Cho Jae-2015-China33 ( December 30, 2015)

The calculation of profits from capital increase shall be based on the payment date of stock price.

Since the calculation of profits from capital increase should be based on the payment date of stock price, the imposition of gift tax based on the date when the non-party paid the stock price on the plaintiff's account is legitimate.

Article 39 of the Inheritance Tax and Gift Tax Act (Gift of Benefits Paid by Capital Increase)

2016Guhap7557 Revocation of Disposition of Imposition of Gift Tax

OO

O Head of tax office

November 22, 2016

2017.012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The defendant's disposition of imposition of gift tax OO.O. on the plaintiff shall be revoked.

1. Details of the disposition;

A. AAB (hereinafter referred to as "non-party company") participated in the capital increase issued by BB (hereinafter referred to as "non-party company") 20O.O.O.O. and allocated OO. per share to a third party by participating in the capital increase issued by 20O.O.O., the tax authority determined that AA acquired OO won at a lower price than the appraised value per share of the non-party company's stocks calculated in accordance with Article 39 of the Inheritance Tax and Gift Tax Act, and that the tax authority has determined and notified 20O.O.O.A.A. of gift tax amount.

B. AA filed an appeal with the Tax Tribunal regarding the above taxation disposition, and the Tax Tribunal determined that eight persons, such as Nonparty DD (the Plaintiff’s spouse), from among the OO owners allocated to AA, transferred the price in the name of the EE, who is an employee of AA and AA, and that the shares were allocated in the name of AA.

C. The Defendant imposed gift tax on non-party company's OOO.O.O.D. shares allocated to 200O.O.D. (hereinafter "the shares of this case"). However, DDR filed an objection with the actual owner of the shares of this case as the Plaintiff, who is the spouse of DD. Accordingly, the Defendant revoked gift tax on DD and determined and notified OO on the Plaintiff on 200O.O.O.O.O. donation donation (hereinafter "the disposition of this case").

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal, but it was dismissed 200O.O.O.O.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, Eul evidence 1 to 3, and Eul evidence 2-1 to 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Inasmuch as the Plaintiff did not engage in a transaction with the Nonparty Company and was not a shareholder before acquiring the instant shares from AA, gift tax should be imposed on the basis of 20O.O.O.O.O. that the Plaintiff received share certificates from AA due to the cancellation of the deposits for the protection of the instant shares. Therefore, the instant disposition that imposed gift tax on the Plaintiff based on 20O.O.O.O. that paid the share price for the instant shares by AA as of 20O.O.O. that paid the share price to the Plaintiff.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

According to Articles 39 and 60 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 828 of Dec. 31, 2007) and Article 29 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 21292 of Feb. 4, 2009), where new shares are issued at a price lower than the market price and profits were acquired, the value of the property subject to gift tax shall be the market price as of the date of donation, and the calculation of profits accrued from the increase of the shares shall be based on the date of payment of the shares. In full view of the purport of the above provision and arguments, it is reasonable to view that the Plaintiff’s transfer of shares to the Nonparty 2 was made on the account of the Plaintiff’s increase of shares, and that the Plaintiff’s transfer of shares was made on the account of the Plaintiff’s increase of shares to the Nonparty 2’s transfer of the shares to the Defendant, and that it was not reasonable to allocate the shares to the Nonparty 20O Association’s employees.

3. Conclusion

Thus, the plaintiff's claim is dismissed as there is no ground.