The transfer date of assets is the date of the settlement of the price, transaction example is recognized as the market price, and the gift tax and the transfer income tax are not double taxation.

The transfer date of assets is the date of the settlement of the price, and business example transactions within three months before or after the base date of appraisal of the donated property is recognized as the market price, and gift tax and transfer income tax are not double taxation

Article 98 of the Income Tax Act (Time of Transfer or Acquisition)

Article 60 of the Inheritance Tax and Gift Tax Act

2014Guhap9504 Revocation of Disposition of Imposing capital gains tax, etc.

OO

O Head of tax office

2015.06.09

2015.07.07

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of the capital gains tax of 2010 on May 1, 2013 by OOO or gift tax of 2010 is revoked.

1. Details of the disposition;

A. On December 13, 2007, six persons, including the Plaintiff and the Plaintiff’s East AA (hereinafter referred to as “Plaintiff, etc.”) entered into a contract for acquisition of stocks and management rights that include the transfer of 44,800 shares issued by unlisted company BB Co., Ltd. (hereinafter referred to as “BB”) to CCC Co., Ltd. (hereinafter referred to as “DD”) (hereinafter referred to as “DD”), and received OO won as the down payment and intermediate payment on the date of the contract, and the remainder of January 10, 2008, by applying the tax rate of 10% to transfer of shares and equity shares. The Plaintiff, etc. reported and paid capital gains tax on May 27, 2008.

B. On December 14, 2010, the Plaintiff entered into a contract for acquisition of shares that transferred BB’s 5,200 shares (hereinafter “instant 5,200 shares”) to the EEE Co., Ltd. to the OE Co., Ltd., and received the down payment OO won on the date of the contract, and the remainder OO won on December 24, 2010, and reported and paid the capital gains tax on February 28, 201 by applying the tax rate of 10%.

C. (1) As the Plaintiff, etc. transferred 5,200 shares to FF Co., Ltd. within three years from the time when the Plaintiff, etc. transferred 4,80 shares of this case, each of the above shares constitutes a specific share (the shares owned by a major shareholder) corresponding to other assets under Article 94(1)4 of the Income Tax Act. (2) The Plaintiff transferred 5,200 shares of this case to FF Co., Ltd. on October 1, 2010, within three months from December 24, 2010, when the Plaintiff transferred 5,200 shares of this case, D transferred 2,987 shares of BB to FF Co., Ltd., and thus, the amount of the above shares should be deemed the market price. The Plaintiff investigated 5,200 shares of this case and 268,300,300 won per share, 200,300 won [306,300,000 won per share].

D. Accordingly, on May 1, 2013, the Defendant issued a correction and notification of the KRW OO of capital gains tax and KRW OO of gift tax belonging to the Plaintiff in 2010 (hereinafter “instant disposition”).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on June 24, 2013, but the Tax Tribunal dismissed the Plaintiff’s appeal on March 17, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1, 2, 4 and 9 (including branch numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff, etc. received down payment and intermediate payment equivalent to 80% of the purchase price on December 13, 2007, pursuant to Article 5(3) and (4) of the Agreement on Acquisition of Stocks and Management Rights with DD, and transferred all of the instant 44,800 shares to DD, and thus, the time of transfer of the instant 44,80 shares to DD is December 13, 2007, since the Plaintiff, etc. transferred all of the instant 44,80 shares to DD, including the instant 44,80 shares, corporate reduction, market price, and all other documents and management rights. Accordingly, the instant disposition that was taken on a different premise as of January 10, 2008, based on which the time of transfer of the instant 44,800 shares, is deemed unlawful.

2) The assignment of the instant KRW 5,200 per share to KRW 268,300 per share was to be made 44,800 per share

After three years from the transfer value, the agreed price should be respected and recognized as the market price by respecting the transaction between third parties, taking into account the interest, etc. until the stock option is exercised under the stock sale/purchase option contract. Moreover, since the Plaintiff paid the capital gains tax on the amount of transfer of each of the instant shares, it constitutes double taxation to impose gift tax again.

B. Relevant statutes

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

C. Determination

1) Determination as to the timing of transfer of the instant 44,800 shares

(1) According to Article 98 of the former Income Tax Act (wholly amended by Act No. 9270 of Dec. 26, 2008) and Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20931 of Jul. 24, 2008), in calculating gains on transfer of assets, the transfer time of the relevant asset shall be the date of the settlement of the price of the relevant asset unless there are reasons for exceptions under each subparagraph of Article 162 (1) of the former Enforcement Decree of the Income Tax Act. However, in cases where the date of settlement of the price is unclear, the registration, receipt date of registration, or transfer date of the price entered in the registry, registry, or list (including the registration and the statement of change of the name), and in cases where the transfer of ownership is made before the price is settled, the registration date entered in the registry, registry, or list shall be the transfer time.

(2) In the instant case, it is clear that the date when the Plaintiff settled the instant 4,800 shares on January 10, 2008. Thus, unless there exists any reason under each subparagraph of Article 162(1) of the former Enforcement Decree of the Income Tax Act, the time of transfer shall be deemed the time of transfer. As alleged by the Plaintiff, the Plaintiff received approximately 80% of the transfer price on December 13, 2007, and then transferred the management right by the management of BB, such as resignation, and the time of acquisition of the instant 44,80 shares in the instant case on the external audit report of DD cannot be deemed as December 13, 207, even if the said circumstance is written on December 13, 2007.

(3) In addition, there is no evidence to deem that the date of the instant 44,800 share settlement falls under any of the subparagraphs of Article 162(1) of the former Enforcement Decree of the Income Tax Act, such as the Plaintiff’s completion of the transfer of shares before the said date.

2) Determination as to the market price of 5,200 shares in the instant case

Article 60(2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 10411 of Dec. 27, 2010) and Article 49(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22579 of Dec. 30, 2010) provide that the market value shall be the value that can be verified if a transaction is made freely between many and unspecified persons.

However, comprehensively taking account of the overall purport of the statements and arguments in Eul evidence Nos. 12 through 14, DD may recognize the fact that (a) in order to sell the 44,800 shares of this case that were acquired from the plaintiff, etc., DD requested two outside appraisal organizations to assess BB shares, and (b) based on the content of the evaluation, DD actually determines the transfer value per share of BB as 167,411 won, reflecting the contents of the evaluation, and (b) based on this, DD could objectively recognize that the transfer value of BB shares was 167,408 won per share to GG Co., Ltd. on May 28, 2010, and 167,401 won per share on September 6, 2010, and 167,392 won per share on October 1, 201, and there is no objective reason to view that the market value was the most adjacent transfer value per share.

3) Determination of double taxation assertion

(1) Article 96 (3) 2 of the former Income Tax Act provides that, in order to adjust the double taxation of capital gains tax and gift tax on the difference between market price and consideration, the amount calculated by subtracting the value of donated property under Article 35 (2) of the Inheritance Tax and Gift Tax Act from the transfer value shall be deemed the actual transaction price at the time of transfer of the pertinent asset in order to adjust the double taxation of capital gains tax and gift tax on the difference between the market price and consideration. (2) According to each of the evidence No. 4-1 and evidence No. 1, the defendant is not entitled to separate taxation of capital gains tax in accordance with the above provision as long as the transfer value of each of the instant shares at the time of imposition of capital gains tax under the above provision is 5,636,92,00 won (19,600 shares / 4,800 shares) / 9,695,616,000 won + 1,395,160,000 won, which is not subject to taxation of capital gains tax.

3. Conclusion

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

partnership.