The appraisal value per stock before the capital increase shall be calculated on the basis of the payment date of stock price.

The board of directors passes a resolution to issue new shares only for 49 persons including the plaintiff, and the issuance of new shares accordingly does not constitute a distribution by means of securities offering, which is an exception to deemed donation due to capital increase with capital increase, and the calculation of the profits donated at a low price is based on the date of payment of stock price.

2011Guhap2307 Revocation of Disposition of Imposition of Gift Tax

NewA

Head of Changwon Tax Office

April 12, 2012

September 27, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposing gift tax on the Plaintiff on June 13, 2011 shall be revoked, respectively.

1. Details of the disposition;

(a) BBros Co., Ltd., a KOSDAQ-listed corporation (former trade name, Co., Ltd., Ltd., Ltd., and hereinafter referred to as “Nonindicted Co., Ltd.”) adopted a resolution on April 10, 2007, to issue 4,262, and 430 shares of registered ordinary shares to 49 members including the Plaintiff in total by third party allocation method.

B. The Plaintiff participated in the above subscription to new shares on May 4, 2007 and purchased new shares 173 and 910 shares on the same day and paid 000 won for the acquisition price on the same day, and 49 members acquired total of 4,262, and 430 shares, and paid 00 won in total.

C. As of May 3, 2007, as of May 3, 2007, the defendant calculated the "value per share before the capital increase" of the non-party company as of May 3, 2007, the defendant acquired new shares at a price below the market price because the value was 00 won, and as a result, the plaintiff deemed that 00 won was donated from the existing shareholders through the above capital increase, and on June 13, 201, the plaintiff decided and notified the plaintiff on June 13, 201 of Article 39 (1) 1 (a) and (c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007, hereinafter referred to as the "former Inheritance Tax and Gift Tax Act").

D. On August 2, 201, the Plaintiff dissatisfied with the instant disposition, filed a request for trial with the Tax Tribunal on August 2, 201, and filed the instant lawsuit on August 3, 201.

Facts without dispute over the basis of recognition, Gap evidence 1 through 4, and Eul evidence 1 (including household numbers), and the purport of the whole pleadings.

2. Judgment on the main defense of this case

A. Defendant’s defense

The plaintiff filed a request for judgment without filing a request for review on the disposition of this case, and simultaneously filed a request for judgment is unlawful as it does not go through the previous trial procedure.

B. Determination

(1) The fundamental purport of the exclusive administrative disposition doctrine is to give an administrative agency an opportunity to reflect and utilize professional knowledge of the administrative agency at the time of filing a lawsuit. Thus, even if there is an error of law that does not meet the requirements for the exclusive administrative disposition at the time of closing argument, if the person satisfies the requirements for the exclusive administrative disposition at the time of closing argument, the defect of the defect is cured (see Supreme Court Decision 86Nu29, Apr. 28, 1987). In addition, according to Articles 81, 55, and 56 and 65 of this Act, a request for examination and a request for adjudgment cannot be filed concurrently, and administrative litigation against an illegal disposition under Article 55 cannot be filed without going through a request for examination or adjudgment under this Act and a decision thereon, and if the decision is not notified within 90 days from the date of filing a request for adjudgment, an administrative litigation may be instituted from the date the period for decision expires

(2) As seen earlier, the Plaintiff filed a request with the Tax Tribunal for the instant disposition on August 2, 201, and there is no evidence to deem that 90 days have passed since the date of the said request for the judgment, and that there was no evidence to deem that 90 days have passed since the date of the said request for the judgment, the lawsuit seeking cancellation of the instant disposition is legitimate, and the Defendant’s main defense to the safety is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) In a case where Article 39(1) of the former Inheritance Tax and Gift Tax Act provides that where new shares are allocated by means of a public offering of new shares under Article 2(3) of the former Securities and Exchange Act (amended by Act No. 8635, Aug. 3, 2007; hereinafter the same), the amount equivalent to profits acquired by being allocated at a price lower than the market price shall be excluded from the gift tax assessment subject to gift tax, but the defendant provided that only when new shares are allocated by a public offering, the disposition in this case was taken in violation of the principle of tax law or the principle of strict interpretation.

2) In calculating the capital increase profits pursuant to Article 29(3)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23591, Feb. 2, 2012; hereinafter referred to as the “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”), the Defendant calculated the “value per share before the capital increase” based on the date of the public notice of the capital increase (amended by Presidential Decree No. 23591, Apr. 10, 2007) and accordingly, issued the instant disposition in violation of Article 18(3) of the Framework Act on National Taxes, which details the “value per share before the capital increase as of the payment date of stock price.

3) Article 39(2) of the former Inheritance Tax and Gift Tax Act premised on the establishment of a taxable unit by donor as a result of the fact that the gift tax is imposed on May 4, 2007, which was the date of payment of shares capital, and the amount of gift by donor should be calculated according to the share ownership ratio as of May 4, 2007, but the defendant calculated the amount of gift by donor based on the shareholder registry as of December 31, 2006.

4) The Plaintiff acquired shares under a certain condition subsequent to a contract for acceptance of new shares with the non-party company on condition of protection, and thus, the Plaintiff evaluated shares acquired by the Plaintiff under Article 65 of the former Inheritance Tax and Gift Tax Act, and the Defendant evaluated shares acquired by the Plaintiff under Article 63

The instant disposition was taken.

5) With respect to shares, the transaction of which is prohibited due to safeguard, the average amount of the final taxation value of the Korea Stock Exchange, which is published for two months following the date of acquisition of shares under Article 63(1)1 (a) of the former Inheritance Tax and Gift Tax Act, shall not be considered as the market value of shares, and otherwise, the method of evaluating the shares, the transaction of which is prohibited due to safeguard, was not prescribed under the former Inheritance Tax and Gift Tax Act, and the defendant assessed the shares acquired by the

6) The Plaintiff calculated the “value per share before the capital increase” on the basis of the publication date of the capital increase in the method of allocating a third party, based on the national tax administration practices, and thus, the Plaintiff did not report and pay gift tax on the ground that the Plaintiff did not gain any profit from the capital increase as a result of evaluating the shares acquired by the Plaintiff on the basis of the publication date of the capital increase, and thus, there was a justifiable reason not to err in neglecting its duty.

B. Relevant statutes

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

C. Determination

1) Determination on the first argument

A) In case where a corporation issues new stocks at a price lower than the market price in order to increase its capital, in case where those who are not the stockholders of the relevant corporation obtain profits by directly receiving new stocks from the corporation concerned, the amount equivalent to such profits shall be deemed as the value of donated property of the person who has acquired the profits, and in case where a stock-listed corporation or Association-registered corporation under the Securities and Exchange Act allocates new stocks by the method of public offering of new stocks under Article 2(3) of the former Securities and Exchange Act, it shall be excluded.

Article 2 (3) of the former Securities and Exchange Act provides that "not less than 10 percent of the number of new or outstanding securities are subscribed for new or outstanding securities to be issued by an issuer under the conditions as prescribed by the Presidential Decree, and that the former Enforcement Decree of the Securities and Exchange Act provides that "not less than 5 percent of the number of persons who are subscribed for new or outstanding securities shall be less than 50 percent of the number of new or outstanding securities issued by an issuer under Article 2 (3) of the former Enforcement Decree so that they may be subscribed for new or outstanding securities at least 9 percent of the number of new or outstanding securities so that they may be subscribed for new or outstanding securities at least 9 percent of the number of new or outstanding securities issued by the issuer under the conditions as prescribed by the Presidential Decree, and that this provision provides that "not less than 1 percent of the number of new or outstanding securities issued by the issuer shall be included in the number of new or outstanding securities subscribed for new or outstanding securities issued by the issuer under Article 2 (3) of the former Securities and Exchange Act shall be included in the calculation method.

In addition, as the subject of the regulation itself is rapidly changing and various economic phenomena, and the purpose of various economic policies and social security is carried out, so the interpretation of Article 39(1)1 (a) and (c) of the former Inheritance Tax and Gift Tax Act should be permitted to the extent that it does not seriously undermine the legal stability and predictability oriented by the principle of no taxation without law. As such, construing Article 39(1)1 (a) and (c) of the former Inheritance Tax and Gift Tax Act as above cannot be deemed to contravene the principle of no taxation without law or strict interpretation (see, e.g., Supreme Court Decision 2007Du4438, Feb. 15, 2008).

B) On April 10, 2007, the board of directors passed a resolution on the issuance of new shares only with respect to 49 persons including the Plaintiff on April 10, 2007. Accordingly, the issuance of new shares cannot be seen as falling under the "distribution by the method of public offering of securities, which is an exception to the constructive donation due to the capital increase by issuing new shares under Article 39(1)1 (a) and (c) of the former Inheritance Tax and Gift Tax Act, and there is no evidence to deem that the non-party company has undergone the procedure of soliciting the offer under Article 2-4(5) of the former Enforcement Decree of the Securities and Exchange Act, and this part of

shall not be effective.

2) Determination on the second argument

가) 구 상속세및증여세법 제39조 제1항 제1호 가목 및 다목 소정의 저가발행으로 인하여 증여받은 것으로 보는 이익의 계산에 관하여 구 상속세및증여세법 시행령 제29조 제3항 제1호는 [(증자 전의 1주당 평가가액 ㆍ 증자 전의 발행주식 총수) + (신주 1주당 인수가액 ㆍ 증자에 의하여 증가한 주식 수)] ∻ (증자 전의 발행주식 총수 + 증자에 의하여 증가한 주식 수)(가목)에서 신주 1주당 인수가액(나목)을 차감한 가액에 배정받은 실권주 수 또는 신주 수(다목)를 곱하여 계산한 금액으로 한다고 규정하고 있고， 구 상속세및증여세법 시행 령 제29조 제4항(2002. 12. 30. 신설되었다)은 제3항의 규정에 의한 이익의 계산은 주 식대금 납입일을 기준으로 한다고 규정하고 있다. 위 각 규정의 문언 내용과 입법취지 및 증자에 따른 주식 취득의 효과는 신주인 수인이 그 주금을 납입함으로써 생기므로 신주인수인이 인수한 주식의 가액은 특별한 사정이 없는 한 주금납입의 시점을 기준으로 산정하여야 할 것이라는 점 등을 종합하여 보면， 제3자 배정방식의 증자에 따른 이익의 계산방법에 관하여 구 상속세및증여세법 시행령 제29조 제3항 제1호 가목에 정한 산식 중 '증자 전의 1주당 평가가액'을 산정함에 있어서는 구 상속세및증여세법 시행령 제29조 제4항에 따라 증자에 관한 이사회 결의일이 아니라 주금납입일의 전날을 기준으로 하여 그 이전의 기간을 대상으로 하여야 한다(대법원 2009. 8. 20. 선고 2007두7949 판결 등 참조). 한편， 국세기본법 제18조 제3항이 정하는 소급과세금지의 원칙은 합법성의 원칙 을 희생하여서라도 납세자의 신뢰를 보호함이 정의에 부합하는 것으로 인정되는 특별한 사정이 있을 경우에 한하여 적용된다고 할 것이고，그 조항에서의 일반적으로 납세자에게 받아틀여진 국세행정의 관행이란 비록 잘못된 관행이라도 특정납세자가 아닌 불특정한 일반납세자에게 정당한 것으로 이의 없이 받아들여져 납세자가 그와 같은 관 행을 신뢰하는 것이 무리가 아니라고 인정될 정도에 이른 것을 말하고, 단순히 세법의 해석기준에 관한 공적 견해의 표명이 있었다는 사실만으로 그러한 관행이 있다고 볼 수는 없는 것이며， 그러한 해석 또는 관행의 존재에 대한 입증책임은 그 주장자인 납 세자에게 있다고 할 것이다(대법원 1992. 9. 8. 선고 91누13670 판결， 대법원 2006. 6. 29. 선고 2005두2858 판결 등 참조).

B) Under the formula of Article 29(3)1 through 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, "in the case of listed corporations and KOSDAQ-listed corporations under Article 63(1)1 (b) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the value per share before the person gives rise to the increase in the capital shall be the average value of the current market value of the Korea Securities and Futures Exchange published before the date of the increase in the capital. And according to the purport of the statement and arguments in subparagraph 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, it is reasonable for the Commissioner of the National Tax Service to consider the date of the public announcement of the fact as the date of the increase in the capital. However, since the calculation of profits under Article 29(4)3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act of December 30, 202 should be based on the date of the increase in the capital, it is difficult to say that the former evaluation date should be based on the payment of profits under Article 29(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

(3) The facts of recognition of the third argument

According to the overall purport of the entry and arguments of Gap 3, Eul 7, and Eul 3 (including each number), and the defendant, based on the list of shareholders dated December 31, 2006, have examined the detailed details of changes in the shares from January 1, 2007 to May 4, 2007, as a result, had 1/100 or more of the total number of shares issued by the non-party company (hereinafter referred to as "controlling shareholder"), and had 67,740 shares of the non-party company as of December 31, 206 (940,000 shares owned by Kim GG as stated in evidence 77,000) and had 30G shares as of December 31, 2006, and had 207.37,707,07,07,000 shares of the non-party company as of December 31, 200.

B) The plaintiff and the defendant did not secure the shareholders' list as of May 4, 2007, and the non-party 2's shares were owned by the non-party 1 and the non-party 2's shares were owned by the non-party 7 shareholders as of December 31, 2006. The non-party 1 and the non-party 2's shares were owned by the non-party 1 and less than 5% of the total number of the shares issued by the non-party 2, and the disposition of this case was unlawful as it violated the principle of substantial taxation and taxation, and did not bear the burden of proof as to the tax requirements. However, according to the above evidence and the whole arguments, the non-party 2 and the non-party 3's shares were owned by the non-party 1 and the non-party 2's shares were owned by the non-party 20 and the non-party 1 and the non-party 2's shares were non-party 7's shares were transferred.

4) Judgment on the fourth argument

Article 65 (1) of the former Inheritance Tax and Gift Tax Act provides that the term "Conditional Right" refers to the subsidiary officer of a legal act that enables the occurrence or extinction of the legal act to depend on the gender of an uncertain fact in the future. Therefore, the term "Conditional Right" refers to a right for which the fulfillment of the condition has not been confirmed, and one of the parties has the expectation or possibility to gain certain profits due to the fulfillment of the condition (see Article 149 of the Civil Act). In full view of the health class of this case and the whole purport of arguments in the items of Gap 1 through 3 and evidence No. 5, and the whole purport of arguments in the case, and the new shares of the non-party company that the plaintiff acquired on May 4, 2007 are issued at the Korea Securities Depository (the name is changed to the Korea Securities Depository around February 2, 2008) for four months after the issuance of the new shares, which is so limited that the disposition of the above new shares is limited for a certain period between the plaintiff and the non-party company, and thus, it cannot be viewed that the plaintiff's rights are dependent on the above part of new shares.

5) Judgment on the fifth argument

In principle, Article 60(1) of the former Inheritance Tax and Gift Tax Act provides that the value assessed by the method of evaluation as provided in the item of Article 63(1)1(a) shall be considered as the market price in order to exclude arbitraryness and ensure objectivity in the evaluation, and that in full view of the system under Articles 60 and 63 of the former Inheritance Tax and Gift Tax Act as well as the use, etc. within the above provision, it is reasonable to view that only the average value of the Korea Stock Exchange’s issued shares shall be considered as the market price for each day before and after the evaluation base date calculated in accordance with the method of Article 63(1)1(a) of the former Inheritance Tax and Gift Tax Act pursuant to the latter part of Article 60(1) of the former Inheritance Tax and Gift Tax Act (see Supreme Court Decisions 208Du470, Jan. 13, 2011; 2008Du4770, the Plaintiff’s assertion that the Plaintiff’s acquisition of new shares is less than the market price calculated on the basis of Article 93(1).

6) As to the fifth argument

Under the tax law, in order to facilitate the exercise of taxation rights and the realization of tax claims, where a taxpayer violates various obligations, such as a return and tax payment, as prescribed by the law without justifiable grounds, the taxpayer’s intentional or negligent act is not considered, and the site and mistake of the law does not constitute justifiable grounds for not infringing his/her duty (see, e.g., Supreme Court Decisions 9Du3515, Aug. 20, 199; 2002Du10780, Jun. 24, 2004). As seen earlier, it is difficult to accept the Plaintiff’s tax return standard solely on the grounds that the Plaintiff’s violation of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act explicitly provided for health care for the instant case, and that it was difficult to accept the Plaintiff’s tax return standard under Article 39-29 and 29(3) of the former Inheritance Tax and Gift Tax Act.

4. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.