Busan High Court (Chowon) 2012Nu1856 (Law Firm 04 July 04, 2013)

201Divisions 2857

In case of allocating new shares by means of public offering of securities, the provisions that exclude the object of gift tax from the category of gift tax are included in the allocation by deemed public offering.

In the case of allocating new shares by means of public offering of securities, it is reasonable to view that the provisions that are excluded from the gift tax are included in the allocation by deemed public offering, and the judgment criteria for deemed public offering are reasonable to interpret it as not only the number of persons who have been solicited to subscribe but also the possibility of resale.

Donation of profits from capital increase under Article 39 of the Inheritance Tax and Gift Tax Act

2013Du15798 Revocation of Disposition of Imposition of Gift Tax

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○ Head of tax office

Busan High Court (Chowon) Decision 2012Nu1856 Decided July 4, 2013

February 27, 2014

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

Article 39(1)1 (c) of the former Securities and Exchange Act (amended by Act No. 828, Dec. 31, 207; hereinafter referred to as "the former Securities and Exchange Act") provides that if a person who is not a shareholder of the corporation obtains profits from the issuance of new shares at a price lower than the market price, the amount of money equivalent to such profits shall be deemed the value of the donated shares if such new shares are issued directly by the corporation." The former Securities and Exchange Act provides that a listed corporation or an Association-registered corporation (hereinafter referred to as "the former Securities and Exchange Act") under the Securities and Exchange Act (amended by Act No. 714, Jan. 29, 2004; hereinafter referred to as "the former Securities and Exchange Act") shall not be deemed to have been issued for 10 years or less on the ground that the new shares were issued for 3 years or less on the ground that the new shares were not publicly announced under Article 2(3) of the former Securities and Exchange Act.

Article 2(4) of the former Enforcement Decree of the Securities and Exchange Act provides that if a listed corporation issues new shares in accordance with the method of public offering of new shares under the former Securities and Exchange Act, it shall publicly announce the matters regarding the issuance of such new shares as well as shall follow strict regulations under the relevant Act and subordinate statutes (Articles 53, 57, etc. of the Securities and Exchange Regulations). Furthermore, if a listed corporation issues new shares through public offering of new shares in accordance with the method of public offering of new shares under the former Securities and Exchange Act and its price is inevitable, it shall not be subject to gift tax if the purchaser gains profits by determining the issuance price of new shares at a lower level than the market price. In light of Article 2-4(4) of the former Enforcement Decree of the Securities and Exchange Act and Article 2-4(4) of the former Enforcement Decree of the Securities and Exchange Act, it shall not be deemed that there is no difference between the issuance price of new shares and the issuance price of new shares. Furthermore, the court below’s interpretation of Article 2-4(1) of the former Enforcement Decree of the Securities and Exchange Act can be construed as one of the grounds for appeal.