Cho High Court Decision 2010Da3684 (Law No. 1106.30)

To the extent that public officials in charge take different opinions, there are legitimate grounds for recognition.

The subject of gift tax based on the listing, etc. includes new shares with capital increase, and if public officials in charge of tax investigation take different opinions in the interpretation of the conflicting statutes, it is reasonable to deem that there is a justifiable reason that the Plaintiff is not liable to pay gift tax on the above listing marginal profits.

2011Guhap2802 Revocation of Disposition of Imposition of Gift Tax

CO

1. The Defendant’s disposition imposing gift tax of KRW 00 on the Plaintiff on July 7, 2010, in excess of KRW 000, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant.

The Defendant’s disposition imposing gift tax of KRW 000 on the Plaintiff on July 7, 2010 is revoked.

1. Details of the disposition;

A. On December 8, 2004, the Plaintiff, who was an employee of the non-party company ○○ (hereinafter referred to as “non-party company”), acquired 3,000 shares issued by the non-party company, who was the non-party company at the time of acquisition of the shares issued by the non-party company (hereinafter referred to as “the first shares acquired”) from ○○○○○, who was the largest shareholder, etc. of the non-party company, pursuant to Article 41-3(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010).

B. The non-party company conducted capital increase with consideration on December 22, 2005. The plaintiff's shares owned by himself.

The shares of the non-party company (hereinafter referred to as the "new shares of this case") were acquired in KRW 000 per share of KRW 750 per share. The non-party company conducted a par split of KRW 1:10 on January 2008 and increased to KRW 37,500 per share. The shares of the non-party company were listed on the KOSDAQ market on January 25, 2008.

C. Busan regional tax office’s integration of Non-Party Company from August 10, 2008 to September 30, 2009

After effecting the intention, gift tax was imposed on the Plaintiff regarding KRW 000 of the profits accrued from the listing of 3,000 shares originally acquired (30,000 shares after the split-off of face value). However, gift tax was not imposed on the profits accrued from the listing of new shares with compensation in this case.

D. On January 25, 2010, the Board of Audit and Inspection issued a request to audit the business of Busan Regional Tax Office to impose a tax on KRW 000 on the profits accrued from the listing of the instant shares with compensation. On July 7, 2010, the Defendant imposed a gift tax of KRW 00 (including additional tax of KRW 000) on the Plaintiff as the value of donated property (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 17, 2010, but the Tax Tribunal dismissed the disposition on June 30, 201.

Facts without any dispute, Gap 1, 2, Eul 1, and 2, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1. The assertion that the listed marginal profits from stocks issued with capital increase are not subject to gift tax

① The language and text of Article 41-3(6) of the Inheritance Tax and Gift Tax Act provides that “in the application of the provisions of paragraph (1), new shares acquired through capital increase shall be included.” Since shares received through capital increase do not meet the requirements of paragraph (1) because they were not donated or acquired with compensation from the largest shareholder, it does not constitute Article 41-3(6) of the same Act. If gift tax is imposed on the listed marginal profits of shares acquired through capital increase on the ground that

② Meanwhile, even under the Commercial Act, shares paid for capital increase constitute independent shares separate from the original shares acquired at issue, and is not attached to the previous shares, and thus, it cannot be deemed that the previous shares acquired at issue are subordinate interests, and thus, they cannot be deemed as subject to gift tax.

③ In addition, in calculating the listing marginal profit under Article 31-6(4) and (5) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the amount of increase in the stock value from the date of donation to the date of listing by multiplying the amount obtained by the number of shares issued as of the date of donation as of the date of the date of settlement of accounts by the number of shares, and the listing marginal profit is calculated by subtracting this amount from the amount of increase in the stock value, considering the company’s net value from the date of donation to the date of listing as the amount of increase in the company’s net value. As such, the foregoing provision does not fully consider the change in the real value of the company’s capital increase in the calculation of the listing marginal profit on the premise that the said shares include only the shares received without compensation, which do not cause any change in the company

④ It is reasonable to interpret that the gift tax is not imposed only on the shareholder allocation method but also on the third party allotment method. Therefore, the instant disposition imposing gift tax on the exchange marginal profits of the instant shares is unlawful on the grounds that the listing marginal profits of the shares received through the offering of new shares are not included in the subject of gift tax under the interpretation of Article 41-3(1) and (6) of the Inheritance Tax and Gift Tax Act.

2) The assertion that Article 41-3(6) of the Inheritance Tax and Gift Tax Act, which is the basis of the instant disposition, is unconstitutional

Where stocks issued for capital increase are included in the scope of taxation on gift tax under Article 41-3(1) and (6) of the Inheritance Tax and Gift Tax Act;

① Article 41-3(6) of the Inheritance Tax and Gift Tax Act imposes gift tax on the listed marginal profits on the stocks received with consideration on the corporation. This is irrelevant to the legislative purpose of Article 41-3(1) through (3) of the Inheritance Tax and Gift Tax Act, which is to ensure tax balance by imposing tax on the profits arising from the listing in cases where the stocks received without consideration from the largest shareholder are listed. As such, the purport is to achieve the legislative purpose in an excessive way of imposing marginal profits on the stocks received with consideration for listing, it goes against the principle of excessive prohibition under the Constitution by impairing the appropriateness of the means, the minimum of damage, and the balance of legal interests.

② At the time of the juristic act which is subject to taxation, i.e., when more than five years have elapsed since the date when stocks were first donated from the largest shareholder, it is possible to know about the amount of donated property, and the amount of gift tax, thereby infringing on the legal stability and predictability of the taxpayer, and not imposing gift tax on such profits by calculating the profits accrued from listing, but by deeming the profits accrued from listing at the price after listing, the method of imposing gift tax after retroactively calculating the amount of donated property and the amount of gift tax which has already been determined based on listing.

(3) The subscription price for new shares is paid to the company by the shareholders for the subscription price for new shares and the issuance of new shares, and thus, the subscription price for new shares is received without compensation, notwithstanding the

The same gift tax shall be imposed as in case of Form, and shares shall be donated or paid from the largest shareholder in the initial special relationship among shareholders who have received the same payment for capital increase and issued new shares.

to impose gift tax on the listing marginal profits only for stockholders with acquired stocks.

there is no reasonable basis for discrimination, and unlike all other kinds of property donation, 5 from the date of donation

3 months from the date of listing, regardless of the date of donation, only for unlisted stocks listed in the year;

on the basis of the share price of the day, and thus, there is no reasonable reason to impose gift tax.

(4) The shares issued with capital increase shall be paid for the capital increase.

Despite the fact that the gift tax is levied on the shares that have been acquired with compensation, it shall bear the ability to pay.

Since Article 41-3 (6) of the Inheritance Tax and Gift Tax Act is contrary to the principle of intention, it is unconstitutional.

3) The assertion that there are justifiable grounds for not imposing additional tax

Even though the listing marginal profits of new stocks with consideration in the instant case constitute subject to gift tax, the Defendant imposed a gift tax on the listing marginal profits of new stocks with consideration in the instant case on August 10, 2009 under the opinion of the Board of Audit and Inspection after being pointed out by the Board of Audit and Inspection. Whether to impose gift tax on the listing marginal profits of stocks with consideration to be paid with consideration constitutes a conflict of opinion under the tax law among the tax authorities. Therefore, the Plaintiff cannot expect the return of gift tax and the payment of gift tax on the premise that this is subject to taxation from the beginning. Therefore, the Plaintiff’s nonperformance of obligation is deemed to have a justifiable reason, and thus, the part of penalty tax in the instant disposition is unlawful. Even if there is no justifiable reason due to conflict of opinion under the interpretation of the domestic tax law, the Defendant is not subject to taxation on August 10,

The result was notified. Since the plaintiff's failure to pay the amount of additional tax after the notification was made entirely by the defendant's wrong tax investigation result, it was illegal to impose the penalty tax amount incurred after August 10, 2009 on the plaintiff at least.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the assertion that stocks issued with capital increase are not subject to gift tax

A) The legislative intent of Article 41-3 of the Inheritance Tax and Gift Tax Act is to impose gift tax on a person with special interest, who, by imposing tax on listed marginal profits on the Korea Securities and Exchange (referring to those listed on the securities market or the KOSDAQ) for the purpose of obtaining enormous market profits through internal information that is not open to the public on the business management, where the largest shareholder, etc. donated stocks to his/her children and other specially related persons, or transferred them for a fee, by taking advantage of the profits increased by the listing of stocks for the purpose of preventing the abnormal change in the value of assets through taxation on the listing marginal profits into taxable objects. Meanwhile, Article 41-3(6) of the Inheritance Tax and Gift Tax Act is newly established as of December 18, 202. The above amendment aims to take only the listing marginal profits on the stocks that the largest shareholder received directly from the largest shareholder or acquired with compensation from the securities market or the KOSDAQ market as a means of tax evasion by excluding them from the securities market or the KOSDAQ. In other words, even if the largest shareholder did not use information on the management of the company, it is subject to be subject to taxation (Article 13).

(B) In addition, the language and text of Article 41-3(6) of the Inheritance Tax and Gift Tax Act provides that “the acquisition of stocks shall include new stocks that a corporation issues in order to increase its capital (including the amount of investments).” It does not distinguish whether the new stocks are issued by capital increase or capital increase without compensation, and whether it is a shareholder allocation or a third party allocation even with respect to capital increase. Therefore, according to the language and text of the above provision, it is interpreted that the scope of “acquisition of stocks, etc.” is included in both capital increase, capital increase, capital increase, and capital increase, and capital increase, which are paid to a third party, from among the requirements of Article 41-3(1) of the Inheritance Tax and Gift Tax Act. In addition, the language and text of the above provision does not expand the scope of “stocks”. Accordingly, it cannot be deemed that only the capital increase is the same as the capital increase, as the capital increase originally acquired stocks meet the requirements of Article 41-3(1) of the Inheritance Tax and Gift Tax Act as alleged by the Plaintiff.”

In a case where the provision of Article 41-3 (1) of the Inheritance Tax and Gift Tax Act applies only to the case where new shares are issued, since the shares received without compensation from the relevant corporation are acquired without compensation from the relevant corporation, so an unreasonable result not to meet the requirements of Article 41-3 (1) of the Inheritance Tax and Gift Tax Act is generated, and in applying the provision of Article 41-3 (6) of the Inheritance Tax and Gift Tax Act, since the acquisition of shares, etc. includes new shares, etc., which are acquired and allocated by the corporation following the issuance of new shares, and the provision of Article 41-3 (6) of the Inheritance Tax and Gift Tax Act includes the fact that the person who issues new shares is a corporation (i.e., the fact that shares are acquired by the corporation), it shall be deemed that the provision of Article 41-3 (1) of the same Act is not applicable to the issuance of new

D) In calculating the listing marginal profit under Article 31-6(4) and (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the Plaintiff only calculates the listing marginal profit subject to taxation by subtracting this amount from the increase in stock value in consideration of the company’s net value accumulated amount from the date of donation or the date from the date of acquisition to the

It does not take into account changes in the real value of the company due to the offering of new shares. Thus, it is alleged that the company does not include shares acquired as a beneficiary of the purpose of Article 41-3(6) of the Inheritance Tax and Gift Tax Act. However, Article 31-6(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act and Article 10-4(1) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 74 of Apr. 23, 2009; hereinafter the same shall apply) stipulate that the total amount of net profit per share shall be calculated as the net profit amount calculated pursuant to Article 56(3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act for the evaluation of the unlisted shares for the purpose of calculating the listed profits directly donated by the largest shareholder. In light of the same, it is difficult to view that the calculation of net profit and loss per share by the above method is based on the above provision to exclude shares acquired as a beneficiary of Article 41-3(6) of the Inheritance Tax and Gift Tax Act.

E) Therefore, in light of the legislative intent and contents of Article 41-3 of the Inheritance Tax and Gift Tax Act, the new shares under Article 41-3(6) of the Inheritance Tax and Gift Tax Act include new shares resulting from capital increase with consideration. As such, the Plaintiff

This part of the intentional assertion is without merit.

2) The determination on the assertion that Article 41-3(6) of the Inheritance Tax and Gift Tax Act is unconstitutional

A) As seen earlier, Article 41-3 of the Inheritance Tax and Gift Tax Act provides that “In cases where the largest shareholder, etc., who is in the position of using information on the listing of stocks, etc., donates unlisted stocks to a related party, etc. prior to listing, or transfers them for consideration, it shall be subject to taxation by the largest shareholder, not by itself, but by allocating profits from listing.” In such a case, Article 41-3 of the Inheritance Tax and Gift Tax Act provides that “The largest shareholder is not a donation, but by allocating profits from listing” (Article 41-3) of the same Act. Likewise, even if new stocks are acquired for consideration by paying the price for stocks, the said price is merely the price for the stocks themselves, not the price for listing marginal profits.” Moreover, the provision on listing marginal profits is limited to those for which the largest shareholder, etc., who is in the position of using information on the company’s management, etc., obtained more than the standard prescribed by the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the provision on listing marginal profits is not subject to taxation or disclosure.”

B) The taxation requirement under Article 41-3 of the Inheritance Tax and Gift Tax Act

(1) Any person having a special relationship with the largest shareholder, etc. of an unlisted corporation shall donate, obtain for consideration, or obtain new stocks of the unlisted corporation from the largest shareholder, etc.

(2) The relevant stocks shall be listed within five years from the date of donation or acquisition;

③ The above-mentioned specially related persons obtain profits above the standard under Article 31-6 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act due to an increase in the value of stocks listed on the listing. Therefore, all taxation requirements are satisfied only when they gain profits from the listing of stocks. Since Article 41-3(2) of the Inheritance Tax and Gift Tax Act provides that the listing gains shall be calculated on the basis of the settlement base date at the time when three months have passed from the listing date, it is possible to predict the value of donated property and the amount of gift taxes at the time when the taxation requirements are met. In addition, Article 41-3(1) of the Inheritance Tax and Gift Tax Act provides that the taxation shall be made by calculating the profits acquired from the listing under Article 31-6 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act in addition to the original taxable amount of gift taxes on the person who obtains profits from the listing under Article 41-3(3) of the Inheritance Tax and Gift Tax Act, as well as the increase in the value of stocks by listing, it cannot be deemed that the Plaintiff’s provision on the taxation basis of stocks per se.

C) In addition, Article 41-3 of the Inheritance Tax and Gift Tax Act, unlike the donation of a different kind of property, is subject to taxation, rather than the said property itself, and the size of the benefit can be assessed properly only after the listing is actually completed. Thus, it cannot be deemed that there is a discrimination against the case of donation of a different kind of property without reasonable grounds.

D) Therefore, Article 41-3(6) of the Inheritance Tax and Gift Tax Act cannot be deemed as unconstitutional against the principle of excessive prohibition, the principle of clarity of taxation requirements, the principle of equal taxation and the principle of ability to respond, and thus, the Plaintiff’s assertion on this part is without merit.

3) Determination as to the assertion on additional tax portion

A) Where a taxpayer violates various duties, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of a taxation right and the realization of a taxation right, penalty tax under tax law is an administrative sanction imposed as prescribed by individual tax law, and the taxpayer does not know his/her duties.

It is unreasonable to say that there is a justifiable reason to impose an obligation, such as when there is a circumstance that makes it difficult to present the relevant party or when it is unreasonable to expect the relevant party to fulfill the obligation (see, e.g., Supreme Court Decision 2003Du4089, Apr. 15, 2005). The tax law, which regulates the economic phenomena and transactions that are ordinarily wide and changing at all times, is difficult to interpret because it is technical, so it is extremely difficult to interpret it. Accordingly, there may be conflict between the interpretation of the tax law beyond a simple legal site or misunderstanding scope. In this case, if a taxpayer takes a different opinion from the Government’s opinion and thus, it is too harsh for the taxpayer to impose additional tax (see, e.g., Supreme Court Decision 92Nu2936,92Nu2943, Oct. 23, 1992). However, it cannot be deemed that there is no justifiable reason to impose an error on the taxpayer, i.e., a taxpayer’s duty return and payment without justifiable reason (see, Supreme Court Decision 205.

B) On August 10, 2009 through September 30, 2009, the Busan regional tax office conducted a tax investigation with respect to the non-party company's profits from the listing of the newly acquired stocks and imposed gift tax on the Plaintiff on the profits from the listing of the newly acquired stocks, but did not impose gift tax with respect to the listing profits from the listing of the new stocks at issue. According to the records of the evidence Nos. 3 and 4, the public official of the Busan regional tax office in charge of the listing profits from the listing of the new stocks at the time of the above tax investigation can be acknowledged that the Plaintiff did not impose gift tax with respect to the new stocks at issue by taking the same view as the Plaintiff after careful legal review. In light of the above facts, it is unreasonable for the Plaintiff as the taxpayer to believe that there is no liability to pay taxes with respect to the listing profits due to trust in the audit results of the Busan regional tax office. On the other hand, if public officials in charge of the tax investigation take conflicting opinions on the interpretation of other Acts and subordinate statutes, it cannot be deemed that there is no justifiable reason to impose gift tax on the Plaintiff.

C) Therefore, the part of the penalty tax in the instant disposition is unlawful, and this part of the Plaintiff’s assertion is with merit.

4) Sub-committee

The part of the Disposition in this case, which exceeds the balance of 000 won excluding the penalty tax (00 won), shall be revoked.

3. Conclusion

Thus, the plaintiff's claim of this case is accepted within the above scope of recognition, and the remaining claim is dismissed as there is no ground.