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(영문) 서울행정법원 2009. 01. 09. 선고 2007구합32747 판결
주식 저가매수 당시 특수관계자에 해당하는지 여부에 대한 판단 기준[국승]
Case Number of the previous trial

National High Court Decision 2006Du2563 (No. 28, 2007)

Title

Criteria for determining whether a person constitutes a person with a special relationship at the time of purchase of stocks

Summary

It is confirmed that the minutes of a special general meeting of shareholders, internal public notice, content-certified mail, statements by related persons, etc. are appointed as executive officers of the corporation before the purchase of stocks, and therefore the former owner of stocks and related persons are subject to gift tax on low-price acquisition of stocks.

The decision

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

Related statutes

Article 35 (Presumption of Donation at Time of Transfer of Low Price or High Price)

Article 13 (Methods, etc. of Contribution to Property Invested by Public Interest Corporations)

Text

1. The plaintiff's claim is dismissed.

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

Purport of claim

The Defendant’s imposition of KRW 5,65,184,00 in total on May 8, 2006 against the Plaintiff is revoked.

Reasons

1. Details of the disposition;

A. On December 6, 200, the defendant confirmed on December 6, 200 that the plaintiff acquired 80,000 shares of the company of this case (hereinafter referred to as "the shares of this case") from 00,000,000 won as shareholders of ○○ Tourist Hotel Co., Ltd. (hereinafter referred to as "the company of this case") at the price of 1 billion won, and then acquired 15,700 shares of the company of this case under the name of the plaintiff on January 30, 201, 15,700 shares, 25,000 shares under the name of 0,000 shares, 39,30 shares each of 39,30 shares in the name of ○○○○ on February 19, 200, 2000, 301, 15, 201, 30, 15, 201, 201, 30, 15, 2015, 15, 30.

B. On June 26, 2006, the plaintiff appealed to the National Tax Tribunal, but the National Tax Tribunal dismissed the plaintiff's appeal on May 28, 2007.

[Ground of Recognition] Unsatisfy, Gap evidence 1-3, Gap evidence 2, Eul evidence 1-5

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful and thus should be revoked for the following reasons.

1) Although the Plaintiff was not an officer of the instant company at the time of acquisition of the instant shares, the Defendant rendered the instant disposition against the Plaintiff on the premise that the Plaintiff was in a position as an officer of the instant company with an associate person, etc.

2) Even if the Plaintiff had been in a special relationship with ○○○, etc., the shares that the Plaintiff acquired from ○○, etc. is merely 15,700 shares transferred under the name of the Plaintiff, but the Defendant issued the instant disposition against the Plaintiff on the premise that the Plaintiff acquired the entire shares from ○○, etc.

B. Relevant statutes

Article 35 (Presumption of Donation at Time of Transfer of Low Price or High Price)

Article 13 (Methods, etc. of Contribution to Property Invested by Public Interest Corporations)

Article 19 (Inheritance Property of Financial Property)

Article 26 (Scope of Low Price, Transfer of Examination, and Specially Related Persons)

Article 43 (Non-Inclusion of Bonuses in Deductible Expenses)

(c) Fact of recognition;

1) Gamba is the mother of ○○, etc., and ○○, etc., are co-vered with each other. At the time of November 200, 200, Park○○ was registered as the representative director of the instant company, ○○ and ○○ was registered as the director of the instant company, and around that time, the instant shares were owned by ○○○ 25,000 shares (31.25%) 25,000 shares (31.25%) multiples (31.25%) and 30,000 shares (37.50%) each.

2) On November 15, 200, 200 a temporary general meeting of shareholders, ○○, a representative director of the instant company, and multiple ○○, held a temporary general meeting of shareholders, and “a resolution to appoint the Plaintiff as a joint manager together with Kim○, who had previously worked as the manager,” and on November 17, 200, held a temporary general meeting of shareholders again and made a resolution to appoint the Plaintiff as the president and the Plaintiff as the manager respectively. On November 27, 2000, ○○○, a representative director of the instant company, was dismissed from office at a temporary general meeting of shareholders held in Japan on November 26, 200, and thus, all business affairs were subject to the direction and approval of the Plaintiff, the president of the instant company, and made a public notice to the effect that the former executive officer was assigned to each business affairs without being required to do so.”

3) On November 29, 200, Kim Jong-soo sent to Park Jong-soo a certificate of content stating "I, on the grounds that "I would notify the principal that I will perform the previous duties until I will present the reasons specifically in writing, because I would not recognize his dismissal on the ground that he was the principal's total decision without justifiable grounds."

4) On December 6, 200, the Plaintiff entered into a share sales contract with ○○○, etc. with ○○, the Plaintiff’s wife, and ○○ Spanish Development Co., Ltd., operating the Plaintiff, to acquire the instant shares from 1 billion won, and remitted 1 billion won to ○○, etc., designated by ○○, etc. The details of transfer of 35,000 shares out of the instant shares to ○○○, and 15,700 shares out of the instant shares, each of which was entered into on January 30, 201, with 15,700 shares transfer to the Plaintiff, and 250 shares transfer to ○○○○, the Plaintiff’s 25,00 shares transfer to ○○○, the 25,00 shares transfer to 14,300 shares out of the instant shares to ○○○, and 205% transfer to 305% shares each of the instant shares under the name of 15,305% shares transfer (29, 25305% shares).

5) With respect to the case on November 3, 2004, where the plaintiff was introduced to the company of this case after he was employed as a management director on the Homan on November 2000, and then promoted to the company of this case around 2002, ○○○○, etc. was accused of the plaintiff by forging private documents, etc., he was present at the Busan District Public Prosecutor’s Office as a witness to the company of Busan, and "the company of this case was present at the end of October 200 at the time, and the representative director at the time of the registration was in effect ○○, who was the head of Kim○, operated the company of this case on behalf of the plaintiff. However, at the time of the appointment of the president, ○○ was appointed as the joint president as the ○○, and around one week after the appointment of the plaintiff as the head of ○○, Japan, ○○, Kim Jong-soo, who was present at the time of this decision and did not know that the plaintiff's hotel was operated at the time of his work.

6) On the other hand, on January 23, 2003, the Plaintiff made a written confirmation to the ○○○ that “the Plaintiff had purchased 39,300 shares out of the shares of this case by obtaining consent from the ○○○ on the last day of January 2001,” and made a statement to the effect that “the Plaintiff was the actual owner of ○○ Span Development Co., Ltd.” following an investigation conducted by an investigative agency on the case in which ○○ et al. filed a complaint with the Plaintiff by forging a private document forgery, etc. around 2004, the Plaintiff was investigated by ○○, etc., and “○○○ lending only lent the Plaintiff’s name, and thus is not related to the acquisition of the shares of this case.”

[Ground of recognition] Evidence Nos. 3, evidence Nos. 8, evidence Nos. 9, evidence Nos. 6 through 8, evidence Nos. 9-1, 2, evidence Nos. 10 through 13, evidence Nos. 15, Eul Nos. 16, evidence Nos. 17-4 and 5, and the purport of the whole pleadings

D. Determination

1) As to the plaintiff's first argument

가) 위 인정사실에다가 갑 제4호증의 1 내지 28의 각 기재와 변론 전체의 취지를 보태어 살펴볼 수 있는 다음과 같은 사정들, 즉 ① 서로 형제 사이인 배○인 등은 이 사건 주식의 양도 당시 이 사건 주식 전부를 보유함으로써 이 사건 회사를 출자에 의하여 지배하고 있었던 점, ② 이 사건 회사의 2000. 11. 15.자 임시주주총회 의사록에 원고가 김○수와 더불어 공동 관리사장으로 선임된 것으로 기재되어 있고, 이 사건 회사의 2000. 11. 17.자 임시주주총회 의사록에 김○수가 부회장으로, 원고가 관리사장으로 각 선임된 것으로 기재되어 있으며, 이 사건 회사의 2000. 11. 27.자 사내공고문에 김○수가 2000. 11. 26. 일본에서 개최된 임시주주총회에서 해임되었으므로, 모든 업무를 사장인 원고의 지시와 결재를 받아 처리하도록 기재되어 있고, 김○수가 박○애에게 발송한 2000. 11. 29.자 내용증명에는 해임에 불복한다는 내용이 기재되어 있는 점, ③ 원고의 소개로 2000. 11. 하순경 이 사건 회사에 관리이사로 입사하여 원고와 서로 우호관계에 있는 이○훈이 2004. 11. 3. 원고의 사문서위조 등 사건과 관련하여 검찰에서 조사를 받으면서 위 각 임시주주총회 의사록과 사내공고문, 그리고 내용증명의 기재내용에 대체로 부합하는 진술과 함께 원고가 김○수의 해임 이후 이 사건 회사의 관리사장으로서 결재를 하였다는 진술도 한 바 있는 점, ④ 원고가 현재 이 사건 회사를 실질적으로 운영하고 있음에도 불구하고, 김ㅍ수가 위와 같이 박○애에게 내용증명을 발송한 2000. 11. 29. 이후부터 이 사건 주식의 양수일인 2000. 12. 6.까지 사이에 작성된 이 사건 회사의 결재서류를 전혀 제출하고 있지 않은 점 등을 종합하여 보면, 원고는 이 사건 주식의 양수 당시 배○인 등이 출자에 의하여 지배하고 있던 이 사건 회사의 임원으로서 배○인 등과 사이에 법 시행령 제13조 제4항 제1호, 제6항 제2호, 제8항 제1호, 제19조 제2항 제2호, 제26조 제4항 제1호와 법인세법 시행령 제43조 제6항 제1호, 제4호의 각 규정에 의한 특수관계자의 지위에 있었던 것으로 인정된다.

B) Therefore, this part of the Plaintiff’s assertion is without merit.

2) As to the second argument by the Plaintiff

A) In full view of the following circumstances, i.e., ① the Plaintiff paid ○○○, etc. the acquisition price of the instant shares out of its funds after the Plaintiff acquired the instant shares, ② the Plaintiff acquired the instant shares from ○○, etc. by lending the name of ○○ and ○○○, etc., and made a confirmation or statement that “The substantial owner of ○○ Spanish Development Co., Ltd. is the Plaintiff,” the Plaintiff is not only 15,700 shares transferred under its own name, but also the shares transferred under the name of ○○ and ○○○○, etc.

B) Therefore, other Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

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