Changwon District Court 201Guhap2802, 05.17

Cho High Court Decision 2010Du2949 ( October 31, 2011)

There is a justifiable reason that is not attributable to the failure to pay the gift tax on the listed marginal profits.

It is reasonable to interpret that a person with a special interest applies not only to the new stocks that are donated by the largest shareholder or acquired with compensation from the corporation concerned, but also to the new stocks with compensation. It is reasonable to deem that there is a justifiable reason that it is not attributable to the negligence of paying gift tax on

(C)The revocation of the disposition imposing gift tax

- Appellants

Chapter AAAA

Head of Changwon Tax Office

Changwon District Court Decision 201Guhap2802 Decided May 17, 2012

May 9, 2013

June 13, 2013

1. The plaintiff's appeal and the defendant's appeal are all dismissed.

2. The costs of appeal shall be borne by each party.

3. Paragraph 1 of the judgment of the court of first instance is revoked on July 7, 2010 by the Defendant exceeding KRW 000 of the disposition of imposition of gift tax of KRW 000,000, which the Plaintiff on July 1, 2010, the part exceeding KRW 000, out of the disposition of imposition of gift tax of KRW 000, which the Defendant imposed on the Plaintiff on July 1, 2010, shall be revoked," and the part exceeding KRW 1/3 of the disposition of imposition of gift tax of KRW 000, which was corrected to

And Appellate paper

1. Purport of claim

The Defendant’s disposition on July 1, 2010 (the 2000 won disposition on July 7, 2010, the 2010 of the 200 won of the gift tax imposed on the Plaintiff on July 1, 2010) is revoked. The part exceeding KRW 000 of the disposition on imposition of KRW 000 of the gift tax and the part of the disposition on imposition of penalty tax exceeding KRW 000 of the penalty tax is revoked.

2. Purport of appeal

A. Plaintiff: The part against the Plaintiff falling under the order to revoke under the judgment of the first instance court shall be revoked. The part exceeding KRW 000 of the disposition imposing gift tax on the Plaintiff on July 1, 2010, which the Defendant issued on July 1, 201, shall be revoked.

B. Defendant: The part against the Defendant in the judgment of the first instance shall be revoked, and the Plaintiff’s claim corresponding to the revoked part shall be dismissed.

1. Details of the disposition;

A. The Plaintiff was an employee of BB BB (hereinafter “BB”), and on December 8, 2004, acquired 3,000 shares issued by BBB of the unlisted company at the time of time from the reductionCC, who was the largest shareholder, etc. under Article 41-3(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “former Inheritance Tax and Gift Tax Act”).

B. On December 22, 2005, the Plaintiff acquired 750 shares out of the capital increase issued by BB (hereinafter “instant shares”) at KRW 000 per share, the face value of which is 750 shares.

C. BB around July 1, 2007, at the par value of 500 won per share, listed at the KOSDAQ market on January 25, 2008, and thereafter the Plaintiff’s shares increased to 37,500 shares due to the above par value division (However, in this case, it shall be stated as the number of shares before the split of shares for convenience).

D. The Busan regional tax office conducted an integrated tax investigation with respect to BB from August 10, 2009 to September 30, 2009, imposed a gift tax of KRW 000 and additional tax on KRW 000,000, which was originally acquired stocks, and did not impose gift tax on the Plaintiff regarding the profits arising from the listing of the current stocks.

E. On January 25, 2010, the Board of Audit and Inspection issued a request to audit the business of the Busan Regional Tax Office to impose a tax on KRW 000,000 on the profits accrued from the listing of the instant valuable shares for consideration, and on July 1, 2010, the Defendant issued a disposition to correct and determine the gift tax amount of KRW 00,00, including the profits accrued from the listing of the instant shares for consideration, to the Plaintiff at KRW 000,00, and the additional tax on the gift tax amount of KRW 000,00,000, increased (hereinafter “the disposition of this case, including the increased imposition of gift tax and additional tax”).

F. On September 17, 2010, the Plaintiff dissatisfied with the instant disposition, brought an appeal with the Tax Tribunal on September 17, 201, and the Tax Tribunal dismissed the said appeal on June 30, 201.

[Based on Recognition] Facts without dispute, Gap evidence 1, 2, and Eul evidence 1 and 2

2. Whether the instant disposition is lawful

A. The plaintiff's assertion is as follows.

1) Article 41-3(6) of the former Inheritance Tax and Gift Tax Act should be interpreted to apply only to the shares that are donated or acquired by the largest shareholder, etc., and to the extent that it does not apply to the shares that are received for consideration. Therefore, imposing gift tax on the shares that the Plaintiff acquired from BB based on the initial shares that the Plaintiff acquired from C, is unlawful.

2) Under Article 41-3(1) and (6) of the former Inheritance Tax and Gift Tax Act, the legislative purpose of Article 41-3(6) of the former Inheritance Tax and Gift Tax Act is to be fulfilled by excessively imposing marginal profits from listing on the stocks whose capital has been increased for consideration. Thus, it is contrary to the principle of prohibition against taxation under the Constitution by infringing the appropriateness of the means, the minimum damage, and the balance of the legal interests, and (2) it is possible to know that the value of donated was 5 years or more after the initial date of donation, and the amount of the gift tax is unconstitutional. Therefore, the taxpayer’s legal stability and predictability are infringed, and the profits from the listing are calculated by deeming the donated stocks as the value of donated stocks at the price after the listing, not the gift tax is imposed on the profits from the listing, but the method of imposing gift tax is to ensure that the gift tax is calculated retroactively from the date of acquisition of the donated stocks at the price after the listing, and it is contrary to the principle of no taxation requirement of no taxation requirement, and that three (3) shares are imposed on the same kind of outstanding stocks for consideration.

3) On August 10, 2009, the Defendant conducted a tax investigation on BB, but did not impose gift tax on the exchange marginal profits of the instant new stocks, and on January 25, 2010, imposed tax according to the opinion of the Board of Audit and Inspection after being pointed out by the Board of Audit and Inspection, and whether to impose gift tax on the exchange marginal profits of the stocks issued with new stocks constitutes a conflict of tax view among the tax authorities. Therefore, since the Plaintiff cannot be expected to believe from the beginning that the listing marginal profits of the instant new stocks are subject to taxation, it cannot be expected that gift tax is new and paid, and therefore, the additional tax portion among the instant disposition is unlawful. Although the Plaintiff’s failure to pay the gift tax on the exchange marginal profits of the instant new stocks with new stocks with new stocks with new stocks with the knowledge that it is subject to taxation from the beginning, there is a justifiable reason for the Plaintiff’s failure to pay the gift tax on August 10, 2009, and the Defendant notified the wrong tax investigation result that was not subject to taxation.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination on the part of the Plaintiff’s assertion

1) The Inheritance Tax and Gift Tax Act amended by Act No. 7010 of Dec. 30, 2003, and the revised gift tax had provisions on the agenda of donation in addition to the general donation premised on the contract between the parties as the object of taxation prior to the amendment, but the new type of gift not listed above was introduced as a complete comprehensive principle, such as imposing gift tax if the type of taxation is not listed daily but is de facto gratuitous transfer of property, and converting the regulation on deemed donation into the example of calculating the value of donated property, and converting the regulation on deemed donation into the example of calculating the value of donated property. Article 2(3) of the same Act, and the term "donation" includes the transfer of tangible or intangible property which can calculate economic value, regardless of its name, form, purpose, etc., without compensation, by direct or indirect means (including transfer at a remarkably low price) or by indirect means, which increases the value of another person's property, and the provision was newly established and applied to a transaction between the parties directly or indirectly through a third party or through a third party.

2) The legislative intent of Article 41-3 of the former Inheritance Tax and Gift Tax Act, and Article 41-3 of the former Inheritance Tax and Gift Tax Act, where the largest shareholder, etc., donates or transfers unlisted stocks to a related party, such as his/her children, for the purpose of obtaining enormous profits from the listing of the securities market, using inside information that is not disclosed to the public on the business management, and where the corporation imposes gift tax on the profits increased by the listing of stocks for the purpose of preventing the change of large amount of assets from taxation and transfer of the listed marginal profits, the former Inheritance Tax and Gift Tax Act (amended on December 18, 2002), and Article 41-3(6) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 61-3 of the former Inheritance Tax and Gift Tax Act). In other words, it is intended to impose gift tax on the specially related party, which is subject to the amendment of Article 41-3 of the former Inheritance Tax and Gift Tax Act, even if the largest shareholder, who is deemed to use information on the business management of the corporation, is subject to taxation.

3) In full view of the following circumstances, it is reasonable to interpret that Article 41-3(6) of the former Inheritance Tax and Gift Tax Act does not apply only to the number of free new stocks that are given by the relevant corporation on the basis of the stocks donated to or acquired with compensation from the largest shareholder, etc. by the relevant corporation,

(1) In applying the provisions of Article 41-3(6) of the former Inheritance Tax and Gift Tax Act, "in the application of the provisions of paragraph (1), the acquisition of stocks shall include new stocks acquired and allocated by the corporation through the issuance of new stocks in order to increase its capital (including the amount of investments)." Thus, the provisions of paragraph (1) of the same Article shall apply regardless of whether new stocks are shares with or without consideration, and whether new stocks are made by the method

② The gift tax is imposed with regard to the transfer of listed gains under the former Inheritance Tax and Gift Tax Act, although the same is different in the case of gratuitous capital increase and capital increase, and the fact that the listed gains arising from each capital increase are transferred to the specially related person.

③ In light of the fact that the so-called complete comprehensive taxation has been declared since the amendment on December 30, 2003, and that Article 41-3(6) of the former Inheritance Tax and Gift Tax Act must be interpreted in line with the purport of the amendment above, it is reasonable to interpret the above provision as imposing gift tax by evaluating that all gains from the listing of new stocks issued by the corporation from the largest shareholder, etc. are donated or acquired by a specially related person from the largest shareholder, etc., and the funds have been donated from the largest shareholder, etc., and on the basis of the stocks acquired by a person other than

(4) If it is interpreted that Article 41-3 (6) of the former Inheritance Tax and Gift Tax Act applies only to new stocks without compensation, a person with special interest may be exempted from imposing gift tax on capital increase with capital increase at a significantly low price.

⑤ Since the language and text of Article 41-3(6) of the former Inheritance Tax and Gift Tax Act includes the fact that the issuer of the vessel is a corporation (the fact that the vessel acquires shares from a corporation), it is reasonable to view that the provision is inconsistent with the foregoing and that the provision is not applicable to the largest shareholder.

(6) In calculating profits from the substantial increase in corporate value, Article 31-6(5) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and Article 10-4(1) of the former Enforcement Rule of the Inheritance Tax and Gift Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 74 of Apr. 23, 2009, hereinafter the same shall apply) provides that the total amount of net profits and losses per share shall be calculated as net profits and losses for the purpose of assessing unlisted stocks, and in calculating the listed gains from the stocks directly donated by the largest shareholder, even if there is a change in corporate value due to capital increase in the relevant corporation during the period from the date of donation to the date of listing, it shall be deemed that the above method is the same to calculate the net profits and losses per share, and it shall not be deemed that Article 31-6(3) through (5) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act does not include the stocks acquired as a certificate of reason under Article 41-3(6)

B. Determination on the part of the Plaintiff’s assertion

1) As seen earlier, Article 41-3 of the former Inheritance Tax and Gift Tax Act provides that, where the largest shareholder, etc., donated or transferred the unlisted stocks to a special official accountant’s words prior to listing, etc., and where the largest shareholder, etc., transfers the unlisted stocks with compensation, not only the stocks themselves but also the stocks that the largest shareholder has donated, and that have been transferred for consideration, as well as the stocks that the largest shareholder has acquired by paying the consideration (the price for acquisition of new stocks) shall be the consideration for the stocks itself, but not the consideration for the listing marginal profits. In cases where the largest shareholder, etc. received the listing marginal profits above the standard prescribed in the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the substance of the taxation on the listing marginal profits is the same as where the former receives the stocks from the largest shareholder, or where the stocks are received through the increase or increase of stocks without compensation, and Article 41-3(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act limits the scope of the donee’s stocks to the extent that the stocks are not available to the largest shareholder, etc.

2) The taxation requirement under Article 41-3 of the former Inheritance Tax and Gift Tax Act provides that ① a person having a special relationship with the largest shareholder, etc. of an unlisted corporation shall either donate or acquire stocks of the unlisted corporation for consideration from the largest shareholder, etc.; ② the relevant stocks shall be listed within five years from the date of donation or acquisition; ③ a person having a special relationship shall obtain profits above the standard prescribed under Article 31-6 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act due to an increase in the value of stocks under the listing. Therefore, all taxation requirements are satisfied only when profits are acquired from the listing of stocks; and Article 41-3(2) of the former Inheritance Tax and Gift Tax Act provides that the value of donated stocks and the amount of gift tax shall be calculated on the basis of the settlement base at the time when three months have passed from the date of listing. Article 41-3(1) of the former Inheritance Tax and Gift Tax Act provides that the amount of gift tax shall be calculated on the profits under the listing under Article 31-6 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the amount of the gift tax shall be calculated in addition to the profits under Article 3(3).

3) In addition, Article 41-3 of the former Inheritance Tax and Gift Tax Act is subject to taxation, and only after the listing is actually made, the size of the benefit can be assessed properly, and it cannot be deemed that there is discrimination without any reasonable reason or contrary to the principle of ability to pay.

4) Therefore, Article 41-3(6) of the former Inheritance Tax and Gift Tax Act cannot be deemed as unconstitutional in violation of the Constitution against the principle of excessive prohibition, the clear indication of taxation requirements, and the principle of tax equality and response ability burden, and the plaintiff's assertion is without merit.

C. Determination as to the Plaintiff’s assertion No. 2-A. 3

1) Additional tax under tax law is an administrative sanction imposed under the conditions as prescribed by individual tax law in order to facilitate the exercise of taxation rights and the realization of tax claims where a taxpayer violates all kinds of obligations, such as a return and tax payment, without justifiable grounds, and it is unreasonable for the taxpayer to be unaware of his/her obligations, and thus, it is unreasonable for the taxpayer to be able to be informed of such obligations, or to expect the party to perform such obligations, etc. If there are justifiable grounds for not being able to cause the breach of his/her obligations (see Supreme Court Decision 2003Du4089, Apr. 15, 2005), it may be exempted from imposition (see Supreme Court Decision 2003Du4089, Apr. 15, 200), and it is extremely difficult to interpret tax laws that are subject to regulation, and thus, it constitutes a violation of tax law of 200Du4054, supra. In such cases, the taxpayer cannot be deemed to constitute a violation of tax law of 209Du294565, supra.

2) After the Busan regional tax office conducted a tax investigation on BB B B from August 10, 2009 to September 30, 2009, the Plaintiff was aware that the Plaintiff acquired the stock for consideration, and the Plaintiff did not impose a gift tax on the profits from the listing of the stock for consideration. In addition, according to Gap 3 and 4, the public official of the Busan regional tax office in charge of the listing of new stocks for consideration at the time of the above tax investigation can find that the Plaintiff did not impose a gift tax on the stock for consideration. In light of the above facts, it is unreasonable to believe that the Plaintiff, who is the taxpayer, is not liable to pay a gift tax on the stock for consideration because it is difficult to deem that there is no reason to believe that the Plaintiff is not obligated to pay a tax on the listed profits due to trust of the results of the Busan regional tax office's tax investigation, and the Plaintiff cannot be deemed as a mere misunderstanding of laws and regulations, and there is no reason to view that there is a conflict between the above other laws and regulations.

3) Therefore, the part of the disposition of this case exceeding KRW 000 among the disposition of this case is unlawful, and the plaintiff's assertion is with merit.

3. Conclusion

If so, the plaintiff's claim in this case is reasonable within the above scope of recognition, and the remaining claims should be dismissed for lack of reason. Since the judgment of the court of first instance is just, the appeal of the plaintiff and the defendant is dismissed for lack of reason, and the part exceeding 00 won out of the disposition of gift tax of 000 won imposed on the plaintiff on July 7, 2010 by the defendant "(1) of the judgment of the court of first instance is revoked." The part exceeding 000 won out of the disposition of imposition of penalty tax of 00 won imposed on the plaintiff on July 1, 2010 is revoked. Since the part of the disposition of 1/3 of the disposition of imposition of penalty tax of 00 won as gift tax imposed on the plaintiff on July 1, 2010 is clearly a clerical error of 2/3 "," it is decided to correct it, and it is so decided as per Disposition.