Incheon District Court-2016-Gu 5359 (2017.08)

spring of the date when the detailed statement of the state of changes in stocks is deemed donation because the register of shareholders is not prepared;

Since the date of submission of a statement of changes in stocks, etc. should be deemed deemed the date of deemed donation because the register of shareholders of the non-party company was not prepared, there was an error of law in determining the standard of appraisal erroneously and considering whether there was no special circumstance to consider whether price fluctuation was submitted by the date of submission

Article 60 of the Inheritance Tax and Gift Tax Act:

Seoul High Court 2017Nu73398 Revocation of Disposition of Imposing Gift Tax

Yang-○

Head of △ District Office

Incheon District Court Decision 2016Guhap5359 Decided September 8, 2017

June 5, 2018

July 3, 2018

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of gift tax of KRW 602,350,330,00,000, imposed on the Plaintiff on June 1, 2016, shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

가. 양□□은 지△△, 송◇◇, 최▷▷와 함께 2012. 2. 25. 이◁◁, 이▽▽으로부터 주식회사 공●●●(이하 '이 사건 회사'라고 한다) 발행 주식 30,000주 전부를 매매대금 2,130,000,000원(1주당 매매대금 71,000원)에 매입하였는데, 양□□은 위 주식 중25,344주를 취득하기로 하였다(이하 위 매매계약을 '이 사건 매매계약'이라고 한다).

나. 이 사건 회사가 2013. 3. 13. 관할 세무서에 제출한 주식등변동상황명세서(이하 '이 사건 명세서'라고 한다)상에는 양□□이 이 사건 매매계약에 따라 취득하기로 한25,344주에 관하여 2012. 7. 30.자로 양□□ 본인 및 그 아들들인 원고(2남)와 양◆◆(1남)의 명의로 각 양도가 이루어진 것으로 되어 있고, 이 사건 명세서상 2012. 7. 30.자 양도 전후 이 사건 회사의 주주 명의 및 주식 보유상황은 다음 [표1]과 같다.

[Attachment 1]

Name of the previous shareholder

Number of shares held

The name of the shareholder after transfer of July 30, 2012

Number of shares held

이◁◁

15,000

○○ (Plaintiff)

14,483

These days:

15,000

양◆◆

7,241

Ministry of Home Affairs

3,620

△△△△

2,588

[Attachment지]

1,034

최▷▷

1,034

Total

30,000

Total

30,000

C. Since then, in light of the detailed statement of changes in stocks, etc. submitted by the instant company to the competent tax office, the transfer of the entire shares issued by the instant company was made again as of February 11, 2014. The name of the shareholder and the shareholding status of the instant company before and after the transfer on February 11, 2014 under the detailed statement of changes in stocks, etc. are as follows.

[Attachment 2]

Name of shareholders after transfer on July 30, 2012

Number of shares held

The name of the shareholder after transfer of February 11, 2014

Number of shares held

○○ (Plaintiff)

14,483

chapter 6

12,412

양◆◆

7,241

Equitable

9,309

Ministry of Home Affairs

3,620

홍▣▣

5,601

△△△△

2,588

△△△△

2,588

[Attachment지]

1,034

최▷▷

1,034

Total

30,000

Total

30,000

D. From April 13, 2015 to June 10, 2015, the head of the ○○ Tax Office conducted an investigation of stock change with respect to the instant company from around April 13, 2015, and issued 14,483 shares (hereinafter “instant shares”) in the name of the Plaintiff from July 30, 2012 to February 11, 2014 with respect to the Defendant (hereinafter “instant shares”) under the title of the Plaintiff, both of which are held in trust with the Plaintiff, and this is deemed deemed to have been deemed to have been donated to the Plaintiff pursuant to the main sentence of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 1357, Dec. 15, 2015; hereinafter “former Inheritance Tax and Gift Tax Act”). Accordingly, the head of the ○○ Tax Office notified the Plaintiff of the gift tax based on the period of donation 1,028,293,00 won per share x 130

E. Accordingly, on September 15, 2015, the Defendant imposed gift tax of KRW 589,543,150 on the Plaintiff based on the foregoing taxation data (hereinafter “the previous disposition”). On October 1, 2015, the Plaintiff dissatisfied with the previous disposition and filed a request for examination with the Commissioner of the National Tax Service. The Commissioner of the National Tax Service, after deliberation by the National Tax Examination Committee, made a request on December 29, 2015, pursuant to the main sentence of Article 49(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 25195, Feb. 21, 2014; hereinafter “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”), that the value of donated property should be calculated on the basis of the transaction price confirmed within three months before or after the base date of appraisal, not on May 31, 2012, and thus, the period of donation of the instant shares was unlawful for the purpose of calculating the gift price within two months before or after the date of sale.

F. Accordingly, the Defendant revoked the previous disposition of this case, and imposed KRW 602,350,330,000 (=14,483 x 71,000 per share sales price per share under the instant sales contract) calculated on the basis of the transaction price confirmed under the instant sales contract, on June 1, 2016, on the grounds that there were no special circumstances regarding the price fluctuation in the stocks of this case during the period between the date of the instant sales contract (25, 2012) and the transfer date (70, 300) pursuant to the proviso of Article 49(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (hereinafter “instant disposition”).

G. On June 16, 2016, the Plaintiff filed a request for tax adjudication with the Director of the Tax Tribunal, who is dissatisfied with the instant disposition, but the Tax Tribunal dismissed the request for adjudication on September 6, 2016.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1-11, 14, 15, 18, 19, Eul evidence Nos. 1-9 (including virtual numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

The reasoning for this part of this Court's judgment is as stated in the corresponding part of the judgment of the first instance except for the following parts, and thus, it shall be quoted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ To delete the fourth week in the judgment of the first instance court, 4 pages 1).

○ From the 5th bottom of the judgment of the first instance to the 6th place, 2 to the 6th place shall be followed as follows:

(c) Chapter 3;

The date when the instant shares are deemed to have been donated to the Plaintiff is March 13, 2013 pursuant to Article 45-2(3) of the former Inheritance Tax and Gift Tax Act, and the instant statement is submitted to the chief of the competent tax office pursuant to Article 45-2(3) of the same Act, and the value of donated property should be calculated in consideration of the current status of the price fluctuation in the instant shares from February 25, 2012 to March 13, 2013, which is the date of the instant sales contract. However, the instant disposition was erroneous in recognizing July 30, 2012, which is the date of the instant shares transfer as the assessment base date, as the date of the instant statement, and without considering the price fluctuation situation from March 13, 2013.

3. Determination

A. Determination on the relevant statutes and the first and second arguments

The reasons for the judgment in this part are as stated in each corresponding part of the judgment of the first instance except for the parts added or written by adding below, and thus, they shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ ○ 7th written judgment of the first instance court and 7th 'the evidence' added 'the witness' and 'the witness' thereafter.

According to the testimony of this case, the plaintiff seems to have been aware of the fact that the shares of this case were acquired in his name later than 8th written judgment of the court of first instance.

○ 8th written judgment of the first instance court, '6th 6th son' in the court, 'the court' as ‘the first instance court'.

○ The following shall be added to 11th written judgment of the first instance court:

[Plaintiff’s assertion that both of the instant shares were taken over and could not have been anticipated to die within the nearest time. However, in light of the fact that both of the instant sales contract was 69 years old (Evidence A1) and the fact that both of the instant units were dead due to the recent cancer (the 9th day of the Plaintiff’s grounds of appeal) at the time of February 25, 2012, which was the date of the instant sales contract, it is difficult to find that there was no purpose of evading inheritance tax solely on the above circumstances alone. Furthermore, the Plaintiff asserted that there was no possibility that the instant company would have been in a short state during several years and there was no possibility of distributing dividends, and that there was no purpose of evading the application of progressive tax due to global income taxation on dividend income. However, it is insufficient to conclude that there was no possibility of evading income tax due to the dividend possibility and dividend income of the instant company at the

B. Judgment on the third argument

(1) 피고는 당심에 이르러, 이 사건 회사에 주주명부가 작성되어 있는 것으로 보이고, 그렇다면 양□□이 대표이사로 취임한 2012. 7. 10. 전후로 명의개서가 이루어졌을 것이므로, 2012. 7. 30.을 평가기준일로 본 이 사건 처분은 적법하다고 주장한다. 갑 제27호증, 을 제10호증의 기재에 의하면, 원고가 송◇◇, 양□□, 양◆◆, 최▷▷와 함께 2016. 11. 30. 지△△과 이 사건 회사를 상대로 이 사건 회사 주식에 관한 명의개서절차 이행의 소(◇◇◇◇지방법원 20○○가합)를 제기하였다가 취하한 사실, 이 사건 회사 설립 이후 수차례에 걸쳐 이사 변경 등기가 이루어진 사실은 인정된다. 그러나 위 사실만으로 이 사건 회사에 주주명부가 존재한다고 인정하기에는 부족하고, 달리 이를 인정할 증거가 없다. 오히려 당심 증인 이의 증언에 변론 전체의 취지를종합하면 이 사건 회사는 주주명부를 보유하고 있지 않은 것으로 보인다(피고도 국세심사위원회의 심의 당시부터 이 사건 제1심에 이르기까지는 이 사건 회사에 주주명부가 존재하지 않는다는 사실을 다투지 아니하였다). 따라서 피고의 이 부분 주장은 이유 없고, 원고에 대한 이 사건 주식의 명의신탁에는 구 상속세및증여세법 제45조의2 제3항이 적용되어야 한다.

(2) Article 45-2(3) of the former Inheritance Tax and Gift Tax Act provides that where the list of stockholders or the list of members of a stock company has not been prepared, whether a transfer is made pursuant to the documents and the statement of changes in stocks, etc. submitted to the head of the competent tax office having jurisdiction over the place of tax payment pursuant to Articles 109(1) and 119 of the Corporate Tax Act. Even if the aforementioned legal provision seeks to avoid taxes by stating the name of the owner differently from the actual owner on the statement of changes in stocks, etc., such as the list of stockholders or the list of members, if no transfer is made due to the absence of the register of stockholders, gift tax is to be imposed even in such a case (see, e.g., Supreme Court Decision 2011Du1099, May 16, 2014). Meanwhile, since the aforementioned legal provision provides that whether a transfer is made based on the statement of changes in stocks, etc., such as the date on which a change in stocks is made in the list of stockholders, etc., it can not be deemed as a reason for taxation.

Meanwhile, the value of property on which gift tax is levied shall be according to the market price on the date of donation (Article 60(1) of the former Inheritance Tax and Gift Tax Act), and the above market price is recognized as the market price on the basis of Presidential Decree, such as expropriation price, public sale price, appraisal price, etc. (Article 60(2) of the same Act). In cases of trading during a period not exceeding three months before or after the evaluation base date, the transaction amount shall be the transaction amount; in cases of trading, etc. during the period not falling under the evaluation base date, if deemed that there are no special circumstances, considering the management status of the company issuing stocks during the period from the evaluation base date to the appraisal date, the passage of time, and changes in surrounding environment, etc., the relevant trading

(3) In light of the fact that the shareholder registry was not prepared in the instant company and the instant specification was submitted to the head of the competent tax office on March 13, 2013, the date of deemed donation of the instant shares was March 13, 2013. In addition, it is apparent that February 25, 2012, which is the date of the instant sales contract, does not belong to the assessment period of three months before and after March 13, 2013. Thus, in order to consider the sales price of the instant sales contract as the property value under Article 60(1) of the former Inheritance Tax and Gift Tax Act, it is necessary to consider whether there is any special reason to deem that there is no price fluctuation during the period from February 25, 2012 to March 13, 2013 following consultation and consultation deliberation committee.

However, as seen earlier, the Defendant: (a) deemed the foregoing on July 30, 2012 as the deemed donation date; and (b) taken the instant disposition into account only the circumstances during the period from February 25, 2012 to July 30, 2012, taking into account only the circumstances during which the period was from February 25, 2012, to July 30, 2012; (c) thus, there is an error of law in determining the standard date of appraisal and

4. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the disposition of this case is revoked.