Seocho 2014west 4551 (O4. 23)

The gains from the capital reduction under Article 42 (1) 3 of the Inheritance Tax and Gift Tax Act shall be calculated by applying mutatis mutandis Article 29-2 (2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act.

The benefit of donation from capital reduction under Article 42 (1) 3 of the Inheritance Tax and Gift Tax Act shall be applied mutatis mutandis by Article 29-2 (2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and whether the benefit constitutes a benefit above the standard prescribed by Presidential Decree shall be applied as the standard

Donation, etc. of other benefits under Article 42 of the Inheritance Tax and Gift Tax Act

The method, etc. of calculating profits for capital reduction under Article 29-2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and donation of other profits

2015Guhap6913

AA and 10 others

△△ Tax Office and three others

on January 20, 2016

on 03 October 2016

1. The Defendants’ imposition of each gift tax stated in the attached Form No. 2 or No. 6, each disposition No. 2 or No. 6, against Plaintiff MaximumCC, AB, MaximumD, E, and Nonparty 1F, is revoked.

2. The plaintiff's claim is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff A and the Defendant △△ Head shall be borne by the Plaintiff A, and the remainder between the Plaintiffs and the Defendants shall be borne by the Defendants.

Cheong-gu Office

Each gift tax imposition on the Defendants listed in the separate disposition list made by the Defendants against the Plaintiffs is revoked.

1. Details of the disposition;

A. The Plaintiff Company ○○○○○○ (hereinafter “instant company”) whose representative director is the Plaintiff Company is the Plaintiff Company is a non-profit corporation operating construction business, etc. on December 10, 1989. The instant company decided to reduce the capital on October 27, 2009, and reduced the shares 22,241 shares of thisGG (hereinafter “instant shares”) held as the auditor of the instant company on December 9, 2009 at a cost of KRW 00 per share (hereinafter “the instant capital reduction”). The shareholders composition of the instant company before and after the instant capital reduction is as follows ( Plaintiff HH, Han-II, J, Han-J, and Han-K are heirs of FF on October 19, 2014).

The shareholder's name and the number of shares (unit of share): The ratio of shares (unit of share: %) held before the reduction of capital (unit of share): The ratio of shares (unit of share: %) after the reduction of capital.

AA principal52,75052.752,75067.83

BBE 8,2598.268, 25910.62

MaximumCC 5,7505.755,7507.36

Maximum EE Spouse5,505.505,507.07

Han F5,005.05,006.43

Maximum Daehan 500.50500.64

GG22,2412.2400

Gohap100,00 100.00 77,759 9.95

B. The Defendants, on April 14, 2014, imposed the amount of gift tax on the Plaintiffs indicated in the separate sheet of disposition on each of the following grounds: (a) deeming that the Plaintiffs, a shareholder of the instant company, obtained the benefit under Article 42(1)3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “the Inheritance Tax and Gift Tax Act”); and (b) applying Articles 31-9(2)5(a) and 29-2(2)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 21881, Dec. 14, 2009; hereinafter “Enforcement Decree of the Inheritance Tax and Gift Tax Act”).

C. The Plaintiffs were dissatisfied with each of the dispositions of this case and filed an appeal with the Tax Tribunal on July 8, 2014, but was dismissed on April 23, 2015.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 (including satisfy number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

Article 39-2 of the Inheritance Tax and Gift Tax Act, Article 29-2(2)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and Article 42(1)3 of the Inheritance Tax and Gift Tax Act, and Article 31-9(2)5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act shall apply where a shareholder who has a special relationship with the shareholder obtains a benefit by capital reduction of shares of a certain shareholder. In the case of the Plaintiff, the latter’s law shall apply.

Since Article 31-9 (2) 5 (a) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act requires that the number of shares of shareholders who gain profits should be changed by stipulating that the shares shall be "the case where the shares are changed", this case cannot be applied. Since Article 31-9 (2) 5 (b) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the case where the appraised value is changed", it shall be applied to the plaintiffs who gain profits from the reduction of capital of this case without any change in the number of shares. However, the profits gained from the reduction of capital of this case are not less than 30% of the previous property value of the plaintiffs, and not less than 30 million won (the detailed contents are considered to be followed).

B. Relevant statutes

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

C. Determination

1) The relationship under Articles 39-2(1) and 42(1) of the former Inheritance Tax and Gift Tax Act

Article 39-2 (1) of the Inheritance Tax and Gift Tax Act provides that "in case where a large shareholder who has a special relationship with him obtains a benefit from the retirement of a part of a shareholder, the amount equivalent to such benefit shall be regarded as the value of donated property of the large shareholder concerned." In addition to the donation under Articles 33 through 41, 41-3 through 41-5, 44, and 45 of the Inheritance Tax and Gift Tax Act, in case where the benefit falling under any of the following subparagraphs is above the standard as prescribed by the Presidential Decree, such benefit shall be regarded as the value of donated property of the person who has acquired such benefit." In the application of the provisions of paragraph (1), Article 42 (3) of the Inheritance Tax and Gift Tax Act provides that "in case where it is deemed that there is a justifiable reason due to the transactional practice,

The text of Article 42(1) of the Inheritance Tax and Gift Tax Act provides that the said provision shall apply only to cases where a major shareholder gains a benefit from the company’s stocks, and Article 42(1)3 of the Inheritance Tax and Gift Tax Act shall not apply to cases where the said provision is applicable by its language and text, but also to supplement the gap in taxation that may arise from the provisions on taxation of other gift taxes under the Inheritance Tax and Gift Tax Act. In addition, Article 42(3) of the Inheritance Tax and Gift Tax Act provides that the said provision shall apply only to cases where justifiable grounds exist for transaction practice, and to cases where there are no justifiable grounds, Article 39-2(1) of the Inheritance Tax and Gift Tax Act shall apply to cases where a major shareholder gains a benefit from the company’s stocks, and Article 42(1)3 of the Inheritance Tax and Gift Tax Act shall not ask for whether there is a special relationship between the decreased shareholder and the other shareholder who gains a benefit from the capital reduction, on the premise that there is no justifiable reason under the transaction’s practice (it does not dispute

2) The taxation requirement under Article 42(1)3 of the Inheritance Tax and Gift Tax Act

Article 42 (1) 3 of the Inheritance Tax and Gift Tax Act provides that "the profits from the transactions that increase or decrease the corporation's capital, such as investment, reduction of capital, merger (including merger by division), division, conversion, acquisition, and exchange of shares by convertible bonds, etc. (hereinafter "stock conversion, etc.") or profits from the change of the company's shares or the price of the shares owned by such transactions. In this case, the relevant profits shall be the value obtained by subtracting the value of stock conversion, etc. from the value of the stock at the time of stock conversion, etc. in cases of stock conversion, etc., and in cases other than stock conversion, etc., the appraised difference of the relevant assets shall be the difference before and after

In combination with the main text of Article 42(1) of the Inheritance Tax and Gift Tax Act and Article 31-9(2)5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, if shares owned or profits derived from changes in the value of the corporation’s capital due to transactions that increase or decrease in capital (the appraised value of the relevant property) are above the standard prescribed by the Presidential Decree, such profits shall be deemed as the value of donated property to the person who has acquired such profits. Thus, when determining the taxation requirement of gift tax under the language and text of the above provision, the determination of whether the relevant profits acquired by the person who has acquired such profits (hereinafter referred to as the donee) are above the standard prescribed by the Presidential Decree shall be made. Such legal principle is supported by the fact that gift tax should be imposed on each person who has acquired such profits, and Article 42(1)3 of the Inheritance Tax and Gift Tax Act shall also apply to the reduction of capital between the shareholders who have no special relationship, and thus, all other shareholders who have obtained no special relationship,

According to these legal principles, in the case of the plaintiffs other than the plaintiff AA, the profits earned by each donee are not less than the standard prescribed by the Presidential Decree (30% or 300 million won of the value before capital reduction). Among each of the dispositions of this case, the part against the above plaintiffs is unlawful.

3) Calculation of the value of donated property under Article 31-9(2)5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act

Article 31-9 (2) 5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "in other cases that do not fall under stock conversion, etc. under the main sentence of Article 42 (1) 3 of the Inheritance Tax and Gift Tax Act, with respect to the benefit above the standard prescribed by Presidential Decree, if the difference in the value of the relevant property is at least 30/10 of the value of the relevant property before or after the change in the value thereof, or if the amount is at least 300 million won, the said difference in the value thereof shall be the same." The proviso

The main text of Article 31-9 (2) 5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides a standard for determining whether a person is a beneficiary beyond the standard prescribed by the Presidential Decree using only the terms used in Article 42 (1) 3 of the Inheritance Tax and Gift Tax Act. However, the formula provided in the proviso of Article 31-9 (2) 5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act and each item of the same Article does not contain more specific contents than the difference of the ownership or the appraised value of the relevant property before and after the change of the value. "(before and after the change - the changed shares) which is the content of item (a) 】 The value before and after the change - the value after the change, which is the content of item (b) 3 of Article 42 (1) of the Inheritance Tax and Gift Tax Act, is merely the difference of the relevant property before and after the change, and it is difficult to reasonably calculate the amount of capital after the change in the number of donations, as well as the total amount of changes in the above item (b).

Therefore, Article 42(1)3 of the Inheritance Tax and Gift Tax Act and the main sentence of Article 31-9(2)5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act are bound to apply mutatis mutandis to the appropriate provisions among several provisions under the Inheritance Tax and Gift Tax Act. However, the foregoing provision provides that "Article 28 through 29-3 shall apply mutatis mutandis to the main sentence of the former part of the Inheritance Tax and Gift Tax Act." In addition, it is reasonable to interpret the provisions of Articles 28 through 29-3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act in calculating the gains of donation due to capital transactions involving changes in share, i.e., capital transactions involving investment, reduction of capital, merger, or division. In addition, according to the main sentence of Article 31-9(2)5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the assessment of the relevant property should be determined based on whether the "value of the said property is at least 300 million won," and if such calculation is made by analogy of the capital increase under Article 29-2 of the Enforcement Decree.

[The appraised value per capital stock - the total number of capital reduction per stock paid upon retirement 】 the total number of capital reduction 】 the ratio of equity shares held by each donee 】 the number of capital reduction/total number of capital reduction shares held by each shareholder subject to capital reduction.

Meanwhile, the Plaintiffs asserts that the assessment method of securities under Article 63 of the Inheritance Tax and Gift Tax Act provides for the calculation of the assessment value of shares owned by each donee on the basis immediately before and after the reduction of the capital of this case, and that the calculation of the assessment value before and after the reduction of capital by using it is lawful as it is under Article 31-9 (2) 5 (b) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. However, the above assertion by the Plaintiffs is difficult to accept in light of the following: (a) (b) the calculation of the negative value is based on the calculation of the assessment value after the change; (b) the appraised value under the Inheritance Tax and Gift Tax Act is the weighted average of net asset value and net value after the reduction of shares; and (c) the assessment value is calculated based on the appraised value of shares owned before and after the reduction of capital; and (c) the assessment standard is contrary to the purport that Article 31-9 (2) 5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides for the taxation standard of KRW 300 million or more.

4) Determination on the instant case

A) Determination of taxation requirements by donee

Whether the value of the property before the reduction of capital by donee, the shares after the reduction of capital, the appraisal difference due to the reduction of capital, and the appraisal difference are above the criteria for gift tax assessment under the main sentence of Article 31-9(2)5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (30% or KRW 300 million) are as follows. Here, the value of the property before the reduction of capital calculated by multiplying the appraised value per share before the reduction of capital by the appraised value per donee's number of shares per share before the reduction of capital, and the ownership ratio prior to the reduction of capital is seen above. The appraisal difference due to the reduction of capital was calculated by multiplying the amount obtained by the subtracting 00 won per share paid to ○○○○○○ for the reduction of capital from the appraised value per share before the reduction of capital by 22,241 shares, and each donee's shares after the reduction of capital by 300 million won or more (the determination on whether the appraised value per share after the reduction of capital was equal to the total number of shares after the reduction of capital in capital in question in question in question.

(unit: %) per cent, won

The value of the property before and after the reduction of the donee / Capital / Equity ratio after the reduction / Whether the relevant evaluation difference by donee is more than 30 percent of the value before the reduction of the capital / Whether the evaluation difference is more

AAA○○67.83 ○○ Grant

AB○○ 10.62 ○○ ○○

MaximumCC ○7.36 ○○○ Division

Maximum EEO○7.07 ○○ Division

Chinese FF○○6.43 ○○ Division

LastD○○○0.64 ○○ 3 Parts

Consolidated ○○ 100.00 ○○

Meanwhile, the Plaintiffs asserted that the amount assessed per share prior to the reduction of capital calculated by the Defendants was not considered by the instant company on December 8, 2009, and that the amount assessed per share prior to the reduction of capital should be determined by taking into account the said amount. However, the Defendants calculated the amount assessed per share prior to the reduction of capital using the financial statements as of December 31, 2008, which was the end of the immediately preceding business year when the instant company performed the reduction of capital, without reflecting all transactions from January 1, 2009 to December 8, 2009, the Plaintiff merely reflected only the amount assessed per share prior to the reduction of capital, and it is difficult to view the amount as the amount assessed per share prior to the reduction of capital, and the Defendants as the Defendants have no choice but to use the financial statements as of December 9, 2009, in light of the following reasons.

B) Determination on the Plaintiff’s claim

In the case of Plaintiff A, the relevant evaluation difference by donee constitutes at least 30% or 300 million won of the value of the property before the reduction of capital as stipulated in the main sentence of Article 31-9(2)5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and thus, the relevant evaluation difference obtained by Plaintiff A is subject to gift tax. Therefore, the part against Plaintiff A among each disposition of this case (attached Form 1 disposition on the annual disposition No. 1) is justifiable.

C) Determination on the remaining plaintiffs' claims

As seen in the above list, in the case of the plaintiffs other than the plaintiff AA, the relevant evaluation difference by donee is not less than 30% or 300 million won of the property value before the reduction of capital as provided in the main sentence of Article 31-9 (2) 5 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and as such, gift tax may not be imposed on the above plaintiffs. Therefore, the part of each disposition of this case against the above plaintiffs (the disposition of imposition No. 2 or 6 of the attached disposition list)

3. Conclusion

Plaintiff A’s claim is dismissed as it is without merit, and the claim by the Plaintiffs other than Plaintiff A is justified. Of the litigation costs, the part arising between Plaintiff A and Defendant △△ Head is borne by Plaintiff A, who is the losing party, and the part arising between the remaining Plaintiffs and the Defendants is borne by the Defendants. It is so decided as per Disposition by the assent of all participating Justices.