Seoul Administrative Court 201Guhap24439 (O2, 2012)

Cho High Court Decision 2010Du3443 (Law No. 1106,07)

Since it is reasonable to deem that the transferee corporation actually exercised its influence on the management of the transferee corporation, the Plaintiff and the transferee corporation constitute a specially related person.

Since it is reasonable to deem that the transferee corporation actually exercised its influence over the management of the transferee corporation through the exercise of the right to appoint officers or the decision of the business policy, the Plaintiff and the transferee corporation fall under a specially related person, and the disposition imposed on the transferee corporation by deeming the transaction price of KRW 100,000 per share of the stocks of the non

2012Nu13155 Revocation of Disposition of Imposing Corporate Tax, etc.

Yellow AA

The Director of Gangnam District Office

Seoul Administrative Court Decision 2011Guhap24439 decided April 12, 2012

August 31, 2012

October 12, 2012

1. The plaintiff's appeal is dismissed.

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

The part of the judgment of the court of first instance is revoked. The imposition of a gift tax of KRW 000 against the plaintiff on June 4, 2010 shall be revoked by the defendant.

1. Details of the disposition;

A. As of December 31, 2007, the Plaintiff owned 18.28% of the shares issued by the non-party company as the representative director of BBB Holdings Co., Ltd. (hereinafter referred to as “non-party company”), an unlisted company engaging in the housing construction business, etc.

B. On August 9, 2007, the Plaintiff transferred 24,000 shares of the non-party company to CCC (hereinafter “CCC”) at KRW 125,00 per share, and on the same day, at KRW 75,000 per share to the non-party company 75,000 shares of the non-party company (hereinafter “DD investment securities”). Meanwhile, the non-party company offered capital increase by a third party allocation method on August 28, 2007 (hereinafter “instant capital increase”) and allocated 168,000 shares to CCC, and the CC acquired the entire purchase price on the 30th day of the same month (=168,000 shares) x 00 shares.

00 won per share was paid.

C. From March 8, 2010 to April 16, 2010, the director of the Seoul Regional Tax Office:

5. From 14. to 31. December 2007, the plaintiff conducted a tax investigation on the change of shares, and on August 9, 2007, the plaintiff confirmed that the shares of the non-party company were acquired by transfer of 2,000,000 shares (27.6%) and management rights of the non-party company with a special relationship under Article 26 (4) 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter referred to as the "former Enforcement Decree of the Inheritance Tax and Gift Tax and Gift Tax Act") were transferred to the non-party company's 2400,000 won per share, which is higher than the market price of 100,000 won, and notified the plaintiff of the profits under Article 26 (3) 9 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20138, Feb. 28, 2007). 39.

D. Accordingly, on June 4, 2010, the head of Gangnam District Tax Office corrected and notified the Plaintiff of KRW 000 of the gift tax (hereinafter “instant disposition”).

E. On August 27, 2010, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal, but was dismissed on June 7, 201.

[Reasons for Recognition] The facts without dispute, Gap evidence 1 to 4, Gap evidence 2, and Eul evidence 1 to 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Parts of specially related persons

Whether the Plaintiff and CCC constitutes a specially related person should be based on the date of liquidation of shares and the date of effective acquisition of new shares (the day following the day of main payment). On August 9, 2007, the Plaintiff entered into a contract to acquire CCC shares 2,000,000 shares and management rights from 4 other than KimE, the largest NNE of CCC, and payment of the remainder of 000 won on September 20, 207, and the Plaintiff transferred its shares to CCC on August 9, 2007, or CCC did not have a position to exercise its rights for CCC shares at the time of Nonparty’s offering of new shares, and CCC’s acquisition of shares from the Plaintiff on August 9, 2007, and the acquisition of shares from the Plaintiff on August 20, 2007, which was carried out by KimE and four other parties, and thus, the Plaintiff and CCC’s shares were unlawful under Article 308(3) and (4) of the former Enforcement Decree.

2) Market value portion

NN회계법인은 2007. 8.경 소외 회사가 추진 중인 QQQQ 파크 앤 리조트 개발 사업(이하 '이 사건 사업'이라 한다)의 순현재가치를 000원으로 평가하였는바，소외 회사가 보유한 독점적 사업권에 대한 기대이익을 반영하여 소외 회사의 주식을 평가하면 1주당 가격은 000원이 되고，DD투자증권의 경우는 앞으로 DD투자증권을 이 사건 사업의 금융자문 및 사업자금을 지원하는 사업파트너로 참여시킴에 따른 원고의 대외선용도 증가，금융조달업무 등 향후 사업상의 중요한 전략적 역할 등을 고려하여 CCC에 대한 양도가액인 1주당 000원보다 저가인 1주당 000원으로 양도가액을 결정한 것이므로，원고가 CCC에게 양도한 소외 회사의 주식가격인 1주당 000원은 제3자간 협상에 의하여 이루어진 것으로서 시가에 해당한다. 따라서 피고가 원고와 DD투자증권 사이의 거래가격인 1주당 000원을 당시 소외 회사 주식의 시가로 보아 한 이 사건 처분은 위법하다.

B. Relevant statutes

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

(c) Fact of recognition;

1) As representative director, the Plaintiff owned 100% of shares issued as of December 31, 2007 as representative director.

On May 10, 2007, "BB" acquired 100% of the shares of KK Co., Ltd., Ltd., an unlisted corporation (hereinafter "BB"), changed the name of the corporation to the non-party company on May 14, 2007, and transferred part of the business rights of this case where BB was promoted to the non-party company. (2) On August 9, 2007, the plaintiff entered 37.87% of the total number of outstanding shares of CCC (as of March 31, 2007) with 37.87% of the total number of issued shares (as of March 31, 2007) (as of March 31, 2007) and 300,000,000 won in total, and 200,000 won in total, and 300,000 won in total, and 207,000,000 won in total,00 won in the contract.

(The following table omitted):

3) According to Article 11(1) of the instant contract, CCC concluded a sales contract to acquire 24,000 shares of the non-party company owned by the Plaintiff at KRW 3 billion (hereinafter “instant sales contract”). On the other hand, the Plaintiff entered into a sales contract to transfer 75,000 shares of the non-party company to KRW 00 (00 per share) for the same day between DD investment securities and the non-party company’s 75,000 shares to KRW 00 (00 won per share).

4) CCC is scheduled to implement under Article 11(2) and (3) of the instant contract.

On August 9, 2007, in order to raise funds to participate in the capital increase in the case, the board of directors held the board of directors on August 9, 2007 and passed a third party’s capital increase by issuing the first 4,477,612 shares in 00 won per stock (on a face value of 000 won), and securing a total of 00 won, and the remainder of the first son’s shares were allocated to the Plaintiff, the 1,066,098 shares, and the 4th designated by the Plaintiff. The Plaintiff paid the above prior owner’s shares on the 28th of the same month, and the same day was held 9.38% of

5) The changes in major shareholders and equities in the business year 2007 by CCC are listed in the following table:

(The following table omitted):

6) On August 28, 2007, the non-party company held a board of directors to issue 168,000 won per share to 00 won for new shares and passed a resolution to assign all of them to CCC. On the same day, CCC held a board of directors and resolved to accept all the shares of 168,000 won for the issuance of the above non-party company in accordance with Article 11(3) of the instant contract, and paid 000 won for the acquisition price of new shares on the same day (i.e., 168,000 won x 000 won per share) to the non-party company.

7) The changes in shareholders and shares of the non-party company in the business year 2007 are listed below.

(The following table omitted):

8) On August 9, 2007, the CCC held a board of directors pursuant to Article 9 of the instant contract, and resolved to convene a temporary general meeting on September 20, 2007, with respect to the appointment and dismissal of executive officers. On September 20, 2007, the CCC appointed the Plaintiff as a director and the CCC as an outside director and an auditor respectively. On the same day, the Plaintiff paid CCC 00 won for the remainder under the instant contract pursuant to Article 4(1) of the instant contract and held 26.36% of the CCC shares as of the same day.

9) On August 9, 2007, the Plaintiff: (a) before transferring Nonparty Company’s stocks to CCC and DD investment securities, the Plaintiff requested N Accounting Corporation, an outside appraisal organization, to evaluate the instant business that the Non-Party Company was planned to promote; and (b) N Accounting Corporation calculated the net present value of the instant business as KRW 00,000, based on the results of evaluating the investment value of the instant business; and

10) 한편，원고는 2007. 5. 30. 소외 회사 주식 50，000주를 주식회사 PPPP에게 1주당 000원에，같은 날 주식회사 QQQ에게 1주당 000원에 각 양도한 사실이 있다. 소외 회사의 주식을 구 법인세법 시행령 제89조 제2항 제2호의 보충적 평가방법에 의하여 산정하는 경우 이 사건 증자 당시 1주당 가액은 000원 이다.

[Grounds for Recognition] The facts without dispute, the entries in the evidence 4, 5, and 6 through 16 (including each number), and the whole purport of the pleading

D. Determination

1) As to the specially related person

Article 26 (4) 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "a person who is in a special relationship" shall be a transferor or transferee and a person who is deemed to exercise de facto influence over the management of the relevant corporation by exercising the right to appoint or dismiss an officer or by determining business policies, etc." Article 29 (1) and Article 19 (2) 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "a person who is in a special relationship under Article 39 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act" shall be a person who acquires new stocks and a person who is deemed to exercise de facto influence on the management through determining the exercise of the right to appoint or dismiss officers of the relevant corporation and the decision of business policies. In light of the following circumstances, the above provisions and the purport of the entire arguments, and the plaintiff and CCC shall not be deemed to fall under the above part of Article 26 (4) 3, Article 29 (1) and 19 (2) 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

A) In entering into the instant contract, the above KimE-ju and four other than the above KimE, and the plaintiff should promptly proceed with the resolution of the purpose required by the plaintiff, such as the appointment of officers and the amendment of the articles of incorporation after receiving the down payment, and the convocation of the board of directors and the general meeting of shareholders, prior to receiving the remainder of the purchase and sale payment, a temporary general meeting is held to appoint a person designated by the plaintiff as a director, and documents necessary to implement the registration of change of officers are issued, and the plaintiff must consult with the plaintiff in conducting funds from the date of completion of the survey of the CCC, and accept the plaintiff in case the plaintiff is dispatched personnel in charge of finance, and the plaintiff should exercise the power to appoint and dismiss the officers at the general meeting of the shareholders of the CCC until the new officer staff appointed by the plaintiff at the general meeting of the shareholders of the CCC, and the plaintiff should have 00,000,000 won in total or in part of the company's business, or 10,000 won in total, and the contract or 300,0.

B) In addition, in the instant contract, KEE et al., the largest NE et al. under the third party allocation method (20 billion won or more) should be implemented according to the schedule as determined by the Plaintiff, and the non-party corporation agreed to use the entire amount of the subscription money for the allocation of new shares and the subscription money for new shares after the completion of the third party allocation, in order to participate in the offering of new shares, and the above subscription money shall not be used for any purpose other than the above purpose. In addition, CCC actually conducted the offering of new shares by the third party allotment method on August 9, 2007, which is the date the instant contract was concluded, to view that there was a considerable amount of 4,477,612 shares (10 won per share) to the purchaser, and that the non-party corporation participated in the execution of the capital increase from August 28, 2007 to the acquisition of new shares as the management decision-making price of the Plaintiff, including the acquisition of the new shares, and the acquisition price of shares by the other corporation.

2) As to the market value

A) Under Article 35(1)2 of the former Inheritance Tax and Gift Tax Act, where stocks are transferred to a person with a special relationship at a price higher than the market price, an amount equivalent to the difference between the price and the market price thereof shall be deemed to have been donated to the transferor, and Article 39(1)2(c) of the same Act shall be deemed to have been donated to the person with a special relationship, where a corporation acquires profits by acquiring new stocks in excess of the number to which the shareholders of the relevant corporation can receive allocation in issuing new stocks, and where the person with a special relationship obtains profits from the person with a special relationship. The “market price” refers to the objective exchange value formed through a normal transaction in principle at a price which is deemed to be established at a time when a free trade takes place between many and unspecified persons (Article 60(2) of the former Inheritance Tax and Gift Tax Act), and where stocks are transferred to the person with a special relationship at a price lower than the market price, it is reasonable to view that the market price of the stocks is the market price of the Plaintiff and the company securities at a reasonable market price at 000.

B) On this basis, the Plaintiff asserts to the effect that, based on the N Accounting Corporation’s assessment results on N Accounting Corporation’s investment value of the instant project, the sales price per share of the non-party company is 00 won per share, and D Investment Securities is 00 won per share if the Plaintiff participates as a business partner supporting the financial advice and business funds in the future, the Plaintiff’s external credit is increased, and the Plaintiff’s sales price per share is 100,000 won per share below CCC, taking into account the strategic roles of the future business in the context of financing operations, so the Plaintiff’s acquisition price is 00,000 won per share, which is less than that of the non-party company’s stocks transferred to CCC, and the Plaintiff’s acquisition price per share is 00,000 won per share, which is less than that of the Plaintiff’s trading party’s 30,000 won per share, which is less than that of the Plaintiff’s acquisition price per share, and the Plaintiff’s acquisition price is less than that of the Plaintiff’s 4, as above.

3) Sub-determination

Therefore, the disposition of this case by the plaintiff and CCC is legitimate when the market price of the non-party company's shares is considered 00 won per share as a specially related person.

3. Conclusion

Therefore, the plaintiff's claim is dismissed due to the lack of reason, and the part of the judgment of the court of first instance as to the plaintiff is justifiable. The plaintiff's appeal is dismissed due to the lack of reason.