Cho High Court Decision 2010Du2325 ( October 28, 2010)

Oversupply of shares, there is a justifiable reason to do so.

Since the transfer of shares constitutes a case where there is a justifiable reason to make a transaction at a price higher than the market price traded in the open market due to the practice of transaction, the disposition imposing gift tax on the transfer of shares between non-specially related persons is unlawful.

Article 35 of the Inheritance Tax and Gift Tax Act

2011Guhap2873 Revocation of Disposition of Imposition of Gift Tax

△△ et al.

○ Head of tax office

May 27, 2011

June 17, 2011

1. The Defendant’s imposition of gift tax of KRW 51,381,880 on April 21, 2010 against Plaintiff LB and KRW 1,336,030 on the gift tax of KRW 51,381,880 on April 21, 201 against Plaintiff LB and KRW 1,336,030 on the gift tax of KRW 205 against Plaintiff

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiffs, together with the Maximum D, Maximum E, F, MaximumG, Kim H, Lee J, and HaJ, hold 1,66,050 shares of KK Co., Ltd. (hereinafter referred to as "K"), which are 1,66,050 shares (65.98 shares), "B. The plaintiffs and the above 6 persons were transferred 1,161,050 shares out of the shares of KK held by LL consulting, KM and KimN (2,5.98 shares out of the total shares, 2,520,000 shares, and 1,60 billion shares and management rights of KK Co., Ltd. (hereinafter referred to as "the shares of this case"), were transferred to 2,520,000,000 won, separately from the existing 2,500,000 shares, 260,000 won or more, 260,000 won or more of the shares of this case.

(d) The director of the Seoul Regional Tax Office considers that the transfer of the instant shares constitutes the high-value transfer of shares between non-specially related persons, and accordingly, deemed that the transfer value (14 billion won, 12,058 won per share) and the market value (4 billion won, 6484 won, and 3,501 won per share) pursuant to Article 35(2) of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Act") have been donated to the Defendant, and notified the Defendant that the Plaintiffs would have been donated, and that the amount should be taxed." "E. Accordingly, on April 21, 2010, the Defendant imposed 51,381,80 won, gift tax of 1,336,030 won for the portion of gift tax of 206 and 1,336,030 won for the portion of gift tax of 205 to the Plaintiff headCC respectively (hereinafter referred to as the "disposition in this case") [the grounds for recognition], and there is no dispute.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiffs are major shareholders holding the control over KK, which are KOSDAQ-listed corporations, and thereafter sell the shares of this case at a price higher than the market price in return for the waiver of the listed profits of the company by acquiring the existing company’s assets at a lower price than that of the company’s stock price. This constitutes a case where there is a justifiable reason to make a transaction at a price higher than the market price in the open market due to transaction practices.

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Determination

(1) Article 35(2) of the Act provides that “If a company acquires or transfers its property between persons other than those who have a special relationship with the KOSDAQ without any justifiable reason, it shall be presumed that the amount equivalent to the difference between the price and the market price is donated.” Article 26(6) of the Enforcement Decree provides that the price calculated by subtracting the market price from the price of the transferred property shall be 30/100 or more of the market price. Meanwhile, according to Article 63(1)1 and (3) of the Act and the Enforcement Decree of the same Act, the stocks of the KOSDAQ-listed corporation shall be evaluated as the average market price of the listed stocks of the Korea Exchange every two months before and after the base date of appraisal, if the largest shareholder, etc. holds more than 50/100 of the total number of stocks issued by the corporation and the market price of the KOSDAQ-listed corporation without any justifiable reason, it shall be deemed that there is no clear difference between the market price and the KOSDAQ-listed corporation’s existing market price and its existing market price.”

3. Conclusion

The plaintiffs' claim of this case is justified, and the costs of lawsuit are assessed against the losing party.