Seoul Administrative Court 2012Guhap1140 ( October 20, 2012)

Cho High Court Decision 201Do4766 ( December 29, 2011)

No title trust shall be deemed to have been made in a comprehensive share swap.

Even if the nature of a comprehensive share swap contract is distinguished from the acquisition of new shares acquired by capitalizing the surplus or in return for a merger, such circumstance alone cannot be deemed as a logical and inevitable title trust of the shares.

2012Nu25462 Revocation of Disposition of Imposition of Gift Tax

United Nations AAA

The director of the tax office.

Seoul Administrative Court Decision 2012Guhap1140 decided July 20, 2012

January 17, 2013

February 7, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s imposition of gift tax of KRW 000 against the Plaintiff on March 11, 201 shall be revoked.

(The plaintiff corrected the date of the above disposition in the appellate court).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. The reasons for the judgment of the court of first instance are reasonable and acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The defendant asserts that the disposition of this case based on the premise that the plaintiff constitutes a comprehensive stock exchange agreement, and that the shares acquired through a comprehensive stock exchange are separate shares acquired through a new legal cause, and that the subject of title trust is not a pre-title trust shares but a new shares acquired through a comprehensive stock exchange agreement, and that the new tax evasion possibility is likely to occur, and that the acquisition of new shares acquired through a comprehensive stock exchange agreement is distinguishable from the acquisition of gratuitous shares acquired through the transfer of surplus funds or the acquisition of new shares received in return for a merger.

(1) When the shareholders of a wholly owned subsidiary acquire the shares of a wholly owned subsidiary in lieu of the shares of the wholly owned subsidiary, the replacement of the shares of the wholly owned subsidiary constitutes not only the disposal of the shares of the wholly owned subsidiary according to their own will, but also the replacement of the shares of the wholly owned subsidiary, which are the previous shares of the wholly owned subsidiary, according to the exchange rate determined based on each property value under an all-inclusive share swap contract concluded by the company becoming a wholly owned subsidiary, and it is considered that the shares of the wholly owned subsidiary are substituted with the shares of the wholly owned parent company. (2) The argument that the above shares are not subject to the transfer of shares under Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 207, and the Inheritance Tax and Gift Tax Act, which are applicable to the disposition of this case, are not subject to the transfer of the shares under the title trust agreement or the exercise of rights, but also it is difficult to view that the plaintiff were separate from the above shares acquired under the title trust agreement.

3. If so, the defendant's appeal is dismissed for lack of reason.