Part of the management right is transferred to the Plaintiff without compensation by acquiring shares.

It is reasonable to deem that the Plaintiff transferred part of the management right without compensation by allowing the Plaintiff to acquire the shares of the instant company in full view of the fact that no gift tax is imposed on the shares that may result in unreasonable consequences contrary to the substance over form principle.

2013Guhap6169 Revocation of Disposition of Imposition of Gift Tax

United Kingdom A

The Director of Gangnam District Office

September 13, 2013

November 1, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of gift tax OOO on November 1, 2010 against the Plaintiff is revoked.

1. Details of the disposition;

A. On June 14, 2007, OB, the Plaintiff’s wife, entered into a contract for DaD and acquisition of management rights (hereinafter “instant contract”).

B. On June 14, 2007, the company of this case decided to hold a board of directors meeting to issue capital increase by the third party allotment method. Accordingly, on July 4, 2007, the company of this case acquired shares 16,124,031 shares (26.41%) of the company of this case, and the plaintiff acquired shares 15,503,876 shares of the company of this case (25.4%) respectively.

C. Under the instant contract, OB paid KRW 15,00,000,000 to AD. Of the above OOE Energy Co., Ltd., OB’s EE Energy (hereinafter “EEE Energy”), OOOB’s deposit, and OOB’s share transfer proceeds respectively.

D. On November 1, 2010, the Defendant determined and notified OOO of gift tax to the Plaintiff (hereinafter “instant disposition”) on the following grounds: “EB and the Plaintiff, while running the instant company, bear only B0,000 management rights, based on the fact that OB acquired management rights at a cost and transferred part of them to the Plaintiff free of charge.”

E. On June 10, 201, the Plaintiff appealed and filed a petition for a trial with the Tax Tribunal on February 1, 201, but the said petition was dismissed on November 27, 2012.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

OB paid OOOO to DaD who was a director of the company of this case and acquired management rights of the company of this case. It is a method for OB to exercise management rights by allowing OB to acquire the shares of the company of this case. Thus, OB's acquisition of shares of this case by 15,503,876 shares of the company of this case constitutes not transfer of management rights but exercise of management rights.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) On June 14, 2007, AB entered into the instant contract with AB, and the main contents are as follows.

Article 1 (Subject Matter of Transfer)

The transferor(DD) transfers all rights, such as management rights, voting rights, authorization and permission rights, and incidental business (hereinafter referred to as "management rights"), to the transferee B(OB), and the transferee will take over them from the transferor A.

Article 2 (Sales Price)

A transferee B shall pay OOO won to the transferor A with the total purchase price for the acquisition of management rights.

(1) Contract deposit: The transferee of the down payment shall be paid in cash to the transferor A not later than June 20, 2007, by June 20, 2007.

(2) The first part: The transferee Eul shall pay the first part of the intermediate payment to the transferor Gap by June 25, 2007, in cash.

(3) The second part: The transferee Eul shall pay the second part of the intermediate payment to the transferor Gap by July 3, 2007.

(4) Any balance: A transferee shall pay the balance in cash to the transferor A by September 28, 2007.

Article 3 (Transfer and Takeover of Management Right)

(1) After the completion of the receipt of the second intermediate payment under Article 2-2, the transferor Party A shall appoint directors and auditors designated by the transferee at the special shareholders' meeting on July 6, 2007.

(2) Upon completion of the receipt of the second intermediate payment under Article 2-2, the transferor Party A is required to submit to the transferee a resignation of the registration director and auditor of the company.

Article 4 (Duties of Transferor)

(1) The transferor A shall make every effort to maintain the normal management status after the conclusion of this contract.

(2) The transferor A shall perform his/her duties as a good manager in connection with a new business promoted by the company (the company in this case) up to the general meeting of provisional shareholders under Article 3.

(3) The transferor A shall faithfully perform the following duties requested by the transferee B in accordance with the regulations, instructions and lawful procedures of the supervisory agency, and all civil and criminal responsibilities or damages arising in connection with them shall be borne by the transferee, and the transferee B or the company in the future shall not file a civil and criminal objection or lawsuit against the transferor A for any reason. In addition, where the transaction under this Agreement is not completed at the timely date, the obligation for restitution shall be deemed to exist to the transferee.

(a) Resolution and public disclosure of the board of directors with respect to the private placement for capital increase (the total amount of OO or more) implemented by the transferee through the third party allocation method;

(b) Executing a contract for joint development with a new project promoted by a transferee;

(c) Indicating documents, signatures or seals to report the administrative affairs of the Republic of Korea or Kazakhstan related to a new project promoted by a transferee;

(4) The transferor A shall make every effort to conduct restructuring promoted by the relevant company at present.

(5) No transferor A shall perform any of the following acts by a company without prior consultation with the transferee B until a special general meeting of shareholders under Article 3 is held:

(a) Dissolution or merger of the company;

(b) Borrowing from a related institution;

(c) Offering or guaranteeing security for a third party;

(d) An act of significantly reducing substantially and unlawfully the substantial assets of a company;

(e) An intentional act detrimental to the legality of the shares subject to this contract or assignment;

(6) The transferor A shall repay the entire amount of the provisional payment and loan to the transferor A by the date of the termination of this contract, and simultaneously cancel the pledge and security created by the company for the transferor A's security for the performance of obligations.

Article 5 (Duties of Transferee)

(1) The transferee B shall be responsible for and implement the following business affairs through the private placement of a third party after the conclusion of this Agreement:

(a) Preparation of a report on capital increase or approval for capital increase in the capital increase;

(b) Response to such supervisory agencies related to capital increase;

(c) Investor and financing related to such capital increase increase;

D. The time of payment completion: July 4, 2007

Article 7 (Conditions for Closing Transactions)

(1) The payment of the total purchase price under Article 2 shall be completed.

(2) A third party allocation method or private placement shall be completed for capital increase with new stocks.

(3) A director or auditor designated by a transferee shall be appointed at a special general meeting of shareholders under Article 3.

Article 8 (General Matters)

1. The comprehensive joint and several sureties responsibilities for the performance and obligations of the assignee B in this contract shall be guaranteed to the Plaintiff A.

2) On June 20, 2007, the instant company entered into a joint development agreement with Fervice LLP and Kazakhstan located in Kazakhstan owned by the Plaintiff.

3) On December 10, 2008, the Plaintiff was investigated as the president of the instant company in a criminal case against KimG and OB on December 10, 2008, and responded to the following purport.

No. : AB is related to the present case.

The answer: The OB made a proposal that the actual amount of money was at his own low address and the management or operation of the money at low price, and the proposal was actually processed with respect to this case, and the OB is at its best risk. Accordingly, the proposal is present.

The text: The person who made the statement stated the purpose and circumstances of the acquisition of the company of this case.

The answer: A company will take over a listed company to promote a new business because it is too difficult to raise funds because it was too difficult to raise funds for EE energy, and the company will participate in the capital increase with capital increase by the third party allocation method on July 2007 and become a major shareholder and take over management rights.

C. : The reason why the representative director was proposed to KimG is the end of the year.

The answer: I propose the representative director, judging that it is a person who may believe and assume on behalf of the author in Korea, as he primarily engages in activities abroad.

The text: EE Energy makes a statement.

The answer: I have the honor to establish B in July 2005 that it was a company in which she is a major shareholder. By the date of 2006, I shall memory as of September 2006 that it was registered after the resignation of the representative director.

(EEE Energy Stocks 3,00,000 per share owned by OB as of July 3, 2007, the decision was made by the Company, who purchased the EE Energy Stocks 3,00,000 per share at OEO.

Note: dated 3, 2007, and dated June 20, 2007, as the condition under which the company acquired the company of this case. The company of this case evaluated EE Energy Stocks and purchased them from the side of the company of this case to the OO.

sentence: (a) On September 5, 2007, the Company decided to purchase 4,000,000 shares of OB in the instant case at OOOB, but the decision was ever required.

The reply: The author and the representative director's present photograph is purchased with the approval of the board of directors.

The text: there is a special reason to purchase EE-Energy stocks from the company of this case where the person who made the statement can exercise the right of management.

The answer: The third success notice was issued around July 2007 in the petroleum mining area in which EE Energy was jointly conducted with Sejong and then the share price increased and the EE Energy shares held by it were sold through appraisal and assessment to the company of this case, judging that the sale of EE Energy shares to a third party would benefit from the company of this case, and thus, would benefit from the company of this case.

4) On December 22, 2008, KimG received an investigation in the above criminal case and responded to the following purport.

Note : It is essential to allocate not less than 31,600,000 shares to the OB and the plaintiff while allocating shares.

The answer: The plaintiff was allocated due to the acquisition of management rights by the plaintiff, and the original OB and the plaintiff should have been allocated the entire amount, but some others were given an opportunity to be allocated some of the desired persons, and the others were also assigned. The contents included in the contract that changed the allocation of third party OO for capital increase with consideration for the acquisition of management rights are included in the contract.

The text: what is the reason why the contract of this case was entered into with DaD.

The reply: It is the acquisition of the Company of this case by the listed corporation rather than the unlisted corporation in order to raise funds to facilitate the business.

: H. H. H. H. H. H. H. H.

I: I have the right of management acquisition at the EEE Energy Stock Sale Price. I have the passbook of OB.

[Ground of recognition] Unsatisfy, entry of evidence Nos. 3, 5, and 6, the purport of the whole pleadings

D. Determination

Article 2 (1) 1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007) provides that "in case where there are donated property as of the date of donation by another person, gift tax shall be imposed on such donated property in accordance with the provisions of this Act," and Article 2 (3) of the same Act provides that "in this Act, the term "donation" means a free transfer (including a case of transferring at a remarkably low price) of tangible or intangible property (including a case of transferring it 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 transferring it without compensation (including a case of transferring it at a remarkably low price)" and Article 31 (1) provides that " donated property pursuant to Article 2 includes all goods belonging to the donee and all goods having economic value that can be realized in money and all de facto or de facto rights having property value".

In light of the above facts, the majority shareholder's management right means the power to exercise management right or to decide the basic policy of the company through the resolution of the general meeting of shareholders. Since shares owned by the controlling shareholder are different from those of other shares, the controlling shareholder has a separate economic value such as management right of the company. ② As such, since shares are generally held by the controlling shareholder, etc. representing the value of the company's own shares and profit-making value, the majority shareholder's special value that can exercise management right or control right of the company, so-called 'Bll' is not a 60% share shares' that were held by the controlling shareholder, etc. were traded at a higher price than the total value of the company's shares, etc. (see, e.g., Supreme Court Order 2002HunBa65, Jan. 30, 2003).

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.