(영문) 서울고등법원 2011.6.29.선고 2010누40030 판결

2. The Defendant’s disposition of imposition of gift tax amounting to KRW 174, 590, and 630, which was imposed on the Plaintiff on October 1, 2009 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The order is as set forth in the text.

Reasons

1. Details of disposition;

A. On November 10, 2003, the Plaintiff decided to take over 50,000 shares of the company (hereinafter referred to as "the shares of this case") from 25,000 won (hereinafter referred to as "the shares of this case") (hereinafter referred to as "the shares of this case") to 25,00,000 won (hereinafter referred to as "the shares of this case") from the largest shareholder, representative director, Kim 00 (a 00, and together with 58,27% of the total shares of this case), and the transfer of shares of this case was completed on November 11, 200 (hereinafter referred to as "the transfer of shares of this case").

The Plaintiff also acquired the shares of this case, which was the vice head of △△△ Company at the time of the contract, and 2003.

11. 12. The company retired from office on December 1, 2003, and was appointed as executive director of the company of this case on December 1, 2003.

B. After investigating the change in shares with respect to the instant company, the director of the Seoul Regional Tax Office determined that the Plaintiff acquired the instant shares at a price lower than the market price pursuant to Article 35(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter “Gift”) and Article 26(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 18177, Dec. 30, 2003; hereinafter the same). The director of the Seoul Regional Tax Office assessed the Plaintiff as the gift tax amount of KRW 645,750,00 (=12,915 won per share x 50,000 per share) pursuant to the supplementary assessment method prescribed by the Inheritance Tax and Gift Tax Act, and notified the Defendant of the gift tax.

C. On October 1, 2009, the Defendant issued the instant disposition that imposed gift tax of KRW 174,590,630 on the Plaintiff with the tax base of KRW 520,750,750,000 obtained by subtracting KRW 100 million from the difference between the market price of the instant shares and KRW 25,00,000, and KRW 00,000.

【Ground for Recognition: Facts without dispute, Gap 1, 2 evidence, Eul 1 through 3, each entry of Eul 5 through 7, and the purport of the whole pleadings】

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Although the Plaintiff did not work for the instant company at the time of the contract, deeming the acquisition of the instant shares as a transaction between related parties and thus, was unlawful.

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Legal doctrine 1) We examine the scope of persons with a special relationship under Article 35 of the Inheritance and Gift Tax Act.

Article 35(1)1 of the Inheritance Tax and Gift Tax Act provides that where a person having a special relationship takes over property at a price lower than the market price, the transferee of the property shall be deemed a donee and shall be deemed to have received a donation equivalent to a certain amount of profit. Paragraph (2) of the same Article provides that the scope of the person having a special relationship as provided in subparagraphs 1 and 2 of paragraph (1), lower price, and higher price shall be determined by Presidential Decree. In accordance with delegation under Article 35(2) of the Inheritance Tax and Gift Tax Act, Article 26(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "a person having a special relationship as provided in Article 35(1)1 and 2 of the same Act is "a person having a relationship as provided in any of the following subparagraphs with the transferor or transferee" and subparagraph 1 of the same Article provides that "a person who falls under Article 19(2) 1, 2, and 4 through 8 is "a person who maintains his livelihood."

Therefore, in order to apply the provision on deemed donation as it falls under the acquisition by transfer under the provisions of Article 35 of the Inheritance and Gift Tax Act, there must be a special relationship between transferor and transferee under the provisions of Article 26 (4) of the Enforcement Decree of the Inheritance and Gift Tax Act at the time of transfer of property, and an employee under Article 19 (2) 2 of the Enforcement Decree of the Inheritance and Gift Tax Act refers to a commercial employee

On the other hand, the defendant asserts that Article 4 of the Enforcement Rule of the Inheritance and Gift Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 20 of April 30, 2008) provides that "the employees prescribed by Ordinance of the Ministry of Finance and Economy are executives, commercial employees, and other persons in employment contract relationship." Thus, other persons in employment contract than commercial employees are employees under Article 19 (2) 2 of the Enforcement Decree of the Inheritance and Gift Tax Act.

Article 13 (6) 2 of the Enforcement Decree of the Inheritance and Gift Tax Act provides for the scope of "a person who has a special relationship under Article 16 of the Inheritance and Gift Tax Act by delegation of Article 16 (4) of the Inheritance and Gift Tax Act, which is a provision concerning non-taxation in the taxable value of inherited property contributed to a public-service corporation." Article 13 (6) 2 of the Enforcement Decree of the Inheritance and Gift Tax Act provides that "a person who maintains his livelihood with the property of an heir, other than an employee or employee prescribed by the Ordinance of the Ministry of Finance and Economy, who is one of the specially related persons," and Article 4 of the Enforcement Rule of the Inheritance and Gift Tax Act delegated by the Ordinance provides that "an employee prescribed by the Ordinance of the Ministry of Finance and

Therefore, Article 4 of the Enforcement Rule of the Inheritance and Gift Tax Act is only a provision that sets the scope of "employee prescribed by the Ordinance of the Ministry of Finance and Economy" under Article 13 (6) 2 of the Enforcement Decree of the Inheritance and Gift Tax Act, which sets forth the scope of persons in a special relationship with Article 16 of the Inheritance and Gift Tax Act, and it cannot be deemed that Article 19 (2) 2 of the Enforcement Decree of the Inheritance and Gift Tax Act is applied without any delegation basis. The above argument made by the

2) We examine whether the person is a specially related person and whether the person is a specially related person.

Article 23(1) of the Enforcement Decree of the Inheritance and Gift Tax Act provides for the time of acquisition of normally donated property. However, with respect to a low-price acquisition under Article 35 of the Inheritance and Gift Tax Act, the date of acquisition is not clearly defined in the Inheritance and Gift Tax Act and its Enforcement Decree. Meanwhile, Article 26(5) of the Enforcement Decree of the Inheritance and Gift Tax Act provides that the date of calculating the price and the market price under paragraphs (1) and (2) shall, in principle, be the date of liquidation of the price of the relevant property; in cases falling under Article 162(1)1 through 3 of the Enforcement Decree of the Income Tax Act, the date prescribed in each subparagraph shall be the base date; and in cases where it is deemed unreasonable to be the base date due to sudden change in exchange rates after the sales contract is made, the date of receipt of a registration or transfer recorded in the register, etc. where it is unclear, and Article 162(1)1 of the Enforcement Decree of the Income Tax Act provides that the date of receipt of ownership registration or transfer registration (including the date of transfer registration).

Unlike the time of acquisition of donated property normally, there is no clear provision which determines the time of deemed donation of low-price acquisition under Article 35 of the Inheritance Tax and Gift Tax Act, but Article 47 of the Inheritance Tax and Gift Tax Act stipulates that the taxable value of donated property shall be determined as of the date of donation as of the date of donation. Whether the taxable value of donated property constitutes low-price acquisition under Article 35 of the Inheritance Tax and Gift Tax Act according to the value of the acquired property calculated on the basis of the consideration under Article 26(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act and the date of calculating the market price, and whether the tax base of gift tax is determined according to the value of the acquired property calculated on the basis of the date of donation, and whether the property falls under the “person in a special relationship” and the “ remarkably low-value” is determined at the same time. Thus, it is reasonable to regard the date of calculating the price and market price under

D. Determination

1) On November 10, 200, the Plaintiff entered into a contract with Kim 00 on November 10, 200, stating that the Plaintiff shall pay 12,500,000 won from among December 10, 203, and KRW 10,000 from the balance of January 10, 2004, and KRW 10,000 from the balance of January 10, 200, and KRW 10,000 from each other, and that the Plaintiff shall take over the shares of this case. However, as a special engineer, the Plaintiff shall take over the shares of this case at the same time with the contract (Evidence No. 5). Under the above contract, the Plaintiff completed the transfer of ownership of the shares of this case on November 11, 203, and was appointed as the instant executive director on December 11, 2003.

The Plaintiff also paid the down payment, intermediate payment, and the remainder under a contract (in the absence of dispute, Eul 4 and 5 evidence, the purport of the entire pleadings), and thereafter made a preliminary return of capital gains tax by deeming the transfer date as the transfer date on November 10, 203 (No. 2 evidence).

2) According to the above facts, the Plaintiff completed the transfer of ownership of the instant shares prior to the full payment of the purchase price of the instant shares. As such, the time of acquisition of the instant shares was November 11, 2003 when the transfer of ownership was made, and did not have an employee relationship with the Kim 00 at that time (a contrary to the view, the Plaintiff did not have an employee relationship with the Plaintiff even if the acquisition price of the instant shares was deemed to be the time of low price acquisition on November 10, 2003 when the date of acquisition of the instant shares was concluded).

The instant disposition that deemed that the instant stock transaction constituted a case where shares were received from a person in a special transaction relationship is unlawful.

3. Conclusion

The judgment of the first instance shall be revoked. The disposition of this case shall be revoked.