The imposition of gift tax of this case on the premise that the plaintiffs transferred the shares of this case at a price significantly higher than the market price is illegal.

The agreement on the acquisition of shares of this case, the revised agreement on the acquisition of shares of this case, and the meeting minutes of the board of directors are deemed to have been prepared in collusion with the plaintiffs in order to conclude the transfer value of the shares of this case as 12 billion won by the J and South KK.

2014Guhap5626 Revocation of Disposition of Imposing gift tax, etc.

YellowN et al. and two others

2 others, including two others

August 27, 2015

September 24, 2015

1. The imposition disposition of each gift tax stated in the separate disposition list against the plaintiffs by the defendant Jong-gu Tax Office or the Jungyang Tax Office shall be revoked.

2. Transfer income tax indicated in the separate disposition list prepared by the head of Pyeongtaek-si Tax Office against Plaintiff Yellow N

The part of the tax disposition exceeding 00 won shall be revoked.

3. The remainder of the claim of the plaintiff YN against the defendant Hahn's defendant Hahn is dismissed.

4. Of the costs of lawsuit, the part arising between the plaintiffs and the defendant Young Tax Office and the defendant Yangyang Tax Office

The Defendants bear the burden of 9/10 of the portion arising between the Plaintiff NN and the Defendant Pyeong District Director

The Yellow NN and the remainder shall be borne by each of the Defendant Lanjy Head of the tax office.

Cheong-gu Office

Each disposition taken by the Defendants against the Plaintiffs in the separate sheet of imposition shall be revoked.

1. Details of the disposition;

가. 상장법인인 주식회사 FF(2009. 4. 3. '주식회사 FF'에서 현재의 상호로 변경되었다. 이하 'FF'라 한다)는 2009. 4. 29. 제3자 배정방식의 유상증자(이하 '이 사건 유상증자'라 한다)를 시행하였고, 그 결과 보통주 10,256,410주(이하 '이 사건 FF 주식'이라 한다)가 권HH, 김AA, 김SS, 박JJ, 임KK, 전YY, 정TT, 조KK, 조HH, 최SS 등 10명(이하 '권HH 등 10명'이라 한다)에게 각 1,025,641주씩(주당 390원) 배정되었으며[총 인수대금은 40억 원(≒ 390원 × 1,025,641주 × 10명)이다], 이후 이 사건 FF 주식 전부가 2009. 5. 18.부터 2009. 9. 28. 사이에 합계 5,344,687,448원에 제3자에게 양도되었다.

B. On April 30, 200, the Plaintiffs transferred 3,120,000 shares issued by SS Co., Ltd. (hereinafter “SS”), an unlisted corporation held on April 30, 200 (= Plaintiff YellowN 2,805,00 shares + Plaintiff Kim K 145,000 shares + Plaintiff Song K 170,000 shares + hereinafter “instant SS shares”).

C. In view of the fact that the Plaintiffs transferred the instant SS stocks to F with a higher price than the market price (as KRW 3846 won/1 share, the total transfer price of KRW 12 billion) of the Plaintiff’s (hereinafter “instant disposition imposing gift tax”) and the head of the Korea Tax Office issued a revised and notified the Plaintiffs of gift tax for the year 2009 as indicated below (hereinafter “instant disposition imposing gift tax”).

D. On May 1, 2013, the lower court deemed that the Plaintiff NN was allocated the instant FF shares at a price lower than the market price (390 won/1 share) under the name of 10 persons, including the title trustee’s HaH (hereinafter “instant disposition imposing gift tax”) and notified Plaintiff NN of the KRW 00,000 for gift tax attributed to Plaintiff NN in 209 (hereinafter “instant disposition imposing gift tax”).

E. On August 1, 2013, the head of Pyeongtaek-si Tax Office issued a notice of correction and notification of KRW 00 of the transfer income tax for Plaintiff Yellow N on August 1, 2013 (hereinafter “instant disposition on imposition of the transfer income tax”) on Plaintiff Yellow N on the allocation of the instant F shares to a third party under the name of 10 persons, including title trustee HaHH, and then re-transfer the F shares to a third party (hereinafter “instant disposition”).

[Basis] Facts without dispute, Gap evidence 1, 2, 7's evidence 1 through 10, 15, 16, 17, 18's evidence 1, 2, 3, 4, 19's evidence 4-1, 2, 3, 5's evidence 1, 3, 3, 4, and 6's evidence 4-1, 2, 3, 5's evidence 4-1, 3, 4, and 6's whole purport of the pleading, and the whole purport of the pleading

2. The Plaintiffs’ assertion and relevant statutes

A. Summary of the plaintiffs' assertion

1) Although the Defendant, the Director of the Korea Tax Office and the Director of the Korea Tax Office deem the transfer value of the instant SS stocks to be KRW 12 billion, the Plaintiffs merely distributed the instant FF stocks to FF in the name of 10 persons, such as title trustee HH, etc., and it cannot be deemed that the Plaintiffs transferred the instant SS stocks to FF without any justifiable reason, and thus, the imposition of the gift tax on the instant 10 billion shares on a different premise is unlawful.

2) The Plaintiffs’ allocation of the instant FF shares falls under the exception grounds under Article 39(1)1(a) and (c) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “former Inheritance Tax and Gift Tax Act”) and thus, are not subject to gift tax. Even if otherwise, the Plaintiffs were to have allocated the instant FF shares in the name of HH, etc., 89.9% of the instant FF shares (the share ratio of Plaintiff Yellow NN among the instant SS shares) on the premise that Plaintiff Yellow NN acquired the entire FF shares, the imposition of gift tax of the instant case is unlawful.

3) The Plaintiff N should be deemed to have acquired only 89.9% of the instant FF shares, and transferred them. Thus, the instant disposition imposing the capital gains tax on the premise that the entire FF shares belonged to Plaintiff Yellow N is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

3. Determination of the transfer value of the instant SS stocks

According to Gap 5, 6, Eul's 2, 7, 8, 14-1, 2, and 3's statements, ① the plaintiffs and FL (the representative director at that time) entered into a stock acquisition agreement on March 13, 2009 that the plaintiffs will transfer the plaintiffs' shares of this case at 14 billion won, and the revised agreement on April 14, 2009 that the transfer price was reduced to 12 billion won (Evidence 6) was 30.5 billion won for each of the above 600 billion won for 50 billion won for 50 billion won for 600 billion won for 600 billion won for 605 billion won for 600 billion won for 605 billion won for 600 billion won for 600 billion won for 14 billion won for 605 billion won for 600 billion won for 50 billion won for 600 billion won for 500 billion won for 600 billion won for 14 billion won for each of 209.

However, in light of the following facts and the overall purport of the evidence and the oral argument revealed as follows, the above facts alone are insufficient to recognize that the transfer value of the instant SS stocks is 12 billion won, and there is no other evidence to acknowledge it. Rather, it is reasonable to deem that the Plaintiffs transferred the instant SS stocks to FF in KRW 4 billion, and as a result, received the instant FF stocks in the name of 10 persons, including the title trustee HH, in the name of the title trustee.

① FF의 실제 운영자는 이JJ와 남KK이고(이JJ는 등기상 지배인이기도 하다. 갑 제26, 29호증), 이들이 이 사건 SS 주식의 거래를 주도하였으며, 당시 대표이사 이PP는 이에 관여한 적이 없었던 것으로 보인다(갑 제24호증의 4). 한편 SS은 2008년경 매출감소 등으로 자금난을 겪고 있었는데, SS의 최대주주이자 대표이사인 원고 황NN는 경영정상화를 위해 투자처를 알아보던 중 창업투자회사를 운영하던 윤QQ을 통해 이JJ와 남KK을 알게 되었고, 윤QQ의 중개로 남KK, 이JJ와 아래 ②항과 같은 약정을 하게 되었다(갑 제26호증).

② On February 5, 2009, the Plaintiffs and SouthK drafted a basic agreement (No. 3) with the purport that the Plaintiff would transfer the instant SS stocks to FF that was scheduled to take over at the time of the Plaintiffs, and as a result, FF would distribute the shares equivalent to KRW 4 billion based on the new issue price issued by the FF with capital increase with consideration. The said basic agreement is that the transferee is the Z, while the transferee is the Z, and the Z is the operator of South KK (No. 24 evidence No. 7, No. 26).

(B) On March 12, 2009, the Plaintiffs and the J drafted a written agreement signed by the J in the capacity of management manager. In addition to the same content as the above basic agreement, the Plaintiffs, regardless of the transfer amount determined by F in the evaluation of the instant SS stocks, shall be paid in full by receiving the instant FF stocks in an amount equivalent to KRW 4 billion (Article 7), and this agreement shall include the content that the Plaintiffs and FF shall take precedence over the stock acquisition agreement to be concluded on the following day (Article 13).

③ In light of the following facts, the 12 billion won deposited by F in the bank account under the name of the Plaintiffs appears to have been returned to South KK again, and there is no data that the Plaintiffs paid the share capital to F separately.

On April 30, 2009, as indicated below, 12 billion won was deposited in the bank account in the name of the plaintiffs, and the money was immediately returned to the bank account in the name of Park JJ, HaH, Cho K, and KimS.

(B) The amount deposited into the bank account in the name of four persons, such as the above ParkJ on the same day, was withdrawn as the check as indicated below, and a considerable portion of the amount was immediately deposited into the bank account in the name of LL, AnsanW and UU (in the case of UU, May 7, 2009) (A evidence 1 to 14, 22-1 to 29).

GL Co., Ltd. is a company established by South KK to appoint its her mother as its executive officer, such as HanO, from HaB to HaB (Evidence No. 24-7), and BW is a branch officer of South KK from January 2008 to April 2008, and also a person who has conspireded to adjust the market price of MM stocks of the company from around January 2008 (Evidence No. 24-3, 7).

④ On July 20, 2009, SouthK prepared a written confirmation (Evidence A27) that “I will pay KRW 920,000,000 to Plaintiff Yellow NN of the transfer price of the instant SS shares by August 15, 2009, taxing KRW 8 billion out of the transfer price of the instant SS shares.”

⑤ From among the 38,461,538 shares newly issued through the offering of new shares, 28,205,128 shares excluding the FF shares (10,256,410 shares) of this case were allocated to 18 members, including ER. 18 members of EJ and South KK. The 18 members, including ER, are the relatives of EJ and South KK and the employees, etc. of the company they operated, and this J and South KK, from May 2009 to July 2009, immediately after the implementation of the offering of new shares, disposed of 28,205,128 shares excluding the FF shares (10,256,410 shares) through the open market during the period of 38,461,538 shares with the offering of new shares, and their location is unclear (Evidence No. 25-2, 34, No. 25-4).

(6) In light of the above circumstances, the above share acquisition agreement, the revised agreement on share acquisition agreement, and the meeting minutes of the board of directors are deemed to have been prepared in collusion with the plaintiffs in order to pretend that theJ and South K would be 12 billion won in the transfer value of the instant SS shares.

4. Whether the imposition of gift tax of this case is legitimate

Article 35 (1) of the former Increase Tax Act provides that "When the relevant property is acquired or transferred to a person falling under any of the following subparagraphs, an amount equivalent to the difference between the price and the market price thereof and the profits prescribed by Presidential Decree shall be deemed to be the value of donated property." Article 35 (2) of the same Act provides that "if the property is transferred to a third party at a price higher than the market price, the transferor of the property shall be deemed to be the value of donated property."

In the instant case, there is no evidence to acknowledge that the Plaintiffs and FF constituted “a person with a special relationship as stipulated in Article 26(4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23591, Feb. 2, 2012)” under the delegation of Article 35(3) of the former Inheritance Tax and Gift Tax Act. Thus, in order to impose gift tax on the Plaintiffs following a high-priced transfer of shares, it should be recognized that the Plaintiffs transferred the instant SS shares at a price significantly higher than the market price without a justifiable reason under Article 35(2) of the former Inheritance Tax and Gift Tax Act.

Article 26(6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "if the price of the asset transferred is 30/10 or more of the market price, the price calculated by subtracting the market price from the price of the asset transferred" under the delegation by Article 35(3) of the former Inheritance Tax and Gift Tax Act refers to "if there is a difference between the market price and 30/100 or more of the market price, the price of the stock in this case falls under "the price significantly high" as mentioned above, and as mentioned above, the transfer price of the stock in this case shall be deemed 4 billion won. Thus, when calculating the transfer price per share, 1,282 won (4 billion won ± 3,120,000 won ± 3,000 won, less than the market price claimed by the defendant (987 won/1 week) (=1,282 - 987 won/1 week). Thus, it is clear that the market price of the stock in this case is 30/100 (298/1000 won or less.

Therefore, the imposition of gift tax of this case under the premise that the plaintiffs transferred the instant SS stocks at a price significantly higher than the market price is unlawful and thus, it should be revoked.

5. Whether the imposition of gift tax No. 2 of this case is lawful

According to the instant exceptional reasons, the issuance price of new shares is lower than the market price by a listed corporation’s issuance of new shares in accordance with the method of offering new shares under the Capital Market and Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”). The “public offering method of securities” under Article 9(7) of the former Enforcement Decree of the Capital Markets Act includes the so-called “public offering of new shares” under Article 11(2) of the former Enforcement Decree of the Capital Markets Act (amended by Presidential Decree No. 24636, Jun. 21, 2013; hereinafter the same) (see Supreme Court Decision 2012Du25712, Feb. 27, 2014).

Article 11(2) of the former Enforcement Decree of the Financial Investment Services and Capital Markets Act provides, “If the number of persons who are solicited to subscribe is less than 50 persons as a result of the calculation under paragraph (1) and are less than 50 persons and it is possible to transfer the securities to 50 persons or more within one year from the date of issuance and if the securities meet the standards for resale determined and publicly announced by the Financial Services Commission, taking into account the type of securities and the nature of the acquisitor, etc., the securities shall be deemed a public offering.” According to the main sentence of Article 2-2(1)1 of the former Regulations on Issuance and Public Disclosure of Securities (amended by Act No. 2013-21, Jun. 25, 2013; hereinafter the same) upon delegation, the securities shall be deemed to have been transferred to 50 persons or more within one year from the date of issuance of the securities.

According to the statement in this case, FF was listed on the Korea Securities and Futures Exchange on June 1, 1989, and FF shares offered on or around November 2003, it satisfied the possibility of resale stipulated in the first sentence of Article 2-2(1)1 of the former Regulations on Issuance and Public Notice of Securities. Accordingly, even if the Plaintiffs were to receive a lower price than the market price of FF shares, it is not subject to gift tax because it constitutes an exception to this case, even if the Plaintiffs were to receive a lower price than the market price of FF shares.

Therefore, the imposition of gift tax No. 2 of the instant case on a different premise should be revoked as it is unlawful.

6. Whether the disposition of transfer income tax of this case is legitimate

As seen earlier, it is reasonable to view that the Plaintiff’s transfer of the instant SSS stocks to F and the payment for the allocation of the instant F F F stocks through the capital increase with the instant consideration is to be seen as having been made to F, and that there is no evidence to acknowledge that the actual owner of the Plaintiff Song T& and Kim K shares among the instant SSS stocks is the Plaintiff Yellow N, among the instant FF shares, the share reverted to Plaintiff Yellow N is equal to the share ratio of Plaintiff Yellow N among the instant SSS shares (=89.9% (=2,805,005,000 shares / 3,120,000 shares 】 100,000 shares x 2,00 second shares x 2,00 shares). The same applies to the amount reverted to Plaintiff Yellow N among the transfer proceeds acquired by the Plaintiffs after disposing of the instant F shares and disposing of the instant F shares.

Therefore, the part exceeding KRW 182,636,677 among the disposition imposing the transfer income tax of this case premised on the premise that Plaintiff Yellow NN acquired all of the instant FF shares (i.e., KRW 203,15,370 x 89.9%, and KRW below) should be revoked as it is unlawful.

7. Conclusion

Therefore, since the claim of this case and the claim against the defendant YK and TT against the plaintiff YN against the defendant YG and the defendant YN are all reasonable, they are entirely accepted. The plaintiff YN's claim against the defendant YN against the defendant YN is justified within the scope of the above recognition, and they are accepted only for the part. The remaining claim against the plaintiff YN against the defendant YN is dismissed as it is without merit. It is so decided as per Disposition.