Whether the issuing corporation and the plaintiffs of this case constitute a specially related party

It is reasonable to interpret that an enterprise group as defined by Ordinance of the Ministry of Strategy and Finance is an enterprise group in which the principal or a relative exercises de facto influence over the management, and that the principal is a person in special relationship with the enterprise group.

Inheritance Tax and Gift Tax Act Article 42 of the Inheritance Tax and Gift Tax Act;

2017Guhap76203 Revocation of Disposition of Imposition of Gift Tax

AA and 1

Head of the District Tax Office

on October 17, 2018

December 2, 2018

1. The Defendant’s imposition of KRW 00,00,000 (including additional taxes) on Plaintiff AB on October 10, 2016 and each disposition of KRW 00,000,00 (including additional taxes) on gift tax against Plaintiff BB shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff AA is the wife of the CCC, and the plaintiff BB is the person of CCC and the plaintiff AA.

B. The Plaintiffs acquired DoDDD Co., Ltd. (the trade name before the change: EEE Co., Ltd.; hereinafter “DDDD”) from May 201, 201, respectively, the Plaintiff AA acquired DoDD DDD bonds issued by X (hereinafter “instant DR”) with the face value of KRW 00 million, and Plaintiff BB acquired Do DDD bonds with the face value of KRW 00 billion with the face value of KRW 000,000,000 per share, and Plaintiff AAA and Plaintiff BB acquired DoDD stocks with the face value of KRW 000,000 per share, respectively.

다. OO지방국세청장은 DDDD의 주식변동조사를 한 결과, 2012. 5. X. 원고들이 이 사건 신주인수권부사채를 취득할 당시에는 원고들과 DDDD는 특수관계인에 해당하지 않았지만, CCC이 2012. 10. XX. ■■ 법인인 FFFF 주식회사(이하 'FFFF'라 한다)의 등기이사로 취임하고 DDDD가 2012. 10. XX. FFFF의 주식 0,000주(43.XX%)를 취득하여 FFFF의 최대주주가 되었음을 이유로 전환시점인 2013. 5. X. CCC은 DDDD의 특수관계인에 해당하고 CCC의 처인 원고 AAA과 자인 원고 BBB도 DDDD의 특수관계인에 해당되어 구 상속세 및 증여세법 (2015. 12. 15. 법률 제13557호 개정되기 전의 것, 이하 '상속세및증여세법'이라고 한다) 제42조 제3항, 구 상속세 및 증여세법 시행령(2014. 2. 21. 대통령령 제25195호로 개정되기 전의 것, 이하 '상속세및증여세법 시행령'이라 한다) 제12조의2 제1항, 제31조의9 제3항 등에 따라 원고들이 이 사건 신주인수권부사채에 의하여 전환, 취득한 이 사건 주식의 평가액(주당 000원)이 행사가액(주당 000원)을 초과함으로써 신주인수권부사채에 의한 주식전환시 이익을 증여받은 것으로 보아 피고에 대하여 이에 대한 과세자료를 통보하였다.

D. Accordingly, pursuant to Article 42(1)3 of the Inheritance Tax and Gift Tax Act, etc., the Defendant: (a) gift tax of KRW 00,000,000 (including additional tax) on Plaintiff A; and (b) gift tax on Plaintiff BB.

00,000,000 won (including additional tax) were each determined and notified (hereinafter referred to as "each of the dispositions in this case").

E. The Plaintiffs appealed to the Tax Tribunal for their respective appeals, but they were dismissed on May 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2-2, Gap evidence 2-1 and 2-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

For the following reasons, the plaintiffs do not constitute DD and specially related persons, and thus, each of the dispositions in this case was unlawful on different premise.

1) Article 12-2 (1) 3 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is the principal who is an individual; or

Article 2 of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Fair Trade Act") which prescribes that a person who is a relative with the principal has a special relationship with an enterprise group, which exercises de facto influence, and "the same person" should be regarded as the same meaning as "the principal" and "the same person" in Article 2 of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as "Fair Trade Act").

However, in interpreting the above, as of May 1, 2013 when the plaintiffs converted the instant bonds with warrants, the plaintiffs only hold 4. XX% of the bonds with warrants of DDR and do not hold FF and DD stocks at least 30%. Thus, CCC or the plaintiffs cannot be deemed to have a special relationship under Article 12-2(1)3(a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act.

2) In light of the fact that CCC sold the entire quantity of DD shares on November 2012, 2012, and CCC did not take charge of DD’s position before and after X on May 2, 2013 and did not exercise influence over the company’s management, it cannot be deemed that CCC exercised de facto influence over DD based on media reports, etc., which are the chairperson of DD.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On May 2012, the DDR board passed a resolution to issue bonds with warrants as follows:

2) On May 2012, 2012, CCC submitted to the Financial Services Commission, etc., the main contents of the report on the holding of stocks, etc. related to DDR are as follows.

CCC sold all 0,00 shares of DDR held by CCC around November 2012, XX. The major contents of CCC’s report on the holding of shares, etc. submitted to the Financial Services Commission around November 2012 are as follows.

3) Meanwhile, on October 2012, CCC assumed office as a registered director of the FFF on its registration, and DDD council decided to acquire X. FFF shares on September 2012, 201, and DD acquired 0,000 shares of the FFF shares (43.P%) on October 2012.

4) The conversion price at the time of issuance of the instant bonds with warrants was KRW 000, but the conversion price at X. on May 2013 for which the Plaintiffs exercised their conversion rights was adjusted to KRW 000,000. The Plaintiffs’ conversion details are as follows.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2-1, 2-2, Eul evidence 2-5, 7, 8, and the purport of the whole pleadings

D. Determination

1) Determination on the first argument

A) Article 40(1)2 (a) of the Inheritance Tax and Gift Tax Act provides that "where a person with a special interest has acquired bonds with warrants, and there is any profits accruing from the conversion, exchange, or acquisition of the stocks issued or to be received by such bonds with warrants in excess of the value of the stocks to be donated to the person who has acquired such profits, the amount equivalent to such profits shall be deemed to be the value of donated property." Article 42(1)3 provides that "Where profits have been acquired by transactions which increase or decrease the capital of the corporation, such as conversion of stocks by bonds with warrants in addition to donations under Article 40, the gains shall be deemed to be the value of donated property of the person who has acquired such profits, and Paragraph (3) of the same Article provides that "Where there is a justifiable reason as a transactional practice between parties who are not the related parties prescribed by Presidential Decree

Meanwhile, Article 31-9 (3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the specially related person prescribed by Presidential Decree" means a person who obtains profits and a person who has a relationship falling under any subparagraph of Article 12-2 (1). Article 12-2 (1) provides that "the specially related person prescribed by Presidential Decree" in the proviso to Article 16 (2) of the Act means a person who has a relationship falling under any of the following subparagraphs with the person. In such cases, the person himself/herself shall be deemed a specially related person pursuant to the latter part of Article 2 subparagraph 20 of the Framework Act on National Taxes, and subparagraph 1 provides that "the person falling under any of subparagraphs 1 through 4 of Article 1-2 (1) of the Enforcement Decree of the Framework Act on National Taxes and his/her spouse", "the person falling under subparagraph 3 (a) means a person falling under any of subparagraph 1 of Article 12-2 (1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act and the person falling under subparagraph 4 (b) of the Enforcement Rule of the same Article 20 (3) of the Enforcement Rule).

In addition, Article 2 subparagraph 2 (b) of the Monopoly Regulation and Fair Trade Act provides that the term "enterprise group" means a group of two or more companies under the control of the same person and actually controlling its business according to the standards prescribed by Presidential Decree. Article 3 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 27034, Mar. 8, 2016; hereinafter referred to as "Enforcement Decree of the Fair Trade Act") provides that "a company substantially controlling its business in accordance with the standards prescribed by Presidential Decree" in the main sentence of Article 2 subparagraph 2 of the Act refers to a company falling under any of the following subparagraphs. Article 2 subparagraph 1 provides that "a company, the largest shareholder of which owns not less than 30/100 of the total number of issued and outstanding shares of the company," and subparagraph 2 provides that "a company falling under any of the following items, the largest shareholder of which owns not less than 30/100 of the total number of issued and outstanding shares of the company."

B) In full view of the following circumstances acknowledged by the above-mentioned facts and the purport of the entire argument, it is reasonable to interpret that the meaning of the same person and the principal under Article 12-2 (1) 3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, etc. is the same. Therefore, this part of the plaintiffs' assertion is with merit.

(1) Article 42(3) of the Inheritance Tax and Gift Tax Act provides that "the provisions of paragraph (1) shall not apply where a transaction between persons who are not a related party is deemed to have justifiable grounds as a practice of

In the case of transactions between related parties, the profit accrued from bonds with warrants shall be determined as the value of donated property, regardless of justifiable grounds. The purpose of these provisions is to determine the time of issuance, amount of conversion, conversion conditions, etc. of bonds with warrants by exercising mutual influence among the related parties with respect to transactions between related parties, even if there is a high risk of arbitrarily determining the time of issuance, conversion amount, conversion conditions, etc.

② Meanwhile, Article 2 subparag. 2 (b) of the Monopoly Regulation and Fair Trade Act provides that if the same person is not the same person, an enterprise group shall be a group of two or more companies substantially controlling the businesses of the same person according to the criteria prescribed by Presidential Decree. Article 31-9 and Article 12-2 (1) 3 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and Article 9 subparag. 1 of the Enforcement Rule of the Inheritance Tax and Gift Tax Act also provides that "enterprise belonging to an enterprise group as prescribed by Ordinance of the Ministry of Strategy and Finance" refers to an affiliated company belonging to an enterprise group under Article 3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. In light of the form of such provision and the purport of Article 42(3) of the Inheritance Tax and Gift Tax Act, if the principal is an individual, the "enterprise belonging to an enterprise group as prescribed by Ordinance of the Ministry of Strategy and Finance, by which the principal or a person in a relationship under subparagraph 1, exercises de facto influence over the management of executive officers, shall be interpreted as appropriate.

③ The Defendant asserts that “the same person” under Article 2 of the Fair Trade Act or Article 3 of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act and “the principal” under Article 12-2(1)3 (a) of the Inheritance Tax and Gift Tax Act need not necessarily be interpreted as the same meaning. However, if the principal or a relative exists and a company is able to exercise de facto influence on the principal, a special relationship is established against all companies belonging to the enterprise group to which the enterprise group belongs. As such, if the principal does not have any risk of arbitrarily determining the time of issuance of bonds with warrants, conversion amount, conversion condition, etc., it violates the purport of Article 42(3) of the Inheritance Tax and Gift Tax Act. In addition, Article 12-2(1)3 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “an enterprise belonging to an enterprise group prescribed by Ordinance of the Ministry of Strategy and Finance where the principal or a person under subparagraph 1 exercises de facto influence on the business group, it also conforms to the interpretation of the text that constitutes a special relationship with the enterprise group.

2) Judgment on the second argument

In full view of the following circumstances recognized as above, it is difficult to recognize that CCC was in the position of exercising de facto influence over DD management. Accordingly, the Plaintiffs’ assertion on this part is well-grounded.

① On May 2013, 2013, the Plaintiffs exercised the right to convert to bonds with warrants did not hold DD shares, and only the Plaintiffs owned 4. XX per cent.

② The Defendant asserts to the effect that BB and the Plaintiffs exercised de facto influence on DD through the GGG Co., Ltd. (hereinafter “GG”). According to the respective texts of evidence Nos. 9, 11, and 12, as of December 31, 2016, Plaintiff BB owns 0,000 shares (45. XX), CCC owns 0,000 shares (36. XX%), Plaintiff AA owns 0,000 shares (17.X%), and Plaintiff AA owns 98.V. shares and 0,000 shares of DG on January 1, 2013, the GGG acquired 0,000 shares of DG (10.0%) from DG’s major shareholder at the time of conversion into DG 2,2016. However, it is difficult to view that DG’s major shareholder at the time of conversion into DG 2,2016.

③ The Defendant asserts that, in light of the fact that bonds with warrants were issued and the press reports, the CCC actually controlled the DDD. However, it is difficult to recognize that CCC exercised de facto influence over DDD solely on the following grounds: (a) third parties other than the Plaintiffs were issued bonds; (b) CCC’s shares were merely 0,000 shares issued on May 1, 201; and (c) HH, III, and JJ, other than the Plaintiffs, were officers of DD’s largest shareholders; (b) CCC and the Plaintiffs or GGG were officers of DD; and (c) CCC and the Plaintiffs or CCC were the largest shareholders of DD. In light of the foregoing, it is difficult to acknowledge that CCC exercised de facto influence over DD based on the circumstance that CCC was appointed as directors of DDD around 2016.

3. Conclusion

Therefore, each claim of the plaintiffs is justified, and it is decided as per Disposition by admitting it.