Seoul Administrative Court-2015-Guhap-54384 ( November 06, 2015)

The actual acceptance of an amendment under Article 40 (1) 2 (b) of the Inheritance Tax and Gift Tax Act shall not apply until the amendment is enforced.

It is reasonable to view that Article 40 (1) 2 (b) of the former Inheritance Tax and Gift Tax Act cannot be applied directly even if the person who actually takes over the transfer acquires the transfer from the person who actually takes over the transfer before the amendment is enforced.

Article 40 (1) 2 of the Inheritance Tax and Gift Tax Act

Seoul High Court 2015Nu68279

Kim*

* Commissioner of the Regional Tax Office

November 06, 2016

2017.12

oly 2017.17

1. Revocation of a judgment of the first instance;

2. On January 8, 2014, the Defendant’s refusal of filing a claim for rectification of gift tax amounting to KRW 2,765,013,890 against the Plaintiff is revoked.

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

The same shall apply to the order.

1. Quotation, etc. of judgment in the first instance;

This Court's reasoning is as follows. This Court's decision is identical to the reasoning of the first instance court's decision (excluding "3. conclusion" part) except for the supplement or addition of the judgment as follows 2. Thus, this Court's decision is acceptable as it is in accordance with Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, and Article 420 of the Civil Procedure Act.

2. Revised parts

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[1] Article 40(1)2(b) of the former Inheritance Tax and Gift Tax Act provides that the foregoing provision shall apply directly to cases where the largest shareholder of a corporation that issued warrant certificates has acquired warrant certificates from a person other than an underwriter under the Securities and Exchange Act. In light of the foregoing, the amendment of the tax law in 2016 provides that the acceptance and acquisition stipulated in Article 40 of the former Inheritance Tax and Gift Tax Act include the acceptance and acquisition from an underwriter under the same Act. However, in the future, the same shall include the acquisition and acquisition from a person who actually takes over the shares after January 1, 2017, and the applicable period shall be limited to the acquisition and acquisition from a person who actually takes over the shares. In light of the aforementioned fact, the purport of calculating individual values, such as Article 40(1)2(b) of the former Inheritance Tax and Gift Tax Act, as well as the possibility of predicting the tax relationship, and the stability of the tax relationship, and the legislative intent of the amendment of the former Inheritance Tax and Gift Tax Act (see Supreme Court Decision 20130Da1616).

Even if acceptance and acquisition are made from the recipient, it is reasonable to view that Article 40 (1) 2 (b) of the former Inheritance Tax and Gift Tax Act cannot be applied directly. The defendant's argument is rejected.

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A) Article 2(1) of the former Inheritance Tax and Gift Tax Act provides that where any donated property is donated by another person’s donation, such donated property shall be subject to gift tax. Article 2(3) of the same Act provides that “The term “donation” means a free transfer (including a transfer at a remarkably low price) of tangible or intangible property (including a transfer at a remarkably low price) in a direct or indirect manner to another person or an increase in the value of another person’s property by means of contribution, regardless of the name, form, purpose, etc. of such act or transaction, and Paragraph(3) of the same Article provides that “In cases where it is deemed that an inheritance tax or gift tax has been unjustly reduced by indirect or indirect method via a third person, or by a method involving two or more acts or transactions, the economic substance thereof shall be deemed a direct transaction by the party concerned, or the provisions of Paragraph

Article 2(4) of the former Inheritance Tax and Gift Tax Act provides that gift tax shall be imposed by deeming it as a continuous act or transaction according to the economic substance thereof where it is deemed that two or more acts or transactions are reduced unfairly through two or more acts or transactions. The said provision provides that gift tax may be imposed by denying such various stages of transactions in order to achieve the effect of gift bypassing or altering transactions through various stages of transactions, and to cope with the act of tax evasion, and that it may be imposed by deeming the same as a single act or transaction subject to gift tax depending on substance. Meanwhile, one of the forms of application of the substance over form principle is intended to ensure fair taxation by stipulating the legal relationship between the parties concerned in order to achieve the same economic purpose, and the tax authority should respect the legal relationship chosen by the parties concerned (see, e.g., Supreme Court Decision 200Du963, Aug. 21, 201). Moreover, the aforementioned provision is not only a way that the parties concerned may intervene in the said transaction at least 20 percent of the total transaction subject to gift tax from the point of view.

B) Considering the following facts and circumstances as a whole, Gap's issuance of the bonds of this case 2, 3, 5, 9, 11, 17, 18, 19, 22, 24, 28, 29, and 30, and the purport of the entire pleadings, Gap's issuance of the bonds of this case **********Tex's act of unfairly taking place in order for a series of acts at intervals of about 2 years and 2 months from the acquisition of the new stocks of this case to the acquisition of the company *****Tex to avoid or reduce gift tax without any particular business purpose without any particular business purpose . by requiring the plaintiff who is the largest shareholder of this case to acquire the new stocks at a low price in excess of the stock holding ratio.

Therefore, the refusal disposition of this case is unlawful, since it is difficult to readily conclude that it is a single act or transaction identical to the above mentioned above, by applying Article 2(4) of the former Inheritance Tax and Gift Tax Act. The Plaintiff’s assertion is with merit.

(1) ****텍은 매출이 증가하여 추가 운영자금이 필요하였으나 현금으로 회수되지 못하는 매출채권과 팔리지 아니하고 쌓인 재고자산이 증가함으로써 현금 유동성이 부족하여 회사 운영자금이 필요한 상황에서, 시장을 독점하고 있는 3M의 DBEF를 대체할 수 있는 32인치 대면적 'NPRF(Nano Polarization Recycle Film)'의 시제품개발에 성공하여 NPRF 필름 양산용 2개 라인을 건설하는 데 투입할 자금까지 필요하게 되어 이 사건 사채를 발행하게 되었다. 당시 ****텍이 일반 은행에서 대출을 받게 되면 이자가 연 7~8%에 달하였는데 신주인수권부사채를 발행한다면 더 낮은 이자 부담으로 자금을 조달할 수 있다는 금융기관의 조언 등에 따라 최대주주인 원고가 신주인수권증권의 일부를 인수함으로써 사재를 투입하는 대신 저렴한 비용으로 자금을 조달하기로 하여 이 사건 사채를 발행하였다. ****텍은 2008. 9. 18. 이 사건 사채를 발행하여 자금을 조달한 후에도 운영자금이 부족하여 불과 두 달 후인 2008. 11.산업은행 및 기업은행으로부터 연 7.5〜8.5%에 상당하는 이자를 지급하면서까지 추가로 200억 원의 자금을 조달하였다. 이에 비추어 이 사건 사채 발행은 그 자체로 사업상 목적이 있는 거래이다.

(2) ****텍의 최대주주인 원고가 사채와 분리된 이 사건 신주인수권증권 중80%(16매)를 매입한 것은 @@은행과 &&&증권의 요구에 따른 것이다. @@은행으로서는 신주인수권부사채를 만기까지 보유하는 경우 주가의 변동에 따라 자산의 가치가 달라질 수 있는 위험이 있어서 옵션으로 포함된 신주인수권증권을 장기간 보유하여 투자수익을 얻기보다는 위험 감소 차원에서 신주인수권증권을 빨리 처분하여 이자수익을 조기에 확정하고자 하였다. 이에 따라 주관사인 &&&증권은 이 사건 사채의 발행 이전부터 신주인수권증권의 매수자를 물색하여 4매에 관하여는 다른 투자자를 찾았으나 나머지 16매에 관하여는 매수자를 찾기 어려워 최대주주인 원고가 취득할 것을 요구하였다. &&&증권은 이 거래를 통하여 증권 발행 주관 실적을 쌓고 사채발행수수료를 수취하였으며, ****텍과 원고는 회사 운용을 위한 자금을 확보하면서도 신주인수권부사채 인수계약에 따른 경영상의 제한을 최소화할 수 있다는 장점이 있었다. 이에비추어 보아도 조세회피목적 외에 별다른 사업상 목적이 없다고 할 수 없다.

(3) ****텍은 상장기업이므로 이 사건 신주인수권증권의 당초 행사가격은 유가증권의 발행 및 공시에 관한 규정 제61조1)에 의한 기준가격[이 사건 신주인수권부사채 발행을 위한 이사회 결의일 전일로부터 소급한 1개월 평균 종가, 1주일 평균 종가 및 최근일 종가를 산술평균한 가액과 최근일 종가 및 청약일(청약일이 없는 경우는납입일) 3거래일 전 종가 중 높은 가액 이상]에 해당하는 7,965원으로 정하여졌다. 또한, 무상증자에 따른 신주인수권증권 행사가격의 조정은 유가증권의 발행 및 공시에 관한 규정 제61조의2에 따라 신주인수권부사채 인수계약서 제20조 제5항 제1호에서 정한 행사가격의 조정 규정에 근거하여 객관적으로 이루어졌다. 따라서 이 사건 신주인수권증권의 당초 행사가격의 결정과 행사가격의 조정은 모두 유가증권의 발행 및 공시에 관한 규정에 따라 산술적ㆍ기계적으로 이루어진 것으로서 주관이 개입될 여지가 없고, 모두 특수관계 없는 @@은행, &&&증권, ****텍 등 사이에서 객관적으로 정하여졌다.

******** Company was listed on September 12, 2008, which was the date of the resolution to issue the bonds of this case, and had been listed on October 1, 2007, when the stock price of this case was 38,000, which was at the time of listing, was not in a state where the stock price of this case was continuously lowered to 7,740 won on September 11, 2008, which was before the date of the resolution to issue the bonds of this case, and rather, it was rather in a state where the stock price of this case was likely to have been reduced to 7,740 won, which was at the time of the resolution to issue the bonds of this case, and **** The stock price of this case * was reduced to 6,880 won on September 18, 2008, 208, 200 won was reduced to 20 won on October 24, 2008, 209 again decreased to 15.

(4) On the other hand, ********T has issued the bonds of this case to raise funds to construct two NAF film mass mass product, but failed as to the mass sale of NPEF films, and the sale of existing products unrelated thereto has been increased, so the plaintiff acquired the bonds of preemptive right that can be exercised at least one year after the issuance of the bonds of this case ********Tex's stock price increase is sufficiently anticipated, there is insufficient ground to readily conclude that the acquisition of the warrant certificates of this case and its exercise of the preemptive right of this case has been sufficiently anticipated. In short, the profits from the acquisition of the warrant certificates of this case and its exercise of the preemptive right of this case are premised on the premise that the plaintiff has been at considerable risk of decline due to the development of the new bonds of this case and the risk of business activities due to the mass stock failure, and it is difficult to conclude that the plaintiff's acquisition of the new stocks of this case** the acquisition of the new stocks and its exercise of the preemptive right of this case** the acquisition of the new stocks and its exercise of the bonds of this case**.

(5) Furthermore, the Plaintiff voluntarily paid gift tax on the preemptive right to new stocks that have been exercised two times, and among them, the time period for filing a request for correction for the first exercise of the preemptive right does not coincide with the appeal. In light of this, it is difficult to deem that the Plaintiff had an intent to unjustly avoid the original gift tax on the Plaintiff. In addition, even though the Plaintiff *********Tex’s share price has increased, the Plaintiff still holds shares not due to the exercise of the instant preemptive right but has decreased so far, and ***TT is already listed companies, and the Plaintiff, the largest shareholder, has no reason to acquire shares for the purpose of obtaining listed profits by raising its share ratio.

3. Supplement and addition of judgments;

피고는 다음과 같은 취지로 주장한다. 원고가 이 사건 신주인수권증권을 행사하여 주식으로 전환하고 얻은 이익은 구 상속세및증여세법 제42조 제1항 제3호의 '전환사채 등에 의한 주식의 전환 등 법인의 자본을 증가시키거나 감소시키는 거래로 얻은 이익'에 해당한다. 나아가 원고가 분리된 신주인수권증권을 독점 매수한 점, &&&증권이 @@은행으로부터 신주인수권증권을 1매당 2,100만 원에 매수하고도 원고에게 1매당 1,600만원에 매각함으로써 손실을 입은 점, 그 손실을 ****텍이 거액의 수수료 지급을 통

In light of the fact that the gift tax is preserved and preserved, it cannot be deemed that there is a justifiable reason for the transaction practices.Therefore, the Plaintiff is obligated to pay gift tax pursuant to Article 42(1)3 of the former Inheritance Tax and Gift Tax Act. Article 42(1) of the former Inheritance Tax and Gift Tax Act provides, “In cases where any of the following profits, other than the donations under Articles 33 through 39, 39-2, 39-3, 40, 41, 41-3 through 41-5, 44 and 45, is profits above the standard prescribed by Presidential Decree, it shall be deemed to be the value of donated property of the person who has acquired such profits:

In the case of conversion, acquisition, exchange, etc. of stocks with convertible bonds, etc. under Article 40(1) (hereafter referred to as "stock conversion, etc." in this Article), profits acquired from the transactions of increase or decrease of the corporation's capital (including the amount of investment). In this case, such profits shall be the value calculated by subtracting the value of stock conversion, etc. from the value of stocks as at the time of stock conversion, etc. in

Article 42(3) of the Inheritance Tax and Gift Tax Act provides that “Where there are justifiable reasons for transaction between parties who are not specially related persons,” Paragraph (1) shall not apply. Article 42(1) of the Inheritance Tax and Gift Tax Act provides that where a transaction partner transfers gains from the acquisition of preemptive rights and the exercise thereof to the other party, without compensation, through abnormal means, the legislative intent of the said transaction partner lies in coping with variable gift acts and promoting fair taxation. However, it is an exceptional situation that allows the other party to obtain gift benefits while waiving the opportunity for the transaction between the unrelated parties to obtain benefits in general and easily.” As such, Article 42(3) of the Inheritance Tax and Gift Tax Act provides that if the transaction between the parties who are not specially related parties to the transaction to the transaction to the extent that there are no reasonable reasons to believe that there are reasonable reasons for the transaction between the other party to the transaction and the other party to the transaction, or that there are no reasonable reasons to believe that there are no legitimate reasons to view that there are no legitimate reasons to believe that there are no legitimate reasons for the transaction terms and conditions between the two.

Considering the aforementioned factual background and the following facts and circumstances that can be acknowledged by the entry of Gap evidence Nos. 3, 4, and 5 and the purport of the entire pleadings, the Plaintiff’s acquisition of warrant certificates of this case does not seem to have any justifiable ground for transactional practice.

○ At the time of the issuance of the instant bonds with warrants, *****T's share price has continuously fallen, and in the situation where investment in derivatives (KIK) is expected to incur a big loss, a reasonable choice was to obtain a fixed margin of transfer by selling them immediately rather than holding preemptive rights at the risk of risk of stock price fluctuation.

○ & & & & 4 copies of warrant certificates are found to have purchased them, but the remaining 16 copies are difficult to find a purchaser, and the Plaintiff, the largest shareholder, is required to acquire them.

had been.

According to the details of sale of preemptive rights on the date of issuance by a financial institution that acquired bonds with warrants through private placement from July 1, 2009 to November 30, 201, which was confirmed through the electronic publication system of the Financial Supervisory Service, commercial banks sold 59 out of 64 cases (92.2%) to related parties such as the largest shareholder on the date of issuance of preemptive rights.

○○ & & & & & securities sold the warrant certificates to the Plaintiff at KRW 36 million ( KRW 21 million per sheet) and sold to the Plaintiff KRW 256 million per sheet ( KRW 16 million per sheet), resulting in a loss in the sale of KRW 80 million, ***** by receiving the bond issue fee of KRW 90 million from tex, thereby gaining profits of KRW 10 million.

○ 결국, ****텍에 자금 조달의 필요성이 발생하자, ****텍은 저비용으로 자금을 조달하고, @@은행은 시중금리 이상의 수익을, &&&증권은 사채발행수수료를 확보하며, ****텍의 최대주주였던 원고는 개인 재산을 투입하여 회사의 긴급한 자금 조달에 기여한 것으로 보인다.

4. Conclusion

If so, the plaintiff's claim will be accepted on the ground of its reasoning. The judgment of the first instance court, which different conclusions, is unfair, so the judgment of the first instance is revoked, and the disposition of this case