Seoul Administrative Court-2016-Gu Partnership-53173 (Law No. 30, 2016)

Cho Jae-2015-Seoul Government-3452 ( November 06, 2015)

The scope of "employee" who evaluates the shares of the largest shareholder of title trust shares;

As long as the plaintiffs were registered as directors in the corporate register of the company of this case, they constitute employees.

Article 63 of the Inheritance Tax and Gift Tax Act

2016Nu708666 Revocation of Disposition of Imposition of Gift Tax

AA and one other

BB Head of the Tax Office and one other

Seoul Administrative Court Decision 2016Guhap53173 decided September 30, 2016

April 12, 2017

May 24, 2017

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance court shall be revoked. Each of the attached Table 1, which the Defendants rendered against the Plaintiffs on March 8, 2015, is listed as follows.

All the imposition of gift tax shall be revoked.

1. Quotation of judgment of the first instance;

The reasons for this Court concerning this case are as follows, except for the addition of the determination of the plaintiffs' new arguments in the trial under Paragraph 2 below, and therefore, it is identical to the entry of the reasons for the judgment of the court of first instance in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter referred to as "a summary term used in this case").

2. Additional determination

The plaintiffs asserted that the "employee" as a specially related person under Article 19 (2) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act refers to a person who actually establishes an employment contract relationship with the pertinent company and receives compensation for the provision of labor. It is merely registered as an officer on the corporate register, and there was no employment contract relationship with the pertinent company, and the plaintiffs who do not receive compensation cannot be deemed to be included in the above employees. Thus, the title trust of this case is a case where a person other than the largest shareholder, etc. receives the stocks, etc. held by the largest shareholder, etc. within the period stipulated in Article 47 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act and does not fall under the exception of the evaluation of evidence because it constitutes "where a person other than the largest shareholder, etc. receives the stocks, etc. held by the largest shareholder, etc. within the period stipulated in Article 47

The term "employee" under Articles 53 (3) and 19 (2) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act includes "employee of a corporation under control by investment" as the same concept as "employee" under Article 13 (6) 2 of the same Enforcement Decree. Thus, it includes employees of a corporation whose largest shareholder, etc. invests more than 30%. Article 4 of the former Enforcement Rule of the Inheritance Tax and Gift Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 425 of March 19, 2005) provides that "employee" means "executive, commercial employee, and other persons in employment contract relationship" with respect to the definition of employee, and Article 13 (4) 1 of the former Enforcement Decree of the Corporate Tax Act provides that "employee of a corporation for whom five years have not passed after the retirement of an officer under Article 43 (6) of the Enforcement Decree of the Corporate Tax Act." Article 43 (6) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 10690, Aug. 13, 2019, 19). 19). 194.

In full view of the above provisions, as long as the plaintiffs were registered as a director in the corporate register of the company of this case, they are employees, and there is no ground to view otherwise because they concluded an employment contract with the company and did not actually perform their duties or receive any remuneration, and in such a case, there is the need to regulate as a specially related person.

Therefore, the plaintiffs' above assertion is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance is justified, and all appeals by the plaintiffs are dismissed. It is so decided as per Disposition.