High Court 2014J 174 (Law No. 16, 2014)

Gift tax shall be imposed on the increase in the value of stocks that a person holding stocks of the relevant corporation obtains as a result of donation of real estate to the relevant corporation by a person with a special relationship.

In light of the background of introducing the complete comprehensive taxation of gift tax and the purpose of legislation, gift tax can be levied on the increased portion of stock value through donation of real estate to a corporation by a person with a special relationship.

Article 2 of the Inheritance Tax and Gift Tax Act

2014Guhap5737 Revocation of Disposition of Imposition of Gift Tax

Han ○

Head of Central Tax Office

2015.07.08

2015.08.19

1. All of the claims filed by the plaintiff and the selector are dismissed.

2. The costs of the lawsuit shall be borne by the plaintiff and the selector.

Cheong-gu Office

On May 21, 2013, the Defendant imposed gift tax of KRW 51,532,70 on the Plaintiff on May 21, 2012 and KRW 267,65,720 on the gift tax of KRW 531,926,09 on the gift tax of KRW 267,65,720 on the Plaintiff and KRW 267,665,720 on the designated person, and KRW 267,720 on the gift tax of KRW 267,65,720 on the Plaintiff on May 21, 2012, and KRW 267,665,720 on the gift tax of KRW 20,67,207, KRW 265,70 on the gift tax of KRW 51,532,70 on the gift tax of KRW 265,207, KRW 2665,2765,2765,2765,2767.1.

1. Details of the disposition;

가. 원고 및 선정자 한□□(이하 '원고 등'이라 한다)는 2008. 8. 1. 부동산임대업을 영위하는 비상장법인인 △△개발 주식회사(이하 '△△개발'이라 한다)의 총 발행주식 10,000주 중 각 4,500주씩(지분 45%)을 취득하였고, 원고 등의 부친 한영��는 2008. 11. 13. 부동산임대업을 영위하는 비상장법인인 주식회사 ◇◇홀딩스(이하 '◇◇홀딩스'라 하고, 위 법인과 '△△개발'을 합하여 '이 사건 법인들'이라 한다)의 총 발행주식 10,000주 전부를 취득하여, 2009. 9. 21. 원고 등에게 각 4,500주씩(지분 45%) 양도하였다.

나. 한영��는 2012. 5. 9. △△개발에 AA시 ○○동 ○○ 외 1필지 지상 AA빌딩 101호 내지 710호(이하 'AA 건물'이라 한다)를 증여하였고, 2012. 11. 16. ◇◇홀딩스에 BB시 ○○동 ○○ 대 1322.2㎡(이하 'BB 토지'라 하고, 'BB 토지'와 'AA 건물'을 합하여 '이 사건 부동산'이라 한다)를 증여하였다.

다. 중부지방국세청장은 2013. 2.경 한영��와 이 사건 법인들에 대한 세무조사를 실시한 결과, △△개발이 한영��로부터 AA 건물을 증여받음에 따라 원고 등이 보유하고 있던 △△개발의 주식 가치가 119,540원에서 393,110원으로 증가하였고, ◇◇홀딩스가 한영��로부터 BB 토지를 증여받음에 따라 원고 등이 보유하고 있던 ◇◇홀딩스의 주식 가치가 439,330원에서 560,760원으로 증가하였음을 확인하고, 피고에게 관련 자료를 통보하였다.

D. Based on the foregoing data on May 21, 2013, the Defendant: (a) considered the donated value as KRW 1,231,065,00 on May 19, 2012; and (b) determined and notified the Plaintiff of KRW 511,532,70 on gift tax; and (c) KRW 531,926,090 on gift tax to the △△△△△△; and (b) determined and notified the donated value as KRW 546,435,00 on November 6, 2012 on the same day; and (c) determined and notified the Plaintiff, etc. of each gift tax of KRW 267,65,720 on each of the gift tax (hereinafter referred to as “instant disposition”).

Facts that there is no dispute over recognition, Gap evidence 1, 2, 5, 6, 8 (including each number), Eul evidence 1 and 2, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

1) 한영��가 이 사건 법인들에게 이 사건 부동산을 증여한 행위는 자산수증이익을 발생시키는 손익거래일 뿐 구 상속세 및 증여세법(2013. 1. 1. 법률 제11609호로 개정되기 전의 것, 이하 '구 상속세및증여세법'이라 한다) 제42조 제1항 제3호 전단에서 규정한 '법인의 자본을 증가시키거나 감소시키는 거래'가 아니고, 구 상속세및증여세법 제42조 제1항 제3호 후단에서 규정한 '사업양수・양도, 사업 교환 및 법인의 조직 변경 등'에도 해당하지 아니하므로, 피고가 이 사건 부동산의 증여에 대하여 구 상속세및증여세법 제42조 제1항 제3호를 적용하여 증여재산가액을 산정한 것은 위법하다.

2) The Defendant’s calculation of the value of donated property by applying Article 42(1)3 of the former Inheritance Tax and Gift Tax Act to the gift of the instant real estate causes a significant difference in comparison with the case to which Article 41 of the former Inheritance Tax and Gift Tax Act applies. As such, it goes against the tax equity.

3) The instant disposition is imposed on unrealized profits, such as an increase in the value of stocks held by the Plaintiff, etc., and the calculation of the value of donated property should be made more fairly and accurately. It does not constitute a fair and accurate calculation method for calculating the value of donated property by applying Article 42(1)3 of the former Inheritance Tax and Gift Tax Act.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Possibility of imposing gift tax under Article 2(3) of the Inheritance Tax and Gift Tax Act

A) Article 2(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003) provides that donated property from another person’s donation is subject to gift tax. Article 2(3) of the same Act provides that “The term “donation” means a free transfer (including transfer at a remarkably low price) of tangible and intangible property (including transfer at a remarkably low price) to another person by direct or indirect means, or an increase in the value of another person’s property by which economic value can be calculated, regardless of the name, form, purpose, etc. of the act or transaction.” The concept of donation distinct from the donation under the Civil Act was prepared separately. Articles 33 through 42 of the same Act are amended to the calculation of donated property by supplementing the contents of the previous provision on donated property.

As can be seen, in light of the background of introducing Article 2(3) of the Inheritance Tax and Gift Tax Act, such as the fact that the legislators introduced the concept of donation based on the complete universalism in order to impose gift tax on the gratuitous transfer of various forms of property or increase in the value of property that have not been predicted, and the fact that it is difficult to interpret Article 2(3) simply as a confirmatory and declared provision in light of the structure of other provisions, such as the change of the existing provision into the calculation provision of the value of donated property, etc., it is reasonable to deem that gift tax based on Article 2(3) of the former Inheritance Tax and Gift Tax Act can be imposed in light of the background, legislative purport, and structure with other provisions (see Supreme Court Decision 2008Du17882, Apr. 28, 201).

나) 이러한 법리에 비추어 살피건대, 한영��는 이 사건 법인들에 이 사건 부동산을 증여하는 방법을 통하여 이 사건 부동산 증여 전의 이 사건 법인들의 주식 가치와 위 증여 후의 이 사건 법인들의 주식 가치의 차액 상당의 이익을 무상으로 이전하거나 기여함으로써 원고 등 보유의 이 사건 법인들 주식 가치를 증가시켰다고 할 것이므로, 구 상속세및증여세법 제2조 제3항의 '증여'에 해당하고, 피고가 위 조항에 근거하여 원고 등에게 증여세를 부과한 것은 타당하다고 할 것이다.

2) Calculation of justifiable value of donated property

A) Calculation method of donated property

Even after the introduction of the complete comprehensive taxation, the former Inheritance Tax and Gift Tax Act aims to promote legal stability and predictability of taxpayers by providing an example provision on the calculation of donated property under Articles 33 through 42. Therefore, in cases where there is a gift subject to the gift tax, it shall be examined whether the value of the donated property can be calculated in accordance with the above example provision: Provided, That as seen earlier, as long as Article 2(3) of the former Inheritance Tax and Gift Tax Act falls under the separate provision on taxation of the gift tax, even if it does not conform with the taxation requirements under Articles 33 through 42 of the former Inheritance Tax and Gift Tax Act, it shall not be immediately deemed that the gift tax may not be levied immediately on the ground that the method of calculating the value of donated property under the above example provision is applied mutatis mutandis, or the gift tax may be imposed by calculating the economic value reverted to the donee in an objective and reasonable manner

B) Calculation of the value of donated property to the Plaintiff, etc.

(1) Whether Article 42(1)3 of the former Inheritance Tax and Gift Tax Act can be applied directly for the calculation of the value of donated property

"구 상속세및증여세법 제42조 제1항 제3호는 그 전단에서출자ㆍ감자, 합병ㆍ분할, 전환사채 등에 의한 주식의 전환ㆍ인수ㆍ교환 등 법인의 자본을 증가시키거나 감소시키는 거래'로 얻은 이익을 증여재산가액으로 한다고 규정하고 있는데, 한영��가 이 사건 법인들에 이 사건 부동산을 증여한 행위는 이 사건 법인들의 자본을 증가시키거나 감소시키는 자본거래가 아니라 자산수증이익을 발생시키는 손익거래일 뿐이므로 위 규정 전단에서 정하고 있는 거래유형에 해당하지 않는다.", "또한 상속세및증여세법 제42조 제1항 제3호는 그 후단에서는사업양수・양도, 사업 교환 및 법인의 조직변경 등'에 의하여 소유지분이나 그 가액이 변동됨에 따라 얻은 이익을증여재산가액으로 한다고 규정하고 있는데, 이 사건 법인들에 이 사건 부동산을 증여함으로써 이 사건 법인들의 물적 자산가치가 증가되었다는 것 이외에, 이 사건 법인들에 '사업양수・양도, 사업 교환 및 법인의 조직변경'에 준하는 정도의 중대한 변화가 초래되었다고 보기 어렵고, 달리 이를 인정할 만한 증거도 없으므로, 위 규정 후단에서 정하고 있는 거래유형에 해당한다고도 볼 수 없다.",따라서 이 사건 부동산의 증여에 대한 증여재산가액 산정시 구 상속세및증여세법 제42조 제1항 제3호를 직접 적용할 수는 없다 할 것이다.

The method of calculating the value of donated property

According to Article 2(3) of the former Inheritance Tax and Gift Tax Act, “an increase in the value of another person’s property by contribution” is included in the concept of donation. In such a case, the value of donated property should be calculated as an increase in the difference between the market value of the property held by the donee before and after the occurrence of the reason for increase in the value of the property. Such method of calculation is naturally derived from the concept of increase in the value of property, even without any separate provision, according to the concept of increase in the value of property. As such, the method of calculation is the difference between the value of property before and after the occurrence of the reason for increase in the value of property where the value of property is increased by another’s contribution, and the amount equivalent to the profits prescribed by Presidential Decree is the difference between the market value before and after the occurrence of the cause for increase in the value of property.” Therefore, even in cases where the value of property held by the shareholders of a corporation increases without compensation due to the contribution to a corporation, the value of donated property is the difference between the value of stocks before and after the occurrence of the cause for increase in the value

On the other hand, Article 63(1)1(c) of the former Inheritance Tax and Gift Tax Act, Article 54(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 24358, Feb. 15, 2013; hereinafter “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”) provides that unlisted stocks shall be the weighted average value of net profit and loss and net asset value per share in the ratio of 3 and 2 of the net asset value per share, respectively: Provided, That in the case of a corporation holding stocks with real estate, the ratio of net profit and loss per share and net asset value shall

In full view of the health stand, Eul evidence Nos. 1 and the purport of the entire pleadings, △△ Development and △△△ Holdings are non-listed corporations, and in accordance with the method prescribed in Article 63(1)1 of the former Inheritance Tax and Gift Tax Act and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, if the value of shares before and after the gift of this case is assessed, the value of shares increased from 119,540 won to 393,110 won in the case of △△△△ Development, and in the case of △△△△△ Holdings Holdings, it is recognized that the value of shares increases from 439,30 won to

Therefore, the value of donated property from the donation of a building A to the 273,570 won (=393,10 won - 119,540 won) multiplied by the number of shares of the Plaintiff, etc. to KRW 1,231,065,00 (=273,570 won x 4,500 shares). The value of donated property from the donation of land B is 121,430 won (=56,760 won - 439,30 won) multiplied by the number of shares of the Plaintiff, etc. 4,500 shares (=121,430 won x 4,500 shares) after the donation.

Abstract Whether the calculation of the value of donated property of the instant disposition is legitimate

Comprehensively taking account of the respective descriptions and arguments in Eul evidence Nos. 1 and 2, the defendant, while rendering the instant disposition against the plaintiff, etc., shall be deemed to have imposed gift tax of KRW 1,231,065,00 for the donated portion on May 201, and KRW 546,435,00 for the donated portion on November 2012 as the donated property. The donated property calculated by the defendant in the instant disposition is the same amount as the donated property as seen earlier.

On the other hand, Article 42 (1) 3 of the former Inheritance Tax and Gift Tax Act and Article 31-9 (1) 5 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act stipulate that the gains from the change of ownership shares or the value of the shares due to the transfer or acquisition by transfer, etc. shall be the difference before and after the change in the value, but the relevant difference in the value shall be the value of the property where the difference in the value of the relevant property is at least 30/100 of the value before the change in the value or if the amount is at least three hundred

These regulations restrict the imposition of gift tax only when the assessment difference exceeds a certain percentage or a certain amount. However, according to the above, 273,570 won, which is the difference between the appraised value of the △△ Development due to the donation of a building A, exceeds 35,862 won (i.e., 119,540 won x 30%) which is 119,540 won prior to the change, and the total appraised value of the shares owned by the plaintiffs exceeds 1,231,065,00 won, which satisfies the requirements of the above provisions. The shares of △△△△△△ Holdings Holdings due to the donation of land B, exceeds 546,435,00 won, and thus, the total appraised value of shares owned by the plaintiff, etc. exceeds 300 million won, thereby satisfying the requirements of the above provisions in favor of the taxpayer.

Therefore, the instant disposition that calculated the value of donated property by applying mutatis mutandis Article 42(1)3 of the former Inheritance Tax and Gift Tax Act shall be deemed lawful as a result, and this part of the Plaintiff’s assertion is without merit.

3) Whether the application of Article 41 of the former Inheritance Tax and Gift Tax Act is inconsistent with the taxation equity in comparison with the application of the same Act

Article 41(1) of the former Inheritance Tax and Gift Tax Act provides that where a person who has a special relationship with a stockholder of a corporation having losses or under suspension or closure of business (hereinafter referred to as a “specified corporation”) obtains profits from a stockholder of the specified corporation through a transaction of providing assets or services without compensation with the relevant specified corporation, the amount equivalent to such profits shall be deemed as the value of donated property to the stockholder of the relevant specified corporation. Article 31(6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the profits under Article 41(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act shall be the amount calculated by multiplying

In this regard, there is no evidence to prove that the instant corporation has losses or that the instant corporation is a corporation under suspension or closure of business. As such, Article 41 of the former Inheritance Tax and Gift Tax Act cannot apply to the calculation of the value of donated property arising from the donation of the instant real estate, and Article 41 of the former Inheritance Tax and Gift Tax Act shall not apply to the inheritance tax and Gift Tax Act amended by Act No. 12168, Jan. 1, 2014; Article 41(1) of the former Inheritance Tax and Gift Tax Act provides that "a profit-making corporation controlled by controlling shareholders and their relatives pursuant to Article 45-3(1) shall apply from the portion of donated property after this Act enters into force; Article 2 of the Addenda provides that "the foregoing provision shall apply to the donation of the instant real estate made before January 1, 2014." Until the amendment explicitly provides that the method of calculating the value of donated property may be applied to black profit-making corporations by applying Article 41 to the method of calculating the value of donated property under the former Inheritance Tax and Gift Tax Act.

Therefore, it cannot be deemed that the failure to calculate the value of donated property by applying Article 41 of the former Inheritance Tax and Gift Tax Act in the disposition of this case is unlawful against the taxation equity, and this part of the claim by the plaintiff, etc. is without merit

4) Whether it is unfair and inaccurate method of calculating the value of donated property pursuant to Article 42(1)3 of the former Inheritance Tax and Gift Tax Act as a taxation on unrealized gains

The disposition of this case is imposed on the unrealized gain of the Plaintiff, etc., which is the increase in the property value of stocks held by the Plaintiff, etc., but in that there was an increase in the taxable capacity due to the increase in income since the benefits have not been realized, there is no fundamental difference between the realized profit and the unrealized gain two, and the issue of whether the increased income should be commercialized separately from the original is merely the matter of choosing how the relevant taxpayer should constitute the whole asset composition. Furthermore, the taxation on unrealized gain is nothing more than the taxation on the income distinct from the original, as it is the taxation on unrealized gain, and whether the scope of unrealized gain is limited to the income, or whether the unrealized gain should be included in the income, is not contradictory to the tax concept under the Constitution (see, e.g., Constitutional Court Order 29Hun-Ba29, Jul. 29, 194; 205Hun-Ba94, Jul. 29, 2094).

Since the Plaintiff et al. obtained the economic benefits such as an increase in the value of stocks of the instant corporations, it means that the taxable capacity of the gift tax has increased, and as such, they can be commercialized profits by disposing of stocks freely owned at any time. As such, calculating the difference between the value of stocks after donation and the value of stocks before donation cannot be deemed as an unfair or inaccurate method of assessment that can not be permitted due to the unfairness of calculating the value of stocks after donation and the value of stocks before donation.

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

3. Conclusion

Thus, the claims of the plaintiff and the designated parties are all dismissed because they are without merit.

(2) The decision is delivered with the assent of all Justices.