Daegu District Court-2013-Gu Partnership-1012 (2014.07.04)

The current market value of shares as of the date of donation applied with the supplementary evaluation method under the Inheritance Tax and Gift Tax Act.

The judgment of the court below has lost the stock value as of the date of donation on the ground that the stock value cannot be known, but the appellate court shall prove the circumstances that the financial statements of the preceding year or the financial statements of the business year to which the date of donation belongs and shall establish the stock value within the scope not exceeding

Articles 60 and 63 of the Inheritance Tax and Gift Tax Act;

Daegu High Court 2014Nu5508

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00 Other 1

Daegu District Court Decision 2013Guhap1012

April 17, 2015

May 15, 2015

1. Revocation of a judgment of the first instance;

2. The plaintiffs' claims against the defendants are all dismissed.

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3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

On June 7, 2012, the director of the EE Tax Office shall grant gift tax on June 7, 2010 to Plaintiff CCC in 2010.

21,892,490 won and 284,56,561 won, and the head of the FF Tax Office’s office on June 1, 2012 against Plaintiff DD on June 1, 2012

Each disposition of KRW 230,896,964 and KRW 57,672,222 of the gift tax attributed to the year 2010 shall be revoked (the plaintiff has reduced the purport of the claim as above in the trial according to the defendants' reduction and correction disposition).

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

(a) GG, BB, AA, and HH are limited to JJ Co., Ltd. (hereinafter referred to as the “JJ”);

(C) GG as a shareholder of GG 13,500, BB 115,900, AAA 58,600, and HH

On January 2, 2009, JJ shares were held by LL, MM, NN, and OO(hereinafter “LL”). On January 2, 2009, 221,000 shares were transferred to LL to 88,400 shares, MM, NN, and OO each of the above shares (hereinafter “the instant sales contract”). A transfer of 44,200 shares was made in the name of the above company’s shareholders registry, such as LL.

B. GGG, BB, and AA also concluded a share sale contract with the effect that GG is to transfer 52,000 shares of each of the above shares to LLLL to 52,00 shares, MM, NN, N, and OO in the name of the shareholders of KK (hereinafter referred to as “K”) and transfer transfer of 26,00 shares in the name of the shareholders’ list of the above company (hereinafter referred to as “the sales contract of this case”).

C. Since then on August 5, 2010, NN and OO transfer 33,150 shares of JJ (10,000 won per share) to the Plaintiffs respectively at KRW 331,50,000, respectively, of the purchase price.

On the same day, LL entered into a contract to sell each share of KRW 195,00 per share (10,000 per share) to the plaintiffs, each of which was transferred to KRW 195,00,000 for each share of KRW 195,00 for each share (the combined contract for each share of KRW 6-1,00,000 for each share of KRW 33,150 for JJ shares and KRW 19,50 for each share of KRW 19,50 for each share of KRW 6-2,00 for each share of this case). Accordingly, each transfer was made in the name of the plaintiffs for each share of KRW 33,150 for JJ shares and KRW 19,

D. Meanwhile, on the other hand, the Daegu regional tax office conducted a tax investigation into J and OOO (hereinafter “instant tax investigation”) from March 15, 2012 to April 11, 2012, and conducted a tax investigation on August 5, 2010, the instant shares transferred before the Plaintiff should be refunded to BB, AA, and HH (hereinafter “BB, etc.”) due to the seller’s cancellation of a sales contract, although the instant shares should be returned to BB, AA, and H (hereinafter “B, etc.”) due to the seller’s breach of contractual obligations, such as LL, etc., the Daegu regional tax office confirmed that there was no sales price, etc. of the nominal shares, and on the grounds that even though the corporation’s settlement of accounts was confirmed, it is impossible to prove the details of the instant shares’ settlement of accounts due to lack of account books and documentary evidence, etc. as of the date of entry into the entry into the ownership of the instant shares.

A. The calculation was made.

E. As a result of the foregoing investigation, the head of Defendant FF Tax Office, on June 1, 2012, determined and notified Plaintiff DD of KRW 255,652,180, and KRW 63,260,660, and Defendant EE EE Tax Office, on June 7, 2012, of KRW 24,705,300, and KRW 313,485,230, respectively.

F. The Plaintiffs were dissatisfied with and filed an appeal. The Tax Tribunal confirmed whether the Plaintiffs’ constructive gift in the title trust was deemed to have been donated, and decided to re-examine the net asset value of August 5, 2010 to re-assessment the stock price by re-auditing the net asset value of the stocks. Accordingly, the Daegu regional tax office re-examines according to the above decision, and notified the Plaintiffs of the fact that the initial investigation was justifiable on February 20, 2013.

G. On April 15, 2013, the Plaintiffs filed the instant lawsuit seeking revocation of the imposition of gift tax for the year 2010, respectively, against the foregoing notification. On July 4, 2014, the court of first instance rendered a judgment accepting all the claims of the Plaintiffs.

H. The Defendants filed the instant appeal on July 30, 2014 when dissatisfied with the judgment of the first instance. On March 4, 2015, the lower court calculated the base value on August 5, 2010 of the instant shares, as follows: (a) Defendant EEE head of the tax office: (b) adjusted the amount imposed on Plaintiff CCC for KRW 24,705,300, KRW 21,892,490, KRW 313,485,230, KRW 284,566,561 to KRW 284,56,561; and (c) the head of the FF head of the tax office reduced the amount imposed on Plaintiff DD from KRW 25,652,180 to KRW 230,964,63,6260,60, and the amount imposed on Defendant EE head of the tax office reduced the amount imposed on the Plaintiff as the gift tax for KRW 26271,267.27.21.

J Stocks: 35,791 won per net asset value (=7,909,754,018 won per share ±221,000 shares ± (hereinafter the same shall apply) 14,50 won per share net profit and loss value 14,50 won per share, 23,046 won (=(35,791 won x 2 + 14,550 won x 3)) ±5];

- KK stocks: 21,425 won per net asset value (=2,785,206,429 won ± 130,000 won per share) 8,050 won net value per share, 13,400 won (=21,425 won x 2 + 8,050 won x 3) ±5)

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 through 4, 10, 18, 19, 24 through 27 (including each number), the purport of the whole pleadings

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

A. The plaintiffs' assertion

1) The Plaintiffs delivered a certificate of seal impression to AA according to the horses of the AA that requires a certificate of seal impression for the promotion of BB, which was under detention. On the basis that AA holds a certificate of seal impression of the Plaintiffs, the Plaintiffs’ seal impression was affixed to the sales contract of this case (3) without the Plaintiffs’ consent. Accordingly, the conclusion of the sales contract of this case and the transfer of the holders of the shares of this case pursuant to the contract of this case, which was made by the unilateral act of AA, are not subject to deemed donation.

2) Even if the title trust of the instant shares was established, the Defendants shall evaluate the value of the instant shares as of August 5, 2010, which was at the time of the title trust, as of August 5, 2010. Moreover, the assets status of JJ and KK has considerably deteriorated on December 31, 2010 compared to December 31, 2009, and neither JJ nor KK has any data remaining due to the business failure due to the depression of the construction competition, the management dispute between former and incumbent management, the frequent replacement of management, and the commencement of the auction procedure. Thus, it is practically impossible to calculate the net assets of the instant company as of August 5, 2010. Therefore, even if it is impossible to calculate the appraised value of the instant shares, the disposal of each of the instant shares should be revoked inasmuch as the assessed value of the instant shares is arbitrarily calculated without objective data, and each of the instant shares should be reverted to the Plaintiffs for the years 2010.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) The details of stock changes between JJ and K K from January 2, 2009 to December 31, 2010 are as follows.

2) Meanwhile, on August 3, 2010, BB agreed with LL on the following terms:

3) On August 9, 2010, JJ held a temporary general meeting of shareholders on August 9, 2010 and made a resolution on appointment of each OO, BB, GG as an internal director and each OO as an auditor (Evidence B, No. 9). On the same day, J completed the registration of appointment of internal director and auditor. On the other hand, the Plaintiffs were appointed as the inside director of KK on the same day and completed the registration of appointment.

4) On December 12, 2011, the Plaintiffs and BB, etc. drafted a written confirmation confirming that the Plaintiffs received title trust from the OO, etc. of the instant shares as follows (No. 8-1-3).

5) AA and BB made the following statements at the time of the instant tax investigation.

6) The assets and liabilities on the balance sheet of each company submitted by JJ and KK at the time of the declaration of corporate tax for 2009 and 2010 are as follows (Evidence B No. 13 and 14). The net profits and losses on January 1, 2010 to December 31, 2010, JJ 417,385,304, KK-347,079,730 won (Evidence B) are shown as follows.

7) Since 2008, JJ and KK were virtually in a state of business closure due to frequent replacement of management due to business depression and managerial dispute, etc. due to a construction competition, and the filing of a complaint or accusation. The JJ completed the report on business closure on March 31, 2013. As of January 9, 2014, KK collected value-added tax of KRW 138,509,030, corporate tax of KRW 739,141,680, corporate tax of KRW 377,647,850, global income tax of KRW 597,740, and KRW 1,255,896,300, total of KRW 377,647,850, global income tax of KRW 597,740, total of KRW 79,754,250, KRW 1,057, KRW 7081,95.

8) On the other hand, on October 23, 2012, there was a decision to commence the auction on the land, etc. (Seoul District Court Seo-gu Branch Branch Branch Branch Decision 2012 Dota 00000) on the land, etc. 00, Gyeong-gun, Chungcheongnam-gun, the project site owned by JJ, and on September 11, 2014, the decision to permit sale was issued, and the distribution was completed on December 17, 2014.

[Ground of Recognition] Unsatisfy, substantial facts in this court, Gap evidence 8, 10, Eul evidence 5, plaintiff

The purport of the whole statements and arguments in Eul evidence Nos. 6 Eul (a sales contract and the plaintiffs asserted that the whole document was forged by AA, but it is difficult to believe that Gap evidence Nos. 2 and 3, and the testimony of witness A of the first instance trial, and there is no other evidence to acknowledge otherwise), Eul evidence Nos. 8 through 17 (including each number), and the purport of the whole pleadings, which are presumed to have been established due to the lack of dispute in their seal imprints.

[Evidence Evidence] Each entry of Evidence Nos. 2 and 3, and witness of the first instance trial and witness of the AA

D. Determination

1) Determination on the first argument

The provisions of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 10411, Dec. 27, 2010; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) shall apply where the actual owner and the nominal owner enter into an agreement or communication and make a registration, etc. in the future of the nominal owner with respect to the property requiring a transfer of the right or a registration in the conduct thereof. As such, where the actual owner and the nominal owner enter into a registration, etc. in the name of the nominal owner without regard to the intent of the nominal owner, a registration, etc. is unilaterally made in the name of the nominal owner is not applicable. In such cases, if the tax authority establishes only that the actual owner is different from the nominal owner, and establishes that the registration, etc., of the nominal owner was made in the unilateral act regardless of the intent of the nominal owner, the nominal owner who asserts

As to the instant case, even though the actual owner of the instant shares was BB, etc., the instant sales contract was concluded in the name of the Plaintiffs regarding the instant shares, and the entry of the Plaintiffs in the future is as seen earlier. Therefore, it is deemed that the actual owner of the instant shares and the nominal owner are the actual owner of the instant shares.

나아가 AAA이 원고들의 승낙을 받지 않고 이 사건 ③매매계약서를 위조한 후원고들 앞으로 명의개서를 한 것인지에 관하여 보건대, 위 인정사실 및 앞서 든 증거에 의하여 알 수 있는 다음의 각 사정, 즉 ㉠ 원고들 및 AAA, BBB, HHH는 모두 2011. 12. 12. BBB 등이 이 사건 주식을 원고들에게 명의신탁하였음을 인정하는내용의 확인서를 작성해준 점(성립에 다툼이 없는 을 제8호증의 1 내지 3), ㉡ AAA,BBB는 이 사건 세무조사 과정에서도 원고들에게 이 사건 주식을 명의신탁한 것이맞다고 진술한 점, ㉢ 원고들은 2010. 8. 9.자 임시주주총회 등을 통하여 JJJ과KKK의 사내이사로 선임되어 취임등기까지 마쳤고, 현재까지도 JJJ의 사내이사로 등재되어 있으며, 2013. 8. 9.에야 비로소 KKK의 사내이사 퇴임등기를한 점, ㉣ BBB 등은 원고들에게 이 사건 주식을 명의신탁함으로써 과점주주의 지위에서 벗어나게 되는 이익이 있었고, AAA은 이 사건 세무조사 과정에서 명의신탁 이유에 대하여 그와 같은 내용의 진술을 한 점, ㉤ 원고들은 이 사건 소 제기 이후 비로소 원고들의 동의 없이 주식매매계약서가 작성되고 명의신탁이 이루어졌다는 내용의확인서를 제출한 점 등에 비추어 보면, 원고들 주장의 명의도용 사실에 부합하는 듯한갑 제2, 3호증의 각 기재 및 제1심 증인 AAA의 일부 증언은 믿기 어렵고, 달리 이를 인정할 증거가 없다.

Therefore, the plaintiffs' above assertion is without merit.

2) Judgment on the second argument

A) In full view of the provisions of Article 60 of the former Inheritance Tax and Gift Tax Act and Article 49 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22579, Dec. 30, 2010; hereinafter “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”), the market price stipulated in the provisions of the above Act refers to an objective exchange price formed through a general and normal transaction. Thus, even if a transactional example takes place, it cannot be deemed as a price formed by a normal transaction that properly reflects the objective exchange value of donated property, and if a gift is unlisted stocks subject to a gift, it shall be deemed that the market price is calculated in accordance with the supplementary assessment method stipulated in Article 63(1)1 (c) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (see Supreme Court Decision 2003Du5723, Oct. 15, 2004).

Therefore, when it is difficult to calculate the market price of the donated property as non-listed shares under Article 63 (1) 1 (c) of the former Inheritance Tax and Gift Tax Act, the value shall be evaluated by the supplementary assessment method under Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. Article 55 (2) of the same Act provides that the value per share shall be assessed by dividing the net asset value of the relevant corporation by the total issued and outstanding shares, and Article 55 (1) of the same Act provides that the net asset value shall be the amount calculated by subtracting the liabilities from the appraised value of the relevant corporation as of the base date of appraisal under Articles 60 through 66 of the former Inheritance Tax and Gift Tax Act.In addition, according to Articles 54 (1) and 56 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the net value per share of the non-listed stocks shall be the weighted average value of the net profit and loss per share and the net asset value shall be calculated by the following formula by dividing the average amount of net profit and loss per share (value 1) by the net profit and loss rate of three years.

B) In this case, in order to assess the net asset value per share by the above supplementary assessment method, the net asset value of the corporation concerned shall be calculated on the basis of the net asset value and net asset value per share x 3:2 of the net asset value per share x 3:2 of the net asset value per share x (in the case of Gap evidence 8-4 through 7, 13, 14-1, 2, 15 to 19 of Eul, the net asset value of the JJ as of August 5, 2010 : 7,909, 754, 018 won per share) 2,785, 206, 429, 205 per share x 250 won per share x 35,791, 909, 429) value per share x 205 won per share x 30,504 won per share x 205 won per share, 205 won or more per share

Therefore, it is reasonable for the Defendants to take each of the instant dispositions against the Plaintiffs after calculating the appraised value of the instant shares in accordance with the aforementioned complementary evaluation method. Therefore, the Plaintiffs’ assertion is without merit.

3. Conclusion

Therefore, all of the plaintiffs' claims against the defendants are dismissed as it is without merit, and the judgment of the court of first instance is unfair, and it is so revoked, and all of the plaintiffs' claims against the defendants are dismissed. It is so decided as per Disposition.