Daejeon District Court 2013Guhap316 ( October 12, 2014)

The notice of the results of the re-audit of this case issued by a government agency that is not a disposition agency does not take effect and does not affect the Do Governor's filing period.

The notice of the results of the reinvestigation made by a tax office other than the agency cannot be deemed a follow-up disposition by the defendant, who is the agency. The decision of the Tax Tribunal, which has no subsequent disposition by the agency, did not take effect, is not yet proceeding, and thus, the lawsuit is instituted within a legitimate period.

Article 56 (3) of the Framework Act on National Taxes

2014Nu159 Revocation of Disposition of Imposing gift tax

MaAA

The Director of the National Tax Service

Daejeon District Court Decision 2013Guhap316 Decided February 12, 2014

July 17, 2014

August 21, 2014

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of OOO (including additional taxes) of gift tax on October 10, 2007 against the Plaintiff on April 1, 201 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On August 17, 2007, the KOSDAQ-registered corporation BB (hereinafter “BB”) held a board of directors on the part of August 17, 2007, and publicly announced the resolution to pay 16,000,000 shares of registered common shares to OOO members in the manner of allocating them to a third party. On September 14, 2007, a board of directors was held again on the part of the board of directors to make a resolution to change the number of new shares allocated and its schedule was conducted on October 10, 207 (hereinafter “instant subscription to new shares”).

B. On October 10, 2007, the Plaintiff participated in the issue of capital increase and paid the same day shares, acquired 444,44 shares, and 38 persons, including the Plaintiff, participated in the issue of capital increase.

C. On December 9, 2010, the Board of Audit and Inspection: (a) deemed that BB had offered equal capital increase in accordance with the third party allocation to 32 persons, including the Plaintiff (the number of persons, other than 6 corporate investors, etc.) including the Plaintiff; and (b) notified the director of Namcheon Tax Office of the imposition of gift tax by deeming the difference in the acquisition value of new stocks and the appraisal value under the Inheritance Tax and Gift Tax Act as the donation of profits arising from the increase of capital.

D. Under the premise that the assessment value per share of the above shares calculated pursuant to Article 39(1)1(c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter the same), and Article 29(3)1 of the Enforcement Decree of the same Act is an OO, the director of the Namcheon District Tax Office accepted the above shares at a lower price than that of the above shares (=OOE - OOOOwon) and notified the Defendant of the same taxation data.

E. According to the above notification, the Defendant imposed an OO of the gift tax on October 10, 2007 on the Plaintiff on April 1, 201 (including additional taxes) (hereinafter the instant disposition).

F. On September 16, 201, the Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 16, 201. On December 22, 201, the Tax Tribunal re-examineed whether the forfeited shares issued at the time of capital increase by capital increase on October 10, 2007, constitutes an offering of securities as stipulated in the Securities and Exchange Act, and made a decision to rectify the tax base and tax amount according to the result, and dismiss the remainder of the claim (hereinafter the re-audit decision of this case).

G. As a result, the director of the tax office having jurisdiction over the Republic of Korea re-audited the case according to the decision of re-audit, and then sent the result of the re-audit to the Plaintiff by registered mail (hereinafter “the notice of the result of re-audit”) and on April 6, 2012, KimD, the Plaintiff’s relative, received it and then delivered it to the Plaintiff around that time.

H. The Plaintiff appealed and filed a second appeal with the Tax Tribunal on July 4, 2012, but was dismissed on October 18, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 7, Eul evidence 1, 3 through 5 (including provisional number), the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. Defendant’s defense prior to the merits

"A person who is notified of a subsequent disposition in accordance with the review decision by the Tax Tribunal shall file an administrative litigation within 90 days from the date of receipt of the notice of the result of the re-audit of this case, notwithstanding the fact that the notice of the result of re-audit of this case was a subsequent disposition in accordance with the review decision of this case, the plaintiff filed the lawsuit of this case on January 18, 2013, which was 90 days from the time of receipt of the notice of the result of re-audit of

A litigation seeking cancellation of a disposition of national taxes shall be instituted without going through a request for examination or adjudgment under the Framework Act on National Taxes and a decision thereon shall be filed within 90 days after the decision on the request for examination or adjudgment is notified (Article 56(2) and (3) of the Framework Act on National Taxes). Meanwhile, under the proviso of Article 56(3) of the Framework Act on National Taxes, where a request for adjudgment is not notified within 90 days after the decision is notified, an administrative litigation may be instituted from the date the decision period expires

Considering the form and purport of the re-examination decision, and the unique nature of tax and legal relations that have a complicated and professional and technical nature of the autonomous administrative control function and the administrative appeals system, the re-examination decision is bound to be based on the results of re-audit of the agency, and the purport of the agency should be deemed as part of the decision on the objection, etc. Accordingly, the re-examination decision becomes effective as a decision on the objection, etc. by supplementing its contents by the subsequent disposition of the agency. Therefore, it is reasonable to deem that the period of the request for review, the period of the request for adjudgment, or the period of the request for adjudgment or the period of the administrative litigation according to the re-examination decision should be counted from the date when the applicant, etc. received the notification of the subsequent disposition (see Supreme Court en banc Decision 2007Du12514,

In addition, Article 44 of the Framework Act on National Taxes stipulates that the head of a tax office having jurisdiction over the place for payment of national taxes shall determine the tax base and amount of national taxes at the time of the disposition. According to Article 26(1) and (2) of the Regulations on the Handling of National Tax Trials (amended by National Tax Service Directive No. 1967, Jan. 1, 2013; hereinafter the same shall apply), an officer in charge of protecting taxpayers of the disposition agency who received the decision from the Tax Tribunal shall immediately notify the head of the disposition that is the object of the request for adjudgment, and the director in charge of the disposition shall, upon receipt of the notification, make necessary dispositions such as cancellation within 14 days from the date of receipt of the decision, and notify the applicant of the changed disposition. According to Articles 26(6), (7) and 15(1) of the former Regulations on the Handling of National Tax Trials, if he/she is notified of the results of reexamination within 30 days from the date of receipt of the initial decision by the head of the district tax office having jurisdiction over the place of tax office.

In light of the above facts and legal principles, i.e., the Supreme Court en banc Decision 2007Du12514 Decided that the re-audit decision takes effect by supplementing its contents by the follow-up disposition of the 2nd 3nd 5th 2nd 1st 5th 5th 5th 2nd 1st 6th 1st 6th 1st 6th 1st 6th 1st 2nd 6th 2nd 6th 6th 1st 6th 2nd 6th 6th 6th 2nd 3th 6th 1st 6th 2nd 6th 6th 6th 1st 2nd 6th 6th 2nd 1st 6th 6th 2nd 6th 2nd 2nd 3th 2nd 3th 2nd 3th 2nd 3th 2nd 6th 2nd 6th 2nd 3th 2nd 2nd 2nd 3th 2nd 3th 2nd 2nd 3th 2nd 2nd 3th 2nd 2nd 2nd 2nd 3th .

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

For the following reasons, the instant disposition should be revoked in an unlawful manner.

1) Article 39(1)1(a) and (c) of the former Inheritance Tax and Gift Tax Act provides that where a corporation issues new stocks to increase its capital at a price lower than the market price of new stocks to a person other than its shareholders, the amount equivalent to such profits shall be deemed the value of donated property of the person who has acquired such profits, and the gift tax shall be levied on such person. However, the case where a stock-listed corporation or Association-registered corporation under the Securities and Exchange Act allocates new stocks by means of a public offering of new stocks under Article

According to Article 2 (3) of the former Securities and Exchange Act (amended by Act No. 8527 of Jul. 19, 2007 and enforced Jan. 20, 2008; hereinafter the same) and Article 2-4 (1) and (2) of the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 20452 of Dec. 20, 2007; hereinafter the former Enforcement Decree of the Securities and Exchange Act), where the number of persons who are solicited to subscribe is 50 or more, the number of new stocks is allocated by means of public offering of new stocks under Article 2 (3) of the former Securities and Exchange Act.

The capital increase with new shares in this case is a solicitation for 50 or more persons, and is excluded from the gift tax under Article 39(1)1 of the former Inheritance Tax and Gift Tax Act.

"2) Even if the number of persons to whom subscription was solicited is not 50 persons, the issue of this case's capital increase is that the issue of this case can be transferred to 50 persons or more within one year from the issuance date of the securities under Article 2-4 (4) of the former Enforcement Decree of the Securities and Exchange Act, and that the issue of this case's capital increase through deemed public offering constitutes "an offering of stocks" meeting the standards for resale as set by the Financial Supervisory Commission, and is excluded from gift tax under Article 39 (1) 1 of the former Inheritance Tax and Gift Tax Act. (3) At the time of the issue of this case's capital increase, the base date for calculating the donation profits of this case's capital increase is the amount of KRW 100 per share from the date of the public notice of this case's capital increase is calculated as the average amount of KRW 100 per share of capital increase to the 2000,000,000 per share of capital increase to the 100,000,000 won.

4) The issue of whether the basic date of donation gains is the public notice date of subscription for new shares or the payment date of shares is the public notice date of subscription for new shares is not a simple statutory site, but a conflict of opinion due to an objection under the tax law interpretation, and there is a justifiable reason for an exception to the imposition of additional tax on the Plaintiff, who did not report

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(3) In the event that a listed corporation issues new shares in accordance with the old Securities and Exchange Act, the number of new shares is 80 per cent of the total number of new shares issued at 10 per cent of the total number of 80 per cent of the total number of new shares issued at 10 per cent of the total number of 80 per cent of the total number of new shares issued at 10 per cent of the total number of 80 per cent of the total number of shares issued at 80 per cent of the total number of new shares issued at 30 per cent of the total number of 10 per cent of the total number of shares issued at 10 per cent of the total number of 80 per cent of the total number of new shares issued at 30 per cent of the total number of 80 per cent of the total number of shares issued at 10 per cent of the total number of new shares issued at 10 per cent of the total number of 80 per cent of the total number of shares issued at 30 per cent of the former Securities and Exchange Act.

Therefore, without examining the remaining arguments of the plaintiff, the disposition of this case, which differs from the above premise, should be revoked in an unlawful manner.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so the judgment of the court of first instance shall be revoked upon receiving the plaintiff's appeal and the disposition of this case shall be revoked and it is so decided as per