Seocho 2012west 1953 (04.02)

It is unreasonable to consider the average value before and after the occurrence of reasons such as increase in capital, etc.

Unlike the allocation to the original shareholders, the period subject to evaluation from the following date of the resolution by the board of directors is different from the allocation of shares allocated to a third party among title trust. It is unreasonable to consider the previous and subsequent average amount as well as the capital increase due to the occurrence of causes such as capital increase before the evaluation base date

2012Guhap25590 Revocation, etc. of Disposition of Imposition of Gift Tax

Song AA

head of Sung Dong Tax Office

d March 19, 201

June 20, 2013

1. The following dispositions made by the defendant against the plaintiff shall be revoked:

A. The portion exceeding KRW 000, among the disposition imposing gift tax of KRW 000 as of January 10, 2012; (b) the portion exceeding KRW 000,000, out of the disposition imposing gift tax of KRW 00 as of December 6, 2012 (additional tax)

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 70% shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Each imposition of KRW 00,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00

1. Details of the disposition;

(a) Paid-in capital increase program of AAT;

1) On July 16, 2004, KimA and KimS entered into a comprehensive stock exchange agreement with TT, an unlisted corporation, the purpose of which is the development of cell therapy using stem cells, and changed its trade name on July 16, 2004, and following the approval of a temporary general meeting of shareholders on July 20, 2005 (hereinafter referred to as the “instant corporation regardless of the transfer or change of trade name”).

2) On March 3, 2004, the instant corporation passed a resolution to issue new shares at the meeting of the board of directors to allocate 7,905,00 common shares, and 113.7.) and attached Table 1 to the electronic disclosure system of the Financial Supervisory Service as stated above, and made a corrective report on January 24, 12005.

[Attachment 1] Public Notice for Capital Subscription issued on March 3, 2004

"3) On January 14, 2005, the corporation of this case decided on the board of directors on March 14, 2005 that "the subscription date for new shares shall be 100,000,000 shares for common shares as of February 11, 2005, and the subscription date for new shares shall be made by a subsequent resolution of the board of directors, and the forfeited or fractional shares shall be made, and the corporation of this case shall disclose it to the electronic disclosure system of the Financial Supervisory Service (hereinafter referred to as "the subscription date for new shares as of January 14, 2005 as of the date of the resolution of the board of directors")". The corporation of this case decided to allocate the actual right shares related to the subscription for new shares to a third party on March 12, 2005, and announced it to the electronic disclosure system on the same day.

B. Title trust of KimD

KimD through the borrowed name account, etc. opened through Kim R-G, a birthee, through the following:

I table 2) As shown in I table 2, the Plaintiff acquired the instant corporation’s shares in the name of 15 other than the Plaintiff, and completed entry into a transfer date on each transfer date. In other words, Daehan acquired the total of 4,417,076 shares by acquiring 4,00,00 shares in the name of White on September 15, 2004 (the following Table 2 ], and 15058,912 shares by participating in the capital increase with a shareholder assignment as of January 14, 2005, and assigned 15058,912 shares to the shareholder assignment as of January 14, 205 (the following Table 2 / Non-S highland’s shares), forfeited shares, forfeited shares with 18,300,00 shares with a third party allocation, and shares acquired 300,3000 shares under each of the instant shares under the name of 301,3081,2305.15.

[Attachment 2] Current status of title trust shares

(c)tax disposition;

1) 서울지방국세청장은 2011. 7. 21.부터 2011. 12. 23.까지 김AA에 대한 개인 및 재산제세통합조사를 실시하여， 관할세무서에게 @ 이 사건 주식의 명의신탁에 따른 증 여세를 부과하고，@ 김AA의 이자소득 및 기타 소득(주식회사 DD 주식 2，600，000주 양도계약 해지에 따라 위약금 0억원 받음)에 종합소득세를 부과하도록 제세결정상황표를 통보하였다.

2) Accordingly, on January 10, 2012, the Defendant imposed a gift tax of 000 won (including additional tax of 00 won) in 2005 according to the provision on deemed donation of trust property under Article 45-2 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 the Plaintiff on January 10, 201 (hereinafter “instant disposition imposing gift tax”).

On the other hand, on December 7, 2012, the Defendant, while proceeding in the instant case, revoked the taxation of the gift tax of the instant case ex officio, and notified the same amount of penalty tax again.

[Reasons for Recognition] The non-speed facts, Gap through 5, 9 through 12, 16, 19, and 20, and Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In order to avoid the obligation to report to the Financial Supervisory Commission or the Exchange, the pertinent shares were nominal in trust, and there was no tax avoidance purpose, and at least over-the-counter transactions were already paid with capital gains, so there was no tax avoidance purpose. In addition, when assessing the value of the stocks under Article 63(1) of the Inheritance Tax and Gift Tax Act and Article 52-2 of the Enforcement Decree of the same Act, the evaluation method varies if there is a cause of capital increase, merger, etc., such as capital increase or merger, etc., are issued within two months before or after the evaluation base date. In this case, the date when the cause of capital increase, etc.

B. Relevant statutes

Attached Form. The entry in the relevant statutes is as follows.

C. Determination on the imposition of gift tax of this case 1) Tax avoidance purpose

A) The former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007); and

The legislative purport of Article 45-2(1) of the Inheritance Tax and Gift Tax Act is to effectively prevent tax avoidance through the title trust system and realize tax justice. As such, the proviso of the same Article applies only when the purpose of the title trust is not included in the purpose of tax avoidance, and the burden of proving that there was no other purpose of tax avoidance in this case can be proved by means of proving that there was no other purpose of tax avoidance, but the nominal owner who bears the burden of proof has a clear and unrelated purpose with the tax avoidance to the extent that it is recognized that there was no purpose of tax avoidance in the title trust, and that there was no tax avoidance in the future at the time of the title trust (see Supreme Court Decision 2004Du1220, Sept. 22, 2006).

(B) If the whole purport of the pleadings is added to the descriptions in Gap's 1 to 4, 10, 11, and 1 and 2, the following facts may be recognized:

(1) The corporation of this case promoted capital increase with January 14, 2005 in order to resolve the problem of capital erosion at KRW 000 in the total amount of capital stock in 2005.

(2) As shown in Table 6, KimA purchased and sold the shares of the instant legal entity, and as listed in Table 7, the share ratio of the instant legal entity to the instant legal entity, including those in the instant shares in trust of the Plaintiff, and that of the KimA’s shares in the instant legal entity, is as listed in Table 7 of the following table

[Attachment 6] Details of sales and purchase of shares of the corporation of this case

[Attachment 7] Details of shares of KimA (including borrowed-name shares)

(3) KimA reported and paid capital gains tax and securities transaction tax as shown in [Attachment 8] with respect to the shares sold outside the country without going through the securities market.

[Attachment 8] Return and Payment of Transfer Income Tax

(4) In relation to the shares of this case, the omission of capital gains tax for the year 2005 is as shown in [Attachment 9].

C) Article 94(1)3 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) and Article 157(4) of the Enforcement Decree of the same Act are imposed capital gains tax on the transfer of stocks, etc. of the relevant stockholder and other stockholders in cases where the largest stockholder, i.e., stockholders who own stocks, etc. of a corporation, and other related persons own 3% or more of the aggregate of stocks, etc. of a corporation as of the end of the fiscal year immediately preceding that whereto the transfer date of stocks, etc. belongs, or where one stockholder and other stockholders as of the end of the fiscal year immediately preceding that whereto the transfer date of stocks, etc. belongs, or where the total market value of stocks, etc. of the relevant corporation owned by one stockholder and other stockholders as of the end of the fiscal year immediately preceding that whereto the transfer date of stocks, etc. belongs is 10 billion won

(2) In the event that a stock-listed corporation's shares are held more than 5% under Article 147 (1) of the Financial Investment Services and Capital Markets Act, the Financial Members Association and the Korea Exchange should be reported to hold more than 5% of the stock-listed corporation's shares in accordance with the purpose of exercising the management right of the corporation, and the obligation to report that the Plaintiff's assertion that the stock-listed corporation held more than 5% of the shares in title trust with the aim of selling the shares in this case without restricting the right to dispose of the shares in a free manner is less persuasive, and (3) KimA was the main purpose of obtaining profits from the market price by selling the shares in this case, and it is difficult to conclude that the shares in this case were transferred within the scope of 3% of the Income Tax Act because the shares in this case were transferred to a large shareholder, and there was no possibility that the transfer income tax would decrease within the scope of the transfer income tax due to sale or purchase of the shares in this case, and there was no possibility that the transfer income tax would decrease within the scope of the transfer income tax.

2) Calculation of the value of donation

A) Article 60 of the Inheritance Tax and Gift Tax Act provides that the value assessed by the method of evaluation under Article 63(1)1 (a) and (b) of the Inheritance Tax and Gift Tax Act shall be considered as the market price, and Article 63(1)1 (a) of the Inheritance Tax and Gift Tax Act provides that the stocks and equity shares traded on the Korea Stock Exchange shall be the average amount of the Korea Stock Exchange’s market price on a daily basis as indicated before and after the evaluation base date, respectively, for two months before and after the evaluation base date, in cases where it is inappropriate to apply on the average amount due to a cause of increase or merger hill during each two months before and after the evaluation base date, the average amount of the period calculated under the conditions as prescribed by the Presidential Decree during each two months before and after the evaluation base date shall be calculated, and Article 52-2(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the average amount of the securities, etc. during which two months after the evaluation base date occurred shall be deemed as the market price until the date after the evaluation date.

As can be seen, the method of calculating the appraised value of listed stocks from the date following the date on which the cause occurred in cases where new stocks are issued on or before the date of evaluation under the proviso to Article 63 (1) 1 (a) of the Inheritance Tax and Gift Tax Act and Article 52-2 of the Enforcement Decree of the same Act, and the method of calculating the appraised value of listed stocks should be taken into account that the cause of capital increase, merger, etc., such as transfer of rights and subsequent stock price change has a significant impact on the formation of future stock prices (see Supreme Court Decision 2003Du5358, Jan. 13, 2005). In other words, in order to promote the balance of evaluation based on price decline, etc., the stocks of a stock-listed corporation with the securities market shall be evaluated by reflecting the average closing value for the last two months and four months after the evaluation base date, and it shall be deemed that the average value of the stocks before and after the capital increase has been maintained as of the market price, and it shall be deemed that there are unreasonable reasons after the consolidation or merger.

However, the capital increase through the issuance of new shares has a method of allocating shareholders and allocating a third party, and it is the process ofj capital increase.

There are various stages such as the resolution of the board of directors, the public notice of the plan for issuance of new shares, the public notice of the base date, the resolution of the board of directors on the third party allocation, the registration of stock price payment, and the registration of capital increase, and the evaluation period differs accordingly, so there is a conflict of opinions. (In this regard, the plaintiff asserts that the payment date of stock price should be the date of stock price payment in the case of the method of stock allocation, and the third party allocation should be the date of the resolution of the board of directors and the date of public notice in the case of

b)the allocation of shareholders;

In principle, the party who trades shares upon the public announcement of the increase in the capital is likely to have a significant impact on the formation of the stock price because the public announcement of the increase in the capital has been made because of the decrease in the price of shares caused by the increase in the increase in the capital. However, in the case of the stock allocation method, there is a right to determine the date of new shares allocation in order to determine preemptive rights, and to participate in the stock allotment. Meanwhile, in the case of a listed corporation, there is a right to participate in the purchase of shares by two days before the base date, and even if shares are purchased on one day before the base date, the value of shares on one day before the base date is lower than the value of shares on two days before the base date. The beginning price of the stock transaction after the following day is determined within a certain period on the basis of the closing price preceding the base date, and there is no need to reasonably reduce the number of shares before the first day of the stock exchange due to the decrease in the price of new shares by nine days before the base date (the average price before the first day of the stock exchange).

C) the allocation of shareholders and the allocation of a third party are conducted;

In the case of capital increase by the method of shareholder allocation, the third party allocation is made only for the forfeited stocks, and the number of new stocks and capital increase related to the capital increase is publicly announced due to the public announcement of the capital increase, and the stock price is newly formed due to the stock increase measures according to the method of shareholder allocation, so the resolution of the board of directors for the subsequent third party allocation is deemed not to have any special effect on the already formed stock price, and in the case, it is reasonable to regard the date following the date on which the date of the stock increase for the

D) Third party allocation method;

Article 418(2) of the Inheritance Tax and Gift Tax Act is limited to cases where it is necessary to introduce new technology, and to achieve the managerial purpose of the company at the end of the improvement of the financial structure, as long as the rights of shareholders are affected by the articles of incorporation, the third party’s capital increase in the method of allocating new shares are determined by the board of directors and the date of the public announcement thereof is considerably affected by the formation of the price of shares (the Plaintiff’s capital increase in the method of allocating new shares is, in principle, based on the payment date of the capital increase in the method of allocating new shares to third party under Article 29(3)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the net asset value per share or share, which is formed by mixing new shares with new shares and old shares, are reduced, and the net asset value per share becomes lower than the previous price of shares. Therefore, the third party’s capital increase in the method of allocating new shares is determined by the board of directors and the date of public announcement is determined by the board of directors (see Article 418(2).3).

E) With respect to the instant case, the capital increase in the first week and third party allocation method with respect to the title trust stocks of March 15, 2005, both were the date on which the right has been terminated within 2 months before the base date of appraisal as of March 15, 2005, and the date on which the corner of the right has occurred, and the period subject to appraisal is from February 7, 2005 to May 15, 2005, and the assessment price per share is 226 won.

Unlike the initial allocation to shareholders with respect to the third party shares out of the title trust as of March 15, 2005, the defendant takes the period subject to evaluation from January 17, 2005 to May 15, 2005 (from January 15, 2005, and January 16, 2005) (from January 15, 2005, from January 16, 2005), which is the date following the resolution by the board of directors on January 14, 2005, unlike the initial allocation to the original shareholders. Therefore, it is unreasonable to consider both the previous and the subsequent average amount due to the occurrence of any cause, such as capital increase, etc. before the evaluation base date, and thus

Therefore, when calculating the legitimate amount of gift tax as KRW 226 per share against the plaintiff, the amount of legitimate gift tax is KRW 000.

D. Determination on the imposition of additional tax

1) Each entry in Gap evidence No. 2 added the overall purport of the pleadings, and the defendants are recognized as having not stated the type of additional tax and the grounds for calculation in the notice when disposing of the global income tax and gift tax in the case.

However, the Defendant’s revocation of the imposition of additional tax on global income tax and gift tax in the instant global income tax and gift tax by ex officio and stated the type of and basis for calculation of additional tax, and thus, the fact that the Defendant again imposed and notified the amount of additional tax at a uniform amount of each global income tax and gift tax is identical as seen earlier. Therefore, the Plaintiff’s assertion on this part is groundless, which is premised on

2) In the imposition of gift tax in this case, if the gift gains are calculated by making the appraised value per share of KRW 226 won, the reasonable penalty tax is 000.

3. Conclusion

Then, the plaintiff's claim against the defendant is justified within the above scope of recognition.

The other claims shall be dismissed as it is without merit, and it is so decided as per Disposition.