Based on the value of stocks appraised by supplementary evaluation methods, the value of donated property is legitimate for calculating the value of stocks acquired at low price among related parties.

The instant disposition that deemed that the transfer of shares constitutes a transfer at a low price between related parties on the basis of the value of the shares calculated under Article 56(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act is lawful.

Article 35(1) of the Inheritance Tax and Gift Tax Act (Donation of Benefits from Transfer at Low and High Price)

2016Guhap6760 Revocation of Disposition of Imposition of Gift Tax

AA

a) the Director of the Tax Office

April 13, 2017

May 18, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s gift tax on October 8, 2012, which was made on July 9, 2014 by the Plaintiff on July 9, 2014 x the original and additional taxes x the disposition of imposition of the source of tax x all.

1. Details of the disposition;

A. The Plaintiff was a shareholder holding 12,000 shares out of 40,000 shares issued by ○○ Stock Company (hereinafter “instant company”). On October 8, 2012, the Plaintiff acquired shares of the instant company from the former representative director (Resignation on September 20, 2012) ¡¿ (5,000 won in face value; hereinafter “instant shares”) per share 】 (total x KRW 13,000 per share).

B. The Defendant deemed that the Plaintiff’s acquisition of the instant shares constitutes a low-price acquisition among the related parties as stipulated in Article 35(1)1 of the former Inheritance Tax and Gift Tax Act (wholly amended by Act No. 1357, Dec. 15, 2015; hereinafter “former Inheritance Tax and Gift Tax Act”), according to the supplementary assessment methods stipulated in Article 63 of the same Act and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (wholly amended by Presidential Decree No. 25195, Feb. 21, 2014); and accordingly, the Defendant evaluated the instant shares as one 】 (i week 】 the value of donated property 】 the value of donated property 】 】 deemed as a 】 gift tax on the Plaintiff on July 9, 2014; 】 source 】 additional tax 】 source 】 】 source 】 】 (hereinafter “instant disposition”).

C. The Plaintiff filed an objection with the director of the Seoul Regional Tax Office, but was dismissed on September 25, 2014, and filed a request for a trial with the Tax Tribunal, but was dismissed on April 7, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 9, Eul evidence Nos. 1, 2, 5, 7, and 8, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i)the existence of transaction example

The company of this case, as the plaintiff's family company, entered BB, a specialized management company, as the representative director in around 2005, planned the repurchase or repurchase of shares and transferred shares. In 2007 and 2008, there were trading cases of the company's shares traded in KRW 5,000 per share price. Since there exist both factors of increase and decrease in the value of shares of this case, there was no special change in comparison with the above trading cases at the time of the above transaction. As such, the above transaction example reflects the objective exchange value of shares of this case, and thus, the defendant applied the supplementary evaluation method without considering such factors. Furthermore, the plaintiff and BB agreed to the price of shares of this case 】 (1 share price) considering all the business losses incurred during the period of a price negotiation and compensation and retirement allowances paid during that period 】 (2008) price of shares of this case between the plaintiff and BB constitutes reasonable market price.

(2) The illegality of the supplementary assessment methods under the Net Profit and Loss Value Act

Even if the supplementary evaluation method is applied, the instant company has concluded a construction materials manufacturing consignment contract with the construction company mainly, and made profits therefrom. Since the net profit amount has been sharply decreased since 2009 due to the invasion of the construction competition and the bankruptcy of the principal customers, and the deficit has been recorded in 2012, the instant company thereafter was sufficiently expected to change the net profit amount rapidly after the transfer date of the instant shares in light of the circumstances that the company had concluded a large corporate restructuring and even a low-income contract with the company, and subsequently, it was sufficiently anticipated that the net profit and loss amount would have changed rapidly after the transfer date of the instant shares. Therefore, it is inappropriate to properly reflect the future profit and loss amount based on the weighted average amount of the net profit and loss amount for the last three years in the evaluation of the instant shares. Therefore, the instant disposition made by evaluating the market price of the instant shares by

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether the transaction example of the instant shares can be recognized as the market price

In the case of unlisted stocks with low market value, the transaction value shall be deemed the market value and the stock value shall not be assessed based on the supplementary assessment methods stipulated in the Inheritance Tax and Gift Tax Act. However, since the market value means the objective exchange price formed through the general and normal transaction, in order to be recognized as the market value, the circumstances that can be seen as properly reflecting the objective exchange value at the time of the donation date should be acknowledged (see, e.g., Supreme Court Decision 2010Du26988, Apr. 26, 2012).

In full view of the purport of Gap evidence No. 9 and arguments, since the shares of the company of this case were traded in the form of transfer to BB, etc. from around 2005 to October 8, 2012 by the plaintiff's acquisition of the shares of this case (hereinafter "the base date of appraisal of this case"), except for the representative director BB, the plaintiff and the plaintiff's mother and her mother who actually controlled the company of this case, and the sale in 2007 and 2008 were made between the plaintiff, BB, and the above shareholders. The form of the transaction was also transferred to BB, etc. in 2007, and since some of them were transferred to BB, the plaintiff's shares were transferred to B, CCC, and DD again in the form of sale to BB from around 208, the plaintiff's assertion that the sale and purchase of shares of this case and the sale price of the shares of this case could not be viewed as the market price of the company of this case and its related parties.

2) Whether the supplementary assessment method based on the net profit and loss value per share is legitimate

A) The legislative purport of Article 35 of the former Inheritance Tax and Gift Tax Act is to: (a) in a case where profits equivalent to the difference between the price and the market price are, in fact, transferred free of charge through abnormal methods that manipulate the transaction price for the benefit of the transaction partner, thereby coping with and promoting fair taxation by imposing gift tax on the profits acquired by the transaction partner. However, since the transaction between unrelated parties does not coincide with each other; (b) it is generally difficult to view that the difference was donated to the transaction partner solely on the basis that there is a difference between the price and the market price; (c) thereby, Article 35(2) of the former Inheritance Tax and Gift Tax Act added taxation requirement that “for the transaction between unrelated parties,

Article 35 of the former Inheritance Tax and Gift Tax Act provides for the donation of profits from a transfer at a low price or at a high price and delegates the scope of "a person in a special relationship" to the Presidential Decree. Article 26 (4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "a person in a special relationship prescribed by Presidential Decree" refers to a person in a relationship falling under any of the subparagraphs of Article 12-2 (1) with a transferor or transferee, and Article 12-2 (1) 2 of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act provides that an employee (including an employee of a corporation under control by investment; hereinafter the same shall apply) shall be a specially related person, and Article 12-2 (1) 3 (a) and (2) of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act provides for the donation of profits from a transfer at a low price or at a low price. An employee shall include an

Comprehensively taking account of the overall purport of the arguments in the evidence Nos. 1 through 7, Nos. 5, 7, and 8, the plaintiff is a shareholder holding 30% of the shares issued by the company of this case as of the evaluation base date of this case, and the plaintiff has reached an agreement on the purchase price of shares held by BB from the time when the resignation of BB was discussed, and it is recognized that BB was transferred the shares of this case from BB on the evaluation base date of this case after about 18 days from the date when BB resigned as the representative director of the company of this case, and therefore, there is a special relationship between BB and the plaintiff. Accordingly, the defendant can only prove that the plaintiff acquired the shares from BB, who is a person with a special relationship, at a price significantly lower than the market price of this case, and there is no need to prove

B) Article 63(1)1 (c) of the former Inheritance Tax and Gift Tax Act and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, which provide for the supplementary method of appraisal of unlisted stocks, shall be the weighted average of net value per share (the weighted average of net value of profit and loss per share for the latest three years ± net value per share ± the weighted average of net value per share (the net value of the relevant corporation ± the total number of issued stocks ± the net value of the relevant corporation ± the weighted average of average value of profit and loss per share for the latest three years) and the net value per share (the weighted average of the value of profit and loss per share for the latest three years ± the net value per share 3 years x the net value per share 6 years x the net value per share 13 years x the average value of profit and loss per share 5 years x the net value per share 6 years x the net value per share 13 years x the net value per share before the base value of profit and loss per share).

Even according to the Plaintiff’s assertion, the instant shares do not constitute an unreasonable case to calculate the net profit and loss per share on the basis of “the weighted average amount of net profit and loss for the last three years” as stipulated by the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, such as “the case where the amount of net profit and loss for the last three years of the company in the last three years increases normally,” etc. Furthermore, in full view of the following circumstances revealed in light of the respective entries and arguments in the evidence Nos. 10 through 41 (including each number), as well as the purport of the whole oral argument, the instant shares do not constitute a case where the net profit and loss per share for the business year after the evaluation base date of the instant shares is expected to be sharply changed compared with the net profit and loss for the last three years of the previous three years under Article 56(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

Therefore, the Defendant’s calculation of the value of donated shares based on the value under Article 56(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act is lawful.

① From around 2009 to 2016, the sales amount and net profit and loss amount of the instant company were as indicated in the following table. Accordingly, from around 2009 to around 2012, the instant company: (a) from around 2009 to around 2012, the sales amount of KRW 330 million each year from around KRW 150 million to KRW 330 million; (b) the net profit and loss amount of KRW 610 million from KRW 30 million to KRW 600 million; (c) from around 2012 to around 2014, the sales amount and net profit and loss amount of KRW 140 million have increased; and (d) from around 2015 to around 2016, the instant company did not have been in a state where the sales amount and net profit and loss amount continuously decreased or did not have voluntarily decreased.

② It appears that rehabilitation procedures have commenced for some construction companies, which had been the main trading place of the Plaintiff from around 2009, due to the depression of construction games, and accordingly, the Plaintiff also had business difficulties, such as a considerable decline in sales. However, even if the Plaintiff conducted restructuring and reduced operating profits, it seems that it was possible to overcome this to a certain extent, and the economic situation has increased. As the economic situation has changed today, the evidence submitted by the Plaintiff alone cannot be deemed to have changed to a continuous and long-term construction competition since the business year to which the base date of appraisal belongs. As such, the evidence submitted by the Plaintiff is insufficient to predict the future profit and loss as much as it could not have predicted the future profit and loss based on the company’s past performance.

③ From the time of the Plaintiff’s petition for adjudication to the time of the instant lawsuit, the Plaintiff asserted to the effect that “BB was responsible for the business depression continued from 2010 to 2012, and was dismissed from the office of representative director to settle the instant shares. In light of the fact that the Plaintiff voluntarily assessed that not only the decline in sales from 2010 to 2012 of the instant company, but also the temporary business error of the instant company was an important cause.

④ Since the instant company’s sales and net profit and loss amount significantly decreased during the period from 2009 to 2011, which was the three years before the base date of appraisal before the base date of the instant transfer and gift tax, in calculating the weighted average amount of net profit and loss during the recent three years under Article 56(1)1 of the former Enforcement Decree of the Inheritance and Gift Tax Act, such a decline in the above sales and net profit and loss amount has been reflected

D. Sub-committee

Ultimately, the instant disposition that deemed that the transfer of shares constitutes a transfer at a low price between the related parties based on the value of shares calculated under Article 56(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act is lawful, and the Plaintiff’s assertion disputing such disposition is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.