Seoul Administrative Court 2008Guhap15237 ( October 29, 2008)

Method of assessment of unlisted shares, if shares are paid most;

In the event of the fictitious payment of stock price, the stock company seems to have lent the best payment to the shareholders and can be deemed to have paid the stock price in subrogation. Therefore, in the evaluation of the transfer value of stock, the net asset value of the stock including this bond shall be assessed, but it shall not be included in the case where there are special circumstances such as the

The contents of the decision shall be the same as attached.

1. Revocation of a judgment of the first instance;

2. The Defendant imposed a gift tax of KRW 734,721,730 on the Plaintiff on May 17, 2007 and the disposition of demanding payment of KRW 24,552,510 on the said gift tax shall be revoked.

3. The total costs of the lawsuit shall be borne by the Defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings in each of the evidence Nos. 1, 2, 7, 9, 1 through 4, 5-1, 2, 6-2, 7-1, 2, 8, 9, 11 of the evidence Nos. 3, 4-2, 5-2, 6-2, 7-1, 7-2, 2, 8, 9, 11

A. On November 10, 1998, KimA and Lee Jae-B, his wife, invested 50% equity shares of each 50% of the 10,000,000,000 capital (issued shares of 2,00,000,000 equity shares, and the face value of 5,000 equity shares per share) and established a FCC Investment Corporation (hereinafter referred to as "non-party company") as CCC Investment Corporation on August 18, 1999, EE business Investment Corporation on January 3, 2003, as DD business Investment Company on June 9, 2006, as DD business Investment Company, and as GGG business Investment Company on July 24, 2007.

B. On July 15, 1999, the Plaintiff acquired shares of Nonparty Company 5,00,000,000, and KRW 1,446,000 on August 20, 199 through each new shares subscription in KRW 7,230,00,00. On October 15, 199, the Plaintiff acquired shares of Nonparty Company 3,000,000,000 upon a claim to convert the above convertible shares into shares on May 2, 200 (the capital of Nonparty Company increased from KRW 10,00,000,000 to KRW 23,230,00,000,000, total number of shares issued, and KRW 46,646,00,00, respectively.

C. On the other hand, on June 15, 200, the plaintiff transferred 535,503 shares of the non-party company's shares to KimA (hereinafter "the shares of this case"). The director of the Seoul Regional Tax Office conducted a tax investigation on the non-party company from November 1, 2006 to December 12, 2006, the plaintiff should be deemed to have transferred the shares of this case to KimA free of charge, and the plaintiff evaluated the value per share of KRW 4,156 won as 4,225,50,468 as 4,156 won and notified the defendant of taxation data to the effect that the plaintiff donated shares of KRW 2,225,50,468 to KimA. The defendant imposed a disposition of imposition of KRW 1,02,308,260 for gift tax for 200 on February 16, 2007.

D. However, on May 17, 2007, when KimA failed to pay the gift tax, he notified the Plaintiff of the designation as a joint and several taxpayer of the said gift tax, and at the same time notified the Plaintiff of the designation as a joint and several taxpayer of the said gift tax, he/she imposed and notified the said gift tax, and urged the Plaintiff to pay the additional dues of KRW 5,204,260 on the said gift tax (hereinafter referred to as the “instant transfer disposition”).

E. On November 19, 2007, the Plaintiff appealed to the National Tax Tribunal, but was dismissed on February 21, 2008.

F. Meanwhile, on June 17, 2008, the Defendant decided to exclude the application of the premium rate (30%) on the largest shareholder, which was the premise of the above disposition, from the total of 4,156 to the total of 3,197 won, and made ex officio reduction of the value per share of the shares of this case from the total of 1,077,512,880 won (=the total of 1,022,308,260 won + the total of 5,204,260 won) to the total of 759,274,240 won (the total of 734,721,730 won out of the above amount, and the remainder of 24,552,510 won is an additional charge under the above amount of gift tax) (the part of the previous disposition, which remains after the above reduction, is referred to as "the remaining part of the above 759,274,240 won").

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful in this point, since the plaintiff's transfer of the shares to Kim Jong-si was based on the premise that the plaintiff donated the shares of this case to Kim Jong-si because it is not a gratuitous transfer, but a settlement of the subscription price of new shares or premium in accordance with the terms and conditions set forth in the original new shares acquisition contract. The plaintiff's transfer of shares of this case was not an act accompanied by a quid pro quo, and thus, the disposition of this case based on the premise that the plaintiff donated the shares of this case to Kim Jong-si, and that even if the transfer of shares of this case was a donation, it would result in the plaintiff's deception, and that the plaintiff knew of this fact and revoked it, and ③ in calculating the tax base for the imposition of gift tax of this case, the defendant assessed the share value by reflecting the value of the shares which were not actually realized

(b) Related statutes;

It is the same as the entry of the attached statutes.

(c) Fact of recognition;

The following facts are not disputed between the parties or may be acknowledged by comprehensively taking into account the following facts: Gap evidence 1-2, Eul evidence 1-2, Gap evidence 1-3-1, 2-2, Gap evidence 4-1, 2, 7, 8, 10, Gap evidence 11-1, 2, 3, Gap evidence 12-1 through 8, Gap 13, 14, 15, Eul evidence 3, 4, Eul evidence 5-1, 2, Eul evidence 6, Eul evidence 7-1, 7-2, 8, 8, 9, 10, and the testimony of the court of first instance H, Jeon LL, and Eul witness of the court of first instance.

(1) On November 10, 1998, KimA and LeeB established a non-party company of KRW 10,000,000 (Issuance Shares 2,00,000,000, and KRW 5,000,000) invested in their shares of 50% each on November 10, 199.

(2) The KimA temporarily borrowed KRW 5,00,000,000 of his/her own share capital and deposited as a lump sum and received a share capital payment certificate, and repaid it. Under the financial statements of the non-party company, the non-party company processed the accounting by way of accounting as if it acquired securities, etc. or lent money to another person as if it were the amount of the most paid-in capital.

(3) On the other hand, the plaintiff was recommended to make an investment in the non-party company from KimA, and then acquired shares of the non-party company at a par value of KRW 5,00 per share with KimA, and later assessed the value of shares of the non-party company at a par value of KRW 10,000 per share, and subsequently acquired shares of the non-party company at a par value of KRW 10,000 through KimA, LeeB, and MM Government (hereinafter referred to as "MM Government") to transfer part of the shares acquired by the plaintiff to the non-party company (hereinafter referred to as "the agreement in this case"). On July 15, 1999, the plaintiff acquired shares of the non-party company at a share of KRW 5,00,000,000, KRW 1,446,000 on August 20, 199; the non-party company acquired shares at a share of KRW 200,00 on August 20,199.

(4) On June 15, 200, KimA requested the Plaintiff to implement the instant termination of the shares of the non-party company, “The value per share of the non-party company in the financial structure of the non-party company exceeds KRW 10,000,000,” although the largest payment and the window dressing accounting set forth in paragraph (2) above do not reach KRW 10,000. The Plaintiff transferred the instant shares to KimA, 321,302 shares among the shares of the non-party company owned by the non-party company on June 15, 200 in accordance with the instant agreement, to the non-party KimA, 321,302 shares, and 214,201 shares to the non-party KimA, and to the non-party 2,001 shares (this is the ratio of shares of the non-party company to 33.05% on the part of KimA, 33.05% on the part of the BB, and 3.90%).

(5) After that, the former H, a director in charge of accounting of the non-party company, received an order from the Plaintiff to report the financial status of the non-party company in the second half of the second half of 2000, and reported to the Plaintiff the most payment and the window dressing accounting as described in the foregoing paragraph

(6) Accordingly, the Plaintiff offered to KimA that he would suffer a decline in the value of the shares of the non-party company owned by him due to the fictitious payment and the window dressing accounting of KimA, and that he would withdraw various legal measures. The KimA promised to pay to the Plaintiff KRW 5,00,000,000, which was the most paid to the non-party company.

(7) 그러나 김AA이 위 (6)항 기재 약속을 지키지 못하자, 원고와 김AA 등(김AA 외에도 그와 특수관계에 있는 MM정공, 이BB, 김AA, 강NN, 조PP, 최QQ, 김RR, 강SS, 이하 '김AA 등'이라고 한다)은 2001. 2. 12.경 다음과 같은 내용의 합의 (이하 '이 사건 1차 합의'라고 한다)를 하고 그에 따른 담보로서 김AA 등이 보유하고 있는 주식 921,302주를 법무법인 화백에 보관시켰다.

(8) 그런데, 김AA 등이 이 사건 1차 합의의 이행시한인 2002. 2. 12.이 임박해서도 위 합의 내용을 이행하지 못하여 위와 같이 담보목적으로 보관된 주식 921,302주가 모 두 원고에게 양도됨으로써 소외 회사의 경영권까지 함께 넘어갈 가능성이 높게 되자, 이BB은 2002. 1.경 원고에게 '위 담보 목적 보관 주식 921,302주 중 748,006주는 원고가 갖고 나머지 173,296주는 자신이 보유함으로써 원고와 이BB의 주식 비율을 50%씩 하여 소외 회사를 공동 경영하자.'고 제안하였고, 이에 대하여 원고 역사 회사를 정상화시키면 투자자금을 회수할 수 있을 것으로 믿고 2002. 1. 17. 이BB과 사이에 위 제안과 같은 내용의 합의(이하 '이 사건 2차 합의'라고 한다.)를 하고 그에 따라 2002. 2. 18. 김AA, 강태전, 조PP, 최QQ, 강SS(김AA을 제외한 나머지 사람들은 김AA의 명의수탁자들이다, 이하 '김AA 측'이라고 한다.)으로부터 위 담보 목적 보관 주식 921,302주 중 748,006주를 무상으로 양도받았다.

(9) Meanwhile, at the time when the Plaintiff was assigned shares of 748,006 shares by the second agreement of this case, between the Plaintiff and the two parties, a sales contract was prepared between the Plaintiff and the two parties, wherein the Plaintiff was the buyer, and the Plaintiff was the seller and the seller entered into a sales contract of shares

D. Determination

(1) Whether the transfer of shares in the instant case is a donation

Article 2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301 of Dec. 29, 2000) provides that gift tax shall be imposed on a person who acquires any property through another person’s donation. As to the meaning of donation, although the former Act does not have a direct definition provision, it is not significantly different from that under the Civil Act. Therefore, in order to be subject to gift tax, the gift tax must have the substance of transferring the property free of charge. Thus, in cases where a quid pro quo donation exists between a donor and a donee, gift tax may not be imposed (see Supreme Court Decision 95Nu4353, Sept. 15, 1995).

(4) In light of the above legal principles, since the Plaintiff acquired 5,00 won per share of the non-party company's shares at par value of the non-party company's 10,00 won or more based on the above evidence, the Plaintiff entered into the instant agreement with the non-party company to the effect that "if the value of the non-party company's shares is more than 10,000 won per share of the non-party company's shares, the Plaintiff acquired the non-party company's shares, and then the KimA demanded the Plaintiff to perform the instant agreement because the value of the non-party company's shares per share exceeds 10,00 won per share and the value of the non-party company's shares was no more than that of the non-party company's acquisition, it is clear that the transfer of the shares was made through the implementation of the instant agreement, and there is no reason to view that the Plaintiff's net asset value was less than that of the non-party company's acquisition without any consideration for the non-party company's share shares.

(2) Whether the transfer of shares in this case has been revoked

According to each of the above facts, the plaintiff was aware of the fact of the fictitious payment and the window dressing accounting of KimA, and then caused a decrease in the stock value. It was not intended to compensate for losses arising from the transfer of the shares of this case by cancelling the agreement of this case or the share transfer contract of this case and returning the shares of this case. However, by allowing KimA to actually pay to the non-party company the total amount of KRW 5,00,000,000, which was the fictitious payment of the shares of this case, the first agreement of this case was made with KimA to compensate for losses in a way that restores the actual value of the shares of the non-party company. In order to secure the implementation of the agreement, the plaintiff requested KimA, etc. to provide the non-party company's shares as collateral. Since the above agreement was not implemented, the plaintiff could only receive 748,006 shares out of the purpose of the above collateral by exercising the security right, and the plaintiff's assertion that part of the shares of this case was revoked by the agreement of this case or contract of this case is without merit.

(3) Whether the assessment of tax base is appropriate or not

In the event of the fictitious payment of shares, a stock company appears to have lent the most advanced payment to the shareholders, and the stock company can be deemed to have paid shares in advance. Thus, in the evaluation of the transfer value of shares, the assessment of net asset value of the stock company based on the net asset value of the company including loans to the above shareholders or bonds for repayment of overdue payment, and based on the tax base is lawful. However, if there are special circumstances where the shareholder who made the fictitious payment as above at the time of the transfer of shares, such special circumstances as the one who made the fictitious payment as above, it cannot be deemed as the basis for the tax base (see, e.g., Supreme Court Decision 2005Du5574, Aug. 23,

In light of the above legal principles, the non-party company loaned KRW 400,000,000 among KRW 5,00,000,000,000, which was the most paid as above, to KimA, purchased shares and other investment securities of UU in a special relationship with KimA. The acquisition value of the above shares in 1999 was stated as KRW 7,20,000,000, but the actual market value was less than KRW 1,50,000,00,00. In addition, in light of all the circumstances such as the above, the non-party company's imposition of gift tax on KimA, but KimA judged that it was insolvent, the non-party company's net asset value was also assessed as the most paid 5,00,000,000, and the non-party company's net asset value was also considered as illegal.

(4) The theory of lawsuit

Therefore, since the transfer of the instant shares cannot be deemed as a gift because it constitutes a quid pro quo act accompanied by a quid pro quo relationship, the instant disposition based on the premise that the Plaintiff donated the instant shares to KimA is unlawful, and even if the transfer of the instant shares is deemed as a gift by household affairs, the Defendant did not have the stock value according to the best payment in calculating the tax base for the imposition of the gift tax of this case, but assessed the value of the shares by reflecting the value of the assets which have no possibility of recovery.

3. Conclusion

Therefore, the plaintiff's claim 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, and it is so decided as per Disposition after cancelling the judgment of the court of first instance and cancelling the disposition of this case.