Cho High Court Decision 2009Du2104 (No. 17, 2009)

Whether unlisted stocks constitute grounds for rejection of an application for payment in kind.

(1) Unlisted stocks have become unusable at a considerable price due to the fluctuation in the market price at the time of application for payment in kind. It is reasonable to deem that the management of the property subject to payment in kind, which is the reason for refusal of application for payment in kind, is inappropriate.

2010Nu30873 Revocation of Disposition, etc. of Imposition of Gift Tax

Gyeong-gu

O Head of tax office

1. The plaintiff's appeal is dismissed.

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

In the first instance judgment, the decision shall be revoked. In the first instance judgment, the imposition of KRW 600,214,100 on September 7, 2005 against the plaintiff on February 2, 2009 shall be revoked. In the first instance, the disposition rejecting an application for payment in kind made by the defendant against the plaintiff on March 12, 2009 shall be revoked.

1. Quotation of judgment of the first instance;

The reason for this court's opinion concerning this case is that it is difficult for the first instance court to see "the first instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's judgment's second instance court's second instance court's second instance court's judgment's statement is insufficient to recognize the above transaction value as an objective exchange price. The plaintiff's new argument in the first instance court's first instance court's second instance court's second instance court's second instance court's second instance court's second instance court's second instance court's judgment

2. Determination on the Plaintiff’s additional assertion in the trial room

A. The plaintiff's assertion

After its establishment on August 3, 2001, the sales revenue in the year 2002 was 2.65 million won, and the sales revenue in the year 2003 was 5.4.3 million won, but the sales revenue in the year 2004 sharply increased to 9.493 million won, which constitutes a case where the normal sales revenue in the major business type under Article 17-3 (1) 7 of the Enforcement Rule of the Act is less than three years in the normal sales occurrence period. This constitutes a case where it is unreasonable to apply the weighted average of the net profit and loss in the last three years per share to the value under Article 56 (1) 1 of the Enforcement Decree of the Act, due to a sudden increase in the net profit and loss in the last three years by a temporary contingency case.

"Therefore, even though the value of the non-party company's stock transaction between the Kim Z of September 4, 2005 and the NewYY, and HaW cannot be viewed as an objective exchange price formed by free and normal transaction between many and unspecified persons, the assessment price per share of the stock of this case should be calculated based on the average value of presumed profits per share under Article 56 (1) 2 of the Enforcement Decree of the Act according to the evidence No. 21 of the Act, which assessed the market price of the stock of this case as "the average value of estimated profits per share under Article 56 (1) 2 of the Enforcement Decree of the Act". However, even though the assessment price per share of this case should be calculated based on the appraisal price prior to the increase in the capital of this case (131,180 won) and the appraisal price after the increase in capital (11,20 won), the assessment price per share of this case shall be calculated according to Article 56 (1) 1 of the Enforcement Decree of the Act."

In order to assess the value of the stock in this case as the average value of the estimate interest per share under Article 56 (1) 2 of the Enforcement Decree of the Act, it is unreasonable for the corporation concerned to calculate the value of the stock in this case on the basis of the value under subparagraph 1 of Article 17-3 (1) of the Enforcement Rule of the Act due to the reason that the net profit and loss for the last three years is abnormal increase in the amount of the profit and loss in the case of temporary contingency, etc. In addition, Article 17-3 (1) 7 of the Enforcement Rule of the Act provides that "the case where the normal sales period is less than three years in the major business (referring to the business which is the largest in the value of the tangible fixed asset directly used in the business operated by the corporation)." Although the sales amount in this case increased in 204 years compared to the sales amount for the year 202 and 2003, such fact alone does not constitute a normal sales, and there is no evidence to find otherwise that the normal

On the other hand, in order to assess the value of the stock in this case as the average value of the presumed interest per share under Article 56(1)2 of the Enforcement Decree of the Act, the standard value of the presumed interest per share and the date of preparation of the assessment report under Article 68 of the Act can be assessed as the average value of the presumed interest per share only if the date of calculation and the date of donation belong to the same year within the deadline for filing the assessment report. The plaintiff did not report the tax base of gift tax, and the date of preparation of the evidence No. 21 (Appraisal Report) No. 21 (O. 26 October 26, 2010) does not belong to the above deadline for filing the assessment report. Thus, the market value of the stock in this case is not the average value of the presumed interest per share under Article 56(1)2 of

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is with this conclusion.

Therefore, the plaintiff's appeal is dismissed.