Supreme Court-2013-Du-24495 ( October 12, 2015)

Profit from exercising preemptive rights is subject to taxation.

Where any profits accruing from transactions which increase or decrease the capital of a corporation, such as conversion of stocks by preemptive rights, and which exceed the standard prescribed by Presidential Decree, such profits shall be deemed the value of donated property of the person who has

Article 42 of the Inheritance Tax and Gift Tax Act: Donation of other profits

Busan High Court 2015Nu73 Disposition Revocation of Imposition of Gift Tax

Fixed00

a) the Director of the Tax Office

Supreme Court Decision 2013Du22495 Decided February 12, 2015

December 13, 2017

January 24, 2018

1. The plaintiff's appeal is dismissed.

2. The plaintiff's claim that is changed in exchange in the trial is dismissed.

1. Purport of claim

On December 1, 2010, the Defendant: (a) imposed a gift tax of KRW 5,56,540, KRW 67,711,720, KRW 521, KRW 520, KRW 521, KRW 571,758,930, KRW 209, KRW 120,721, and KRW 60,726,840, KRW 82,546, and KRW 82,546,920; and (b) imposed a gift tax of KRW 29,911, KRW 630, KRW 36,110, KRW 36,650, KRW 27,80, KRW 109, KRW 354,630, KRW 6630, KRW 37,01, KRW 377,050, and KRW 46,50, and each of the above imposed penalty taxes is revoked ex officio; and (b) revoked each of the first imposed penalty tax.

2. Purport of appeal

The decision of the first instance shall be revoked. Each disposition of the Defendant rendered by the Plaintiff at KRW 5,56,540, and KRW 67,711,720, and KRW 52,758,930, and KRW 120,721,560, KRW 60, KRW 60, KRW 60, KRW 82, and KRW 82,546,920 shall be revoked.

1. Details of the disposition;

"Aaaaa corporation (hereinafter referred to as "aa") is a corporation on the KOSDAQ market, which is engaged in the business of manufacturing steel pipes, and bbb corporation (hereinafter referred to as "bb") is a corporation incorporated in the division of the part of the manufacturing industry in Aa on July 1, 2004, "(a) and (b) BB are a corporation incorporated in the division of the part of the manufacturing industry in Aa on July 1, 2004"(b) and (a) and (b) BB issued separate type of bonds with warrant around December 14, 204, respectively, and the contents of the warrant certificates are as follows:

- - omitted -

"The plaintiff acquired new shares issued by Aa and BBB as stated in the following table after purchasing part of the above warrant certificates of Aaa and BBB issued in the following table (hereinafter referred to as "the transaction of this case where the plaintiff purchased the warrant certificates of this case after the plaintiff purchased them as "the preemptive right certificates of this case" and purchased them as "the transaction of this case").", - omitted -

D. The Defendant determined that the Plaintiff’s exercise of the purchase of the warrant certificates of this case constitutes a donation of other benefits arising from capital transactions between unrelated parties to a transaction that acquired new shares of Aaa and BB, and that the Defendant imposed KRW 1,000,26,240 on the Plaintiff pursuant to Article 42(1)3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “Inheritance Tax and Gift Tax Act”) on December 1, 2010, pursuant to Article 42(1)3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “instant disposition”). - omitted.

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on February 28, 201, but was dismissed on February 19, 2012.

F. The Plaintiff filed the instant lawsuit seeking revocation of each of the dispositions in this case. Meanwhile, the Defendant accepted the Plaintiff’s claim that the payment notice was unlawful because no additional tax was classified by type in the process of the instant lawsuit and the grounds for withdrawal was not stated therein, and revoked the imposition of additional tax ex officio, and on May 11, 2015, imposed the amount obtained by saving the original unit from the amount of additional tax before the penalty tax was imposed as additional tax, but the type of additional tax is divided (additional tax in good faith and general non-reported penalty tax) and the basis for calculation was stated.

[In the absence of dispute over recognized facts, Gap evidence 1 through 4, 6, 8 through 10, and Eul evidence 1 through 7, 18, 25 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings.

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

A. The plaintiff's assertion

(1) The first argument

The Plaintiff’s economic benefits derived from the exercise of the instant warrant certificates were purchased from the Plaintiff’s purchase of the said warrant certificates with the risk of stock price fluctuations and thereafter the price increase in Aaaa and BBb. Accordingly, the Plaintiff’s imposition of gift tax on the Plaintiff is unlawful, since it does not fall under the gains from the transfer of listed stocks, but is not due to a third party’s donation.

(2) The second assertion

"The plaintiff's acquisition of warrant certificates of this case from a third party who does not have special relation with the securities company at the market price, domestic acquisition price falls short of the market price, considering the process of acquisition and exercise of the above preemptive right in light of the circumstances of acquisition and exercise of the above preemptive right, and there is a justifiable reason in light of the transaction practice stipulated in Article 42 (3) of the Inheritance Tax and Gift Tax Act."

Even if the Plaintiff’s acquisition of warrant certificates of this case and the exercise of gift tax are subject to imposition, it is judged that the Plaintiff is not subject to taxation on the same grounds as paragraphs (1) and (2) above. The Plaintiff’s imposition of penalty tax is unlawful on the ground that there are justifiable grounds for the Plaintiff’s failure to properly perform its duty

B. Relevant statutes

It is as shown in the attached Form.

C. Determination on the first argument

Article 42(1)3 of the Inheritance Tax and Gift Tax Act provides that “Where profits are acquired from transactions that increase or decrease the main text of a corporation, such as a conversion of stocks by preemptive rights, and which are equivalent or higher than that prescribed by the Presidential Decree, such profits shall be deemed as the value of property donated to the person who has acquired such profits.” Article 31-9(1)4 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “Where the amount calculated by subtracting the value of stock conversion, etc. from the value of stocks at the time of stock conversion, etc. is not less than 100 million won, the amount shall be the corresponding amount.” Thus, this provision does not relate to the issue of whether the acquisition value of preemptive rights and the value of stocks at the time of stock conversion, which are subject to taxation on the difference between the acquisition value of stocks and the

Therefore, the plaintiff's first argument is without merit.

D. Judgment on the second argument

Article 42(1) of the Inheritance Tax and Gift Tax Act provides that gift tax shall be imposed on the benefit acquired from the transaction by an abnormal method. However, the legislative intent of the said provision is to cope with variable gift acts and to ensure fair taxation by offering the said benefit. However, if the said provision does not coincide with the interests of the parties in the transaction, barring special circumstances, it would be an exceptional reason to allow the parties to the transaction to gain gift from the said benefit while offering an opportunity to obtain gift from the said transaction. As such, Article 42(3) of the Inheritance Tax and Gift Tax Act provides that if there were reasonable grounds to believe that the parties to the transaction should obtain benefit from the acquisition and exercise of preemptive rights by appropriately reflecting the objective exchange value of the transaction, or if there were no reasonable grounds to believe that the said transaction was conducted by the parties to the transaction from the viewpoint of an economic person, such as where there were no reasonable grounds to believe that there were no legitimate reasons to believe that there were no legitimate reasons to believe that there were no legitimate reasons to believe that there were no legitimate reasons to believe that there were two different economic conditions between the parties to the transaction.

"(a) c. 5 d and e. 1 2 c. 5 c. 2 c. 5 c. 2 c. 5 c. 2 c. 5 c. 2 c. 5 c. 2 c. 5 c. 2 c. 5 c. 2 c. 5 c. 2 c. 5 c. 2 c. 5 c. 2 c. 3 c. 5 c. 2 c. 5 c. 5 c. 2 c. 3 c. 5 c. 5 c. 5 c. 2 c. 5 c. 3 c. c. 5 c. c. 5 c. , b. 5 c. c. 3 c. c. c. 5 c. c. , e. 2 c. c. c. 9 c. c. c. c. 2 c. 3 c. c. c. c. c. c. 5 c. c. g. g. g. g. g.

(C) In addition, even though there was a change to a certain degree in the share price of Aaa and BBB at the time of the acquisition and exercise of the instant warrant certificates, since the price of the instant warrant certificates was temporarily lowered temporarily thereafter, it appears within approximately 3,4 months that the original share price was recovered within the said period. Since there was sufficient time to avoid the time when the exercise period of the preemptive rights remains longer than 4 years, or when the price of the instant warrant certificates is under the increase in share price, there was a fundamental change in the share price, barring special circumstances, such as (a) and (b)bbbbbb, and there was a significant change in the share price; (b) it is difficult for the parties to the instant transaction to view that there was a significant change in the share price to make transactions between the Plaintiff and the Plaintiff, other than the Plaintiff, to make transactions between the Plaintiff and the Plaintiff, at a price lower than the theoretical price of the preemptive rights and to make transactions between the Plaintiff and the Plaintiff, other than the Plaintiff, within KRW 92,1900 million.

(D) At the time of the issuance of the warrant certificates of this case, the Plaintiff’s fatherf was the representative director Aa and BBB, and thefff and its specially related persons were holding 36.89% of the shares Aaaaa and bbbbb shares 4.18% of the shares, and transferor Cc and DD hold 52,450 shares of ggggg of a stock company with a special relationship withfff around 2007 and transferred them. In light of the above, even if the transferor and the Plaintiff did not have a direct special relationship as determined by the laws and regulations, they cannot be excluded from the possibility of affecting their trade.

(3) As such, there are various objective circumstances where it is difficult to view that the transaction of this case entered into between the transferor and the Plaintiff as justifiable reasons for the transaction’s practice under Article 42(3) of the Inheritance Tax and Gift Tax Act. Thus, it is necessary to prove that the Plaintiff submitted specific data and there are special circumstances to deem the transaction of this case as normal transaction. The data submitted by the Plaintiff in this case can not be sufficiently proved that there are special circumstances to deem the transaction of this case as normal transaction because it is difficult to know the specific circumstances about the transaction process of this case’s warrant certificates and the reasons for determining the transaction price." (4) Therefore, the second argument by the Plaintiff is without merit.

E. Judgment on the third argument

(1) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under the tax law is an administrative sanction imposed as prescribed by the Act in cases where a taxpayer violates various obligations, such as a declaration and tax payment, without justifiable grounds, and the taxpayer’s intentional negligence is not considered, and a mistake in the site of a statute does not constitute justifiable grounds that do not constitute breach of duty (see, e.g., Supreme Court Decision 2002Du10780, Jun. 24, 2004).

(2) Therefore, Article 42(1)3 of the Inheritance Tax and Gift Tax Act imposes tax on the difference between the acquisition value of preemptive rights and the value of stocks at the time of stock conversion. In addition, the above provision provides that profits above the standard prescribed by the Presidential Decree (the corresponding amount in case where the amount calculated by subtracting the transfer value, etc. from the value of stocks at the time of stock conversion is 100 million won or more) shall, in principle, be deemed as the value of donated property. Thus, the plaintiff who acquired the enormous profits of about 90 billion won or about 1.9 billion won due to the conversion of stocks upon the preemptive rights, etc. It appears that the taxation of the gift tax could have been sufficiently predicted. Accordingly, it is difficult to view that the plaintiff's economic profits it acquired fall under the transfer marginal profit of listed stocks at the time of stock conversion, or that there was no justifiable reason to view that the plaintiff did not constitute a transaction under Article 42(1)4 of the Inheritance Tax and Gift Tax Act because it did not constitute a justifiable reason for the plaintiff to be subject to the gift tax.

(3) Therefore, the third argument by the Plaintiff is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed in its entirety due to the lack of reason. Since the part of the disposition of this case (excluding the principal tax of gift tax excluding the additional tax) in the judgment of the court of first instance is just, the plaintiff's appeal is dismissed, and the plaintiff's claim (the part of the disposition imposing additional tax as of May 11, 2015) that is changed in exchange from the court of first instance is dismissed (the part of the disposition imposing additional tax as of May 11, 2015). It is so decided as per Disposition by the court of first instance on the part of the lawsuit seeking revocation of the disposition imposing additional