early 2012west0652 ( October 30, 2012)

Where profits from listing stocks, etc. are taxed as gift tax, the scope of the largest shareholder;

The majority shareholder means one stockholder, etc. in case where the total number of stocks held by one stockholder, etc. and persons with a special relationship is the largest, and it is reasonable to interpret that it does not include persons with a special relationship, and the disposition imposing gift tax is unlawful.

2013Guhap3153 Revocation of Disposition of Imposition of Gift Tax

GuaAAA

The Director of Gangnam District Office

June 18, 2013

July 26, 2013

1. The part of the disposition imposing gift tax (including additional tax) in 2007 on the Plaintiff on October 4, 201 exceeds KRW 000,000, which the Defendant imposed on the Plaintiff on October 4, 201, shall be revoked.

2. The defendant shall bear the costs of the lawsuit.

The same shall apply to the order.

1. Details of the disposition;

A. On February 28, 2005, the Plaintiff acquired 12,000 shares ofCC (hereinafter referred to as "CCC") from DD (DD, hereinafter referred to as "DD") that was the largest shareholder of 80% of the shares of CC (hereinafter referred to as "CCC") at 000 won per share, and the above CC shares were registered with the Korea Securities Dealers Association on November 1, 2006. However, upon the notification of the Director of the Central Tax Office of China, the Defendant received 00 won in cash from DaB, acquired the shares of this case with its capital, and obtained 00 won in the listed market gains, and applied 200 won to the Plaintiff (hereinafter referred to as "the former Inheritance Tax and Gift Tax Act") and the former Inheritance Tax and Gift Tax Act (amended by Act No. 828, Dec. 31, 2007; hereinafter the same shall apply).

C. After that, according to the audit results by the Board of Audit and Inspection, the Defendant determined 00 won, which is the difference between the appraised value of shares and the actual acquired value, after the listing of the instant shares, as the taxable value of the gift tax, and added and notified the Plaintiff of KRW 00 on October 4, 201 (hereinafter referred to as “the disposition of this case”) that the instant stock transaction constitutes “the donation of profits arising from the listing of shares or the shares held in possession, etc.” under Article 41-3 of the former Inheritance Tax and Gift Tax Act.

D. On December 29, 201, the Plaintiff dissatisfied with the instant disposition, brought a request for trial with the Tax Tribunal on December 29, 201, and dismissed the said request on October 30, 2012.

[Ground of Recognition] The non-contentious facts, Gap evidence 1 to 3, and Eul evidence 1, and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

Article 43-1 (1) of the former Inheritance Tax and Gift Tax Act provides that "Where a person in a special relationship with the largest shareholder, etc. receives stocks of the relevant corporation from the largest shareholder, etc. or acquires them with compensation therefor, the former Inheritance Tax and Gift Tax Act shall be imposed on the Plaintiff by applying Article 43-1 (1) of the former Inheritance Tax and Gift Tax Act.

(2) The defendant's assertion

Article 19(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter the same) provides that "the largest shareholder, etc. under Article 41-3(1)1 of the former Inheritance Tax and Gift Tax Act is "the largest shareholder, etc.", and Article 22(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter the same shall apply) refers to the shareholder, etc. where the total number of shares held by a shareholder or one investor is the largest." However, since DD holds 80% of the shares ofCC, it constitutes an employee of a corporation controlled by DD by investment, i.e., a person with a special relationship with DD, and it constitutes the largest shareholder, etc. under Article 19(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 41-3 of the former Inheritance Tax and Gift Tax Act provides that “The shareholders, etc. who are the largest shareholders of the company are not specially related with the shareholder, etc. of the company,” and Article 41-1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “The shareholders, etc. of the company shall be subject to 10 years old Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the shareholders, etc. shall be subject to 10 years old Enforcement Decree of the Inheritance Tax and Gift Tax Act.” This provision provides that “The shareholders, etc. of the company shall be subject to 10 years old Enforcement Decree of the Inheritance Tax and Gift Tax Act” and “the shareholders, etc. of the company shall be subject to 1 year old Enforcement Decree of the Inheritance Tax and Gift Tax Act” and “the shareholders, etc. of the company shall be subject to 1 year old Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the shareholders, etc. shall be subject to 2 years old Enforcement Decree of the same Act and shall be subject to 1 year old Enforcement Decree of the same Act.”

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.