The validity of court adjustment, donation due to reduction of capital and whether the imposition of additional tax is appropriate.

Although the court's conciliation has become a creative effect, it does not mean that the effect of the rights and obligations relationship newly established based on the legal relationship newly established according to the content of conciliation reaches the future after the mediation is established, and the legal fiction of donation due to the inequality is justifiable, and there are circumstances that make it difficult to expect the return and payment of gift tax, so the imposition of additional

Article 39 (Presumption of Donation at Time of Capital Increase or Capital Reduction)

Article 28 (Formation of Conciliation of Civil Disputes)

1. The portion exceeding KRW 349,083,320, and KRW 122,726,720, and KRW 63,484,360, and KRW 25,702, and KRW 45,345,970, and KRW 171,817, and KRW 178,788,780, among the imposition dispositions of KRW 488,65,970, and KRW 348,78, and KRW 290 on January 2, 2007, which were imposed by the head of the tax office on the Plaintiff’s ○○ on the Plaintiff’s ○ on January 8, 2007, shall be revoked.

2. The remainder of the claim against the defendant in the defendant in the defendant in the defendant in the e-mail and the claim against the defendant in the defendant in the defendant in the e-mail.

3. Of the costs of lawsuit, 70% is assessed against the Plaintiffs, and the remainder is assessed against the Defendants.

The imposition of gift tax amounting to KRW 488,716,650, and KRW 171,817,410, and the imposition of gift tax amounting to KRW 63,484,360 and KRW 25,702,290, each of the imposition of gift tax amounting to KRW 200 on the order of 200 on January 2, 2007 by the director of the tax office and the distribution of the defendant shall be revoked.

A. On October 28, 1993, an unlimited partnership company (hereinafter referred to as "the company of this case") was established for the purpose of selling and selling real estate and leasing real estate. An employee of the company of this case was the company of this case prior to January 28, 1984, ○○, ○○ (the first denial of ○○), ○○ (the second denial of ○○), ○○ (the first son of ○○), ○○ (the first son of ○○), ○○ (the second son of ○○), ○○ (the second son of ○○), and Plaintiff ○○ (the ○○○).

B. Subsequent to the partial change of the members of the instant company, the ratio of contribution held by the members of the instant company prior to February 28, 1985 (which is rounded off to the third decimal place; hereinafter the same shall apply) shall be as follows.

Members

The ratio of investment shares

Amount of equity shares;

Jinay

○ Private Food

67.49%

37,429,784 won

Missing at the time of Korean War, August 7, 2002, report of disappearance

○ Private milk

16.19%

80,924,986 won

Second, 000 Doctrine

○ Civil Affairs Book

1.99%

59,970,105 won

First, the first, 000

○ Roster

2.89%

14,450,083 won

○ Doctrine’s son

○○

1.44%

7,225,042 won

A child born between a child born between the former husband, the former husband of Kim ○, the second husband of the private-owned milk.

Total

500,000,000 Won per unit (100,000 Units, 5,000 won per unit)

C. In relation to the company of this case, on June 30, 1985, "Private ○○ had 3.68% (168,334,90 won) out of 67.49% of its own shares on February 28, 1985, and on February 28, 1985, the plaintiffs had registered the alteration of "the contents that transfer all of their shares to ○○○○○○ on February 28, 1985". As a result, the shares of the employees of this case were 33.81% (169,094,84 won, 33,815 account), 16.19% (80,924,986 won, 16,185 account), 50% of the inducement meeting (249,130,500 won, 500 account).

D. On April 1, 200, the company of this case held a temporary general meeting of shareholders, and (i) the company of this case invested 10,000,000 won in the company of this case, and (ii) the membership fee of 39,418,932 won was disposed of as the surplus of the company of this case (at that time, the company of this case was allotted 2,000 units of investment; hereinafter referred to as "the capital increase"), (ii) the public interest rate of 00 won was 6,565,108 won, 318,91,341 won as the share refund and was to retire from the company of this case (the company of this case was 50,000 shares of investment held by ○○ and ○○○,000 won, and 50,000 shares of investment shares of this case were 20,000 shares of the company of this case and 50,000 shares of investment shares of each of this case.

E. Thereafter, the plaintiffs filed a lawsuit seeking nullification of the transfer of equity on the ground that the change of equity shares in the company of this case, which was made on October 18, 2001 by the Seoul Central District Court No. 2001Gahap63709, and against the company of this case, etc. as of February 28, 1985, was null and void as it had been done without the consent of the plaintiffs, etc., and as of February 23, 2001 in the above case No. 2001Gahap63079, Dec. 23, 2003 (hereinafter referred to as the "Adjustment of this case").

① On February 28, 1985, the Plaintiffs’ act of transferring all of their shares to ○○○○○○○, and the process of cancelling the registration of the part that transferred exceeding KRW 112,765,073 out of the registration of June 30, 1999 to 168,335,000 out of their shares.

② On February 28, 1985, the instant company: (a) transferred the shares equivalent to KRW 168,335,000 out of its own shares to Ukhee on June 30, 199 that the Plaintiffs retired from office on February 28, 1985; and (b) transferred the shares in excess of KRW 112,765,073 out of the registration of June 30, 1999, the registration of cancellation of the part that the Plaintiffs transferred the shares in excess of KRW 112,765,073.

③ Of the shares equivalent to KRW 55,569,927, the share of KRW 29,572,304 out of the shares of KRW 55,569,927 is agreed to vest the shares of KRW 25,97,623 in the order of ○○○, respectively, to vest the shares in the country of ○○○, and the company of this case accordingly carries out the registration procedure that the country of ○○ was newly affiliated with the company

F. As a result of the instant conciliation, KRW 50,00,00 in total amount of KRW 224,664,81 [the total amount of KRW 337,429,784 - (the amount of KRW 168,334,90 - 5,569,927 - the amount of KRW 55,927) with respect to the instant company prior to the increase and decrease of the capital of this case] 59,970,105 in the Plaintiff’s private book, the amount of KRW 14,450,083, the amount of KRW 80,924,986, the amount of KRW 119,90,015 [the amount of KRW 168,34,900 + the amount of KRW 5,569,927] with respect to the instant company prior to the increase and decrease of the capital of this case, and the current status of the increase and decrease of the company following the increase of the capital of this case.

Members

Equity (shares Ratio)

Before the general meeting of this case

After the capital increase in this case

After the reduction of capital of this case

○ Private Food

24,664,811 (44.93)

24,664,811 (44.05)

255,569,927 Won (21.37)

(Retirement 169,094,884)

○ Private milk

80,924,986 Won (16.19)

80,924,986 Won (15.87)

0 won (0)

(Retirement of 80,924,986)

○ Civil Affairs Book

59,970,105 Won (11.99)

59,970,105 Won (11.76)

59,970,105 Won (23.07)

○ Roster

14,450,083 Won (2.89)

14,450,083 Won (2.83)

14,450,083 Won (5.56)

○○

19,990,015 won (24)

19,990,015 Won (23.93)

19,990,015 Won (46.15)

○ Kim Il

01 won (0)

10,000,000 won (1.96)

10,000,000 won (3.85)

Total investment

500,000,000

(100,000 Units)

510,000,000

(102,00 Units)

259,980,130 won

(52,00 Coordinates)

G. As of April 9, 2004, the director of the tax office levied a gift tax amount of KRW 4,908,470,590 (the gift amount of KRW 3,534,495,460 + the donation amount of KRW 1,373,975,130 + the donation amount of KRW 1,375,10 (the donation amount of KRW 1,375,130) on the ground that the existing members of the company of this case give up their right to acquire shares in accordance with the equity ratio, and the capital reduction of this case also refers to the donation of profits corresponding to the equity ratio to the ○○○ and Kim Jong-hee, who are members remaining after the withdrawal of ○ City and ○○○, who are members of the company of this case after receiving the refund amount of shares in short of the equity ratio, on the ground that the capital reduction of this case was also a donation of profits corresponding to the equity ratio).

H. On November 5, 2004, U.S. P. ○○○○○○○○○○○○○ and Kim○○○○ was dissatisfied with each of the above dispositions and filed an appeal with the National Tax Tribunal. On July 20, 2005, the National Tax Tribunal accepted part of the above appeals on the U.S. and Kim○○○○○○○○ on December 23, 2003. ① according to the instant conciliation made on February 28, 1985, the amount of KRW 14,450,083, the Plaintiff’s share of KRW 59,970,105, and the share of ○○○○○○○○○○○○○○6,000, which was already reported, was excluded from the amount of tax calculated on the 6000,000,0000,0000,006,0000,006,000,000,000.

I. According to the above decision of the National Tax Tribunal, the director of the final tax office calculated the gift tax amount of 1,657,101,289 won on July 27, 2005 (1,201,201,573,656 won + 455,52 won (80,070,452 won + 29,648,000 won of the gift tax of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s donation), and corrected the gift tax amount of ○○○○○○ by 109,718,452 won (29,648,000 won + the gift tax of ○○○○○○○○○○○ donation donation + 80,70,452 won + 29,648,000 won on the premise that the profit accrued from the capital increase was calculated on the premise that ○○○○ and ○○○

E. On October 18, 2005, U.S. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P.P.

① In calculating the donation profits that ○○○ was acquired through the capital increase in this case, the head of the final tax office had only been a member of the company of this case as ○○, ○○, and ○○, but on February 28, 1985, the transfer of shares to ○○○, ○○, and ○○○○, was invalidated by the instant conciliation by the court. As such, at the time of the capital increase in this case, the members of the company of this case are deemed to be included in ○○, ○○, and ○○, and ○, ○○, and ○○, other than ○, inasmuch as all the members’ contribution shares to the company of this case should be calculated again, and on the basis thereof, the donation profits to ○○, ○○, and ○○, ○○, and ○, ○○, ○○, which were not included in the corrective measures for each of the above reduction and exemption (excluding the calculation of donation profits

② Since there is no special relation as stipulated in Article 39(1)2 of the Inheritance Tax and Gift Tax Act (amended by Act No. 6301, Dec. 29, 2000; hereinafter “the Act”), between the U.S. P. P. S. P. P. and U. P. P. P. P. P. P., the part on the premise that the U.S. P. P. P. P. P. P. P. P. P. P.’s gift of profits to U.S. P. P

③ The value of equity shares per unit at the time of the capital increase of the instant company is 187,836 won [18,783,648,317 won (the total asset value of the instant company at the time of the capital increase) ±100,000 won (the total number of equity shares of the instant company at the time of the capital increase)]. The refund per unit paid by the instant company to ○○ and ○○○○○ at the time of the capital increase (the total number of equity shares of the instant company at the time of the capital increase) is 24,711 won (the KRW 50,005,000 + (66,565,000 + KRW 318,93,93,341) + KRW 50,000). Based on this, the amount of gift tax on ○○○ and ○○○000 won is 45,527,63630 won (the gift tax on ○○○29,293630 won (the gift capital increase).

(k) According to the mediation of this case on January 2, 2007 and January 8, 2007, the Defendants held the status of employee of the company of this case at the time of the reduction of the capital of this case, the Plaintiffs imposed an amount of gift tax of KRW 660,534,060 (the gift tax of KRW 488,716,650 + the donation amount of KRW 171,817,410 + the donation amount of KRW 171,817,410) on the following grounds: (a) on the ground that the public-private book and private-private book retired from the capital of this case at the time of the reduction of the capital of this case, and thus, (b) on the ground that the public-private book and private-private book should be deemed to have made a donation equivalent to the share ratio; and (c) on the ground that the gift tax of KRW 89,186,650 (the gift tax of KRW 63,484,3600,250).

(l) On March 27, 2007, the plaintiffs were dissatisfied with each of the above dispositions and filed an appeal with the National Tax Tribunal, but the National Tax Tribunal dismissed all the above appeals by the plaintiffs on June 28, 2007.

[Recognizing] Facts without dispute, Gap evidence 1-1-4, Eul evidence 2-1-2, Eul evidence 3-1-4, Gap evidence 4-1-4, Gap evidence 5, Gap evidence 6, Gap evidence 7-1 through 3, Gap evidence 8, Gap evidence 12-14, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 3, Eul evidence 4, Eul evidence 5-1 through 9, and Eul evidence 6, respectively.

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

A. The plaintiffs' assertion

1) Mediation has a creative effect, and even though it includes that "the act of the plaintiffs to transfer all their shares to ○○ on February 28, 1985" is invalid, the mediation of this case does not confirm that the above transfer of shares is invalid from February 28, 1985, but the legal relationship becomes null and void only at the time of the formation of the mediation of this case. Thus, the plaintiffs have the status as a member of the company of this case from December 23, 2003, which is the time of the formation of the mediation of this case. Thus, each disposition of this case by the defendants on the premise that the plaintiffs had the status as member of the company of this case on April 1, 200, which is the time of the reduction of capital of this case, was unlawful.

2) Even if the Plaintiffs held the status of employee of the instant company at the time of the reduction of capital, the Plaintiffs did not have been registered as an employee of the instant company under the corporate registry at the time of the reduction of capital, and even in fact, did not exercise the rights as an employee to the instant company, and thus did not gain any benefit from the reduction of capital. Accordingly, each of the instant dispositions by the Defendants is unlawful as it goes against the principle of substantial taxation.

In addition, in special circumstances, such as where there exists no agreement on transfer of property between the withdrawing employee and the employee making profits due to capital reduction, or where the capital reduction cannot be deemed to have been made for the purpose of evading gift tax, gift tax may not be levied on the constructive gift by applying Article 39(1)2 of the Act. Since the Defendants issued each of the instant dispositions to the Plaintiffs under such special circumstances as above, each of the instant dispositions by the Defendants is unlawful.

3) At the time of the reduction of capital in this case, the Plaintiffs were in the position of not fully aware of whether the capital reduction was made in the instant company at the time of the reduction of capital, or whether the refund for the share received at the time of the withdrawal of ○○ and ○○○ was in the position of not to know whether the actual amount of equity shares falls short of the actual amount of equity shares. Therefore, it is unreasonable to expect the Plaintiffs to pay gift tax within three months from the date of the reduction of capital in this case. Accordingly, the Plaintiffs’ justifiable grounds for not imposing penalty tax exist, and thus, the part on which penalty tax was

(b) Related statutes;

Article 39 (Presumption of Donation at Time of Capital Increase or Capital Reduction)

Article 28 (Formation of Conciliation of Civil Disputes)

C. Determination

1) As to the plaintiff's first argument

A) In a case where the authenticity of a disposition document is established, barring any special circumstance, it shall be objectively interpreted that there was an indication of intention by the parties in accordance with the contents of the text stated in the disposition document, and the mediation is established upon entering the agreement between the parties in the protocol, and the mediation has the same effect as the final and conclusive judgment, such as the judicial protocol, and has the same effect as that of the final and conclusive judgment. Thus, upon the formation of mediation between the parties, the parties have the same effect as that of the previous disputed legal relationship, and thus upon the formation of mediation between the parties, the rights and obligations relationship based on the previous disputed legal relationship is extinguished and a new rights and obligations relationship is established in accordance with the contents of the original dispute. The same effect as the final and conclusive judgment recognized in such a mediation protocol extends to the judgment on the existence of legal relationship which is the object

B) In light of the above legal principles, the above facts of recognition can be seen as follows. ① The plaintiffs filed a lawsuit for claim such as nullification of the transfer of shares with the Seoul Central District Court 2001 Ma63709, and the company of this case, etc., and "the plaintiffs confirmed that the act of transferring their entire shares to ○○○ on February 28, 1985 is null and void." Since the mediation of this case entered the same contents as the plaintiffs' above in the mediation protocol, the mediation of this case should be deemed null and void as to the effect of transfer of each of the above shares, which is the object of the lawsuit, by the mediation of this case. ② null and void juristic act has no legal effect from the time of the act. Thus, it is recognized that the plaintiffs had a new legal relationship with the parties to this case, not from February 28, 1985, based on the newly established legal relationship between the parties to this case and the newly established legal relationship with the parties to this case.

C) Therefore, this part of the plaintiffs' assertion is without merit.

2) As to the second argument by the plaintiffs

A) In a case where a corporation acquires stocks or equity shares of a specific shareholder or partner for the purpose of reducing its capital or amount of investment, and then retires them for the purpose of acquiring them at a low price, and thereby, other shareholders or partners having special relations with them such as relatives gain profits higher than the transfer of capital or equity shares, the actual effect of transferring the assets from a specific shareholder or partner to the relevant person without compensation. Thus, Article 39(1)2 of the Act is realized by imposing gift tax, even if there was no agreement between the related parties on the transfer of the assets, if the effect of de facto gratuitous transfer of the assets occurs due to the reduction of capital or amount of investment.

B) As to the instant case, the Plaintiffs held the status of employee of the instant company, which made profits from the value of equity shares due to the Plaintiffs’ retirement of shares in the private sector’s shares and the private sector’s shares at the time of capital reduction. In light of the content and purport of Article 39(1)2 of the said Act, it is difficult to deem that the Plaintiffs did not reach an agreement between the Plaintiffs on the donation of equity shares and the private sector’s gift tax for the purpose of evading the gift tax pursuant to Article 39(1)2 of the said Act, for the purpose of evading the gift tax and the private sector’s gift tax for 187,836 won per share upon retirement at the time of capital reduction.

C) Therefore, this part of the plaintiffs' assertion is without merit.

3) As to the third argument of the plaintiffs

A) Under tax law, additional tax is an administrative sanction imposed under the conditions as prescribed by individual tax law in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, and the taxpayer’s intent or negligence is not considered. On the other hand, such a sanction cannot be imposed in cases where there is a justifiable reason that it is unreasonable for the taxpayer to be unaware of his/her duty, such as where there is a circumstance that the taxpayer could reasonably present his/her duty, or where it is unreasonable for the taxpayer to expect the fulfillment of his/her duty.

(See Supreme Court Decision 2003Du13632 Decided January 27, 2005, etc.)

B) In light of the above legal principles, it is difficult to see that the plaintiffs paid gift tax to the plaintiffs within three months from the date of the reduction of capital, i.e., the plaintiffs did not have been registered as an employee on the corporate register at the time of the reduction of capital, and in fact, they did not exercise their rights as an employee to the company of this case. Thus, it seems that the company of this case was not aware of whether the capital reduction was made at the time of the reduction of capital, or whether the refund of shares received at the time of the reduction of capital falls short of the actual value of equity shares. (ii) Even if the plaintiffs already held the status of employee at the time of the reduction of capital, it is difficult to expect that they paid gift tax to the plaintiffs within three months from the date of the completion of the reduction of capital due to the adjustment of this case. (iii) The plaintiffs could not be viewed to have known that they were liable to pay the gift tax of this case, under the premise that they did not have any legitimate reasons for the imposition of the gift tax of this case at the time of the reduction of capital.

C) Therefore, the plaintiffs' assertion on this point is with merit.

(d) Justifiable tax amount.

If the amount of reasonable tax is calculated after deducting the amount of each additional tax imposed from each of the dispositions of this case in accordance with subparagraph 1 through 4 of the evidence Nos. 1-1-4, the gift tax on the plaintiff's 's 's 's 's 's 's 's 's '' is 349,083,320 won (48,716,650 won - 139,633,30 won), 122,726,720 won (17,817,410 - 49,090,690), and the gift tax on the plaintiff's 's 's 's 's 's 's 's 's 's '' '' '' '' '' '' '' '' '' ' ' ' ' ' ' ' ' ' ' - - 45,345,90 won

E. Sub-decision

Therefore, the part of the Defendants’ respective dispositions against the Plaintiffs, which exceeds the above legitimate tax amount, is unlawful.

3. Conclusion

Therefore, each of the claims against the plaintiffs against the defendants of this case is accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.