Presumption of deemed donation of forfeited stocks to a third party and appropriateness of market price assessment;

In case where benefits computed under Article 29 (3) 3 of the former Enforcement Decree have occurred to the forfeited stockholders by issuing new stocks at a price higher than the market price, such benefits shall be deemed donated regardless of which substantial economic benefits have been gained by the forfeited stockholders, and thus, they shall be subject to gift tax.

Article 39(1) of the former Inheritance Tax and Gift Tax Act

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of gift tax of KRW 26,370,280 against the Plaintiff on August 1, 2004 is revoked.

1. Details of the disposition;

A. On November 2003, the Plaintiff was a director and shareholder of Nonparty ○○ Macer Co., Ltd. (hereinafter “Nonindicted Company”). On November 18, 2001, the Plaintiff waived the acquisition of Non-Party 107,218 (hereinafter “Nonindicted Company 107,218”) of new shares, which was 3,000 subscription price per share, at the time of the offering of new shares (hereinafter “instant offering of new shares”) that was issued in addition to 833,300 shares, and Nonparty ○○○, who was the representative director and the largest shareholder of the non-party company, was to acquire the shares in excess of the key shares.

B. Accordingly, in imposing gift tax on the Plaintiff based on deemed donation by applying Article 39(1)2(a) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter “former Act”) to the effect that the Plaintiff had the ○○○○○○○ acquire shares in excess of the market price as above, the Defendant deemed that KRW 1,400 per share, the value of the non-party company’s shares assessed by supplementary evaluation, as at the time of the issue of this case, should be regarded as the market price at the time of the issue of this case, and that the non-party company issued new shares at a price higher than the above market price, and that the Plaintiff had the ○○○○○○○ in a special relationship at the time of the Plaintiff acquire shares in excess of the market price, thereby imposing KRW 147,638,80,800 on the Plaintiff as gift tax in this case.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 2, 4, and 6, the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The parties' assertion

As to the Defendant’s assertion that the instant disposition is lawful as it is in accordance with the relevant statutes:

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) First, the Plaintiff’s mere shareholder and director of the non-party company do not constitute “a person who renounces the acceptance of new shares in a special relationship” under Article 29(1) of the former Enforcement Decree, and thus, the instant disposition made by applying the deemed donation provision under Article 39(1) of the former Enforcement Decree

(2) Second, the disposition of this case that the Plaintiff reported that the Plaintiff received certain benefits from the largest ○○○, on the ground that the Plaintiff had the largest ○○○○○○○ acquire shares in excess of the pertinent shares, and thus, did not gain any substantial economic benefits, such as substantial increase in the value of the shares of the Nonparty Company possessed by the Plaintiff.

(3) Third, since the Plaintiff is unable to prepare the price for the acquisition of the shares at issue and only waives its acceptance, it is unconstitutional to apply the provision on the constructive gift without any conditions to the case where it is objectively evident that there was no intention of donation.

(4) Fourth, the market price at the time of issuing new shares of the non-party company at the time of issuing new shares is about 3,000 won per share in light of the following circumstances. As such, 3,000 won per share as at the time of issuing new shares at the time of issuing new shares at the time of issuing new shares, which is higher than the market price, cannot be deemed as above. 1,400 won per share, which is the market price of the non-party company’s shares calculated by the supplementary method, was not reflected in the actual market price.

① The share price per share was adjusted to KRW 2,700 at the time when the non-party company conducted a capital increase by 80% on January 2001.

② On August 1, 2001, Nonparty Company calculated the conversion price per share at KRW 3,000 per share and borrowed funds of KRW 1.2 billion.

③ On August 2001, the non-party company purchased 3,000 won per share of the shares and sold 3,000 won per share immediately at the request of 34 investors who have been dissatisfied with the delayed registration on the KOSDAQ of the non-party company.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

The following facts can be acknowledged in full view of the whole purport of the pleadings, or there is no dispute between the parties, or as stated in the evidence Nos. 2 through 5, and a part of the witness Ma○○○.

(1) At the time of the instant subscription for new shares, the Nonparty Company offered 833,300 new shares at the price per share of KRW 3,000 per share as listed below. However, all of the remaining shareholders (including minority shareholders) except ○○○ (including minority shareholders) renounced the subscription for new shares, thereby allocating all of the said new shares to the largest shareholder.

Name of shareholders

Relation

Capital increase

The number of shares equally allocated;

The number of shares actually allocated;

Number of shares

(%) Equity (%)

○ ○

Representative

1,338,005

25.99

216,578

833,300

○ ○

Ministry of Justice

237,600

4.62

38.459

0

○ Kim

mother

237,600

4.62

38.459

0

○ ○

wife

158,400

3.08

25,640

0

○ Kim

Directors

662,456

12.87

107,229

0

Directors

662,456

12.87

107,229

0

Employee shares

·

730,000

14.18

18,162

0

Minority Shareholders

·

1,121,634

21.77

181,555

0

Total

5,148,080

100

833,300

833,300

(2) From August 2001, Nonparty Company promoted the acquisition of ○○ chips Co., Ltd., which was a management company as a KOSDAQ-registered company, and had 2.5 billion won out of 5 billion won of the funds required for such acquisition, offered capital increase in order to cover 5 billion won. At the time, Nonparty Company allocated all new stocks to ○○○○ who can raise 2.5 billion won of the above acquisition fund.

(3) The non-party company achieved net income of approximately KRW 205,69,000 in 200, but approximately KRW 2,670,813,00 in 201 and approximately KRW 14,61,574,00 in 202, and eventually discontinued on November 2003.

D. Determination

(1) Judgment on the plaintiff's first argument

Pursuant to Article 29(1) of the former Enforcement Decree, the term "a person who renounces the acquisition of new shares in a special relationship" means a person who has acquired forfeited shares and a person who has a relationship under any of the subparagraphs of Article 19(2). The former part of Article 19(2)2 of the former Enforcement Decree provides that "employee" (including an officer of a corporation controlled by investment; see Article 13(6)2 of the former Enforcement Decree). According to the above facts, ○○ is the representative director of the non-party company at the time of issuing new shares, who is the largest shareholder of the non-party company at the time of issuing new shares, and has been holding 38.31% of the stocks of the non-party company with his family. In addition, since the plaintiff was a director of the non-party company, the plaintiff constitutes "employee under Article 19(2)2 of the former Enforcement Decree" under the former part of Article 19(2)2 of the former Enforcement Decree, and the plaintiff's assertion that the issue and the shares constitute a special relationship between ○○ and the plaintiff.

(2) Judgment on the second argument by the Plaintiff

The legislative intent of Article 39(1)2 of the former Act, Article 29(1) and Article 29(3)3 of the former Enforcement Decree of the same Act, etc., is to impose gift tax on a forfeited shareholder based on the fact that economic benefits equivalent to the difference between the issue value and the appraised value if the issue value exceeds the appraised value if the issue value of the forfeited share is cultivated on a third party, the economic benefits equivalent to the difference between the issue value and the forfeited shareholder who renounced the subscription value of the new shares and the third purchaser of the new shares may cause the effect of gratuitous transfer between the forfeited shareholder who has given up the subscription value and the third purchaser of the new shares. In light of the legislative intent and text of the above provision, in cases where benefits calculated pursuant to Article 29(3)3 of the former Enforcement Decree have arisen from the issuance of the new shares at a price higher than the market value of the new shares, such benefits are deemed as gift regardless of the actual economic benefits of the forfeited shareholder, and thus, in this case, the Plaintiff’s assertion that the issuance of the new shares and the forfeited shares are subject to be subject to gift tax without consideration.

(3) Judgment on the plaintiff's third assertion

However, as seen above, Article 39(1)2 of the former Act, Article 29(1) and Article 29(3)3 of the former Enforcement Decree of the same Act stipulate that where a corporation cultivates forfeited stocks to a third party, if the value of new stocks exceeds the assessed value, economic benefits equivalent to the difference between the issue value and the appraised value shall cause the effect of gratuitous transfer between the forfeited shareholder who renounced the acceptance of new stocks and the third-party purchaser of new stocks, and thus, it shall be deemed that a reasonable means to achieve taxation consistent with the economic substance is stipulated. Thus, even in cases where it is obvious that the forfeited shareholder did not have the intention of gift, it shall not be deemed unconstitutional.

Therefore, the plaintiff's assertion on this part is without merit.

(4) Judgment on the plaintiff's fourth argument

The "market price" in Article 39 (1) 2 of the former Act refers to the market price of the relevant corporation at the time when new stocks are issued, and this shall be assessed in accordance with Article 60 of the former Act. According to Articles 60 (1) through (3), 63 (1) 1 (c), and Article 49 (1) and 54 of the former Enforcement Decree of the former Act, the price of the non-listed stocks shall be based on the market price as of the date of donation and, in principle, it shall be the price recognized as normal if a transaction is made freely between many and unspecified persons. This shall include the transaction price if there is a fact that the stocks are traded for a period of not more than three months before and after the date of donation (However, if the transaction price is deemed objectively unreasonable, such transaction price shall be excluded, such as the transaction price with a person with a special relationship as provided in Article 26 (4). However, if it is difficult to calculate the market price by such method, the price evaluated as the market price pursuant to Article 63 (1) 15 (c) of the former Enforcement Decree.

However, as shown in the above facts, as seen in the above facts, Gap evidence Nos. 7 and 8-1, which seems to correspond to the market price of the non-party company's shares at the time of issuing new shares, are hard to believe in light of the following facts: (a) as well as the majority shareholders including the plaintiff at the time of issuing new shares; (b) minority shareholders have renounced all of the subscription of new shares at the price of 3,00 won per share; (c) the non-party company occurred from the year 2001 to the closure of business; (d) the value at the time of the non-party company's shares by supplementary evaluation methods is 1,400 won per share and is so different from the acquisition price of the above new shares; (c) there is insufficient evidence to acknowledge that the testimony is insufficient to find otherwise; (c) since the non-party company's offering of new shares at the time of issuing new shares at the time of issuing new shares, the non-party company's offering of new shares at the time of the above supplementary evaluation methods constitutes the market price of the non-party company shares.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Seoul High Court Decision 2006Nu5887 ( October 10, 2006)]

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The disposition of imposition of KRW 26,370,280 against the plaintiff on August 1, 2004 by the defendant shall be revoked.

1. The grounds for the establishment of the case by a party member are as follows: "No. 21-1 of the evidence No. 8 of the judgment of the court of first instance" of No. 7 of the judgment of the court of first instance; "No. 14 of the judgment of the court of first instance" of No. 8; "No. 18, 19, 20, 22 and 23 of the evidence No. 14 of the judgment of the court of first instance"; and "No. 18, 19, 20, 22, and 23 of the judgment of the court of first instance" are as stated in the grounds

2. If so, the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.