Early High Court 201J 1797 (Law No. 16, 2011)

Gift tax taxation is legitimate because the allocation by deemed recruitment does not include the allocation by deemed recruitment.

In light of the actual number of shares allocation, there is no evidence to acknowledge that the number of persons who have been solicited to subscribe in accordance with the empirical rule is estimated to be more than 50 persons, and it cannot be deemed that they had undergone the procedure of 'invitation to subscribe' in the Securities and Exchange Act, and that the gift tax disposition is legitimate because it does not include the deemed allotment by the

2012Guhap2444 Revocation of Disposition of Imposing gift tax

KimAAAA

port of origin

May 9, 2013

June 13, 2013

1. All of the plaintiff's claims are dismissed.

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

The Defendant’s imposition of KRW 000 of the gift tax on June 28, 2007 and the gift tax on February 7, 2011 against the Plaintiff on February 21, 2007, each disposition of KRW 000 of the gift tax on February 21, 2007, which was made by the Plaintiff on February 8, 201 (the date of the disposition written in the written complaint seems to be written in writing).

1. Details of the disposition;

(1) ① On February 21, 2007, the Plaintiff participated in the third party allotment method of BBD 20 (BB 1) and acquired 3,210 won per share, and ② acquired 30 and 200 shares under the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20100, Dec. 31, 2007; hereinafter referred to as “CC”) at 00,000 won for each of 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20.

D. According to the decision of the Tax Tribunal on the re-audit, the defendant prepared a re-audit report stating that "BBdifa and CCC agent did not allocate each of the new shares of this case according to the method of public offering of new shares under the Securities and Exchange Act" and that each of the dispositions of this case originally imposed was legitimate at that time, and thereafter, the plaintiff passed the results of the re-audit at that time.

[Grounds for Recognition] The non-contentious facts, Gap evidence 1, Eul evidence 1, and 2 (including each number), and evidence 3, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Each disposition of this case shall be revoked on the grounds that it is unlawful for the following reasons.

(1) Violation of the principle of trust protection.

In the policy consideration of promoting the business environment, the Defendant did not impose gift tax for five years with respect to the increase in the market price by allocating shares at low price to a third party, and thus, it should be deemed that the non-taxation practice was formed, and there is no reason attributable to the Plaintiff who trusted the practice, and each of the dispositions of this case by the Defendant who neglected the Plaintiff’s trust violates the principle of protecting trust under Article 18(3) of the Framework Act on National Taxes.

(2) Allocation of new shares by means of public offering of new shares

(1) The number of persons who are to be allocated new shares issued by BBD shall be 31 persons, and those who are to be allocated new shares issued by CCC 2 shall be presumed to be 50 persons or more, taking into account that 45 persons, and Article 2-4 (3) of the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 20947, Jul. 29, 2008; hereinafter the same shall apply) provides that in calculating the number of 50 persons under paragraphs (1) and (2) of Article 2-4 of the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 20947, Jul. 29, 2008; hereinafter the same shall apply), the former Enforcement Decree of the Securities and Exchange Act provides that "the number of persons who have been solicited to subscribe for new shares issued by BBD 30, and those who have been solicited to subscribe for new shares shall be excluded from 30,000,00 among 4,07,0

(3) The Act on the Imposition of Additional Taxes

As seen above (1) The Plaintiff did not report the gift by trusting the tax-exempt practices of the tax authorities, and the provision of deemed recruitment regulations under the statutory system also applies to Article 39(1)1 (a) and (c) of the former Inheritance Tax and Gift Tax Act, and there are justifiable grounds for the Plaintiff to have failed to report and pay gift tax, and thus, the imposition of penalty is illegal.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the principle of trust protection is violated

The practice of non-taxation under Article 18(3) of the Framework Act on National Taxes refers to a wrong interpretation or practice that is accepted by a general taxpayer who is not a specific taxpayer as just and without any objection to the extent that it is not unreasonable for the taxpayer to trust such interpretation or practice (see, e.g., Supreme Court Decision 2007Du19294, Apr. 15, 2010). In order to establish non-taxation practice, there are objective facts that have not been taxed over a considerable period of time, and the tax authorities should have the intention not to impose taxes due to any special circumstances while knowing that they can impose taxes on the matter, and such public opinions or opinions should be expressed explicitly or explicitly, and in order to indicate that there is an implied omission, there is no need to view that the tax authorities expressed that they would not impose taxes on the state of non-taxation for a considerable period of time, unlike mere omission of taxation, there is no more objective evidence that the Plaintiff did not impose gift taxes on the remaining portion of the Plaintiff’s stocks or non-taxation method.

(2) Determination as to the assertion that the issuance of new shares constitutes a public offering of new shares

(A) Article 39 (1) 1 (a) and (c) of the former Inheritance Tax and Gift Tax Act provides that where a corporation issues new stocks at a price lower than the market price of the new stocks in order to increase its capital, a person who is not a shareholder of the corporation concerned shall levy gift tax by deeming the amount equivalent to such profits as the value of the property donated to the person who has acquired such profits. However, where a stock-listed corporation or Association-registered corporation under the Securities and Exchange Act allocates new stocks by means of public offering of securities under Article 2 (3) of the Securities and Exchange Act, and Article 2 (3) of the former Securities and Exchange Act provides that "in case where a corporation issues new stocks at a price lower than the market price of the new stocks, it shall not include those who have received new stocks through public offering of new stocks." Article 2-4 (1) of the former Enforcement Decree of the Securities and Exchange Act provides that "not less than 50 persons who have received new stocks from the date of solicitation or solicitation of new stocks through public offering of new stocks shall be excluded from those who have been invited to acquire or sold securities by the same type of securities in question.

(B) Article 39(1)1 (a) and (c) of the former Inheritance Tax and Gift Tax Act provides that where a corporation issues new stocks at a price lower than their market price to increase its capital, the person who receives allocation shall obtain profits equivalent to the difference between the market price, and include the considerable amount of such profits in the value of donated stocks, while excluding allocation of new stocks through the method of public offering under the Securities and Exchange Act, and where new stocks are offered through public offering pursuant to the procedures of public offering under the relevant Acts and subordinate statutes, such as the Stock Exchange or Association-registered corporation, even if they are issued at a discount, it shall be exempt from the imposition of gift tax if they are to be purchased, and it shall be deemed that the new stocks are to be issued at least 10 new stocks for the purpose of protecting the general public and third parties’ investment, and that it is reasonable to view that the issuance of new stocks is to be excluded from the issuance price of new stocks under Article 9(1) of the former Enforcement Decree of the Securities and Exchange Act for the purpose of preventing the issuance of new stocks at least 9(3).

(C) We examine the instant case in light of the aforementioned legal principles.

First of all, there is no evidence to support the plaintiff's argument that the number of persons who were solicited to subscribe in accordance with the empirical rule is presumed to be 50 or more in light of the number of actual shares allocation, and that there is no evidence to support that the number of persons who were recommended to subscribe in accordance with the empirical rule is presumed to be 50 or more.Second, according to the plaintiff's argument ② according to the health stand and Eul evidence Nos. 4 and 5 (including each number), and each of the new shares allocation at the time of the allocation of new shares in this case, the new shares allocation is finally selected as the largest shareholders and individual investors who want to make investments in BBBD and CCC, and the fact that the new shares were subscribed and allocated through individual notification to the relevant persons, and there is no evidence to support that BBBDD and CCC TraBBD had gone through the 'in solicitation of subscription' under Article 2-4 (5) of the former Enforcement Decree of the Securities and Exchange Act at the time of the allocation of new shares in this case. Lastly, the plaintiff's argument need not be included in this part.

(3) Whether the imposition of penalty tax is illegal

In order to facilitate the exercise of taxation rights and the realization of tax claims, taxes under tax law are administrative sanctions imposed as prescribed by the Act in cases where a taxpayer violates various obligations, such as reporting and tax payment, without justifiable grounds, and the taxpayer's intentional and negligent acts and negligence, and the sites and mistakes of laws and subordinate statutes shall not be considered, and the taxpayer shall not be subject to justifiable grounds for not violating his/her duty (see, e.g., Supreme Court Decisions 99Du3515, Aug. 20, 199; 2002Du10780, Jun. 24, 2004). In addition, there is no evidence to acknowledge that there was a non-taxable practice of the tax authority as alleged by the Plaintiff, and even in cases where Article 39(1)1 (a) and (c) of the former Inheritance Tax and Gift Tax Act, even if the Plaintiff trusted that Article 39(1)1 (a) and (c) of the former Inheritance Tax and Gift Tax Act applies to the Plaintiff, and this part of the Plaintiff's assertion is also groundless.

3. Conclusion

Therefore, the plaintiff's claim is dismissed in entirety as it is without merit. It is so decided as per Disposition.