(영문) 서울고등법원 2013. 08. 23. 선고 2011누40341 판결

Although a change of entry was made in the register of shareholders, it cannot be readily concluded that “market price” is no data on the assessment of the donated property on the basis of the date of acquisition of shares, and that “the value that is normally recognized as a case of free transaction between many and unspecified persons, not the temporary and disposable transaction price.”

Related statutes

Article 56 of the Enforcement Decree of the Inheritance and Gift Tax Act

Cases

2011Nu40341 Revocation of the imposition of gift tax

Plaintiff, Appellant

1. AA 2.B 3.CCC 4.DD

Defendant, appellant and appellant

2.Golyang Tax Director; 3.Golyang Tax Director;

4.The Director of the Yangcheon Tax Office

Judgment of the first instance court

Incheon District Court Decision 201Guhap1423 Decided October 19, 2011

Conclusion of Pleadings

June 11, 2013

Imposition of Judgment

August 23, 2013

Text

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

Purport of claim and appeal

1. Purport of claim

On September 1, 2009, the director of the tax office attached to the defendant fathercheon Tax Office imposed the gift tax on the plaintiff AA, imposed the tax on the plaintiff CB on December 1, 2009, imposed the OOOO on the plaintiff CB, and imposed the gift tax on the plaintiff CCC on December 1, 2009 by the director of the tax office Gangwon District Tax Office, imposed the gift tax on the plaintiff CCC on December 1, 2009, and revoked the imposition of the OOOOO on the plaintiff DD on December 1, 209 by the director of the tax office of Yangcheon Tax Office.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

Reasons

I. Gift tax;

In addition to the contents to be explained on this part, and the second 17th 17th 2nd 17th 207th 207 second 2nd 1th 2007 second 2nd 2nd 4th 5th 2007, it is identical to the details of the disposition in the second 2nd 13th through 4th 5th 2nd 2nd 2007, and it is cited as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

II. Title Trust

1. The plaintiff's assertion

Although the plaintiffs actually acquired EE and F shares as seen below, each of the instant dispositions, based on the premise that the plaintiffs received a title trust from GGG, is unlawful.

△△E stocks: The Plaintiffs purchased the EE stocks for investment purposes, taking into account the high corporate value of the EE, and thereafter, paid the total purchase price of the EE stocks to HH, etc., and paid the total purchase price of the said stocks, and the Plaintiffs did not receive title trust of the EE stocks from GG in order to prepare the acquisition fund.

"△△△F stocks": The plaintiffs sold the EE stocks owned by the plaintiffs from HH, offer to purchase the FF stocks, and there was a concern that the value of the FF stocks will decline in the future, but when selling the EE stocks, they decided to purchase the FF stocks in such a way as to reach a considerable profit margin. The plaintiffs paid the total sum of FF stocks borrowed from the third corporation on August 28, 2007 and October 12 of the same year, III (hereinafter referred to as the "III"), and the total sum of FF stocks borrowed from the third corporation on August 28, 2007, and the total sum of FF stocks borrowed from the above EE stocks was paid OO (OOO - OOO - OO 2) and the remainder of the borrowed stocks was paid by the plaintiffs on August 28, 2007, and thus, it is not deemed that the plaintiffs acquired the FF stocks directly from the OG company and the remainder of the borrowed stocks.

The following facts may be acknowledged by taking into account the overall purport of the pleadings in each entry in Gap evidence Nos. 1 to 14 (including a lot number) without dispute between the parties or in each entry in Gap evidence No. 1 to 14.

[1]

GG and JJ newly established EE Co., Ltd. (hereinafter “EE”) on February 19, 2006 by dividing road traffic sector among the business sections of the former EE, which were joint representatives of the former EE before personnel division.

○○ GG and JJ arranged their respective shares in order to independently manage the EE and the EE, while GG and JJ decided to manage the EE, and the JJ decided to operate the EE. Accordingly, the GG side sold to the JJ for approximately KRW OOO, and as seen above, the JJ side (JJ, KK, and LL) sold 500 and916 shares of the EE shares owned by the Plaintiffs from January 10, 2007 to February 8, 2007 to KRW OO.

○ The Plaintiffs, purchased from JJ, etc. on February 23, 2007, completed a change of entry into the register of EE in the register of shareholders, but on August 28, 2007, paid the total purchase price to HH, etc. on August 29, 2007, after selling the EE stocks again to HH, etc. and receiving the sale price (the date when the Plaintiff entered into a contract to sell the EE stocks to HH, etc.).

On the other hand, GG, the representative director of the EE, owned 802,550 shares of EE (35.39%) from December 31, 2006 until the day before EE reaches a free capital increase, and owned 1,171,723 shares (EE shares 35.39%) after the free capital increase was made on August 7, 2007.

○ EE had increased free of charge on August 7, 2007, and as a result, Plaintiff AA had 132,440 shares of EE, Plaintiff BB had 66,220 shares, Plaintiff CCC had 264,880 shares, and Plaintiff DD had 264,880 shares.

○ The Plaintiffs paid the securities transaction tax on October 10, 2007 when transferring all the EE shares they own as indicated in the following table, and paid the capital gains tax on November 30 (1) and January 15, 2008 (2) on two occasions.

Classification

Plaintiffs (sellers)

Total

CCC

EE Stocks

Buyer

HH, PP

QQQ, RRR

Transfer Date

207.

9.1.

September 1, 2007

207.

9.1.

207.

9. 1

Number of Stocks

132,440

6,220

264,880

728,420

Transfer Value

000 won

Securities Transaction Tax

October 10, 2007

000 won

Transfer Income Tax (1j)

November 30, 2007

000 won

Angrado Income Tax (2j)

January 15, 2008

000 won

Transfer Income Tax (total amount)

000 won

[2]

○ The Plaintiffs entered into a contract with HH on August 28, 2007 to purchase all FF shares (60,000 shares), including management rights, in total, from HH, with the aggregate of the FF shares (60,00 shares), and the Plaintiffs paid the total amount of KRW OO on August 28, 2007, which is the contractual date, to HH on August 28, 2007, and paid the remainder of KRW 31,00 among the FF shares purchased from HH on September 28, 2007, and the remainder of KRW 29,000 on December 2, 207, each of the shareholders’ roster completed the entry of the FF on December 2, 2007.

The debtor

Date of borrowing

Borrowings

Interest Rate

Period of Repayment

Jinay

III

August 28, 2007

000 won

9% per annum

February 27, 2008

Unsecurity

000 won

CCC

000 won

Sub-committees

000 won

III

October 12, 2007

000 won

9% per annum

December 31, 2010

000 won

CCC

000 won

Sub-committees

000 won

Total

000 won

On the other hand, the plaintiffs borrowed on August 28, 2007 from III, and some of the OOOO members borrowed on August 28, 2007 were OOO members, part of the EE shares sales marginal profits, and the remainder of the loans were OO members borrowed from GG on August 30, 2007.

[3]

○ EE decided to take over SS Co., Ltd. listed on KOSDAQ on January 2007 (former SS Co., Ltd., hereinafter referred to as “SS”), and concluded a contract to take over the stocks and the management rights of SS on July 30, 2007, and became the controlling shareholder of SS beginning to purchase the stocks and the stocks.

After that, on August 28, 2007, EE was merged into SS as of November 17, 2007 after the resolution of the board of directors, and GG became the controlling shareholder of SS.

3. Determination

A. The circumstances examined in light of the overall purport of the above facts are as follows.

(1) Title trust of EE shares

▪ GGG는 구 EEE을 EEE과 EEE으로 인적분할하는 과정에서 JJJ 등이 소유하는 EEE 주식을 취득하여야 했는데， GGG는 이미 EEE 주식 802，550 주(35.39%)를 보유하고 있었는바， 추가로 500，916주를 취득하게 되면 1，303，466주(57.48%)를 보유하게 되어 과점주주가 되므로 부담하게 될 조세( 「국세기본법」 상 제2차 납세의무자，「지방세법」 상 과점주주의 간주취득으로 인한 취득세 납부)를 회피할 필요가 있었을 것으로 보인다.

▪ 원고들이 EEE 주식을 양도한 것과 관련하여 부과된 증권거래세 합계 OOOO원은 EEE의 법인계좌(TT 595-17-004252)에서 인출 ・ 납부되었고， 양도소득세 1차 납부분 합계 OOOO원은 2007. 11. 30. EEE의 직원 UUU의 계좌(TT 595-02-125326)에서 인출된 자금으로， 양도소득세 2차 납부분 합계 OOOO원은 2008. l. 15. EEE의 법인계좌(VV은행 444-910004-43704)에서 인출된 자금으로 각 납부되었다.

▪ 원고들이 JJJ 등에게 EEE 주식 매수대금을 지급하기 이전인 2007. 2. 23. EEE의 주주명부에 명의개서가 되었고 원고들은 주식양수계약을 체결한 2007. l. 10.부터 2007. 2. 8. 이후로 한참이 지난 2007. 8. 28. EEE의 주식을 매도하면서 받은 매도대금으로 2007. 8. 29. 위 매수대금을 지급하였다(원고들은 JJJ 등과 주식 양수계약을 체결하면서 계약서에 대금지급기일을 명시하지도 않았다).

▪ 원고들은 HHH 등에게 EEE 주식을 매도하는 계약을 체결한 2007. 9. 1. 이전 인 2007. 8. 28. 매도대금을 HHH 등으로부터 미리 지급받았는바， EEE 주식이 원고들 소유라면 HHH 등이 계약일보다 앞서 매수대금을 지급할 이유가 없다.

▪ 원고 AAA， DDD은 취득한 EEE 주식의 수와 그 매수대금， 매도사실과 그 매도경위 등에 대하여 알지 못한다고 진술하고 있다.

▪ 원고들이 EEE 주식을 매수하는 과정에서 GGG를 통하지 않고 원고들이 스스로 마련한 자금을 확인할 수 없다.

(2) Title trust of FF shares

▪ GGG는 코스닥시장에 상장되어 있는 SSS를 인수하려고 하였고， 위 인수를 자문하였던 HHH의 요구에 따라 FF가 보유하고 있던 SSS 주식 2，007，000 주(SSS의 지분 13.64%)를 OOOO원에， 주식회사 WWW가 보유하고 있던 SSS 주식 1，000，000주(SSS의 지분 6.57%)를 OOOO원에 매수하고， SSS 주식 1，564，548주(SSS의 지분 10.63%)를 보유하고 있던 HHH로 부터 FF 주식 60，000주(지분 100%)를 OOOO원에 취득하는 대신， 원고들의 명의로 되어 있는 EEE 주식 728，420주를 OOOO원에 HHH 등에게 양도하게 되었다.

▪ 위와 같이 GGG는 HHH로부터 FF 주식 60，000주(지분 100%)를 취득하여야 했는데， GGG가 FF 주식 60，000주를 취득하게 되면 과점주주가 되므로 부담하게 될 조세( 「국세기본법」 상 제2차 납세의무자，「지방세법」 상 과점주주의 간주취득으로 인한 취득세 납부)를 회피할 필요가 있었고， GGG의 명의로 FF 주식을 취득하게 되면 FF는 SSS 등과 특수관계법인이 되어 영업거래 및 자금거래 과정에서 부당행위계산부인 등으로 인한 예기치 못한 조세부담이 발생할 수 있으므로， 이를 회피할 필요가 있었을 것으로 보인다.

▪ 원고들은 FF 주식의 매수대금을 지급하기 위하여 GGG의 특수관계법인인 III으로부터 합계 OOOO원(= OOOO원 + OOOO원)을 차입 하여 FF 주식의 계약금 및 잔금을 지급하였는데， 그 중 2007. 8. 28.자 차입금 합계 OOOO원을 EEE 주식을 매도하여 발생한 차익 중 일부인 OOOO원과 GGG로부터 차입한 합계 OOOO원으로 변제하였는바， FF 주식 매수대금으로 지급한 돈 중 GGG를 통하지 않고 원고들이 스스로 마련한 자금을 확인할 수 없다.

▪ 2007. 8. 28. 원고들이 FF 주식의 매수대금으로 지급한 계약금은 III의 계좌에서 원고들의 계좌를 통하지 않고 직접 HHH로 이체되었고 2007. 8. 31. GGG로부터 차용한 차입금 합계 OOOO원 또한 원고들의 계좌를 통하지 않고 직접 III으로 이체되었다.

▪ GGG로부터 합계 OOOO원을 차입하면서 원고들은 FF 주식을 담보로 제공하였는데， 원고들이 이를 변제하지 못하면 위 FF 주식은 GGG에게 귀속될 가능성이 있다.

▪ 원고 AAA， DDD은 FF 주식의 취득 경위， 취득한 FF 주식의 수와 그 매수 대금 등에 대하여 알지 못한다고 진술하고 있다.

B. In full view of the above circumstances, it is reasonable to view that GG acquired EE and F shares by using the plaintiffs' name, and that GG trusted the above shares to the plaintiffs. Therefore, under Article 45-2 (1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007, hereinafter "Inheritance Tax and Gift Tax Act"), the plaintiffs are deemed to have received the above shares on the date when their names change of holders is made in their names. Accordingly, this part of the plaintiffs' assertion is without merit.

III.Donated Property Value

1. The parties' assertion

A. The defendants' assertion

The calculation of the value of each of the first taxation dispositions of this case is illegal to evaluate the acquisition date of the plaintiffs' EE and F stocks, and the purchase price of each of the shares paid under the names of the plaintiffs as the market price of EE technology and F stocks. The calculation of the value of the donated property is made by applying the supplementary assessment method for the non-listed stocks under Article 63 (1) 1 (c) of the Inheritance Tax and Gift Tax Act and Article 54 (1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621 of February 22, 2008, hereinafter the same shall apply) and the supplementary assessment method for the non-listed stocks under Article 63 (1) 1 (c) of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621 of Feb. 22, 2008), and as

(1) EE;

A) Method of assessment

In the event that it is unreasonable to calculate the weighted average amount of net profit and loss for the last three years by the value of Article 56(1)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act due to a temporary contingency case, it is difficult for two or more specialized credit assessment institutions or accounting corporations to prove that the average amount of net profit and loss for the last three years may be the average amount of the presumed profit per share calculated according to the standards as prescribed by the Ordinance of the Ministry of Finance and Economy, but the plaintiffs cannot prove that the net profit and loss for the last three years has increased normally. In addition, where the taxpayer is deemed to have the negative amount of profit and loss calculated, the taxpayer may apply for an appraisal of the unlisted stock by the Property Assessment Review Committee pursuant to Article 56-2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, but Article 56(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is nothing more than a voluntary provision. In addition, in order to apply the above provision to the Plaintiffs, it is necessary to report the gift tax to the Plaintiffs and prepare the assessment report date and the assessment date within one week, and the Plaintiffs did not file the estimation date.

An appraisal report by an institution specialized in credit and good faith on the EE stocks was not submitted to the Defendants.

Therefore, it is reasonable to calculate the value of EE stocks by the weighted average value of 3 and 2 of the net asset value per share in accordance with Article 56 (1) 1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act.

(B)the appraised value;

According to the EE's stock evaluation protocol, and the net asset value of EE, and the net asset value of EE per share, each of which is calculated by the weighted average of net profit and loss for the last three years, and each of which is calculated by the OO won, and the assessment value per share of the net profit and loss for the last three years, are OO won. In addition, according to the EE's business rights evaluation protocol, and the assessment value of EE's business rights are different, while the assessment value of the business rights of OO is different

c)Donated tax amount;

Therefore, the amount of the plaintiffs' donated property and the amount of the gift tax calculated as of February 23, 2007, which is the transfer date, are as follows:

(2) F

A) Standard of appraisal

At the time of investigating the gift tax on the Plaintiffs in 2009, the Defendants demanded FF employees to submit the transfer documents and provisional settlement documents for the confirmation of the transfer date of the Plaintiffs’ shares, and FF employees, while FF employees did not have any separate transfer document after October 12, 2007, affixed the FF’s seal impression on the register of shareholders at the time of December 31, 2007 and delivered it to the investigator. Accordingly, the transfer date, which is the record date of FF shares, should be deemed as December 31, 2007.

(B)the appraised value;

According to FF's stock evaluation report, and F's net asset value per share, and the net asset value per share, each of which is calculated by applying the weighted average of net profit and loss for the last three years, and each of which is calculated by OOO won. In addition, according to FF's business goodwill evaluation report, and FF's zero gift value is calculated by OO.

c)Donated tax amount;

Therefore, the value of the plaintiffs' donated property and the amount of the gift tax calculated as of December 31, 2007, the transfer date, are as follows:

B. The plaintiffs' assertion

As examined below, the defendants are unlawful in assessing the value of the EE and FF stocks donated by the plaintiffs, and the evaluation base date, evaluation method, etc., or in calculating the tax amount mistakenly, each of the dispositions of this case must be revoked as it is unlawful.

(1) EE;

A) Method of assessment

On February 19, 2006, when three years have elapsed before the evaluation base date, the road traffic sector of EE was divided into human resources on February 19, 2006, and this constitutes cases where it is unreasonable to evaluate the average amount of net profit and loss per share for three years to the maximum extent per share by falling under Article 56(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act and Article 17-3(1)3 of the Enforcement Rule of the Inheritance Tax and Gift Tax Act. Therefore, the average amount of estimated profit and loss per share, calculated according to the standards prescribed by the Ordinance of the Ministry of Finance and Economy, shall be regarded as the net profit and loss per share for the last three years.

(B)the appraised value of goodwill;

In assessing the net asset value, the defendants were added to the net asset value of the goodwill, but the appropriateness of the evaluation is doubtful.

(2) F

(i)the sum of the value of donated property with respect to FF stocks plus the value of donated property with respect to EE stocks (value of donated property with respect to EE stocks);

(A) the evaluation base date;

Since the transfer date of FF shares is around September 2, 2007 and December 2, 2007, the value of donated property should be assessed on the basis of the above date. However, it is illegal for the Defendants to calculate the value of donated property on December 31, 2007 by deeming the transfer date as the transfer date.

B) Method of assessment

The Inheritance Tax and Gift Tax Act stipulates that only the net value of the FF stocks shall be assessed based on the net asset value, not on the weighted average method of net asset value and net profit value, in the case of a corporation with losses continuously from three years before the business year in which the evaluation base date falls. As seen above, the FF stocks’ evaluation base date was from September 2, 2007 to December 2, 2007; the FF paid losses continuously in 2004 to 2006; and the FF falls under a corporation with losses continuously from the business year within three years before the business year in which the evaluation base date falls. Accordingly, it is unreasonable to assess the net asset value and net profit value by adding them to the net asset value and net profit value, which is calculated by the Defendants’ assessment per share.

C)the appraised value of goodwill;

In assessing the net asset value, the defendants added the appraised value of business rights to the net asset value, but it is doubtful how the appraised value of business rights is calculated specifically or how the appraised value of business rights is calculated.

D) Exclusion of aggregate taxation of donated property

Article 47(2) of the Inheritance Tax and Gift Tax Act stipulates that the amount of the donated property received from the same person is added to the taxable value of the donated property if the total amount of the donated property received from the same person is at least ten years before the relevant donation date. The purport of the above provision is to prevent the act of donation by dividing the gift tax by not making a lump sum donation of several assets to avoid a progressive tax rate, and to prevent the act of donation by applying the provisions of cumulative taxation even to the book on the donated property under title trust is contrary to the purport of the above provision. In addition, since the term "property received from the same person" refers to the value of the donated property, the substance of the text refers to the value of the donated property, and the above provision cannot be applied

(3) The rate of non-declaration penalty tax

Article 47-2(1) of the Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201; hereinafter the same shall apply) provides that the rate of additional tax to be applied to non-declarations by taxpayers shall be 20% in principle (Article 47-2(1)). However, in cases where taxpayers receive national tax, refund, and deduction by means of preparing double books, etc., 40% in the application of additional tax as a sanction (Article 47-2(2)1 of the Framework Act on National Taxes and Article 27(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 23878, Jun. 26, 2012; hereinafter the same shall apply). Article 27(2)6 of the Enforcement Decree of the Framework Act on National Taxes is basically the same as fraudulent or other unlawful acts provided for in the Act on the Punishment of Tax Evaders. However, it is unreasonable to apply the rate of additional tax to this case under the name of 40% in the Punishment Act.

2. Value of donated property subject to each disposition of this case

(a) Standard date for appraisal of donated property;

Article 45-2(1) of the Inheritance Tax and Gift Tax Act provides that in case where the actual owner of the property, which requires a transfer of rights or a registration thereof, is different from the nominal owner, the value of the property shall be calculated on the basis of the date when the property is registered, etc. as its nominal owner (in case of the property subject to a transfer of title, the date when the transfer of title is actually made), notwithstanding Article 14 of the Framework Act on National Taxes, and in case where the property is the property subject to a transfer of title, if no transfer of title is

As seen earlier, the Defendants, despite the entry of entry into the register of shareholders on February 23, 2007 with respect to the Plaintiffs’ EE shares, and the entry of entry into the register of shareholders on September 28, 2007 and December 2, 2007 with respect to FF shares, evaluate the Plaintiffs’ donated property as of the acquisition date of EE and F shares, in violation of Article 45-2(1) of the Inheritance Tax and Gift Tax Act.

(b) Calculation method of donated property;

Article 60(1) of the Inheritance Tax and Gift Tax Act provides that the value of the property shall be calculated at the “market price” as of the date of donation, and the “market price” refers to the value formed by a normal transaction, i.e., an objective exchange price formed when a free transaction takes place between many and unspecified persons. Thus, even if there is a transactional example, where the transaction value cannot be deemed as a price formed by a normal transaction that reflects the objective exchange value of the property as above, or where the transaction value is non-listed stocks subject to donation, it shall be deemed that the market price is difficult to be calculated, or where the transaction value is non-listed stocks subject to donation, it shall be calculated according to the supplementary assessment method stipulated in Article 63(1)1(c) of the Inheritance Tax and Gift Tax Act (see, e.g., Supreme Court Decision 2003Du5723, Oct. 15, 2004). Meanwhile, where the burden of proving that the burden of proof or intention regarding the market price is difficult to be calculated at the market price (see Supreme Court Decision 2000Du3130, Jun. 15, 294, 194.

In the process of human division of EE back to this case, GG and J into EE and the former EE, the plaintiffs acquired 500,000 and 916 shares in the aggregate of the EE shares held by JJ. In the meantime, the JJ acquired PE shares in approximately KRW 00,000, and the GG transferred all of the FF shares including the management rights to the plaintiffs, i.e., the following circumstances recognized in light of the above facts, that the GG and JJ acquired ES shares in the name of the plaintiffs, and that there is no possibility that these shares will be acquired at the time of exchange of the plaintiffs' shares, and that there is no objective possibility that these shares will be acquired at the time of exchange of ES's shares in the name of the plaintiffs, and that there is no objective possibility that these shares will be acquired at the time of exchange of PE's shares at the market price, and that there is no objective possibility that these shares will be transferred at the time of exchange of PE's shares at the time of exchange.

Therefore, each disposition of this case is unlawful because the evaluation base date and evaluation method of the donated property were wrong.

3. Recalculation of donated property;

(a) Commercialization;

(1) Method of assessment

A) Method of assessing unlisted stocks

Article 63 (1) 1 (c) of the Inheritance Tax and Gift Tax Act provides that stocks not listed on the Korea Stock Exchange (hereinafter referred to as “non-listed stocks”) shall be appraised according to the method prescribed by the Presidential Decree in consideration of the assets and earnings of the corporation concerned, and Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the value of non-listed stocks shall be calculated by the weighted average value of net profits and losses per share and net asset value per share, respectively.

The net value per share means the value appraised by the following formula (Article 54(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act):

Value per share = The weighted average amount of net profit and loss per share for the latest three years ± an interest rate determined and publicly announced by the Commissioner of the National Tax Service in consideration of the rate of circulation of three-class corporate bonds guaranteed by

The net asset value per share means the value appraised by the following formula (Article 54(2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act):

Maer per stock = Net asset value of the corporation concerned ¡À Total number of outstanding stocks

The weighted average amount of net profit and loss per share in the last three years, in the formula of net profit and loss per share, shall be:

The calculation shall be made by the formula (Article 56(1)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act).

The weighted average amount of net profit and loss per share in the last three years;

However, it is unreasonable that the corporation concerned is based on the value under Article 56 (1) 1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act for the last three years due to a temporary and rapid increase in the amount of net profit or loss for the last three years, as prescribed by the Ordinance of the Ministry of Finance and Economy, and the average value of estimated profit per share (limited to the case where the report is filed within the deadline for the tax base return of gift tax, the calculation date of estimated profit per share, and the evaluation date within the one for one house, and the calculation date and the donation date belong to the one for one house and one for one house, and the two or more days for one house are included in the unification year).

On the other hand, Article 17-3 (1) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act provides for the reasons that it is deemed unreasonable to evaluate the net profit and loss per share in the last three years, and subparagraph 3 of the same Article provides for the cases of mergers, divisions, capital increase or decrease or major types of business during the period from the beginning date of the business year in which the third anniversary before the base date of appraisal falls to the base date of assessment.

B) Application of objective and reasonable methods

As seen above, each subparagraph of Article 17-3(1) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act provides that the amount of net profit and loss for the last three years cannot be calculated, or the amount of net profit and loss for the last three years is abnormal and thus it is deemed unreasonable to calculate the amount of net profit and loss per share on the basis thereof. Thus, barring any special circumstance, Article 56(1)1 of the Enforcement Decree of

It is unreasonable to calculate the net value per share on the basis of the "average average amount of net profit and loss per share for the preceding three years" (see Supreme Court Decision 2006Du16434, Dec. 11, 2008); and such a legal doctrine is the value under Article 56 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act], which is the value under Article 56 (1) 2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, or to calculate the net profit and loss per share on the basis of the value under subparagraph 2, even though it cannot be calculated on the basis of the value under subparagraph 1 because it does not meet the requirements under Article 56 (1) 1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, or under Article 56 (2) of the Inheritance Tax and Gift Tax Act (see, e.g., Supreme Court Decision 2006Du16434, Dec. 11, 2008).

C) Determination in this case

As seen above, GG, and JJ newly established EE by dividing only road traffic projects among the business sections of EE on February 19, 2006, and the 6 Plaintiffs completed the transfer of title to EE stocks purchased by JJ, etc. on February 23, 2007. As such, as of February 23, 2007, the transfer date is the transfer date, and EE is the corporation divided from the beginning date of the business year in which the third anniversary of the base date of appraisal falls, and the base date of appraisal. Accordingly, in the case of EE stocks, it may be deemed that the calculation of net profit and loss per share is unreasonable on the basis of the abnormal amount of profit and loss for the last three years. However, in the case of EE stocks, the average amount of profit and loss per share, which is the value under Article 56 (1) 2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, is not calculated or the average amount of profit and loss per share cannot be calculated on the basis of the comprehensive provision of subparagraph 2.

Therefore, as seen above, it is reasonable to evaluate the value of the EE’s stocks only by applying mutatis mutandis the method of Article 54(14) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which can be seen as a objective and reasonable method among the supplementary assessment methods prepared by the Inheritance Tax and Gift Tax Act.

(2) Appraisal of goodwill

Article 55 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides for the calculation method of the net asset value, and Article 59(2) provides that in the calculation of the net asset value, the net asset value of the corporation shall be added to the asset value of the corporation, but it shall not be added to the assessment under Article 54(4).

As seen above, the EE’s stocks are assessed based on the net asset value by applying mutatis mutandis the method of Article 54(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which can be considered as an objective and consistent method among the supplementary method of assessment prepared by the Inheritance Tax and Gift Tax Act, because the “average value of the presumed interest per share,” which is the value of Article 56(1)2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, is not calculated or failing to meet the requirements prescribed by the comprehensive method of subparagraph 2.

Therefore, it is reasonable to not add the appraised value of EE's goodwill to the value of assets under Article 55 (3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act.

It is clear that the net asset value of EE is 14,987,903, and 206 won, and among them, the net asset value of EE is 14,987,903, and 206 won under the evidence Nos. 16-1 through 17-2 of E evidence Nos. 16, and the net asset value of EE, excluding the appraised value of goodwill, is OO, and the net asset value of EE is 2,267,800 for the total number of issued stocks, and the assessment value per share is OO(s).

(b) F;

(1) Record date;

Article 45-2(1) of the Inheritance Tax and Gift Tax Act provides that where the actual owner or the nominal owner of the property, which requires a registration, is different, the value of the property shall be deemed to have been donated by the actual owner on the date when it is registered, etc. as the nominal owner, notwithstanding Article 14 of the Framework Act on National Taxes.

In calculating the amount of the gift tax newly issued by the Defendant for the first time, it is insufficient to conclude that the entry of the change of entry into the Plaintiffs’ FF shares on December 31, 2007, and the entry of the evidence No. 14 on December 31, 2007, in calculating the amount of the gift tax, the change of entry into the Plaintiffs’ FF shares on December 31, 2007, and there is no other evidence to acknowledge it.

Rather, the evidence No. 2-1 and No. 2, and evidence Nos. 5-8 through 12, comprehensively taking into account the overall purport of the pleadings, and the Plaintiffs entered into a share and management right transfer agreement with HH between the Plaintiffs and H.

According to the 2nd 7th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 207, and the 2nd 9th 6th 6th 7th 6th 6th 6th 6th 6.

(2) Method of assessment

A) Whether a continuous loss has occurred between three years before the business year

Article 54 (4) 3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the total amount of losses that falls or will fall under the business year under each business year under the Corporate Tax Act and the total amount of losses that falls or will fall under the business year shall be appraised according to the net asset value under the provisions of Article 112 of the same Act.

As seen above, the transfer date of the plaintiffs FF stocks is around September 28, 2007 and December 2, 2007. Thus, the business year before the base date of appraisal in the business year including the above base date of appraisal is from 2004 to 2006, and the net profit on the FF's income statement and balance sheet should be considered as the "corporation continuously suffered losses from the business year within three years before the base date of appraisal in the business year including the above base date of appraisal," and the net profit on the FF's income statement and balance sheet in the business year 2004 and the business year 2005, and -OOOO for the business year - for the business year 206, the FF cannot be considered as the "corporation continuously suffered losses from the business year within three years before the base date of appraisal."

Therefore, according to Article 54(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the net value per share and the net asset value per share should be calculated by the weighted average value of 3 to 2 per share.

B) calculated weighted average value of net profit and loss per share and net asset value;

First, Article 55(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the net asset value of the FF shares shall be the value calculated by subtracting liabilities from the value appraised by the assets of the relevant corporation as of the base date of appraisal under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act. As seen above, the base date of appraisal of FF shares shall be September 28, 2007, when the entry of change of holders for the remaining 29,000 shares as of September 28, 2007 and December 2, 2007, when the entry of change of holders for the remaining 29,000 shares is completed. Therefore, the Defendants shall evaluate the net asset value of the FF shares as of September 28, 2007 and December 2, 2007, respectively.

The FF’s balance sheet (Evidence A) prepared as of December 31, 2006 or December 31, 2007, from the date of the closing of the argument in this case was submitted, but the FF’s assets and liabilities assessment data as of September 28, 2007 and December 2, 2007 as of December 28, 2007, were not submitted, and there was no evidence showing that the FF’s provisional settlement of accounts was made at that time. However, according to the evidence No. 3-2, the FF’s assets and liabilities were not sufficiently changed during the 2007 business year, such as obtaining investment assets disposal profits of the FF from the FF’s assets and liabilities during the 207 business year, and thus, it cannot be deemed that the FF’s net assets and liabilities were fully reflected in the case based on the net assets and liabilities submitted as of December 31, 2006 or as of December 27, 2007.

4. Revocation of each disposition of this case

The legality of a disposition is determined depending on whether the amount of taxation exceeds the legitimate amount of tax, and the parties can submit arguments and materials supporting the objective amount of tax obligations until the closing of arguments in the trial court, and when computing the legitimate amount of tax to be lawfully imposed by these materials, the court must cancel only the portion exceeding the legitimate amount of tax (see, e.g., Supreme Court Decision 97Nu19496, Sept. 29, 2000). The burden of proof on the materials that serve as the basis for calculating the tax base lies on the tax authority, and if the tax authority fails to prove the legitimate amount of tax, the tax authority should, once it cancels the entire tax disposition, have the tax authority calculate the legitimate amount of tax and re-

As seen above, there is no data that can assess the value per share of FF stocks acquired in the name of the Plaintiffs, such as the net asset value of the Plaintiffs, and thus, the value of the donated property and the tax amount for the Plaintiffs cannot be calculated. Accordingly, the entire dispositions of this case should be revoked.

IV. Conclusion

Therefore, the plaintiffs' claims seeking the revocation of each disposition of this case are justified, and the judgment of the court of first instance is justified, and all appeals by the defendants are dismissed. It is so decided as per Disposition.

심급 사건

-인천지방법원 2011.10.19.선고 2011구합1423

서울고등법원 2013.08.23.선고 2011누40341

참조조문

-공인회계사법

-국세기본법

-국세기본법 제14조

-국세기본법 시행령 제27조 제2항 제6호

-민사소송법 제420조

-법인세법

-상속세 및 증여세법

-상속세 및 증여세법 제45조의2 제1항