It does not constitute a temporary contingent case excluding the weighted average amount of net profit and loss for the preceding three years per share;

Spirits benefits not belonging to the deadline for filing the tax base return are in violation of the Inheritance Tax and Gift Tax Act, and the net value of profits and losses can not be applied as the average value of estimated profits per share because losses related to the business themselves can not be regarded as temporary contingent cases.

Articles 4 and 35 of the Inheritance Tax and Gift Tax Act

2015Guhap5430 Revocation of Disposition of Imposition of Gift Tax

IsaA

BB Director of the Tax Office

November 19, 2015

January 14, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The disposition of imposition by the Defendant on October 1, 2014 rendered by the Plaintiff on the gift tax of 2012 shall be revoked.

1. Details of the disposition;

A. On July 3, 2012, the Plaintiff acquired 3,000 non-listed shares of AAA Fishery Co., Ltd. (hereinafter “AA Fishery”) from the largest BB to the O and OO (hereinafter “instant shares”)’s par value per share, and did not file a report on the tax base of gift tax with the Defendant.

B. After carrying out planning and inspection, such as reduction of non-listed stocks, the commissioner of the Korea Regional Tax Office notified the Defendant of the taxation data that it is subject to gift tax on the gift profits accrued from the transfer of low-price with respect to the instant stocks acquired by the Plaintiff. The Defendant, applying Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act to the assessment of the net value per share of the instant stocks, assessed as the weighted average of the net value per share value O,O,O, andO,O, andO as the net value per share calculated as listed below, and then assessed as the O,O, andO, under Article 35 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013; hereinafter the same shall apply), and Article 26 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Act No. 11609), O,O,O, 100,O-O, -O's basic acquisition value and the Plaintiff's profits.

C. On October 27, 2014, the Plaintiff appealed to the instant disposition and filed an appeal for adjudication with the Tax Tribunal, but the said appeal was dismissed on January 22, 2015.

【Facts without dispute over recognition, Gap evidence 1 through 7, Eul evidence 1(including numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

In view of the fact that AAA fishery issued 20,00 common shares from the date of the business year in which the third year before the evaluation base date falls to the date of the evaluation date to the date of the evaluation date, the annual net income changes in AAA fishery are ordinarily high in the year 2011 due to temporary and contingent reasons that the annual net income changes in AAA fishery from China are low-cost revenues, such as waves, waves, etc., from China, the annual net income changes in AAA fishery shall be assessed as the average value of the estimated net value per share under the latter part of Article 56(1) and subparagraph 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. Accordingly, there is no occurrence of the gift profit itself.

Thus, the plaintiff is not obligated to make a tax base return on the acquisition of shares of this case. Therefore, in the application of the latter part of Article 56(1) and Article 56(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, Article 56(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, which provides that the duty of tax base return shall

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) AAA fishery is a corporation engaged in agriculture, livestock, fishery products export and import, and distribution business. The major purchaser accounts for about 50% of the total purchase amount due to a permanent AAAA fishery limited corporation located in China, and net income is sensitive to foreign exchange rate fluctuations.

2) On July 23, 2010, AAAAF paid-in capital increase by OO, OO, andOO(i.e., common share OO, OO, and OO). Accordingly, capital increase was made as OO, OO, and OO, and the total number of issued stocks became O or OO shares.

3) The changes in net profit for the net income in comparison with the sales amount of AAAA fishery are as listed in Table 1 below. The changes in the sales cost and gross sales profit ratio are as listed in Table 2 below. The exchange rate fluctuations in the composition are as listed in Table 3 below.

4) Meanwhile, since 2008 to 2012, there was no increase in capital surplus and other capital items of AAA fisheries due to capital increase, and there was no increase in the net income of AA’s U.S. accounting due to profits other than business profits.

【Recognition of Evidence A No. 2 and the purport of the whole pleadings” is determined.

(1) Article 56(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the weighted average amount of net losses for the preceding three years per share of unlisted stocks shall be "the weighted average amount of net losses for the preceding three years as stipulated in subparagraph 1 (hereinafter referred to as "value". However, in cases where it is unreasonable for a corporation to calculate its net losses for the preceding three years due to a temporary contingency case, the value stipulated in subparagraph 2 of the same paragraph (hereinafter referred to as " Subparagraph 2") may be deemed as "value stipulated in subparagraph 2 of the same Article." Furthermore, Article 17-3(1) of the former Enforcement Rule of the Inheritance Tax and Gift Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 267, Feb. 28, 2012; hereinafter referred to as "Enforcement Rule of the former Inheritance Tax and Gift Tax Act") shall be deemed as "the weighted average amount of losses for the preceding three years," and Article 17-3(1)1 of the former Enforcement Decree shall be deemed as "the net amount of profits and losses for the preceding three years."

2) In light of the aforementioned legal principles, the appraisal base date of the instant shares is July 3, 2012, which is the date of acquisition of the instant shares, and the fact that there was capital increase with respect to the OO andOO shares during the period from July 3, 2009, which was from July 3, 2009, to December 24, 2012, during the period from July 23, 2012, which was the base date of appraisal, was as seen earlier. Therefore, barring any special circumstance, the net profit and loss value of the instant shares cannot be calculated on the basis of the value under subparagraph 1.

Meanwhile, even if a taxpayer determined that the gift tax amount was a zero won, the determination on whether the tax base of the gift tax amount was based on the tax authority is ultimately made by the determination, and Articles 68(1) and (2), and 4(1) of the former Inheritance Tax and Gift Tax Act are obligated to pay gift tax pursuant to the inheritance tax and Gift Tax Act, and accordingly, the donee shall report the gift tax base to the head of the district tax office having jurisdiction over the place of tax payment, within three months from the last day of the month to which the date of donation belongs, along with documents proving the type, quantity, appraised value, various deductions, etc. of donated property necessary for the calculation of the gift tax and the gift tax, and the duty to report the gift tax base is prescribed as a general duty. Thus, in light of the fact that even the taxpayer determined that the gift tax amount was an zero won, the obligation to report the gift tax base

Since the Plaintiff did not report the value of subparagraph 2 within the due date of the return on the gift tax, it does not constitute “where the return is filed by the due date of the return on the tax base of the gift tax, which is the requirement to apply Article 56(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act,” the value of the instant shares cannot be calculated based on the value of subparagraph 2. In such a case, it shall be assessed by applying the objective and reasonable method among other supplementary methods prepared in accordance with the above legal principles. Considering the following circumstances revealed by comprehensively considering the overall purport of the pleadings in each of the above facts of recognition and evidence Nos. 6, 7, 8, 2, 2, 3, and 4, the calculation of the net value of the instant shares and the net asset value based on the weighted average of 3:2 of the increased number of shares and the net asset value by the Defendant constitutes an objective and reasonable method. Therefore, the Plaintiff’s assertion on a different premise is without merit.

"① 구 상속세및증여세법 시행령 제56조 제3항 단서는 제1호 가액을 산정함에 있어 평가 기준일이 속하는 사업연도 전 3년 이내에 증자 또는 감자를 한 사실이 있는 경우에는 증자 또는 감자전의 각 사업연도 종료일 현재의 발행주식총수는 재정경제부령이 정하 는 바에 의한다고 규정하고 있고, 이러한 시행령의 위임에 따라 구 상속세및증여세법 시행규칙 제17조의3 제5항은 증자 전의 각 사업연도 종료일 현재의 발행주식층수는 '증자 전 각 사업연도말 주식수'에 '증자 직전 사업연도말 주식수와 증자주식수를 합한 수'를 곱한 후 '증자 직전 사업연도말 주식수|로 나눈 환산주식수에 의하도록 정하고 있다. 그 이유는 증자 후 증여가 이루어졌음에도 증자 전 주식수를 기준으로 증자 전 사업연도의 1주당 순손익액을 산정하게 되면 증자 전 증여가 이루어진 경우의 순손익액을 기준으 로 주식가치를 산정하는 셈이 되어 부당하기 때문이다. 이처럼 증자 후 주식가치가 희 석되는 효과를 1주당 순손익액의 산정에도 역시 반영할 필요가 있는바, 피고는 구 상 증세법 시행령 제56조 제3항 단서의 규정을 준용하여 2010. 7. 23. 증자 전인 2009년 사업연도의 순손익을 산정함에 있어 증자된 주식수를 포함한 OO,OOO주를 기준으로 2009년도 순손익가치를 산정하였다.",② 구 상속세및증여세법 시행령 제56조 제3항, 구 상속세및증여세법 시행규칙 제17조의3 제5항에 서 구 상속세및증여세법 시행령 제56조 제1항 제1호를 적용하여 순손익가치를 계산할 때, 평가 기준일이 속하는 사업연도 전 3년 이내에 해당법인이 증자 또는 감자를 한 사실이 있는 경우 증자 또는 감자전의 각 사업연도 종료일 현재의 발행주식총수의 산정방법을 별도로 규정한 것은 앞서 본 바와 같고, 구 상속세및증여세법 시행령 제56조 제5항에서는 위 기간 내에 유상증자 또는 유상감자가 있는 경우 가중평균액에 따른 순손익가치를 산정 함에 있어 유상증자와 유상감자로 인한 효과를 반영하기 위한 별도의 산정방식을 규정 하고 있는바, 위와 같은 법령의 체계적 해석 및 조문 규정형식에 비추어 볼 때 평가기 간 내에 증자가 있으면 무조건 추정이익을 적용해야 한다고 볼 수는 없고, 구 상증세 법 시행령 제56조 제5항에 따라 순손익가치를 산정할 수 있다고 할 것인바, 피고는 구 상속세및증여세법 시행령 제56조 제5항에 따라 AAA수산의 유상증자 관련 발생이익을 각 사 업연도 순이익에 반영하여 이 사건 주식을 평가하였다.

(3) On the other hand, a statement of assessment per share by the plaintiff's estimated profits (Evidence A6 and 7 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act) does not estimate profits for two years after the date of the ordinary closing of 2013 business years, but rather takes the balance after deducting the corporate tax, etc. from the net income before deducting the corporate tax, etc. from the net income before the closing of the settlement of accounts for 2013 business year as the estimated profits for each business year. Since the date of calculating the estimated profits and losses per share and the date of preparing the statement of assessment is not within the pertinent tax base return, if calculating the net profits and losses according to the estimated profits presented by the plaintiff, it goes against Article 56 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act which provides that "the date of calculating the estimated profits and losses per share and the date of preparing the statement of assessment shall fall within the pertinent tax base return." Further, the "the case of temporary increase in profits and losses related to the business of the plaintiff, which constitutes the ordinary business activities of the plaintiff's small and fishery management company.

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.