Whether the instant transaction constitutes a gift

In light of the fact that there is no profit earned by the plaintiffs, who are shareholders of the company of this case due to the trade of this case, each disposition of this case imposing gift tax on the plaintiffs by deeming the amount calculated by multiplying the value of donated property by the ratio of shares of the plaintiffs as the profit earned by the plaintiffs, as the value of donated property of

Article 31 of Inheritance Tax and Gift Tax

The revocation of revocation of the imposition of gift tax on Guide District Court 2014Guhap2668

AA

BB Director of the Tax Office

Mar. 17, 2015

April 7, 2015

1. The plaintiff's claim is dismissed.

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

1. Details of the disposition;

A. The plaintiffs are shareholders ofCC Co., Ltd. (hereinafter "the company in this case"). plaintiffs EE hold 30% of the shares of the company in this case, plaintiffs DDR hold 40% of the shares of the company in this case, and plaintiffs Kim Jong-kap own 30% of the shares of the company in this case.

B. On December 30, 2010, the Plaintiffs’ denied FF transferred to the instant company with losses at the time of the transfer of the FF’s claim KRW 10,000,000 to GG Co., Ltd. without compensation. From January 29, 2010 to December 23, 2011, the Plaintiff lent KRW 36,257,751,848 in total to the instant company for 23 times during the period from January 29, 2010 to December 23, 201 (hereinafter “the instant transaction”).

C. As a result of an investigation with respect to the instant company on March 2013, the director of the Central District Tax Office: (a) reported that the Plaintiffs were 2,585,014,695 won (from December 31, 2010 to November 5, 2011) multiplied by the annual interest rate of 8.5%; (b) annual interest rate of 9% per annum; and (c) annual interest rate of 10,000,000 won and 31(6) of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 25195, Feb. 21, 2014; hereinafter referred to as the “former Enforcement Decree of the Inheritance Tax and Gift Tax and Gift Tax Act”); and (d) notified the Defendant of the share ratio of 2,585,695 won (from November 5, 2010 to the annual interest rate of 9,015) calculated by multiplying the Plaintiff’s interest rate of 125,5165,565.

D. Accordingly, the defendant imposed gift tax as stated in the separate disposition list 1 to 3 (hereinafter referred to as "each disposition of this case").

E. On July 29, 2013, the Plaintiffs were dissatisfied with each of the instant dispositions and filed an appeal with the Tax Tribunal on July 29, 2013, but the Tax Tribunal dismissed the Plaintiffs’ appeal on December 19, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, Eul evidence Nos. 1 through 4 (including each number, if any) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) Even though the company of this case made certain profits through the transaction of this case, it cannot be deemed that the plaintiffs, shareholders of the company of this case, obtained profits as a matter of course, and the value of the shares of the company of this case, which are owned by the plaintiffs even after the transaction of this case, still remains in incidental number. Thus, since the transaction of this case was not made for the purpose of distributing profits, and since the plaintiffs do not have any profits actually acquired from the transaction of this case, it cannot be deemed that the transaction of this case constitutes "donation" under the Inheritance Act and Gift Tax Act because there is no profit actually acquired from the transaction of this case. Nevertheless, each disposition of this case, which was merely the donation donation provision, is unlawful by interpreting Article 41(1)1 of the former Inheritance

2) Article 31(6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that a gift tax shall be imposed on a transaction without any profit, thereby violating the purport of Article 41(1) of the former Inheritance Tax and Gift Tax Act that is imposed on a shareholder’s profit for the prevention of tax avoidance. The imposition of gift tax is contrary to the substance over form principle, even if there is no profit to return to the shareholder in the event that the net asset value is incidental to the subsidiary. In the event that a gift is made by shares the market price of which falls short of zero won, it is excluded from the subject of gift tax, and the gift tax shall be imposed even if the shares price after the transaction falls short of zero won.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) Determination as to the assertion that the plaintiffs cannot impose taxes on the grounds that there are no benefits actually acquired.

(1) Article 41 (1) of the former Inheritance Tax and Gift Tax Act provides that "if a shareholder or an investor of a specific corporation makes any of the following transactions with the shareholder or investor, the amount equivalent to such profits shall be deemed the value of donated property of the specific corporation" under subparagraph 1, and Article 31 (6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "if the shareholder or investor obtains such profits, the amount equivalent to such profits shall be deemed the value of donated property of the specific corporation" shall be deemed as "the value of donated property of the specific corporation". Article 41 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "The profits under subparagraph 1 shall be deemed as "the value of donated property of the specific corporation calculated on the basis of the difference between the shareholder and the former and the latter" shall be deemed as "the value of donated property of the corporation calculated on the basis of the increase in the value of shares and the value of donated property of the corporation under subparagraph 1-1, which shall not be deemed as "the value of donated property of the corporation."

2) Determination as to whether Article 31(6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act is unlawful

The purpose of the legislation of Article 41(1) of the former Inheritance Tax and Gift Tax Act is to prevent shareholders of a corporation having a special relationship with the donor from gaining profits without bearing the burden of taxation through donation to a specific corporation whose loss is not subject to corporate tax even if having received the donation of property. ② In the case of closed unlisted corporation, unlike the general listed corporation, it is impossible to calculate the fair price of shares. In fact, shareholders of the unlisted corporation enjoy many intangible benefits such as cost settlement through unlisted company. In light of the circumstances, even if the value per share of the unlisted corporation before and after the donation without compensation is all incidental, it cannot be concluded that there is no profit gained by shareholders of the corporation. ③ As such, Article 41(1) of the former Inheritance Tax and Gift Tax Act or Article 31(6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act does not violate the principle of taxation equal to the ability to pay taxes. In particular, if the plaintiffs hold 10% of the shares of the company of this case as in the case of this case, it is difficult to view that there is a violation of taxation principle of equal taxation or equal taxation.

3. Conclusion

Therefore, the plaintiffs' above assertion is dismissed as it is without merit, and it is so decided as per Disposition.

(c)