 수입예산으로 편성하여 해당 금액을 배당받는 것으로 처리하고 있다는 원고의 주장에 합리성이 있고(이 사건 출연자가 이 사건 내국법인으로부터 차등배당 받았다는 사정은 이 사건 출연자가 이 사건 내국법인을 지배하였다는 간접적 정황은 될 수 있어도 그로써 곧바로 이 사건 출연자가 원고 설립과정에서 실질적으로 지배적 영향력을 행사하였다는 정황으로 보기에는 부족하다), 재단법인의 설립경위 등에 비추어 보면 AJ대학교 관계자들이 이사로 선임된 것이 이 사건 출연자가 설립과정에서 실질적으로 지배적인 영향력을 행사하였기 때문이라고 보기 어렵다.』

3. Conclusion

If so, the plaintiff's claim will be accepted for the reasons. The judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed as it is without merit.