The early appellate court 2014 Busan 1836, the early appellate court 2014 Busan 1837

It shall not be deemed that a cause for increase in property value under Article 42 (4) of the Inheritance Tax and Gift Tax Act has occurred.

Unless a merger takes place within five years from the date of donation, but listed by the merger, it cannot be deemed that the ground for increase in the value of property under Article 42(4) of the Inheritance Tax and Gift Tax Act has occurred.

Gift, etc. of other profits under Article 42 of the Inheritance Tax and Gift Tax Act

2014Guhap22398 Revocation of Disposition of Imposition of Gift Tax

AA, AB

○○ Head of tax office, ○ Head of tax office

oly 2015.18

oly 16, 2015

1. The imposition of a gift tax of KRW 00 (including additional tax of KRW 000) imposed on Plaintiff Song-A on January 9, 2014 by the head of the competent tax office, and the imposition of a gift tax of KRW 00 (including additional tax of KRW 000) imposed on Plaintiff Song-B on January 8, 2014 by the head of the competent tax office, respectively, shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On January 30, 2008, the plaintiff Song-A received 000 shares of the plaintiffs' father transmission 】 】 transmission 】 】 000 shares of the non-listed corporation, △△△△△ (hereinafter referred to as "△△△△△△"), and the plaintiff SongB received 】 the transmission date 】 】 000 shares of △△△△△△ (hereinafter referred to as "all shares received as donations by the plaintiffs) respectively.

B. On Nov. 14, 2012, △△△△△ was merged into △△△ (hereinafter referred to as “instant merger”) a merger rate of 1:1 (hereinafter referred to as “instant merger”).

C. As a result of the consolidated investigation of the corporate tax against △△△△, the director of the regional tax office determined that the Plaintiffs’ share value increased due to the merger within five years from the date of acquiring the shares of △△△△△△△, which is subject to the gift tax under Article 42(4) of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”), and that the assessed value per share on the date of the merger shall be KRW 000,000, the assessed value per share of the gift on the date of the donation of the instant shares and the assessed value per share of the ordinary value increase (00,000,000,000 won per share from the acquisition date to the date of the merger) shall be deducted from the assessed value per share on the date of the merger, and notified the director of the regional tax office of ○○○○, to the director of the regional tax office of ○○, of the taxation data

D. Accordingly, on January 9, 2014, the head of the Defendant ○○○○ Tax Office imposed a gift tax of 000 won (including additional tax of 000 won) on Plaintiff Song-A, and the head of the Defendant ○○ Tax Office imposed a gift tax of 000 won (including additional tax of 000 won) on Plaintiff Song-B on January 8, 2014 (hereinafter “instant disposition”) respectively (hereinafter collectively referred to as “instant disposition”).

E. The Plaintiffs filed an appeal with the Tax Tribunal on March 21, 2014, but all were dismissed on July 9, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 12, Eul evidence Nos. 1 and 2 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① The Plaintiffs do not constitute “persons prescribed by the Presidential Decree, such as minors, etc.” under Article 42(4) of the Inheritance Tax and Gift Tax Act; ② “merger” under Article 42(4) of the Inheritance Tax and Gift Tax Act refers to “a listing by merger”; and △△△△△△△ was not listed through the merger of this case; ③ The increase in the value of shares by the merger of this case does not meet the criteria under Article 42(4) of the Inheritance Tax and Gift Tax Act. Therefore, the instant disposition that failed to meet the requirements under Article 42(4) of the Inheritance Tax

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Principle of tax law interpretation

Article 18(1) of the Framework Act on National Taxes provides that "In interpreting and applying tax-related Acts, property rights of taxpayers shall not be unfairly infringed in light of the equity of taxation and the purpose of the pertinent provision." The purpose of the pertinent provision is to interpret the tax-related Acts, i.e., to the extent that the relevant provision accords with the intent of the State or local government as reflected in the provisions of the tax-related Acts, and to the extent that it does not go against the overall order of the tax-related Acts, the pertinent provision should be interpreted so that the purpose of the tax-related Acts can be achieved harmoniously. In addition, the interpretation of the tax-related Acts should be interpreted in accordance with the provisions of the tax-related Acts, unless there are special circumstances, and it is not permitted to expand or analogically interpret the relevant Acts and subordinate statutes without any reasonable reason. However, where it is necessary to clarify the meaning through mutual interpretation of the Acts and subordinate statutes, it is inevitable to make a combined interpretation in view of the legislative intent and purpose, etc. oriented (see, e.g., Supreme Court Decision 2007Du438).

2) The meaning of the “merger” under Article 42(4) of the Inheritance Tax and Gift Tax Act

A) The provisions of Article 42(4) of the Inheritance Tax and Gift Tax Act

Article 42 (4) of the Inheritance Tax and Gift Tax Act provides that where a minor or any other person prescribed by Presidential Decree acquires property from a third person and obtains profits above the standard prescribed by Presidential Decree due to the execution of development projects, change of form and quality, division of jointly owned property, approval and permission of business, listing and merger of stocks and investment shares (hereinafter referred to as "reasons for increase of property value"), such profits shall be deemed the value of property donated to the person who has acquired such profits.

B) Legislative background

Article 41-3 of the Inheritance Tax and Gift Tax Act provides that "the donation of profits from the listing of shares or equity shares", and Article 41-5 of the same Act provides that "the donation of profits from the listing of shares or equity shares", and Article 41-5 of the same Act provides that the Inheritance Tax and Gift Tax Act was amended on December 28, 199, and Article 41-3 of the Inheritance Tax and Gift Tax Act was newly established and imposed on a modified donation based on the listing. In order to avoid this, Article 41-5 of the same Act was newly established on December 18, 200 to regulate the modified donation using the method of merger.

Meanwhile, the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter “former Inheritance Tax and Gift Tax Act”) borrowed the concept of donation under the Civil Act with no definition provision on the concept of donation. The concept of loan alone does not have any way to prevent the avoidance of gift tax by means of an altered donation under the Civil Act. As such, there are several regulations on deemed donation (Articles 32 through 42 of the former Inheritance Tax and Gift Tax Act). However, the regulations on individual donation have been pointed out that it is difficult to cope with a new type of gift arising from a new type of gift financial product, financial technique, various capital transactions, etc., and the legal basis for the imposition of gift tax on the transfer of such various forms of donation was set forth in the former Inheritance Tax and Gift Tax Act, which was amended by Act No. 7010, Dec. 30, 2003; and the so-called “the so-called “the comprehensive donation” or “the comprehensive donation” under Article 23(3) of the former Inheritance Tax and Gift Tax Act.

Article 41-3 and Article 41-5 of the Inheritance Tax and Gift Tax Act, one of the individual examples provisions, provides that when a person with special interest, such as the largest shareholder, etc., receives the shares of a corporation to which the largest shareholder, etc. belongs and a person with special interest, obtains the shares of another corporation and then renders the same results as those listed by the merger with the listed stock-listed corporation, the profits under the listing (including the listing by merger) may be taxed. As such, Article 42 (4) of the Inheritance Tax and Gift Tax Act, which is a comprehensive example provision, has been newly established so that taxation can be made even if it is not possible to impose taxes under the above provision. As such, Article 42 (4) of the Inheritance Tax and Gift Tax Act, which is one of the causes for increase in property value under the Article 42 (4) of the Inheritance Tax and Gift Tax Act, "the listing and merger of shares and equity shares" are newly established.

C) The meaning of "merger"

In addition, the legislative background and purport of the above Article 38 of the Inheritance Tax and Gift Tax Act are as follows: (a) in the case of a merger in which fairness is guaranteed by the provision that the gift tax shall be imposed on the profits accruing from the merger; (b) in the case of a merger in which the interests arising from the merger are guaranteed, the merger is regarded as "the listing and merger of shares and equity shares" under the law of Article 42(4) of the Inheritance Tax and Gift Tax Act; and (c) in this case, the merger is regarded as "the listing and merger of shares and equity shares" connected to the shares and equity shares; (d) in this case, it is naturally apparent that read shares and equity shares as "the listing by the merger" is not appropriate expression; (e) the implementation of the development project, change of form and quality, division, and joint ownership of business; (c) permission of business; and (d) registration of the Korea Financial Investment Association, and the occurrence of insurance accidents, etc., listed in Article 31-9(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act.

3) In the instant case:

As seen earlier, inasmuch as the Plaintiffs were sent 】 within five years from the date of donation of the instant shares 】 but the △△△△ was not listed by the merger, it cannot be deemed that the grounds for increase in property value under Article 42(4) of the Inheritance Tax and Gift Tax Act have occurred, and thus, the instant disposition was unlawful on a different premise.

3. Conclusion

Therefore, the plaintiffs' claim is reasonable, and the disposition of this case is revoked.