Seoul Administrative Court 201Guhap23672 ( December 01, 201)

Cho High Court Decision 2010Du4075 (No. 28, 2011)

Prices formed by a normal transaction that reflects objective exchange values shall fall under the market price.

(As with the judgment of the first instance court) The price formed through a normal transaction that reflects the objective exchange values of stocks by providing an accounting firm with objective accounting data to assess the appropriateness of the company, reflecting the management and financial status of the company, and determines the purchase price through substantial price negotiations, and thus falls under the market price.

2012Nu487 Revocation of Disposition of Imposing gift tax

Gux

The Director of Gangnam District Office

Seoul Administrative Court Decision 2011Guhap23672 decided December 1, 2011

July 26, 2012

August 23, 2012

1. The defendant's appeal is dismissed.

2. The appeal costs are incidental to the defendant.

1. Purport of claim

The Defendant’s imposition of KRW 00,00, KRW 00, KRW 000, and KRW 000 on September 1, 2010 against the Plaintiff shall be revoked in entirety (it appears that penalty tax is included in the record).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. The reasons for the judgment of the court of first instance are reasonable, and therefore, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act (However, the 'Act No. 9926 of the 11th judgment' appears to be well-written in Article 916 of the 'Act No. 9916 of the 1

2. In the appellate court, the Defendant asserts that the Plaintiff’s acquisition of the entire shares of the non-party company, including the right to manage, was made by the accounting firm at a price significantly lower than the market price under the transactional practice, and that the Plaintiff’s opinion was reflected in the Plaintiff’s opinion when the non-party company did not properly assess the patent right, sales claim, inventory assets, and real estate value of the non-party company (O), so the transaction price of the shares of this case determined based on the instant report cannot be deemed an objective exchange price, and that the transaction of this case was made by considering the profit and loss value of the non-party company as zero (00). Meanwhile, in light of the situation at the time of the transaction of this case, the Plaintiff’s acquisition of the shares of the non-party company at 00 won, including the right to manage, constitutes acquisition at a price considerably lower than the market price under the former Inheritance Tax and Gift Tax Act (amended by Act No. 916, Jan. 1, 2010; hereinafter referred to as the “former Inheritance Tax Act”).

Therefore, it is reasonable to view that the market price of unlisted stocks with low market value as the market price is the market price in a case where there is an example of transactions deemed to properly reflect the objective exchange value, or where the relevant transactions are made by general and normal words even without such actual example (see, e.g., Supreme Court Decisions 87Nu500, Oct. 26, 1987; 93Nu2233, Dec. 22, 1994); in the case of unlisted stocks, the evaluation by the method stipulated in Article 63(1)1 (c) of the former Inheritance Tax and Gift Tax Act; Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621, Feb. 22, 2008) can be selected only when the market price at the time of donation cannot be calculated; and there is no supplementary method to prove that the market price at the time of donation is difficult to be calculated (see, e.g., Supreme Court Decision 2012Du1215).

However, in light of the relationship between the parties to the instant transaction, the process of determining the price of the instant shares, and the internal situation and management status of the non-party company at the time of the instant transaction, which can be known with the aforementioned facts and evidence, it is insufficient to readily conclude that the transaction price of the instant shares is not a normal transaction price which reflects the objective exchange value of the relevant shares. Unlike the above, objective data can not be found to recognize that the transaction price of the instant shares was intentionally fabricated. ② Furthermore, even if considering various circumstances, such as the evidence submitted by the Defendant, it cannot be readily concluded that the instant report was significantly erroneous in the objective value of the non-party company due to the lack of evidence, and there is no evidence to acknowledge otherwise. ③ Meanwhile, considering the process of negotiating the price of the instant shares transaction, which can be known with the evidence cited above, and the non-party company’s internal situation and management status at the time of the instant transaction, etc., the Defendant’s assertion that the Plaintiff, who bears the burden of proof, was extremely lower than the market price due to the transaction practice cannot be accepted.

3. If so, the defendant's appeal is dismissed for lack of grounds.